Corporate Financial Distress, Restructuring, and Bankruptcy

Total Page:16

File Type:pdf, Size:1020Kb

Corporate Financial Distress, Restructuring, and Bankruptcy k Trim Size: 6in x 9in Altman481805 ffirs01.tex V1 - 02/05/2019 7:46pm Page i Corporate Financial Distress, Restructuring, and Bankruptcy k k k k Trim Size: 6in x 9in Altman481805 ffirs01.tex V1 - 02/05/2019 7:46pm Page ii The Wiley Finance series contains books written specifically for finance and investment professionals as well as sophisticated individual investors and their financial advisors. Book topics range from portfolio management to e-commerce, risk management, financial engineering, valuation and financial instrument analysis, as well as much more. For a list of available titles, visit our Web site at www.WileyFinance.com. Founded in 1807, John Wiley & Sons is the oldest independent publishing company in the United States. With offices in North America, Europe, Australia and Asia, Wiley is globally committed to developing and marketing print and elec- tronic products and services for our customers’ professional and personal knowl- edge and understanding. k k k k Trim Size: 6in x 9in Altman481805 ffirs01.tex V1 - 02/05/2019 7:46pm Page iii Corporate Financial Distress, Restructuring, and Bankruptcy k Analyze Leveraged Finance, k Distressed Debt, and Bankruptcy Fourth Edition EDWARD I. ALTMAN EDITH HOTCHKISS WEI WANG k k Trim Size: 6in x 9in Altman481805 ffirs01.tex V1 - 02/05/2019 7:46pm Page iv Copyright © 2019 by Edward I. Altman, Edith Hotchkiss, and Wei Wang. All rights reserved. Published by John Wiley & Sons, Inc., Hoboken, New Jersey. Published simultaneously in Canada. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, scanning, or otherwise, except as permitted under Section 107 or 108 of the 1976 United States Copyright Act, without either the prior written permission of the Publisher, or authorization through payment of the appropriate per-copy fee to the Copyright Clearance Center, Inc., 222 Rosewood Drive, Danvers, MA 01923, (978) 750-8400, fax (978) 646-8600, or on the Web at www.copyright.com. Requests to the Publisher for permission should be addressed to the Permissions Department, John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, (201) 748-6011, fax (201) 748-6008, or online at www.wiley .com/go/permissions. Limit of Liability/Disclaimer of Warranty: While the publisher and author have used their best efforts in preparing this book, they make no representations or warranties with respect to the accuracy or completeness of the contents of this book and specifically disclaim any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives or written sales materials. The advice and strategies contained herein may not be suitable for your situation. You k should consult with a professional where appropriate. Neither the publisher nor author k shall be liable for any loss of profit or any other commercial damages, including butnot limited to special, incidental, consequential, or other damages. For general information on our other products and services or for technical support, please contact our Customer Care Department within the United States at (800) 762-2974, outside the United States at (317) 572-3993, or fax (317) 572-4002. Wiley publishes in a variety of print and electronic formats and by print-on-demand. Some material included with standard print versions of this book may not be included in e-books or in print-on-demand. If this book refers to media such as a CD or DVD that is not included in the version you purchased, you may download this material at http:// booksupport.wiley.com. For more information about Wiley products, visit www.wiley .com. Library of Congress Cataloging-in-Publication Data is available. ISBN 978-1-119-48180-5 (Hardcover) ISBN 978-1-119-48181-2 (ePDF) ISBN 978-1-119-48185-0 (ePub) Cover Design: Wiley Cover Image: © Ps Pong / Shutterstock Printed in the United States of America 10987654321 k k Trim Size: 6in x 9in Altman481805 ffirs01.tex V1 - 02/05/2019 7:46pm Page v Ed Altman dedicates this book to his wife and partner for over 50 years, Dr. Elaine Altman, whose support and advice have sustained him and helped in crafting these four editions over 35 years. Edie Hotchkiss dedicates this book to her husband Steven and daughter Jenny for their constant support. Wei Wang dedicates this book to his wife Ella and children Andrea, Mia, Julia, and Ethan