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Secured Creditor Issues

Level: Advanced
Runtime: 69 minutes
Recorded Date: May 22, 2019
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  • Overview of DIP Financial Model
  • Customary Features of DIP Financing Facilities
  • DIP Strategies
  • First Day Menu: Do's and Dont's on Day One
  • Alternative DIPs: Pricing, Priming, Stepping into Shoes of Initial DIP Lender
  • Credit Bidding: DIP/Prepretition Rights, Valuation, and Permissible Consideration
  • Adequate Protection: ResCap, Chardon and Illusory Adequate Protection
  • Other Developments
Runtime: 1 hour and 9 minutes
Recorded May 22, 2019


This panel will discuss post-petition financing issues, such as what it takes for a third party to prime a DIP and what should be allowed for controls by secured creditors via DIP financing cash-collateral orders, including case milestones. What terms are and should be acceptable in first-day cash-collateral and DIP-financing orders (Aegean)? Too much control, or simply adequate protection? ? 1111(b) elections (Baker Hughes); adequate protection (Chardon); lien-stripping (Caulkett); credit bidding and other rights in connection with ? 363 sales (Aerogroup); the recent credit bidding decision in Aeropostale; and the use of roll-ups.

This program was recorded as part of ABI's New York City Bankruptcy Conference on May 22nd, 2019.

Provided By

American Bankruptcy Institute
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Christopher K. Wu

President, Restructuring Advisory & Senior Managing Director
Teneo Restructuring

Christopher is a recognized leader in the M&A and restructuring community with over 20 years of investment banking, financial restructuring, and principal investment experience. Christopher’s experience spans many industries with a focus on renewable energy (biofuels, renewable natural gas, solar and other technologies), financial services, industrials, real estate, healthcare, consumer products, shipping, business services and media. He has closed over 100 transactions in his career encompassing a wide variety of complex situations, including debt-to-equity conversions, mergers, reorganizations, equity and junior capital financing, as well as asset and corporate stock purchases and sales, in and out of bankruptcy. He has advised a significant number of public and private companies in a wide range of industries, advising Boards of Directors, management teams, investors, and creditor groups.

Prior to joining Teneo, Christopher served as Partner, Co-Head of Investment Banking and Member of the Management Committee of Carl Marks Advisors for 14 years, successfully growing the investment banking practice into an industry leading boutique Before joining Carl Marks in 2003, Christopher was a Vice President in JP Morgan’s Global M&A Group focused in New York and London for seven years. Prior to his career in banking, Christopher served in various roles in international trade including Special Assistant to the Trade Policy Bureau of Japan’s Ministry of International Trade & Industry (MITI) and Assistant Manager in Itochu International’s Machinery Group.

Christopher has been deemed an expert witness in various courts nationally and has testified in numerous contested matters on various subject matters including valuation, feasibility, bidding and auction procedures, sale processes, bid protections, DIP financing, interest rates, plans of reorganization, substantive consolidation, option valuation, and 1111(b) notes among other topics.

Christopher was named Restructuring Banker of the Year in both 2013 and 2014 in the boutique and middle market categories, Distressed M&A Banker of the Year in 2016 by the Turnaround Atlas Awards, and consistently ranked as a Top 5 Bankruptcy Investment Banker by The Daily Deal, among many other awards and recognitions.

Christopher earned a BA in English Language and Literature from the University of Chicago and an MBA in Finance from the Stern School of Business at New York University. He serves on a number of boards including the Board of Trustees of the Institute for Career Development (ICD), a non-profit organization devoted to vocational rehabilitation for the disabled, and on the Board of Global Maritime Investments. Christopher is a FINRA Securities Principal.

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Edward S. Weisfelner

Brown Rudnick LLP

Ed Weisfelner is the Chair of Brown Rudnick’s Bankruptcy and Corporate Restructuring Practice Group. He is also a member of the Firm’s Management Committee. He has more than 35 years of experience representing official and ad hoc creditors’ and equity holders’ committees, individual creditors, indenture trustees, equity holders, and other parties in many of the nation’s largest in-court and out-of-court restructurings. Ed has also served as a court appointed litigation trustee, mediator and examiner.

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David Sawyer

Senior Managing Director
Ankura Consulting Group, LLC

David Sawyer is a Senior Managing Director at Ankura. He has over 25 years of experience in global financial markets, including extensive experience in restructuring and turnaround situations. He has spent time as both a distressed debt and special situations investor at a hedge fund and has served as the global head of a workout and restructuring group at a major international financial institution. David has played an active role as a principal across multiple creditor classes, in turnaround and restructuring situations around the globe for companies across a broad range of industries, including real estate. David has demonstrated strong leadership skills and has a proven track record of building and developing organizations, teams, and cultures within both distressed and growing organizations. Through his participation on distressed company boards and by leading organizations, he has proven himself as a change agent through successful strategy development and implementation.

Prior to joining Ankura, David was the Global Head of Portfolio, Counterparty Credit and Workout & Restructuring at Barclays. In this role, he managed more than 150 people and over $6 billion of distressed principal positions, including post-restructured equity, around the world. David spent several years at Silver Point Capital, a hedge fund in Greenwich, CT, before joining Barclays. At Silver Point, he ran the firm’s Restructuring and Portfolio Group, which was responsible for leading the restructuring and workout activities across the firm, including active participation on creditor committees, and managing the firm’s $3 billion private financing portfolio. He was also a member of Silver Point’s distressed private equity group focused on obtaining control equity positions though restructurings and debt conversions. In this role, David was responsible for the execution of the restructuring process, the transitional efforts from debt to equity ownership, and the operational strategy and activities post ownership.

