PRACTICAL LAW MULTI-JURISDICTIONAL GUIDE 2012/13 RESTRUCTURING AND INSOLVENCY

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www.practicallaw.com/7-501-6870 A creditor may secure the credit it Failure to comply with the required Value given by the creditor to the debtor. given by Value A written security agreement between the parties or posses- sion of the collateral by the creditor. The debtor has rights in the asset allowing it to grant a security interest. Actual. should know Constructive (where a third party reasonably about the lien based on the circumstances). filed with the Of “record” (when the security interest is a publicly appropriate government agency and becomes available and searchable document). „ „ „ „ „ „ Under the “first to file” rule, the creditor that properly files its on lien priority highest the has generally first instrument security that real property. However, mechanics’ liens and certain statu tory tax liens are given priority over all other security in the regardless interests real of property, when the security interest was created. Effects of non-compliance. formalities renders a security and/or unsecured an in resulting voidable, interest and/or priority, without invalid, unenforceable, secu unenforceable or invalid bankruptcy, In debt. subordinated with creditor the leaving avoided, be may property in interests rity an unsecured claim (see Question 9). est in, the debtor’s movable property (that erty). The creation and enforcement of security interests in most is, personal prop types of movable property is generally governed by the Uniform Commercial Code (UCC). The UCC is a proposed set of rules and has model been adopted by every state, with some variations between states. Security interests in certain types of property personal are governed by other state or federal laws (for exam- ple, security interests in automobiles, boats, aircraft, and non- consensual liens). Formalities. The formalities for creating a security personal property interest depend in on the type of and intended the use for property being used as interest security collateral. a of creation the for In requirements three are there most circumstances, under the UCC: „ „ „ Movable property Common forms of security. extends by obtaining from the debtor a lien on, or security inter „ „ „ Formalities. Formalities vary from state to state. Notice to third benefici or mortgagee a for order in required universally is parties ary to have a lien priority over subsequent creditors. Notice can following ways: be made in one of the - and is reproduced with the permission of the publisher, Practical Law Company. Company. Law Practical publisher, the of permission the with reproduced is and © This article was first published in the Restructuring and Insolvency multi-jurisdictional guide 2012/13 2012/13 guide multi-jurisdictional Insolvency and Restructuring the in published first was article This © court imposed judicial liens (related to a judgment); tax liens (for failure to pay taxes); mechanics’ liens (for failure to pay for improvements made to the property). mortgage; or deed of trust. „ „ „ „ „ immovable and movable property? Are there formalities that the security documents, the secured creditor or the with debtor non-compliance of effect the is What with? comply must these formalities? What The primary difference between a mortgage and a deed of The primary difference between a mortgage equitable title trust is who holds legal title as opposed to with the right of possession. Under a mortgage, the mortga- gor (borrower) possesses full title (that is, legal and equita- Under a deed of trust, the ble title) to the secured property. trustor (borrower) only retains equitable title with the right to possession while a third-party trustee retains legal title for the benefit of the lender (referred to as the beneficiary). against rights exercises party secured a which by process The In differs. also borrower the by default after property real the a requires property mortgaged a on foreclosure states, most trust of deed a under foreclosure whereas process, judicial sale. non-judicial a through accomplished be can Regardless of the method of foreclosure, state foreclosure laws usually provide certain protections for borrowers, such as notice of foreclosure or a right to redeem the property by curing the default. „ „ „ - real property may be sub Non-consensual liens. A debtor’s ject to non-consensual liens, such as: „ „ Security instruments. Depending on the law of the state in is generally which the real property is located, real property secured by either a:

„ „ „ „ Immovable property The creation and enforcement of security interests in immov 1. are the most common forms of security granted over Common forms of The security. most common forms of security granted over real property (including items permanently affixed thereto) are: FORMS OF SECURITY including items permanently able property (that is, real property, affixed thereto) is governed by the law of the state in which the real property is located. Michael J Reilly, Jeffrey S Sabin, Stephanie W Mai and S Sabin, Stephanie W Mai Jeffrey Michael J Reilly, Matthew J Cursio LLP Bingham McCutchen RESTRUCTURING AND INSOLVENCY AND RESTRUCTURING States United MULTI-JURISDICTIONAL GUIDE 2012/13 Country Q&A „ „ „ „ „ 2. RANKING SHAREHOLDER AND CREDITOR „ „ „ it must: UCC the Under criteria. minimum certain meet must statement agency. state centralised a with statement) financing financing A usually requires filing proof of the security interest (a form UCC-1 Perfection creditors. subsequent over priority lien have to holder security interest must then be “perfected” for the security interest party,third the a to notice constructive or actual is there Unless RESTRUCTURING AND INSOLVENCY 2012/13 GUIDE MULTI-JURISDICTIONAL e above, Effects ofnon-compliance. See non-compliance. of Effects personal propertyisdeterminedbythefirsttofilerule. name in a significant way. In most circumstances, lien priority in every five years or when the debtor either relocates or changes its filed be must statement financing new Toa perfection, maintain cases isgenerally: bankruptcy corporate to relevant interests and claims of priority dictates the order of priority of claims and interests. The order of (Code)) state every in (the cases bankruptcy all governing law federal Code Bankruptcy States United the cases, bankruptcy In „ „ „ „ „ „ „ „