for their endless love and inspiration. k k k k Trim Size: 6in x 9in Altman481805 f01.tex V1 - 02/05/2019 7:46pm Page vii Contents About the Authors ix Acknowledgments xi Preface xiii PART ONE The Economic and Legal Framework of Corporate Restructuring and Bankruptcy CHAPTER 1 k Corporate Financial Distress: Introduction and Statistical Background 3 k CHAPTER 2 An Introduction to Leveraged Finance 21 CHAPTER 3 An Overview of the U.S. Bankruptcy Process 39 CHAPTER 4 Restructuring Out-of-Court and the Cost of Financial Distress 71 CHAPTER 5 Valuation of Distressed Firms 91 CHAPTER 6 Corporate Governance in Distressed Firms 117 CHAPTER 7 Bankruptcy Outcomes 135 CHAPTER 8 International Evidence 147 vii k k Trim Size: 6in x 9in Altman481805 f01.tex V1 - 02/05/2019 7:46pm Page viii viii Contents PART TWO High-Yield Debt, Prediction of Corporate Distress, and Distress Investing CHAPTER 9 The High-Yield Bond Market: Risks and Returns for Investors and Analysts 165 CHAPTER 10 A 50-Year Retrospective on Credit Risk Models, the Altman Z-Score Family of Models, and Their Applications to Financial Markets and Managerial Strategies 189 CHAPTER 11 Applications of Distress Prediction Models: By External Analysts 217 CHAPTER 12 Distress Prediction Models: Catalysts for Constructive Change-Managing a Financial Turnaround 235 k CHAPTER 13 k A Bottom-Up Approach to Assessing Sovereign Default Risk 245 CHAPTER 14 The Anatomy of Distressed Debt Markets 265 CHAPTER 15 Investing in Distressed Firm Securities 277 CHAPTER 16 Modeling and Estimating Recovery Rates 295 References 315 Author Index 335 Subject Index 343 k k Trim Size: 6in x 9in Altman481805 fbetw01.tex V1 - 02/05/2019 7:46pm Page ix About the Authors Edward Altman is the Max L. Heine Professor of Finance Emeritus at New York University, Stern School of Business, and Director of the Credit and Fixed Income Research Program at the NYU Salomon Center. Dr. Altman has an international reputation as an expert on corporate bankruptcy, high-yield bonds, distressed debt, and credit risk analysis. He is the creator of the world-famous Altman Z-Score models for bankruptcy prediction of firms globally. He was named Laureate 1984 by the Hautes Études Commerciales Foundation in Paris for his accumulated works on corporate distress predic- tion models and procedures for firm financial rehabilitation and awarded the Graham & Dodd Scroll for 1985 by the Financial Analysts Federation for his work on Default Rates and High Yield Corporate Debt. He was a Founding Executive Editor of the Journal of Banking & Finance and serves on the editorial k boards of several other scholarly finance journals. k Professor Altman was inducted into the Fixed Income Analysts Society Hall of Fame in 2001 and elected President of the Financial Management Association (2003) and a Fellow of the FMA in 2004, and was among the inaugural inductees into the Turnaround Management Association’s Hall of Fame in 2008. In 2005, Dr. Altman was named one of the “100 Most Influential People in Finance” by Treasury & Risk Management magazine and is frequently quoted in the popular press and on network TV. Dr. Altman has been an advisor to many financial institutions including Merrill Lynch, Salomon Brothers, Citigroup, Concordia Advisors, Investcorp, Paulson & Co., S&P Global Market Intelligence and the RiskMetrics Group (MSCI, Inc.). He is currently (2018) Advisor to Golub Capital, Classis Capital (Italy), Wiserfunding in London, Clearing Bid, Inc., S-Cube Capital (Singapore), ESG Portfolio Management (Frankfurt) and AlphaFixe (Montreal). He serves on the Board of Franklin Mutual Series and Alternative Investments Funds. He is also Chairman of the Academic Advisory Council of the Turnaround Management Association. Dr. Altman was a Founding Trustee of the Museum of American Finance and was Chairman of the Board of the International Schools Orchestras of New York. Edith S. Hotchkiss is a Professor of Finance at the Carroll School of Management at Boston College, where she teaches courses in corporate finance, valuation, and restructuring. She received her AB in engineering and economics summa cum ix k k Trim Size: 6in x 9in Altman481805 fbetw01.tex V1 - 02/05/2019 7:46pm Page x x About the Authors laude from Dartmouth College and her PhD in finance from NYU’s Stern School of Business. Prior to entering academics, she worked in consulting and for the Financial Institutions Group of Standard & Poor’s Corporation. Professor Hotchkiss’s research covers topics including: corporate financial distress and restructuring; the efficiency of Chapter 11 bankruptcy; and trading in corporate debt markets. Her work has been published in leading finance journals including the Journal of Finance, Journal of Financial Economics, and Review of Financial Studies. She has served on the national board of the Turnaround Management Association, and as a consultant to FINRA on fixed income markets. She has also served as a consultant for several recent Chapter 11 cases. Wei Wang is an Associate Professor and RBC Fellow of Finance and Direc- tor of Master of Finance–Beijing program at the Smith School of Business at Queen’s University, Canada. His research interests are in bankruptcy restructuring, distressed investing, and corporate governance. His work has been published in leading academic journals including the Journal of Finance and Journal of Finan- cial Economics, and featured in the Wall Street Journal and other media.
Recommended publications
  • Investment Securities
    INVESTMENT SECURITIES INTRODUCTION Individuals seeking to invest their savings are faced with numerous financial products and degrees of risk. An individual investor can invest in a corporation as an equity owner or as a creditor. If an individual chooses to become an equity owner, he will hopefully benefit in the growth of the business. He can purchase common stock or preferred stock in the corporation. Assume an investor purchases 1,000 shares of ABC Corporation common stock. ABC has 100,000 shares of common stock outstanding. Our investor owns 1% (1,000 divided by 100,000 = 1%) of the outstanding shares. He will receive 1% of any dividends paid by the corporation and would receive 1% of any remaining assets upon dissolution of the corporation, after all creditors have been paid. Our investor would receive a stock certificate evidencing his ownership of 1,000 shares of common stock of ABC Corporation. He could sell his 1,000 shares, or any lesser amount, at any time. Our investor hopes to be able to sell his shares at a higher price than he paid for them. In other words, he hopes to realize a capital gain on the sale of the shares. Our investor would also like to receive dividends on his 1,000 shares. Assume ABC pays a quarterly divi- dend of $0.20 per share. Our investor would receive a quarterly dividend of $200 or an annual dividend of $800. The two main reasons an investor buys stock in a corporation are 1. To receive any dividends paid by the corporation 2.
    [Show full text]
  • In Search of Distress Risk
    THE JOURNAL OF FINANCE • VOL. LXIII, NO. 6 • DECEMBER 2008 In Search of Distress Risk JOHN Y. CAMPBELL, JENS HILSCHER, and JAN SZILAGYI∗ ABSTRACT This paper explores the determinants of corporate failure and the pricing of financially distressed stocks whose failure probability, estimated from a dynamic logit model using accounting and market variables, is high. Since 1981, financially distressed stocks have delivered anomalously low returns. They have lower returns but much higher standard deviations, market betas, and loadings on value and small-cap risk factors than stocks with low failure risk. These patterns are more pronounced for stocks with possible informational or arbitrage-related frictions. They are inconsistent with the conjecture that the value and size effects are compensation for the risk of financial distress. THE CONCEPT OF FINANCIAL DISTRESS has been invoked in the asset pricing lit- erature to explain otherwise anomalous patterns in the cross-section of stock returns (Chan and Chen (1991) and Fama and French (1996)). The idea is that certain companies have an elevated probability that they will fail to meet their financial obligations; the stocks of these financially distressed companies tend to move together, so their risk cannot be diversified away; and investors charge a premium for bearing such risk.1 The premium for distress risk may not be cap- tured by the standard Capital Asset Pricing Model (CAPM) if corporate failures ∗ John Y. Campbell is with the Department of Economics, Harvard University and NBER. Jens Hilscher is with the International Business School, Brandeis University. Jan Szilagyi is with Duquesne Capital Management LLC. The views expressed in this paper are those of the authors and do not necessarily represent the views of the authors’ employers.