Prior to joining Silver Point, David was a director at Credit Suisse in their workout group with a focus on media, telecom and energy, and before that held various roles in the risk departments of Societe Generale and HSBC focused on leveraged lending.

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Dennis C. O'Donnell

Of Counsel
Milbank LLP

Dennis C. O’Donnell has been of counsel in Milbank’s Financial Restructuring Group since 2007 and is based in the firm’s New York Office. Prior to joining Milbank in 2001, Mr. O’Donnell spent ten years as a litigator at two New York-based AmLaw 100 law firms.

Mr. O’Donnell has extensive experience in corporate reorganization and bankruptcy-related litigation matters, and has represented debtors, lenders, official and unofficial committees, significant creditors, equity holders, examiners, and acquirors in chapter 11 cases, loan restructurings and out-of-court workouts.

Mr. O’Donnell has appeared in federal courts throughout the United States, including before the United States Supreme Court, the Second Circuit Court of Appeals, the Third Circuit Court of Appeals, the Fourth Circuit Court of Appeals, the Ninth Circuit Court of Appeals and numerous district and bankruptcy courts. He has spoken widely on bankruptcy topics and is a contributor to Colliers on Bankruptcy.

Mr. O’Donnell received his Juris Doctor from Benjamin R. Cardozo School of Law in 1991, where he was articles editor for the Cardozo Law Review. He received a B.A., in Classics and Philosophy, from Haverford College in 1979.

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David M. Hillman

Proskauer Rose LLP

David M. Hillman is co-head of the Private Credit Restructuring Group and a member of the Business Solutions, Governance, Restructuring & Bankruptcy Group.

David has 24 years of experience with an emphasis on representing private credit lenders, private funds, sovereign wealth funds and other alternative lenders and distressed investors in special situations and restructurings both in and out-of-court, whether the lender is secured or unsecured, unitranche or structured preferred. He has substantial experience in every phase of restructuring and distressed investing, including credit bid sales under section 363, debt-for-equity swaps, chapter 11 plans, out of court restructurings, foreclosures, and navigating inter-creditor issues involving the relative rights of majority and minority lenders. David also litigates the issues facing private credit lenders, including issues involving plan confirmation, solvency, valuation, inter-creditor disputes, financing and cash collateral disputes, fraudulent transfers, equitable subordination, recharacterization, breach of fiduciary duty and similar disputes.

David was listed as a “leading individual” in bankruptcy/restructuring by Chambers USA, which noted that interviewees praised him as “wonderful to deal with,” “very effective” and an “excellent litigator and strategist” who “thinks outside the box.” Chambers also noted that David is “an excellent counselor for distressed situations with significant litigation elements” and “a terrific, conscientious and focused lawyer.” He has also been recognized as a leader in his field by New York Super Lawyers as well. A member of the American Bankruptcy Institute, David speaks frequently on bankruptcy-related topics including recent decisions affecting secured creditor rights and preparing creditors for bankruptcy risks.

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Hon. Melanie L. Cyganowski (Retired)

Adjunct Professor
St. John University School of Law

Judge Cyganowski is a member of the firm of Otterbourg, Steindler, Houston & Rosen, P.C. in New York City. Prior to this, she served as a United States Bankruptcy Judge for the Eastern District of New York from 1993-2007 and as Chief Judge from 2005-2007. She received her J.D., magna cum laude, from the State University of New York at Buffalo School of Law. Following graduation from law school, Judge Cyganowski served as a law clerk to the Honorable Charles L. Brieant, United States District Judge for the Southern District of New York. Following her clerkship, she was a litigation associate at Sullivan & Cromwell (1982-1989) and a senior attorney in litigation at Milbank, Tweed, Hadley & McCloy (1989-1993).

Judge Cyganowski has written numerous articles concerning pressing issues in bankruptcy and frequently appears as a commentator on Fox Business News. She is a Fellow of the American Bar Foundation and also an active member of the Commercial and Federal Litigation Section of the New York State Bar Association, the ABI, the Federal Bar Council, the Bar of the City of New York, and the National Conference of Bankruptcy Judges.

Judge Cyganowski teaches Bankruptcy Ethics, Fraud and Malpractice with Judge Morris and has, in the past, also taught Domestic Relations in Bankruptcy and Chapter 11 Reorganization.

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Hon. Stuart M. Bernstein

U.S. Bankruptcy Court for Southern District of New York

Stuart M. Bernstein is a judge for the United States bankruptcy court, Southern District of New York. He was appointed to the court on November 24, 1993, and his current term will expire on November 23, 2021.

From September 1975 until March 1978, Bernstein was an associate at the New York law firm of Rosenman & Colin. From March 1978 until September 1982, he served as an Assistant United States Attorney for the Southern District of New York. For several years prior to his appointment to the bench in November 1993, he practiced law with the New York firm of Kensington & Ressler, P.C.

Judge Bernstein received his bachelor's degree from Queens College of the City University of New York in 1972 and his J.D. from Fordham University in 1975.

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