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Other Nonbankruptcy Alternatives: Exchange Offers, Strict Foreclosures and Workouts

ABCs and state receiverships are not the only chapter 11 alternatives. With even middle-market companies having widely held and tradeable note instruments, the exchange offer provides an out-of-court alternative that, if successful, can provide most of the benefits of a confirmed chapter 11 plan, and if unsuccessful, can still provide the basis for a confirmable prepackaged plan. The panel provides an introduction to exchange offers: the goals, mechanics and documents. The panel also explores the current thinking on the short reach of the Trust Indenture Act in exchange offers after the Second Circuit Court of Appeals’ decision in Marblegate Asset Management vs. Education Management Corp. In addition, the panel explores opportunities to use strict foreclosure and other consensual, or nonconsensual, workouts, wind-downs and liquidations to maximize value.

2019 Northeast Bankruptcy Conference & Northeast Consumer Forum
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