Structuring Special Purpose Entities: Separateness, Bankruptcy Remoteness and True Sales
Recording of a 90-minute CLE webinar with Q&A
This CLE course will prepare bankruptcy and finance counsel to structure special purpose entities (SPEs) to achieve bankruptcy remoteness and avoid substantive consolidation. The panel will discuss lessons from recent bankruptcy cases involving SPEs.
Outline
- Bankruptcy remoteness: development of SPEs with internal protections against bankruptcy
- Structural features of SPEs
- Restrictions on activities
- Restrictions on the ability to voluntarily file bankruptcy
- Judicial treatment of bankruptcy waivers
- Substantive consolidation
- True sale vs. pledge
- Issues arising from SPE bankruptcy filing
- Authority to file
- Involuntary bankruptcies
- Dismissal for bad faith filing
- Fiduciary obligations
- Springing or "bad boy" guaranties
Benefits
The panel will review these and other key issues:
- What factors are relevant in determining whether the transfer of assets to the SPE will be considered a true sale?
- How should the SPE be structured to maximize bankruptcy remoteness?
- What will courts consider in deciding whether substantive consolidation of the SPE and the transferor is warranted in a subsequent bankruptcy of the transferor?
Faculty
Mark S. Lichtenstein
Partner
Akerman
Mr. Lichtenstein focuses his practice on a broad range of corporate and bankruptcy matters, including restructuring of... | Read More
Mr. Lichtenstein focuses his practice on a broad range of corporate and bankruptcy matters, including restructuring of private equity portfolio companies, bankruptcy litigation, and the acquisition of assets in bankruptcy cases, as well as workouts, creditors’ rights litigation, distressed real estate matters, and commercial counseling. He also has experience in structured finance transactions and the rendering of opinions in connection with these transactions.
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Stephen B. Selbst
Partner
Herrick, Feinstein
Mr. Selbst has more than 30 years of experience representing debtors, creditors, official committees, distressed... | Read More
Mr. Selbst has more than 30 years of experience representing debtors, creditors, official committees, distressed investors and asset purchasers in bankruptcies and out-of-court restructurings. He is a frequent lecturer on bankruptcy and restructuring topics and has published articles and book chapters on bankruptcy-related topics. He has been frequently quoted in newspaper articles on insolvency related topics and has appeared on CNBC.
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Steven B. Smith
Partner
Herrick, Feinstein
Mr. Smith focuses his practice on complex corporate restructuring and creditors' rights, including in court Chapter... | Read More
Mr. Smith focuses his practice on complex corporate restructuring and creditors' rights, including in court Chapter 11 cases and out-of-court workouts. He represents official and ad-hoc creditor committees, secured lenders, administrative agents, and other parties-in-interest in restructuring matters. He is experienced in analysis of true sale, non-consolidation and bankruptcy remoteness principles.
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