interest. sufficient togivethirdpartiesinquirynoticeofthesecurity Describe thecollateralin,atveryleast,generalterms name andmailingaddress. Accurately stateboththeborrower’s nameandcreditor’s Be filedinthestatewhichborrowerislocated. Equity holders. General unsecuredcreditors. „ „ „ „ „ „ „ Priority unsecuredcreditors. Administrative claimants. Secured creditors. Where insolvency? INFORMATION „ „ „ „ „ „ „ capital ofaninsureddepository institution. depository institutionsregulatoryagencytomaintainthe claims basedonanydebtor’s commitmenttoafederal claims of governmental units generally for taxes or duties; services thatwerenotdeliveredorprovided; purchase, leaseorrentalofpropertypurchase prepetition depositsofmoneyinconnectionwiththe contributions toanemployeebenefitplan; sales commissions(uptoaspecifiedamount); wages, salariesorcommissions,certainbenefits, for relief; before theappointmentofatrusteeorentryorder the filingofaninvoluntarybankruptcypetitionbut claims arisingintheordinarycourseofbusinessafter and chargesassessedagainsttheestate; certain court-relatedadministrativeexpensesandfees o rdtr ad hrhles ak n company’s a on rank shareholders and creditors do FOR MORE about Practical Law Company,visit Law please Practical about visit please publication, this about moal property: Immovable deficiency claimagainstthedebtor’s bankruptcyestate. is worth less collateral than its the total claim, but if must relinquish even any unsecured secured, as claim entire its treating of of thatclassreceivesaproratadistribution. creditor each full, in creditors of class a pay cannot estate the If court. a of order by or parties the between agreement by priority in subordinated be may claims addition, In 11). Question (see case thebankruptcy during debtor the for financing new vides pro that lender court-approved a by primed being to subject are classes All otherwise. dictate may agreement intercreditor able ( reorganisation of plan confirmed a However,rule). priority absolute (the claims their on full in ment pay received have them above creditors of class senior the until recovery any receive cannot creditors of class junior a Generally those for: include generally expenses Administrative case. bankruptcy the transac post-bankruptcy of administration the for necessary are that debtor the with tions from arise expenses Administrative Administrative claimants ( cases sation unsecured deficiency claim. Additionally, in Chapter 11 reorgani- the balance of the debt for is bifurcated into a secured claim and an claim creditor’s secured the claim, the of amount the than less is collateral the of value the If collateral. its of value the to up only secured is claim creditor’s secured property.A personal Secured creditors hold liens on or interests in the debtor’s real or Secured creditors the subordination of claims. Subordinated creditors hold claims hold creditors Subordinated claims. of subordination the recognises However,Code interests. the and claims of priority of list Code’s the in out set expressly not are claims Subordinated Subordinate creditors rank paripassu,havingclaimsofequalpriority. there is no specified priority for the claim, all unsecured creditors any of the debtor’s assets or entitled to priority under the Code. If by secured not are that claims hold creditors unsecured General General unsecuredcreditors „ „ „ others, over claims unsecured including: certain prioritises Code The Priority unsecuredcreditors „ „ „ „ „ „ „ „ „ „ „ Prepetition taxes. not deliveredorrenderedbythedebtor. Customer depositsforcertaingoodsorservicesthatwere sales commissions. Prepetition employeewageclaimsandcertainfor Postpetition taxes. appointed committee. Fees forprofessionalsretainedbyadebtor, trusteeorcourt- petition employeewages). with tradevendors,postpetitionrentonproperty, andpost- and/or itsproperty(forexample,postpetitiontransactions Postbankruptcy expensesnecessarytopreservethedebtor The trusteethatadministersthebankruptcycase.

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see Question 6 Question see www.practicallaw.com/about/practicallaw ), a secured creditor has the option the has creditor secured a ), see Question 6 Question see ) or enforce- or ) - - - Country Q&A - - - see Question Question see www.practicallaw.com/about/practicallaw

The Code and most state laws permit (but do not not do (but permit laws state most and Code The www.practicallaw.com/restructure-mjg

creditors are concerned that the debtor will either creditors are concerned misuse or diminish the value of the property through a judgment; destruction or transfer the property before during the the property requires maintenance or upkeep pendency of the legal proceeding. ). Where the reciprocal debts between the same precise par precise same the between debts reciprocal the Where ). „ „ Is state support for distressed businesses available? mandate) a debtor and creditor to offset reciprocal and and reciprocal offset to creditor and debtor a mandate) bankruptcy, Before pre-bankruptcy. incurred debts mutual by debts mutual offset to creditor a allow laws state most required be may creditors case, bankruptcy a In self-help. debts. mutual offset to approval court bankruptcy obtain to and distinct in involved are parties precise same the Where mutual the “net” may creditor a transactions, independent court bankruptcy a obtain first must but set-off), (a debts ( stay automatic the from relief granting order 6 the “net” may creditor a transaction, single a from arise ties court bankruptcy without recoupment) (a obligations mutual stay. automatic the by restricted not is which approval, Similar to attachment, the court holds a attachment, the court Similar to Garnishment. on put a temporary freeze determine if it should hearing to the a final judgment on assets before issuing the debtor’s - assets in the posses Garnishment involves alleged debt. If the court or owed to a debtor. sion of a third party owned is valid, the creditor can then claim rules that a creditor’s sell the garnished assets to satisfy the take possession of or on the debt can also seek the aid debt. A judgment creditor garnishment on a judgment debtor’s of the state court for lien. assets as a judgment a receivership over Receivership. A court may impose appoint a neutral third party (a property and a debtor’s Receiverships of the property. receiver) to take possession are normally used when: „ „ Offsets.

„ „ „ sions whose plan may be underfunded and terminated, and the Code requires a debtor to continue funding retiree benefits and reti terminating or modifying unilaterally from debtor a precludes ree benefits except in accordance with the Code. STATE SUPPORT 5. The recent economic crisis has spurred the federal government and initiative own its on entities and industries certain out bail to discretion, but bail outs are a rare exception, not a rule. There are generally no formal state or federal government programmes to support distressed business enterprises. Some agencies provide low interest government rate loans, tax breaks, or financial subsidies to businesses or selected industries, such as federal recent government programmes to support indus- specific at targeted alternative are programmes these but companies, energy tries for policy reasons rather than to help struggling businesses in general. There are also programmes Benefit that Pension the support example, For parties. aspects affected and of businesses distressed Guaranty Corporation guarantees certain claims of qualified pen „ „ „ ------Question 6) to about this publication, please visit about Practical please Law visit Company, see Question 1, Movable FOR MORE FOR INFORMATION rescue or insolvency procedures described in recover their debt? Is there a mandatory set-off of debts on insolvency? mutual debts? Are there any legal or practical limits on the operation the on limits practical or legal any there Are debts? of these mechanisms? Can Can Attachment. The court holds a hearing to determine if it assets before should put a temporary freeze on the debtor’s issuing a final judgment on the alleged debt. Attachment involves assets that the debtor currently possesses. If the creditor can claim is valid, the court rules that a creditor’s then take possession of or sell the attached assets to satisfy the debt. A judgment creditor on the debt can also seek the aid of the state court for attachment on a judgment debtor’s assets as a judgment lien.

