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Workout, Restructure, and Bankruptcy

Our workout, bankruptcy and creditors’ rights team has been involved on behalf of our creditor clients in some of the country’s largest workout, debt restructures and bankruptcy matters, representing creditors in complex and often contentious proceedings around the country.  These cases include the bankruptcies of high-profile debtors in the airline, energy, steel, retail, healthcare, telecommunications, bank holding company, and health care industries. Whether it is a routine counseling matter or a complicated national bankruptcy case, our lawyers are positioned to strategize a path to a successful outcome; and are not afraid to advocate aggressively, litigating where necessary, to achieve success for our clients. We welcome the opportunity to help clients navigate seldom-seen bankruptcy issues, and tackle high-risk and high-stakes cases that require unique, sophisticated solutions.

We primarily represent all types of creditors which include banks and financial institutions, equipment lessors, franchisors, health care businesses, indenture trustees, insurance companies, investors, landlords, lending institutions, manufacturers, private equity funds, retailers, software and technology companies, special servicers, state and local agencies, and tenants.

The recent pandemic has brought global awareness to the reality that a changing economy often has a sudden and unpredictable impact on businesses and business relationships.  Planning and quick, reasoned reaction are critical.  Well before a default occurs or a bankruptcy case is filed, we counsel our clients to minimize risk and improve their positions in the event of a financial downturn.  When a financially distressed situation occurs, we help guide our clients to maximize value and capitalize on opportunities. This includes guiding them through workouts and restructurings, negotiating and drafting forbearance agreements and loan modifications, and advising on insurance and surety coverage, as well as numerous other creditors’ rights issues.

Not every distressed situation can be resolved outside of court.  We routinely represent our clients in creditors’ rights matters in bankruptcy, federal, and state courts around the country, and in arbitration proceedings. We work with our clients to develop cost-effective strategies to achieve successful outcomes that maximize their recoveries.  We regularly appear on behalf of our clients in the busiest bankruptcy court in the country, including in Delaware, New York, Florida, Texas, and California.   We also pursue our clients’ rights in state and federal courts, and in arbitration proceedings, including commercial foreclosure actions, eviction proceedings, collection litigation, and a wide array of commercial disputes.

Our creditors’ rights attorneys are diverse and the breadth of knowledge and experiences that attorneys in our different practice areas bring to the table in representing our creditor clients is expansive.  For instance, the default, workout and bankruptcy team in our Corporate Trust group has extensive experience representing trustees in connection with secured and unsecured debt transactions in default and financially stressed situations.  This has included representation of trustees in hundreds of matters ranging from defaulted issuers seeking deferral of interest payments and forbearance, in connection with payment and covenant defaults, to the negotiation and optimization of bondholder recovery and implementation of plans consistent with the governing documents in complex Chapter 11 reorganizations and liquidations. 

Throughout the process, we collaborate with the firm’s wide array of specialized practice groups, including attorneys in our commercial litigation, business and finance, employment, tax, labor, environmental, healthcare, real estate and employee benefits groups, we provide comprehensive and efficient service to our clients.  For example, our environmental lawyers advise creditors and potential successors on understanding, navigating, and resolving environmental obligations/liabilities in the bankruptcy context, including with respect to state and federal environmental statutory and regulatory programs related to compliance obligations, the cleanup of contaminated properties (e.g., “brownfields”), formal agency enforcement matters and common law claims and are able to draft and negotiate insurance coverages that provide coverage for lenders and secured parties.

Workout, Restructuring and Bankruptcy Counseling

We help our clients maximize value and capitalize on opportunities in financially distressed environments. Often, this work is done outside of a courtroom.  Our team has successfully helped numerous clients in debt restructures which have avoided bankruptcy. For example, we regularly represent both lenders and borrowers in out-of-court restructurings and workouts, including drafting of forbearance agreements and loan modifications.  We understand the goals of our lending clients and the businesses they are lending to, and are able to obtain results that are mutually beneficial to the client and its customer in order to maintain their relationship when possible. We also advise our creditor clients on UCC Article 9 dispositions of collateral and deeds in lieu of foreclosure.  To effectively achieve our client’s goals of maximizing value, our attorneys are often required to become familiar with all aspects of the collateral, including many types of business assets and operations to properly advise our clients on appropriate terms of a loan restructure or other collateral dispositions. Before a default occurs, we also advise our lender clients on the impact that bankruptcy and insolvency laws may have on the terms of their loan documents and how best to protect their rights in the loan collateral. 

We also help our clients in numerous other industries in dealing with a distressed customer or supplier.  We help them craft strategies that allow them to minimize risk while accomplishing their business objectives.  This may take many forms, including changes to payment terms, securing the client’s position through credit supports, or negotiating business terms to improve the client’s position were litigation or a bankruptcy to occur.  We will also regularly counsel our clients regarding business practices and contract terms based on the impact of the bankruptcy laws to mitigate risk in any future downturn.

In counseling our clients both before and during a workout or distress situation, we often collaborate with the firm’s wide array of specialized practice groups, including business and finance, employment, tax, labor, environmental, health law, real estate and employee benefits groups, to provide comprehensive and efficient service.

Bankruptcy and Creditors’ Rights Litigation

We regularly represent our clients in every aspect of a bankruptcy case, ranging from motion practice to complex adversary proceedings. While many matters can be resolved through negotiation, others require aggressive, sophisticated litigation.   