    [Show full text]
  • Chapter 06 - Bonds and Other Securities Section 6.2 - Bonds Bond - an Interest Bearing Security That Promises to Pay a Stated Amount of Money at Some Future Date(S)
    Chapter 06 - Bonds and Other Securities Section 6.2 - Bonds Bond - an interest bearing security that promises to pay a stated amount of money at some future date(s). maturity date - date of promised final payment term - time between issue (beginning of bond) and maturity date callable bond - may be redeemed early at the discretion of the borrower putable bond - may be redeemed early at the discretion of the lender redemption date - date at which bond is completely paid off - it may be prior to or equal to the maturity date 6-1 Bond Types: Coupon bonds - borrower makes periodic payments (coupons) to lender until redemption at which time an additional redemption payment is also made - no periodic payments, redemption payment includes original loan principal plus all accumulated interest Convertible bonds - at a future date and under certain specified conditions the bond can be converted into common stock Other Securities: Preferred Stock - provides a fixed rate of return for an investment in the company. It provides ownership rather that indebtedness, but with restricted ownership privileges. It usually has no maturity date, but may be callable. The periodic payments are called dividends. Ranks below bonds but above common stock in security. Preferred stock is bought and sold at market price. 6-2 Common Stock - an ownership security without a fixed rate of return on the investment. Common stock dividends are paid only after interest has been paid on all indebtedness and on preferred stock. The dividend rate changes and is set by the Board of Directors. Common stock holders have true ownership and have voting rights for the Board of Directors, etc.
    [Show full text]
  • Investments 101: Fixed Income & Public Equities
    NCPERS Trustee Education Seminar FIXED INCOME 101 May 14, 2016 Steve Eitel Senior Vice President Senior Institutional Client Advisor [email protected] 312-384-8259 What is a bond or fixed income security • A bond represents a loan to a government or business • Fixed income securities are debt obligations promising a series of pre-specified payments at pre-determined points in time Investor Loans $1000 Annual Interest Payments Company XYZ Repayment of Initial $1000 Loan at Maturity What Does the Global Bond Market Look Like? • U.S. makes up a little over a 1/3rd of the global bond market • Global bond market as of June 30, 2014 was approximately $87.2T according to the Bank of International Settlements statistical annex. Types of Bonds Government Bonds • Governments and Instrumentalities issue debt obligations to investors • Proceeds are used to finance the operation of the U.S. government • Types of Government securities include: - U.S. Treasury Bills, Notes, Bonds, Inflation-Protected Securities (TIPs), Zero Coupons - U.S. Agency Obligations/Government Sponsored Entities (GSE’s) - Federal National Mortgage Association (FNMA/Fannie Mae) - Federal Home Loan Mortgage Association (Freddie Mac) - Federal Farm Credit Bank (FFCB) - Federal Home Loan Bank (FHLB) - Tennessee Value Authority (TVA) - Small Business Association (SBA) - Direct U.S. Backed Agency - Government National Mortgage Association (GNMA/Ginnie Mae) - Foreign Government Issuers Types of Bonds Corporate Bonds • Corporations issue fully taxable debt obligations to investors • Proceeds are used to refinance existing bonds, fund expansions, mergers and acquisitions, fund operations, fund research and development • Types of Corporate debt securities include: - Secured Debt: backed by a specific pledged asset/collateral - Unsecured Debt: aka Debentures; backed by good faith and credit of borrower - Yankee bonds: foreign corporations issuing bonds in the U.S.