„ Creditors can bring an action in state court to recover unsecured debts without involving federal bankruptcy courts. A lawsuit can be commenced to seek a judgment on the unsecured debt and utilise various common procedures to secure otherwise unse State law may also entitle trade creditors that render improve ordinary the in debtor a to goods sold that creditors trade Unpaid course of business within 20 days before the filing of a bank tions both in and out of bankruptcy ( property). Under the UCC, a seller that finances the purchase of security money purchase a execute to buyer the require can goods interest (PMSI), which grants the seller a security interest in the goods being sold. ments to the debtor’s real see Question 1). lien on that property ( or artisan’s or mechanic’s personal property to impose a ruptcy petition are entitled to administrative expenses against the estate under the Code. In addition, subject of to sellers the goods, in rights interest of security competing a holding creditors goods may reclaim goods received by an insolvent debtor within 45 days before the commencement of a bankruptcy case if the demand. seller makes a timely written reclamation cured debts, including: Trade creditors are able to secure unpaid debts under the UCC or UCC the under debts unpaid secure to able are creditors Trade other applicable state laws, and are subject to the same limita „ 4. creditors invoke any procedures (other than the formal creditor agreements), or that have been subordinated by court ). 9, Equitable subordination order (see Question receive no ally, recovery from a estate debtor’s until all creditors have been satisfied in full. If there isa recovery for equity, the in full before common stock. preferred stock is paid UNPAID DEBTS AND RECOVERY 3. trade creditors use any mechanisms to secure unpaid Equity interest holders Equity interest holders Equity interest holders are the owners of the debtor and, gener they have voluntarily subordinated in priority to other claims by agreement (for example, subordinated debt instruments or inter RESTRUCTURING AND INSOLVENCY AND RESTRUCTURING MULTI-JURISDICTIONAL GUIDE 2012/13 Country Q&A „ „ „ „ including, amongotherthings: confirmation, for requirements the out sets Code The parties. all on binding be to it for plan the approve must court bankruptcy A allowed interestsapprovetheplan. the of amount in two-thirds least at if plan a accepted has ests inter of class A creditors. of class that of claims allowed the of number in one-half than more and amount in two-thirds least at plan of reorganisation if it has been accepted by creditors the holding accepted has claims of class A vote. to entitled holders est inter and creditors recovery) 100% than less of receipt is, (that impaired of class each from acceptances gain must debtor the tests. Substantive Chapter 7case(seebelow, Chapter7liquidationcases). a to converted be may case 11 Chapter A due. become they debts as its paying not generally is debtor the if case bankruptcy involuntary an in relief for order an enter only will court ruptcy bank a cases most In case. bankruptcy voluntary a like ducted con is and Code the of requirements specific under creditors of group or creditor a by commenced be may case involuntary An due for a debtor to be eligible to file for bankruptcy under prerequisitethe Code. of insolvency or inability to pay debts as they become no is There court. bankruptcy the with relief for petition a filing involuntarily. A debtor commences a voluntary bankruptcy case by Initiation. and serviceabledebtstructure. restructured a with entity reorganised distinct a through concern emerges with a fresh start and can continue operating as a going in the plan. In a successful Chapter 11 reorganisation, the debtor prepetition debts or interests from the debtor’s estate as set forth equity interest holders can only seek recovery on account of their and creditors court, bankruptcy the by approved is and interests of plan a and claims of classes requisite the by accepted is reorganisation If creditors. to distributions equitable make to plan a confirming and interests equity and debts its restructuring by concern going a as business debtor’s the preserve to is process reorganisation 11 Chapter a of purpose general The Objective. Chapter 11reorganisation „ „ not eligibletobeadebtorundertheCodeinclude: Entities Code. the under debtor a be may municipalities US and resides or has a domicile, place of business or property in the US that entity business or person any exceptions, certain to Subject 6. PROCEDURES INSOLVENCY AND RESCUE RESTRUCTURING AND INSOLVENCY 2012/13 GUIDE MULTI-JURISDICTIONAL hs ette ae oend y eaae ttts ht among that, other things,regulateinsolvency. statutes separate by governed are entities These „ „ „ „ „ „

Government unitsthatarenotmunicipalities. Banking andinsuranceinstitutions. Feasibility. Interest ofthecreditorsandequity holders. Certain disclosures. Good faith. What arethemainrescueandinsolvencyprocedures? INFORMATION A Chapter 11 case may be commenced voluntarily or voluntarilycommenced be may case 11 Chapter A In order to confirm a plan of reorganisation, of plan a confirm to order In FOR MORE about Practical Law Company,visit Law please Practical about visit please publication, this about - - - - things): other (among may reorganisation of plan a case, 11 Chapter a In may beliablefordamagestotheestate. party violating the and void, is stay automatic the of violation in tions (such as governmental regulatory actions). Any action taken excep limited certain to subject is and order court bankruptcy a by lifted be may it although case, bankruptcy the of duration the for place in remains stay automatic The proceeding. ruptcy bank the of notice has entity an whether of regardless leases, or contracts of termination unilateral and set-off, letters), demand issuing example, (for actions collection erty,litigation, including prop its or debtor the affects way any in that action further any taking from entity any prohibits that stay automatic an triggers creditors. from Protection the with debtor inpossessionortrusteethroughoutthecase. consult and case 11 Chapter a monitor to appointed be may creditors of committee A ). 7 Question (see case ruptcy loses its powers to manage the business and administer the bank directors) of board its (through debtor the case, which in estate (or examiner with expanded powers) to administer the bankruptcy in possession. However, a bankruptcy court may appoint a trustee debtor a as business the operate to continue ordinarily agement man existing its and entity debtor a case, bankruptcy a During the supervises overall bankruptcy process and parties Trustee involved (see Question 7). States United the of Office The cases. control. and Supervision priority rule(seeQuestion2). priority and is fair and equitable in accordance with the absolute equal of creditors among unfairly discriminate not does plan the as long so down), cram a as (known class objecting the on terms plan’sthe imposes and Code) the in requirements certain isfying sat- to (subject plan the confirms court the if terms its by bound be still may plan the rejects that creditors of class impaired An „ „ „ completed inaslittletwomonths. be can case bankruptcy pre-packaged a case, the during arise issues major no Assuming proceeding. bankruptcy the of ment commence the to prior reorganisation of plan a for acceptance ceeding. In a pre-packaged case, the debtor proposes and solicits pro 11 Chapter shortest the is case 11 Chapter pre-packaged A interest tofileacompetingplan. in parties of ability the limit to order in case) shorter a of sibility pos the (and quickly more reorganisation of plan a propose to This time limitation encourages, but does not guarantee, debtors order), any party in interest may propose a plan of reorganisation. court bankruptcy by or time of passage by (whether terminated exclusivity for cause shown, including fraud. Once exclusivity has Chapter 11 case. However, a bankruptcy court may terminate the a of months 18 first the most, at during, reorganisation of plan a file to right the exclusive the has in debtor a presented Code, the Under issues case. legal the of complexity the and creditor the body of size the including case, 11 Chapter traditional procedure. of Length „ „ „ actions againstthedebtororitsproperty. Enjoin creditorsfromcommencingorcontinuingspecified Release thedebtorandotherpartiesfromcertainliabilities. obligations. Provide acorporatedebtorwithdischargeofitsdebtsand

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www.practicallaw.com/about/practicallaw ueos atr afc te egh f a of length the affect factors Numerous Bankruptcy courts oversee bankruptcy oversee courts Bankruptcy The filing of a bankruptcy petition abankruptcy of filing The ------Country Q&A ------The Office of the United StatesTrustee, Creditors do not have a direct role in oper www.practicallaw.com/about/practicallaw

A Chapter 7 case concludes after the Chapter 7 stakeholders have the most significant role in the www.practicallaw.com/restructure-mjg

outcome of a restructuring or insolvency procedure? outcome of a restructuring Which If the debtor has more than US$5 million of debt (as at 1 If the debtor has more than US$5 million March 2012, US$1 was about EUR0.7). Makes final distributions to creditors and equity interest and equity interest distributions to creditors Makes final holders. account of the administration of Files a final report and court and the United States the estate with the bankruptcy Trustee. holders and It is in the best interest of creditors, equity other estate interests.

