Bankruptcy Restructuring Support Agreements: Drafting Strategies to Avoid Expensive Confirmation Battles

Recording of a 90-minute CLE webinar with Q&A

Conducted on Thursday, November 19, 2020

Recorded event now available

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Program Materials

This CLE webinar will equip counsel to negotiate and draft restructuring support agreements (RSAs, also known as "lock-up" or "plan support agreements") that will help reduce the cost, length, and adverse effects of a Chapter 11 case. A well structured RSA can assure all stakeholders that the debtor will emerge from the process with a minimum of disruption to the business, its creditors, and its employees. The program will discuss how RSAs can help to coordinate a multitude of stakeholders and the pitfalls of attempting to circumvent Bankruptcy Code protections.

Description

According to a preeminent bankruptcy organization, the number of Chapter 11 cases in 2020 will exceed 2012's record numbers. Debtors and stakeholders of all levels of sophistication are increasingly relying on RSAs to structure and prenegotiate a term sheet for what will become the Chapter 11 plan. Under an RSA creditors agree to support a plan that contains the terms and conditions set out in the RSA.

The key to a successful RSA is sufficient support from key stakeholders to comply with Chapter 11. Counsel must identify the most likely and most critical conflicts that are likely to arise and resolve those as much as possible. Attempts to avoid or undercut Bankruptcy Code protections will almost certainly reduce value to creditors and may sabotage reorganization.

Counsel must also be wary of overreaching, such as negotiating with some creditors and presenting it to others as nonnegotiable, withholding key information from all participants, unfair distributions, and procedural end-runs around Section 1129 of the Bankruptcy Code.

Listen as our authoritative panel of attorneys discusses best practices for crafting effective RSAs that minimize the overall cost and delay in Chapter 11 and maximize distributions to creditors.

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Outline

  1. Overview of RSAs
    1. Identifying the proper parties
    2. Provisions for debtors
    3. Provisions for creditors
  2. Terms that invite objection
    1. Solicitation vs. negotiation
    2. Giving plan supporters better treatment
    3. Milestones
    4. Fiduciary terms
    5. Third-party releases
  3. Drafting best practices

Benefits

The panel will review these and other key issues:

  • What is a plan support agreement?
  • Can RSAs alter Bankruptcy Code priorities?
  • What are the most important terms in an RSA for the various parties and stakeholders?
  • How does a court review an RSA?
  • How can the parties prevent overreaching by certain constituencies?

Faculty

Brownstein, Howard
Howard Brod Brownstein (Moderator), CTP
President and CEO
The Brownstein Corporation

Mr. Brownstein provides turnaround management and advisory services to companies and their stakeholders, as well as...  |  Read More

Kurth, Mette
Mette H. Kurth
Partner
Culhane Meadows Haughian & Walsh

Ms. Kurth focuses on all aspects of financial restructuring, distressed situations, and bankruptcy issues, and uses her...  |  Read More

Zahralddin, Rafael
Rafael X. Zahralddin-Aravena
Shareholder
Elliott Greenleaf

Mr. Zahralddin represents clients in all aspects of bankruptcy and restructuring and has deep experience in...  |  Read More

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