    [Show full text]
  • UK (England and Wales)
    Restructuring and Insolvency 2006/07 Country Q&A UK (England and Wales) UK (England and Wales) Lyndon Norley, Partha Kar and Graham Lane, Kirkland and Ellis International LLP www.practicallaw.com/2-202-0910 SECURITY AND PRIORITIES ■ Floating charge. A floating charge can be taken over a variety of assets (both existing and future), which fluctuate from 1. What are the most common forms of security taken in rela- day to day. It is usually taken over a debtor's whole business tion to immovable and movable property? Are any specific and undertaking. formalities required for the creation of security by compa- nies? Unlike a fixed charge, a floating charge does not attach to a particular asset, but rather "floats" above one or more assets. During this time, the debtor is free to sell or dispose of the Immovable property assets without the creditor's consent. However, if a default specified in the charge document occurs, the floating charge The most common types of security for immovable property are: will "crystallise" into a fixed charge, which attaches to and encumbers specific assets. ■ Mortgage. A legal mortgage is the main form of security interest over real property. It historically involved legal title If a floating charge over all or substantially all of a com- to a debtor's property being transferred to the creditor as pany's assets has been created before 15 September 2003, security for a claim. The debtor retained possession of the it can be enforced by appointing an administrative receiver. property, but only recovered legal ownership when it repaid On default, the administrative receiver takes control of the the secured debt in full.
    [Show full text]
  • Bankrupt Subsidiaries: the Challenges to the Parent of Legal Separation
    ERENSFRIEDMAN&MAYERFELD GALLEYSFINAL 1/27/2009 10:25:46 AM BANKRUPT SUBSIDIARIES: THE CHALLENGES TO THE PARENT OF LEGAL SEPARATION ∗ Brad B. Erens ∗∗ Scott J. Friedman ∗∗∗ Kelly M. Mayerfeld The financial distress of a subsidiary can be a difficult event for its parent company. When the subsidiary faces the prospect of a bankruptcy filing, the parent likely will need to address many more issues than simply its lost investment in the subsidiary. Unpaid creditors of the subsidiary instinctively may look to the parent as a target to recover on their claims under any number of legal theories, including piercing the corporate veil, breach of fiduciary duty, and deepening insolvency. The parent also may find that it has exposure to the subsidiary’s creditors under various state and federal statutes, or under contracts among the parties. In addition, untangling the affairs of the parent and subsidiary, if the latter is going to reorganize under chapter 11 and be owned by its creditors, can be difficult. All of these issues may, in fact, lead to financial challenges for the parent itself. Parent companies thus are well advised to consider their potential exposure to a subsidiary’s creditors not only once the subsidiary actually faces financial distress, but well in advance as a matter of prudent corporate planning. If a subsidiary ultimately is forced to file for chapter 11, however, the bankruptcy laws do provide unique procedures to resolve any existing or potential litigation between the parent and the subsidiary’s creditors and to permit the parent to obtain a clean break from the subsidiary’s financial problems.
    [Show full text]
  • Dealing with Secured Lenders1
    CHAPTER TWO Dealing with Secured Lenders1 David Hillman2 Mark Shinderman3 Aaron Wernick4 With investors continuing to pursue higher yields, the market for secured debt has experienced a resurgence since the depth of the fi nancial crisis of 2008. For borrowers, the lenders’ willingness to make these loans has translated to increased liquidity and access to capital for numerous purposes, including (i) providing working capital and funding for general corporate purposes; (ii) funding an acquisition-related transaction or a recapitalization of a company’s balance sheet; or (iii) refi nancing a borrower’s existing debt. The increased debt loads may lead to fi nancial distress when a borrower’s business sags, at which point management will typically turn to its secured lenders to begin negotiations on the restructuring of the business’s debt. Consequently, the secured lenders usually take the most active role in monitoring the credit and responding to problems when they fi rst arise. Secured loans come in many different forms and are offered from a range of different investors. The common feature for secured debt is the existence of a lien on all or a portion of the borrower’s assets. Following is a brief overview of the common types of secured lending: Asset-Based Loans. The traditional loan market consisted of an asset based lender (traditionally a bank or commercial fi nancing institution) providing revolving loans, term loans, and letters of credit secured by a fi rst priority lien on accounts receivable, inventory, equipment, and 1. Special thanks to Douglas R. Urquhart and Roshelle Nagar of Weil, Gotshal & Manges, LLP for their contributions to earlier editions of this chapter.