„ „ „ „ The bankruptcy court order defines the timing, scope and respon and scope timing, the defines order court bankruptcy The sibilities of an examiner, which generally is limited to conduct ing and reporting on an investigation of the debtor and/or other parties for allegations such as fraud, misconduct or mismanage court bankruptcy a case, 11 Chapter consensual a in Often ment. will not appoint an examiner. United States Trustee. a unit of the United States Department of Justice, consists regional of offices in a nationwide system tasked with supervising the administration of bankruptcy cases and appointed trustees. representative government federal a is Trustee States United The who acts on behalf of the public interest for the purpose of pre States United The system. bankruptcy the of integrity the serving responsibilities Trustee’s include administrative functions, such as conducting and presiding over an examination of the debtor and convening a meeting of appli with compliance parties’ creditors, and case bankruptcy a monitoring of progress the general of policies the uphold to case the in participating and laws, cable the bankruptcy process. Creditors’ committee. ating the ongoing debtor’s business. early However, in a Chapter 11 case, the United States will Trustee appoint an official com mittee of unsecured creditors to represent the interests general unsecured creditors of A the committee debtor. of credi of all tors consists of holders of unsecured claims (usually the largest creditors) who have volunteered to case, 11 serve Chapter a in on role significant a plays the committee creditors’ committee. A including monitoring the debtor’s ongoing operations, consult ing with the debtor on major business decisions, and generally „ Conclusion. Conclusion. trustee: „ „ STAKEHOLDERS’ ROLES 7. Chapter 11 reorganisation cases The stakeholders with the most following. significant roles include the See Question 10. Debtor in possession or Chapter 11 trustee. court the appointed, not is trustee 11 Chapter a When Examiner. will appoint an examiner on request of a party in interest or the United States Trustee if either of satisfied: the following conditions is „ ------about this publication, please visit about Practical please Law visit Company, see above, Chapter 11 reorganisation: see above, Chapter 11 reorganisation: FOR MORE FOR The filing of a bankruptcy petition trig petition bankruptcy a of filing The The role of a bankruptcy court and United United and court bankruptcy a of role The ). In effect, the debtor goes out of business of out goes debtor the effect, In ). In order for a Chapter 7 trustee to close a A Chapter 7 trustee appointed to administer a After the bankruptcy court confirms a plan of reor The process for initiating a 7 Chapter case is for the initiating same The process INFORMATION .) A Chapter 7 case may be converted to a Chapter 11 case. case. 11 Chapter a to converted be may case 7 Chapter A .) see above, Chapter 11 reorganisation: Supervision and con and Supervision 11 reorganisation: Chapter above, see ). On commencement of a Chapter 7 case, most management of a 7 ). most management Chapter case, On commencement Chapter 7 liquidation Objective. A Chapter 7 liquidation is primarily for debtors who reor to unlikely are and debts existing their service to unable are States Trustee in a Chapter 7 case is the same as in a Chapter 11 11 Chapter a in as same the is case 7 Chapter a in Trustee States ( case Initiation. Initiation. control. and Supervision ganisation, the reorganised debtor and emerges consummates the plan. After from confirmation of a bankruptcy plan, many matters may remain pending, including resolution of claims and litigation involving the bankruptcy estate. A concludes Chapter after 11 the case bankruptcy estate is fully administered accordance with a confirmed plan of reorganisation and the case in is closed by the bankruptcy court. ganise. In a Chapter 7 case, the debtor’s assets are liquidated as quickly as possible and available proceeds are distributed to the in priority of order the in holders interest equity and creditors 2 Question (see Code and ceases operations. as for a Chapter 11 case ( Initiation Substantive tests. Chapter 7 case has a fiduciary duty to protect the interests of all 11 Chapter a Unlike debtor. a of beneficiaries other and creditors a Chapter 7 process, case however, does involve creditor accept ance, a plan, or bankruptcy court approval of a plan. Conclusion. A pre-packaged or a pre-negotiated case is there is broad creditor often support for a reorganisation, debtor’s used but where not all constituencies are available or willing to approve an out- of-court restructuring. A pre-negotiated Chapter 11 case is a hybrid of and pre-packaged traditional Chapter 11 cases. In a pre-negotiated case, the debtor and its major creditors negotiate and agree on the terms of a plan of reorganisation before commencing the after soon plan the bankruptcy for acceptances solicits then debtor The case. commencement of the Chapter 11 case, so the case concludes Chapter 11 case. more quickly than a traditional RESTRUCTURING AND INSOLVENCY AND RESTRUCTURING MULTI-JURISDICTIONAL GUIDE 2012/13 Length Length of procedure. gers an “automatic stay” in the same way cred as from Protection for reorganisation: 11 a Chapter above, Chapter (see case 11 discharge, a to entitled not is debtor corporate 7 Chapter A itors). so a liquidated corporate debtor must dissolve under state law after the conclusion of a Chapter 7 case. efforts collection asset all complete must trustee the case, 7 the Chapter process, administration claims the and litigation) any estate the (including of size the as such factors on depend will which of length efforts. distribution and collection the of complexity the and Protection from creditors. from Protection trol appointed is trustee a and dismissed, are employees and expeditiously personnel to creditors by elected or Trustee States United the by collect, liquidate, and distribute the debtor’s assets to creditors retain temporarily may trustee 7 Chapter The holders. interest and estate. the of liquidation the with assist to employees some Country Q&A faith for, what they believe to be, the best interest of the business good in basis informed an on made decisions for rule judgement the business by protected are officers and directors Generally, Directors andofficers a director, parent company (domestic or foreign) or other 8. LIABILITY petition. bankruptcy its of filing the with assets its of disclosure updated and accurate prepare to is debtor 7 Chapter corporate a of bility responsi significant A case. 11 Chapter a in than limited more generally is proceeding 7 Chapter a in role debtor’s The Debtor. Chapter 7trustee.SeeQuestion10. the include roles significant following. most the with stakeholders The Chapter 7liquidationcases „ „ of theordinarycoursebusiness,itmustobtaineither: or’s business. In order for the debtor to take those actions outside sell, or lease its collateral outside the ordinary course of the debt ests in a debtor’s property may restrict the debtor’s ability to use, inter security pre-bankruptcy holding lenders Secured Lenders. security equity holders oremployeeinterests. of committee a as such cases, the in resented rep adequately are interests those that ensure to necessary, if committees, other appoint also may Trustee States United The its functions. sel and other professional advisors to help the committee perform coun legal retain can committee A court. bankruptcy the before matter a in creditors unsecured all of interests the representing RESTRUCTURING AND INSOLVENCY 2012/13 GUIDE MULTI-JURISDICTIONAL during thecase). case (for example by requiring milestones for the debtor to satisfy bankruptcy the of length and course the influence and budget) a under example, (for expenses specified pay to cash of use the restrict may lenders post-bankruptcy and pre-bankruptcy Both the sale of estate assets, and other protections ( claims, liens on estate property, consent or consulting rights over ister the case may have leverage over the debtor to obtain priority ruptcy case to allow the debtor to continue operations bank and the admin during credit new with debtor a provide that Lenders automatic staytoexerciserightsagainstthecollateral. the from relief seek may creditor secured the collateral, the in interest creditor’s the of value in diminution any for adequate protection with creditor secured a provide to fails debtor the If „ „

