Lender Liability

This panel will discuss the rise of unitranche credit facilities, the differences between unitranche credit facilities and more traditional debt structures, and the appeal of a unitranche structure to borrowers, sponsors and lenders. The panel will also discuss bankruptcy-related considerations when negotiating an Agreement Among Lenders (the intercreditor agreement governing the respective rights of lenders in a unitranche credit facility), as well as recent intercreditor litigation.

What happens when the lender or debtor is missing key documents or has inadequate documentation? What if there is a lack of original signatures? These and other practical topics will be discussed.

The existence of multiple bondholders can impose uncertainty and gamesmanship in a contest for economic gain from distressed corporate situations. The paper that they hold rarely tells the whole story; bondholders may have competing investments, undisclosed hedges and varying purchase price discounts that make it impossible to determine their true position. This panel will explore issues related to bondholder-led restructurings and takeovers, including the operation of ad hoc committees, the role of indenture trustees, conflicts, disclosures, subordination and deal structures.

This panel will examine and discuss the rights of oversecured lenders to obtain recoveries that go beyond principal and ordinary interest and recent case law dealing. The panel will focus on the right of oversecured lenders to recover late fees, reimbursement of attorneys’ fees, make-whole provisions/pre-payment premiums, original issue discounts and default interest.

This panel will discuss why experts are needed for cramdown analysis and other plan-confirmation issues raised by the Supreme Court’s decision in Till, including how to identify, select, prepare and present experts on Till confirmation issues.

Neither a borrower nor a lender be. But if you are a lender or borrower you need to avoid liability by adhering to policies, using checklists and knowing individual and institutional risks. Come explore the common and uncommon reasons why lenders face liability and ways to defend against and ways to prevent and minimize risks.

Does a secure creditor engage in inequitable conduct if it acquires debt, or makes a loan with the intent to acquire the debtor rather than collect on the loan? This panel will discuss “Loan-to-Own” and other common and singular Section 363 bidding and acquisition strategies, including the pitfalls and advances of each.

A detailed analysis of the many aspects of this important bankruptcy court decision.

This panel will discuss commonly negotiated clauses found in DIP loan facilities, including roll-up provisions, cross-collateral clauses, waivers of defenses and carve-out clauses. Priming might also be discussed, with an analysis of existing case law involving adequate protection, as well as suggested best practices from both the debtor’s and lender’s perspective.

This panel will address the entitlement of a secured lender with a "blanket lien" on a company’s assets to share in the going concern or enterprise value of that company when it is liquidated in a § 363 sale or otherwise dealt with under a chapter 11 plan. The circumstances under which such sharing in “going concern” value has been permitted, the cases on both sides of the issue, and the policy arguments in favor of and against the secured lenders’ right to access such value to satisfy its secured claim will be explored.