    [Show full text]
  • Annual Report 2018 2 0
    2018 ANNUAL REPORT 2018 MELCOR REIT 2018 ANNUAL REPORT 2018 GLA BY GLA BY PROPERTY TYPE REGION Melcor REIT is an unincorporated, open-ended real estate investment trust. We own, acquire, manage and lease quality retail, office and industrial income-generating properties. Our portfolio is currently made up of interests in 37 properties representing approximately 2.87 million square feet of gross leasable area located in and around Edmonton, Calgary, Lethbridge and Red Deer, Alberta; Regina, Saskatchewan; and Kelowna, British Columbia. 56+37+7+A 58+29+13+A Backed by Melcor Development’s 95 year history, Melcor REIT Office 56% Northern Alberta 58% was borne out of a proud tradition of real estate excellence in Retail 37% Southern Alberta 29% western Canada. Our growth potential is a true competitive Industrial 7% BC & SK 13% advantage, with the right to acquire Melcor’s pipeline of newly constructed, high quality retail, industrial and office projects. Subsequent to the initial acquisition, we have vended-in over GLA BY GLA BY 1 million sf from Melcor, and there is a further 6.5 million sf in TENANT PROFILE TENANT INDUSTRY current and future projects to be built over the next 5 to 15 years. FACTS & DATA 37 $70.2M ASSETS REVENUE 39+20+41+A 9+7+7+5482231+A Local 39% Finance 9% Oil & Gas 4% $709.6M 99% Regional 20% Government 7% Other 8% ASSET FAIR VALUE PAYOUT RATIO National 41% Hospitality 7% Professional 22% Industrial 5% Retail 31% Medical 7% WEIGHTED AVERAGE LEASE TERM GROSS LEASABLE AREA EXPIRING (%) REMAINING (YEARS) 10 9 8 10 19 34 4.64 5.17 3.64 10+9+8+10+19+342019 2020 2021 2022 2023 Thereafter Northern AB Southern AB BC & SK Office Retail Industrial Land Lease 2.87M OWNED SQUARE FEET BRITISH COLUMBIA ALBERTA Edmonton Spruce Grove 14 4 1 1 Leduc 1 1 Red Deer 1 Kelowna Airdrie 1 2 Calgary 2 1 Chestermere 1 1 Lethbridge 1 2 Our goal is to provide stable monthly cash distributions to unitholders by acquiring high quality properties and diversifying our portfolio.
    [Show full text]
  • Restructuring Risk in Credit Default Swaps: an Empirical Analysis∗
    Restructuring Risk in Credit Default Swaps: An Empirical Analysis∗ Antje Berndt† Robert A. Jarrow‡ ChoongOh Kang§ Current Version: November 18, 2005 Preliminary and Incomplete Abstract This paper estimates the price for bearing exposure to restructuring risk in the U.S. corporate bond market during 2000-2005, based on the relationship between quotes for default swap (CDS) contracts that include restructuring as a covered default event and contracts that do not. We find that on average the premium for exposure to restructuring risk amounts to 6% to 8% of the value of protection against non-restructuring default events. The increase in the restructuring premium in response to an increase in rates on default swaps that do not include restructuring as a covered event is higher for high-yield CDS and lower for investment-grade firms, and depends on firm-specific balance-sheet and macroeconomic variables. We observe that firms that offer a distressed exchange often experience a steep decline in their distance to default prior to the completion of the exchange. As an application, we propose a reduced-form arbitrage-free pricing model for default swaps, allowing for a potential jump in the risk-neutral non-restructuring default intensity if debt restructuring occurs. ∗We thank Lombard Risk for Default Swap data. We are grateful to Jean Helwege, Yongmiao Hong, Philip Protter and Roberto Perli for useful comments. †Tepper School of Business, Carnegie Mellon University. ‡Johnson Graduate School of Management, Cornell University. §Department of Economics, Cornell University. 1 Introduction This paper estimates the price for bearing exposure to restructuring risk in the U.S.