The consentofthesecuredlender. imposition oftheautomaticstay(seeQuestion11). other things,adebtor’s useofsuchpropertyand/orthe secured lender’s interestinthepropertycausedby, among tor adequateprotectionforanydiminutioninvalueofthe Court authorisation,subjecttoprovidingthesecuredcredi- Can party beheldliableforaninsolventcompany’s debts? INFORMATION FOR MORE about Practical Law Company,visit Law please Practical about visit please publication, this about see Question 11 ). ------of piercingthecorporateveil,suchas: doctrine law common the apply to whether determine to factors of analysis fact-intensive a conduct will court A subsidiary. its of debts the for liable it hold and entity owner/parent an of veil corporate the lift/pierce may court a However,entity. legal tinct the corporation or limited liability company is a separate and dis- are shielded from liability for the business entity’s debts because companies liability limited or corporations of owners Ordinarily, Affiliate entities „ „ „ and isanexception,notarule. relief extraordinary considered is consolidation Substantive ties. enti consolidated the of liabilities pooled the satisfy to used are assets pooled the and eliminated, are entities consolidated the the consolidated entities are pooled, intercompany claims among to implement a plan. The result is that the assets and liabilities of liabilities and assets their merges and affiliates) debtor (usually entities other more or one and debtor a of separateness legal the to veil piercing ( within only bankruptcy and is an equitable remedy that has an effect similar exists that concept a is consolidation Substantive not providedforundertheCode). is relief (which debtors affiliated of estates the of consolidation substantive the for provides reorganisation of plan a if is this to exception An affiliates. its of creditors the not but creditors, tive respec its of claims the for responsible is and affiliates its from The general rule is that each debtor and its estate stands separate Substantive consolidation „ „ „ „ gross negligence. or fraud for except claims, such cover to insurance have officers and directors however, Typically, officers. and directors the by the business judgement rule, unless there is self-dealing or fraud of face the in prove to difficult be can claims these loyalty,but of duty the and care of duty the including duties, fiduciary their of breaches for liable be may officers and Additionally,directors reluctant togrant. be may courts that relief extraordinary is and liability limited of Disregarding the corporate veil is an exception to the general rule a of subsidiary tosatisfythedebtsofitsowner/parententity.assets the reach to creditors allows court, a by granted if which, piercing, veil reverse is theory law common analogous An and debtsincurredbythebusinessentity, suchas: capacity official their in on taken actions for liability officers and directors personal impose statutes certain However, entity. „ „ „ „ „ „ „ violation ofstatestatutes. Payment ofadividendorstockpurchaseredemptionin Wilful failuretopaywages. under certainfederalandstatetaxcodes. Failure toremitwithholdingandsalestaxesorpay Fraud orinjustice. Operating thesubsidiaryasasingleeconomicunit. Gross undercapitalisation. formalities. Failure oftheowner/parententitytoobservecorporate

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insolvent (either before, or as a result of, the transfer); insolvent (either before, or as a result of, the left with unreasonably small capital; or due as a left unable to pay its debts as they became result of the transfer (constructive fraud). „ „ „ Form of instrument evidencing the debt. Fixed maturity date and schedule of payments. Fixed interest rate and interest payments. The creditor engaged in inequitable conduct. gave the creditors or The conduct injured the debtor’s claimant an unfair advantage. Code. the with consistent otherwise is subordination Equitable A transfer made with actual intent to hinder, delay, or delay, actual intent to hinder, A transfer made with fraud). defraud its creditors (actual debtor received less than reason- A transfer for which the at a time when the debtor was either: ably equivalent value „ „ „ „ „ „ „ „ „ „ „ In general, most state fraudulent transfer laws have a longer “look longer a have laws transfer fraudulent state most general, In state statutes may require back” period than the Code. However, additional evidence, such as that at least one still unpaid creditor exists from the time of the transfer unsecured creditor. or harm to an actual Under the Code, a good faith transferee of a bar its of fraudulent transfer benefit the retain may debtor the to value given has that and debtor the to provided value the of extent the to only but gain, avoidable. otherwise not is obligation or transfer the extent the to tion, but may result in a creditor receiving little or no recovery from the bankruptcy estate. Courts look at a number of factors to determine whether recharacterisation is warranted, including, among other things, the: „ „ „ Equitable subordination A bankruptcy court may when order interests) equity to not the (but claims junior subordination otherwise to claim of a creditor conduct improper or inequitable in engaged has holder claim the pre-bankruptcy a aside set not does remedy This 2). Question (see transaction or result in the disallowance of a claim, but adjusts apply generally Courts downward. claim creditor’s a of priority the of subordination equitable whether determine to test three-part a a claim is appropriate. The court will examine whether: „ „ „ Recharacterisation A bankruptcy court can exercise its the equitable power recharacterisation to of order a debt which claim has the as lowest priority under an the Code (see equity Question 2). interest, Recharacterisation does not set-aside a pre-bankruptcy transac Fraudulent transfers Fraudulent trans- avoid to trustee or possession in debtor a permits Code The fers by a debtor that fall under the Code or state law fraudulent transfer statutes or state bulk transfer two within made laws. debtor a by transfer any are transfers fraudulent Under the Code, which to case bankruptcy the of commencement the before years conditions apply: either of the following „ „ Additionally, a security interest perfected within 30 days of receipt receipt of days 30 within perfected interest security a transfer. Additionally, preferential a as avoided be cannot property debtor’s the of - - - about this publication, please visit about Practical please Law visit Company, purchaser of property. The FOR MORE FOR bona fide INFORMATION set aside? If so, who can challenge these transactions, when these transactions, If so, who can challenge set aside? affected? rights parties’ third Are circumstances? what in and Can In which the debtor received new value in exchange. Made in the ordinary course of the debtor’s business or Made in the ordinary course of the debtor’s according to ordinary business terms. Of less than US$5,850 (this amount may be adjusted periodically). A hypothetical creditor extending credit and obtaining an A hypothetical creditor extending credit and unsatisfied. execution against the debtor that is returned A hypothetical bona fide and perfected purchaser of real property. A hypothetical judicial lien creditor.

