Following the Great Recession, the nonprofit sector faced significant financial headwinds that resulted in increased restructuring and, in some cases, dissolution, of many prominent nonprofits such as Saint Vincent Catholic Medical Centers, the New York City Opera, and The Big Apple Circus. The bankruptcy cases commenced by these organizations over the past several years provide useful guidance when navigating the complex intersection of federal bankruptcy law and New York’s nonprofit laws.
PSAs have become a mainstay in the Chapter 11 restructuring process, and it is therefore vital for distressed investors and other creditors to have a clear understanding of the legal terms of a contemplated PSA. This article examines the language of certain key provisions typically found in a PSA, and provides a brief survey of provisions agreed to by debtors in bankruptcy proceedings.
There are no absolute protections against the downside risk in any transaction. This is especially the case in cross-border transactions that span multiple jurisdictions. Nevertheless, some careful planning and drafting can improve the prospects for the outcome.
As the credit markets have slowly tightened and borrowers look for creative solutions to delever and refinance their balance sheets outside of bankruptcy, it is important to keep in mind that a transfer that is otherwise allowed under a borrower’s debt documents may still be attacked if there are indicia that the transfer is for “all or substantially all” of the borrower’s assets.
The expense, disruption and value deterioration inherent in sustained Chapter 11 proceedings have in recent years led to faster paced cases which are often, if not prepackaged, at least pre-negotiated (or pre-arranged). Debtors and sophisticated stakeholders are increasingly using plan support agreements to provide structure to a Chapter 11 case and set forth the pre-negotiated terms of a Chapter 11 plan.