    [Show full text]
  • BASIC BOND ANALYSIS Joanna Place
    Handbooks in Central Banking No. 20 BASIC BOND ANALYSIS Joanna Place Series editor: Juliette Healey Issued by the Centre for Central Banking Studies, Bank of England, London EC2R 8AH Telephone 020 7601 3892, Fax 020 7601 5650 December 2000 © Bank of England 2000 ISBN 1 85730 197 8 1 BASIC BOND ANALYSIS Joanna Place Contents Page Abstract ...................................................................................................................3 1 Introduction ......................................................................................................5 2 Pricing a bond ...................................................................................................5 2.1 Single cash flow .....................................................................................5 2.2 Discount Rate .........................................................................................6 2.3 Multiple cash flow..................................................................................7 2.4 Dirty Prices and Clean Prices.................................................................8 2.5 Relationship between Price and Yield .......................................................10 3 Yields and Yield Curves .................................................................................11 3.1 Money market yields ..........................................................................11 3.2 Uses of yield measures and yield curve theories ...............................12 3.3 Flat yield..............................................................................................12
    [Show full text]
  • Overview of the Fdic As Conservator Or Receiver
    September 26, 2008 OVERVIEW OF THE FDIC AS CONSERVATOR OR RECEIVER This memorandum is an overview of the receivership and conservatorship authority of the Federal Deposit Insurance Corporation (the “FDIC”). In view of the many and complex specific issues that may arise in this context, this memorandum is necessarily an overview, but it does give particular reference to counterparty issues that might arise in the case of a relatively large complex bank such as a significant regional bank and outlines elements of the FDIC framework which differ from a corporate bankruptcy. This memorandum has three parts: (1) background on the legal framework governing FDIC resolutions, highlighting changes and developments since the 1990s; (2) an outline of six distinctive aspects of the FDIC approach with comparison to the bankruptcy law provisions; and (3) a final section illustrating issues and uncertainties in the FDIC resolutions process through a more detailed review of two examples – treatment of loan securitizations and participations, and standby letters of credit.1 Relevant additional materials include: the pertinent provisions of the Federal Deposit Insurance (the "FDI") Act2 and FDIC rules3, statements of policy4 and advisory opinions;5 the FDIC Resolution Handbook6 which reflects the FDIC's high level description of the receivership process, including a contrast with the bankruptcy framework; recent speeches of FDIC Chairman 1 While not exhaustive, these discussions are meant to be exemplary of the kind of analysis that is appropriate in analyzing any transaction with a bank counterparty. 2 Esp. Section 11 et seq., http://www.fdic.gov/regulations/laws/rules/1000- 1200.html#1000sec.11 3 Esp.
    [Show full text]
  • 10.11.3.D Equitable (In)Subordination − Considerations for Sponsors Lending to Portfolio Companies
    10.11.3.d Equitable (In)subordination − Considerations for Sponsors Lending to Portfolio Companies By Joe Basile, Ron Landen and Rose Constance of Weil, Gotshal & Manges LLP Private equity sponsors are increasingly providing additional capital to their portfolio companies either to address liquidity issues at those companies or as part of a negotiated debt restructuring. From a sponsor's point of view, it is often preferable to invest that additional capital in the form of debt rather than equity. However, in structuring that transaction sponsors should be aware that the priority of this debt in a portfolio company's capital structure could be attacked by other creditors if that portfolio company ends up in bankruptcy under the theories of equitable subordination or recharacterization. It is important that sponsors structure any such investments to reduce the risk of a successful attack on the priority status of their debt. Equitable Subordination Section 510(c) of the Bankruptcy Code provides that bankruptcy courts may exercise principles of equitable subordination to subordinate all or part of one claim to another claim. Conceptually, this gives the bankruptcy court power to demote a higher priority claim to a lower priority claim under certain circumstances. In some instances, this can convert an otherwise first priority secured claim into a general unsecured claim ranking pari passu with all other general unsecured claims. Although the statutory authority for equitable subordination is clear, the application is not. However, there are some general principles that can be applied as a guide in properly structuring a credit arrangement. Generally, the courts consider three factors in determining whether to equitably subordinate a claim.
    [Show full text]