„ „ „ „ „ „ To To ensure the equal treatment of under the Code, pre-bankruptcy similarly transfers of cash or situated other prop creditors erty or the incurrence of certain debts or guarantees that unfairly that guarantees or debts certain of incurrence the or erty benefit certain creditors may besubject to scrutiny and avoid- ance (for example, undoing the transfer and recovering the prop- erty to increase the value of the estate or reprioritising claims). Claims belonging to the bankruptcy estate may be brought by an appropriate party in interest, such as the debtor in possession or trustee, or a party in interest granted standing (if necessary) by and exclusive mutually not are actions The court. bankruptcy the each can apply to any given set of facts. A debtor in possession or trustee utilises the strong arm powers to avoid liens, transfers and obligations, which under applicable non-bankruptcy law (generally state law) would be deemed to be junior to the debtor in possession or trustee’s rights as a hypo thetical lien creditor, a hypothetical creditor that has extended credit, or a hypothetical „ „ „ Preferences The Code allows a debtor in possession or trustee to avoid pref erential transfers, which are transfers of the to, debtor’s or property for the benefit of, a creditor made within 90 days before the commencement of the bankruptcy case (or within one year of the commencement of the case if the creditor is an insider). The Code contains exceptions that protect certain transfers that would otherwise constitute avoidable among others, transfers: preferences, including, „ „ „ Strong arm powers The Code vests a debtor in possession or trustee with strong arm rights the trustee or possession in debtor the grant which powers, of the following parties: SETTING ASIDE TRANSACTIONS 9. an insolvent company’s pre-insolvency transactions be RESTRUCTURING AND INSOLVENCY AND RESTRUCTURING MULTI-JURISDICTIONAL GUIDE 2012/13 The Code also allows a debtor in possession or trustee to stand in stand to trustee or possession in debtor a allows also Code The actions creditor law state bring and creditor actual an of place the of obligation or transfer voidable any avoid to parties third against the debtor (state fraudulent transfer/conveyance statutes). strong arm powers are most commonly exercised to avoid invalid, avoid to exercised commonly most are powers arm strong unenforceable, lapsed, unperfected and/or otherwise security interests (see Question 1). voidable Country Q&A o a iie pro o tm i i i i te et neet f the of interest best the a example, For in liquidation. orderly an with consistent and estate is it if time of period limited a for business debtor’s the operating continue to trustee 7 Chapter a generally debtor authorise may 7 court bankruptcy however,the Chapter operations, ceases A trustee. a trustees elect creditors approved the of or panel a from trustee a States United appoints Trustee the case, 7 Chapter a In Authority/supervision. Circumstances. AChapter7debtorgenerallyceasesoperations. Chapter 7liquidationcases creditors, equityholdersandotherestateinterests. mismanagement) or where such appointment is in the interest of gross dishonesty,or fraud, incompetence, as (such shown cause for business debtor’s the operate and estate bankruptcy the ter adminis to powers) expanded with examiner an (or trustee 11 after Chapter and a appoint may court bankruptcy interest a hearing, a and notice in party a of request on instances, some In the debtorinpossessionmustobtaincourtapproval. rejecting executory contracts or unexpired leases), in which case, debtor’sthe or of assuming course or ordinary business, the side out assets of lease or sale use, credit, new obtaining as (such course ordinary the outside be to deemed actions for except 11, Chapter under protection for filing before had it as business its Authority/supervision. The debtor in possession is free to conduct responsible forsteeringthereorganisationprocess. and operate the debtor’s business as debtor in possession and are debtor’sthe affairs manage to continue management existing its debtor the that emerges as a successful so going concern. Ordinarily, process the debtor and bankruptcy the during operations) (continuing interruption minimal with debtor a reorganise and rehabilitate to is 11 Chapter of goal primary A Circumstances. Chapter 11reorganisationcases carry to continue company a can circumstances what 10. INSOLVENCY DURING BUSINESS ON CARRYING „ „ „ „ „ „ „ „ RESTRUCTURING AND INSOLVENCY 2012/13 GUIDE MULTI-JURISDICTIONAL liquidation case)(seeQuestion6). (a 7 Chapter or case) reorganisation (a 11 Chapter under tection pro for filed has it whether on depends proceeding bankruptcy a during business on carry to continue may company a Whether „ „ „ „ „ „ „ „

Sinking fund,ifany, toproviderepayment. Use toacquirecapitalassets. Subordination ofclaimsthirdpartycreditors. Corporation’s abilitytoobtainthird-partyfinancing. Security. Identity ofinterestbetweencreditorandstockholder. Adequacy ofcapitalisation. Source ofrepayments. In company’s businessandwhatrestrictionsapply? In proceedings? the on carry or supervise rescue particular,to authority the has who or insolvency during business on INFORMATION FOR MORE about Practical Law Company,visit Law please Practical about visit please publication, this about - - - „ „ „ „ The Codedefinesintellectualpropertytoinclude,amongothers: Intellectual propertylicences greater valuefortheestatethanrawmaterials. in result will product finished the because time of period a for Chapter 7 trustee may seek to continue manufacturing operations a opn ta i sbet o novny proceedings insolvency to subject is that company a 11. FINANCE ADDITIONAL „ „ will applyoneofthefollowingtwotests: licence, the jurisdiction in which the bankruptcy case is pending property intellectual an of assumption non-consensual For issue. no is there assumption, to consents counterparty licence the If pending. is case bankruptcy debtor’s the which in jurisdiction an assume to trustee the on depend will and restricted is or licence property intellectual possession in debtor a of ability the property,intellectual of licensee a is debtor the where However, in exchangeforpaymentofroyalties. the under Code and protections may retain rights special under the intellectual have property licence marks) trade not but ents, pat- and copyrights example, (for licences property intellectual rejected of counterparties Licensee Code. the in requirements the meets it if licence property intellectual the reject or assume may trustee or possession in debtor property,the intellectual of licensor a is debtor the Where licences. such property intellectual contracts, as executory reject or continue) is, (that to assume trustee or possession in debtor a allows generally Code The Trade marksarenotincludedinthedefinition. necessary liquiditytoadminister thebankruptcyestate. and critical provides often financing additional Obtaining case. the debtor’s business may obtain financing during the bankruptcy A debtor in possession or trustee authorised to continue operating „ „ „ „ „ „

bankruptcy law. Mask workstotheextentprotectedbyapplicablenon- Copyrights. Patents andpatentapplications. Trade secrets. the executorycontract. less ofthedebtorinpossessionortrustee’s intenttoassign be assumedbythedebtorinpossessionortrustee,regard- hypothetical thirdparty, thentheexecutorycontractcannot law preventstheassignmentofanexecutorycontracttoa Under thehypotheticaltest,ifapplicablenon-bankruptcy the agreement. tract ifthedebtorinpossessionortrusteeintendstoassign the debtorinpossessionortrusteecannotassumecon- law) prohibitstheassignmentofanexecutorycontract,then example copyrightandpatentlaw, andpossiblytrademark Under theactualtest,ifapplicablenon-bankruptcylaw(for Can financing or equivalent)? Is special priority given tothe given priority repayment ofthisfinance? Isspecial equivalent)? or financing possession in debtor example, (for finance additional obtain

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foreign main proceeding (that is, the proceeding is foreign main proceeding centre of main of the debtor’s pending in the country interest); (that is, the proceeding is foreign nonmain proceeding has an establishment, which pending where the debtor economic activity). is where it conducts non-transitory „ „ sary to implement co-operation and co-ordination under Chapter 15. They fall within the jurisdiction of the bankruptcy court. They are not subject to the jurisdiction and control of a recognised foreign proceeding. Jurisdiction over those assets by a US court is neces The foreign proceeding is either a: proceeding is either The foreign „ „ (a person or a body A qualified foreign representative foreign bankruptcy the debtor’s authorised to administer for recognition with the bank- proceeding) files a petition ruptcy court. require- The petition for recognition meets the technical ments set out in the Code. „ „ „ „ „ „ Chapter 15 requires a bankruptcy court to recognise a criteria are met: proceeding if the following bankruptcy foreign If those criteria are met, a bankruptcy court may only deny rec ognition if it would be manifestly contrary to US public policy. ognition if it would be manifestly contrary On filing a petition for recognition,grant the bankruptcythe foreign representative certain preliminary court may relief before ruling on recognition, such as a temporary restraining order. On recognition of a foreign proceeding, whether main or nonmain, the to effect gives that relief appropriate any grant may court the ( 15 Chapter of purposes party. a is debtor foreign the which in cases US in intervene to ing rec court bankruptcy the if granted automatically is relief Certain limited (with stay a including proceeding, main foreign a ognises the and assets US debtor’s foreign the to respect with exceptions) debtor’s the lease or sell use, to representative foreign the of right business. US assets and to operate the debtor’s representative. In addition, the foreign representative has stand tivecan commence avoluntary plenary case under Chapter 7or filing samerequirementsChapter thesubjectdomes11, to a as tic debtor seeking relief under either Chapter. If the recognised foreign proceeding is a nonmain proceeding, the foreign repre sentativecanonlycommence involuntaryan plenary proceeding against the debtor. A foreign representative may choose to initiate a plenary because in case ancillary cases, foreign representatives do not enjoy the full powers of a trustee or debtor in possession. However, a plenary case that is commenced after recognition only governs a foreign debtor’s US assets, unless the foreign debtor’s non-US assets meet each of the following conditions: „ „ „ Concurrent proceedings A Chapter 15 case in the US bankruptcy court iscase to an a foreignancillary proceeding. After the bankruptcy court enters an order of recognition of a the foreign foreign debtor has assets in main the US, the foreign proceeding,representa and if „ „ „ - - - - ). - see Question 7 Question see about this publication, please visit about Practical please Law visit Company, FOR MORE FOR are the rules regarding recognition, concurrent INFORMATION proceedings and international cases? What are the procedures for foreign creditors? treaties in multinational What ruptcy cases and those involved in foreign bankruptcy cases. bankruptcy foreign in involved those and cases ruptcy To foster co-operation between the parties involved in US bank US in involved parties the between co-operation foster To provide fair and efficient administration of cross-border To insolvencies. tive expense priority, reimbursement of fees and expenses, or or expenses, and fees of reimbursement priority, expense tive in diminution any for it compensate to guarantees) additional collateral. the in interest its of value Junior to the existing security interests in and liens on such such on liens and in interests security existing the to Junior property. such on liens and in interests security the to senior or Equal or interest security prior the of holder the if only but property, example, (for protection adequate granted is or consents lien administra liens, replacement or additional payments, cash

„ „ „ „ As a guiding principal, US bankruptcy courts apply the doctrine of international comity in Chapter 15 cases and, if may defer to the law of the foreign proceeding. necessary, An alternative to seeking additional financing after filing for bank for filing after financing additional seeking to alternative An The protections The (such protections as validity of the debt, priority of credit security extended that lender post-bankruptcy a to granted interests) in good faith remain in effect even if the order such authorising financing is later reversed or modified on appeal, except if the of implementation the for authorisation such hasfinancing been appeal. pending stayed ruptcy is for a debtor in possession or trustee to utilise cash on of and the administration operations thehand to debtor’s finance is, (that encumbered is cash the if However, case. bankruptcy the and/or on consent the without creditor’s secured cash collateral), the of provision the protection, adequate debtor in or possession ( restricted is collateral cash such of use trustee’s „ „ Recognition Chapter 15 of the Insolvency Cross-Border Code on Law Model UNCITRAL the of (enacted majority in 2005) incorporates of purposes stated the The Law). Insolvency Model (UNCITRAL 1997 Chapter 15 are, among others: 12. MULTINATIONAL CASES Secured financing is an option if a debtor in possession or trustee is trustee or possession in debtor a if option an is financing Secured debtor a authorise may court A credit. unsecured obtain to unable in or possession trustee to obtain secured financingwith priority and/or expenses secured by over administrative liens on property encumbered, is already property estate If estate. bankruptcy the of either: are that liens and interests security granted be can lender a „ „ erally allowable as erally allowable expense having over an priority administrative it other claims and unsecured is However, equity interests. often are gener lenders because credit to unsecured obtain impossible entity. bankrupt a to credit unsecured provide to unwilling ally A debtor in possession or trustee may obtain unsecured credit and and credit unsecured obtain may trustee or possession in debtor A incur unsecured debt in gen the is ordinary course of financing business, unless Unsecured otherwise. orders court bankruptcy the RESTRUCTURING AND INSOLVENCY AND RESTRUCTURING MULTI-JURISDICTIONAL GUIDE 2012/13 Country Q&A time. this at Code the reforming for proposals significant no are There 13. REFORM „ „ ditions apply: in either an ancillary or plenary case if both of the following con In addition, a creditor of a foreign debtor cannot receive payment solely creditor because theyareforeigncreditors. unsecured general a of that than claim of ority expressly prohibits foreign creditors from being given a lower pri 15 Chapter creditors. domestic as Code the under rights notifi cation and substantive same the granted are creditors Foreign Procedures forforeigncreditors sector debtors. above, treaty regarding insolvency or bankruptcy laws that (see govern private 15 has Chapter international Law any to in party not is US the Otherwise, Recognition). Code Insolvency the Model into UNCITRAL incorporated been the of majority The International treaties „ „ proceedings foraffiliateddebtorsthefollowingconditionsapply: ing. If the bankruptcy court grants recognition to multiple foreign automatic stay granted on recognition of a foreign main proceed the including case, plenary the in granted that with inconsistent is that case ancillary the in relief any terminate or modify must court bankruptcy the recognition, for petition the of filing the or recognition after commenced is case plenary a if Likewise, ble. relief upon recognition of a foreign main proceeding is inapplica plenary case and the section of Chapter 15 that grants automatic the in granted that with consistent be must case ancillary the in the of time the foreign representative’s at petition for recognition, the open relief granted is case plenary a If proceedings. rent concur in relief consistent grant must courts 15, Chapter Under RESTRUCTURING AND INSOLVENCY 2012/13 GUIDE MULTI-JURISDICTIONAL „ „ „ „

consistent withthatgrantedinaforeignmainproceeding. Relief grantedinaforeignnonmainproceedingmustbe ing havereceivedasmallerproportionaldistribution. The othercreditorsinthesameclassforeignproceed- in aforeignproceeding. It hasalreadyreceivedpaymentwithrespecttothatclaim co-ordination oftheproceedings. previously grantedinoneproceedingthatnowhindersthe and thecourtcanmodifyorterminateanyreliefthatwas the reliefgrantedineachproceedingmustbeconsistent If allforeignproceedingsarenonmainproceedings, Are thereanyproposalsforreform? INFORMATION FOR MORE about Practical Law Company,visit Law please Practical about visit please publication, this about ------

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Representation of timber company regarding bankruptcy rejection of leases. Representation of a lender of a distressed North American energy company. Representation of official creditors’ committee of Representation of official creditors’ committee Group. BearingPoint and The Cliffs Club & Hospitality Representation of noteholders in PetroRig. Representation of the postpetition debtor in possession administrative agent and facility lender in TBS International Ltd. Representation of creditors in Lehman. Representation of noteholders of a troubled South American entity. Representation of Chapter 11 trustee of Refco Capital Representation of Chapter 11 trustee of Refco and Refco Markets and the plan administrators of Refco Capital Markets. agent and/or Representation of postpetition financing Family Clothing, Goody’s lenders in Bombay Company, Gottschalks, and Pizzeria Uno. lenders in Representation of senior secured agent and and Borders. Steve & Barry’s Muzak, PLVTZ, „ „ „ „ „ „ „ „ „ „ representation; bankruptcy litigation. bankruptcy representation; representations; bankruptcy litigation; insolvency; financial services services financial insolvency; litigation; bankruptcy representations; transactions. „ „ „ „ Qualified. Areas of practice. Recent transactions „ „ „ Qualified. Areas of practice. Recent transactions „ „ „ CONTRIBUTOR DETAILS about this publication, please visit about Practical please Law visit Company, FOR MORE FOR [email protected] www.bingham.com +1 212 705 7763 +1 860 240 2748 +1 860 240 2576 [email protected] www.bingham.com +1 212 705 7747 +1 212 702 3668

W Bingham McCutchen LLP Bingham McCutchen T F E MICHAEL J REILLY W JEFFREY S SABIN Bingham McCutchen LLP T F E Global financial restructuring; creditors’ rights; rights; creditors’ restructuring; financial Global Global financial restructuring; creditors’ rights; rights; creditors’ restructuring; financial Global New York, US, 1978 New York, New York, US, 2007; District of Columbia, US, US, 2007; District New York, INFORMATION Representation of multiple creditors and counterparties in in counterparties and creditors multiple of Representation Lehman. Representation of steering committee of secured lenders in in lenders secured of committee steering of Representation Studios. MGM Representation of prepetition and postpetition lenders in TLC TLC in lenders postpetition and prepetition of Representation Vision. Representation of secured lender in Pacific Energy Resources. Resources. Energy Pacific in lender secured of Representation Motors, General in creditors secured of Representation Lyondell. and Spansion, Chrysler, Representation of official creditors’ committee and liquidating liquidating and committee creditors’ official of Representation LandAmerica. in trustee BearingPoint. in committee creditors’ official of Representation Representation of secured and unsecured noteholder Representation of secured and unsecured (UK), Purolator Courier, groups, including in Transtech Durango Controladora Comercial Mexicana, Corporación (Mexico), Grupo Mexico and Cablevision (Argentina). Representation of substantial creditor position in Lehman, Representation of substantial creditor position PGA West, General Growth Properties, Allied Capital, Atlas Delta Air Lines, US Airways, American Airlines, de Gas del Norte (Argentina), and Transportadora Air, Gas del Sur (Argentina). de Transportadora Representation of secured creditor group in Visteon. Representation of secured creditor group in „ „ „ „ „ „ „ „ „ „ bankruptcy; debt restructuring; out-of-court workouts; financial financial workouts; out-of-court restructuring; debt bankruptcy; assets. troubled of acquisitions and transactions; bankruptcy; debt restructuring; out-of-court workouts; financial financial workouts; out-of-court restructuring; debt bankruptcy; assets. troubled of acquisitions transactions; „ „ „ „ „ „ „ Areas of practice. Recent transactions Qualified. „ „ Recent transactions „ Areas of practice. Qualified. RESTRUCTURING AND INSOLVENCY AND RESTRUCTURING MULTI-JURISDICTIONAL GUIDE 2012/13 2007; Connecticut, US, 1976; Registered foreign lawyer in 2007; Connecticut, US, England and Wales