For example, we represent clients in the following:

  • Contested claim allowance and estimation hearings;
  • Serving on creditors’ committees;
  • DIP Financing and cash collateral motion practice;
  • Rule 2004 discovery;
  • Plan negotiations;
  • Contested confirmation battles;
  • Section 363(f) “free and clear” sales of property, representing both buyers and affected counterparties; and
  • Challenges to experts and appointments of professionals under the Bankruptcy Code; and
  • Prosecution and defense of avoidance actions.

We routinely work on complex matters that require unique, creative solutions to problems not often seen in bankruptcy cases. We understand our clients, their industries and their goals, and we bring our experience in dealing with challenging, seldom-seen issues to achieve those goals. For example, in one ongoing high-profile matter, the USA Gymnastics bankruptcy case, we developed a creative strategy that involved having our client (an insurer, not a traditional lending institution) provide debtor-in-possession financing, customized to meet our client’s specific needs in the bankruptcy case, including limiting the debtor’s coverage litigation against our client.  The bankruptcy court not only approved the financing proposal, but acknowledged our client’s productive approach to the case.  

Our litigation experience extends far beyond bankruptcy courts. We regularly represent our clients in litigation in state and federal courts throughout the country, as well as in arbitration proceedings, to enforce their rights as creditors. For example, we represent our clients in receivership proceedings, including litigation of disputed settlements and obtaining injunctive protections for clients in conjunction with asset purchases. We also represent our clients in commercial foreclosure cases, including bringing claims to enforce the breach of “bad boy” clauses in non-recourse loans.  We also represent our clients in business tort matters, collection litigation, breach of contract claims, eviction proceedings, and pursuit of other statutory and tort-based recoveries.

Corporate Trust

For over 30 years, our Corporate Trust group has worked closely with the corporate trust departments of major national banks, representing them as corporate trustees, owner trustees, indenture trustees, escrow agents and collateral or security agents in a wide variety of corporate debt, leveraged lease, bond, and secured financing transactions and defaults. We routinely work with major equity and debt participants across the country, in bringing these complex transactions to a successful close, and representing our clients in directed and/or prudent person roles when defaults occur.

The default, workout and bankruptcy team of the Corporate Trust group has extensive experience representing trustees in connection with various secured and unsecured debt transactions in default and financially distressed situations. From covenant defaults to high profile Chapter 11 cases involving a wide array of industries, including the retail, health care, telecommunications, airline and energy industries, we are adept at partnering with our corporate trust clients to assist them in the fulfillment of their obligations, allowing them to best serve, and maximize value for, securities holding investors.

Recent Relevant Experience

Out-of-Court Workout and Restructuring

  • Represented and advised a group of borrowers who owned 15 hotel properties in three states in navigating through the workout and ultimate foreclosure of a $71 million CMBS loan, including taking various post-default actions without triggering the “bad boy” guaranty.
     
  • Represented and advised an administrative agent in devising and documenting various stages of a year-long forbearance of a $62 million syndicated credit facility, to permit the borrower to complete the construction of a state-of-the-art manufacturing facility.
     
  • Represented a trade creditor in negotiating a forbearance and payment plan agreement with a healthcare company operating throughout Maine.
     
  • Represented and advised a bank in the modification of existing financing and the making of debtor-in-possession financing, to permit the borrower to implement a property improvement plan and maintain its franchise, ultimately leading to a successful sale of the hotel and payment in full of the bank debt.
     
  • Represented lender in handling all aspects of workouts/restructures, commercial foreclosures, and bankrupties involving a portfolio of loans totalling in excess of $200 million acquired from the FDIC under FDIC loss share agreement.
     
  • Represented a mortgage lender in negotiating and documenting mortgage and loan modification for defaulted mortgage loan secured by a synagogue.
     
  • Represented a large regional bank in a debt restructuring and workout, including a secured party sale under Article 9 of the UCC, to a national chain of drug stores.
     
  • Represented a well-known developer in a workout with a special servicer in connection with a $65M mortgage loan secured by several hotels in Kansas, Indiana and Michigan. Negotiated forbearance agreements and handled foreclosure, which closed out the matter and any “bad boy” liability due to the activities of other venturers. Client was able to retain five years of management fees.
     
  • Represented a secured creditor in restructuring secured indebtedness owed by a petroleum retailer.
     
  • Represented a dairy supplier in negotiating a forbearance and payment plan agreement with a dairy retailer.
     
  • Represented lenders in negotiating forbearance agreement with borrower that owned and operated private golf club.
     
  • Represented a regional bank in a workout and liquidation of a loan to a collection agency. Representation included formal liquidation of fraudulent accounts receivable and other collateral, negotiation of customer agreements to avoid FTC liability, and bringing suit against a major insurance company under a bond relative to the fraudulent receivables, resulting in a significant settlement for our client.  In addition, we pursued the individual guarantors.
     
  • Represented and advised a national bank through a Chapter 11 of one of its borrowers, a luxury private golf course in Connecticut (including DIP financing).  In addition to the issues of financing an entity in Chapter 11, we negotiated subordinated loans to build a new clubhouse, environmental easement with the Department of Environmental Protection and five forbearance agreements over six years until the loan was actually paid by an assignment to the members of the club.
     
  • Represented mortgage lenders in negotiating forbearance agreements for defaulted mortgage loans secured by many types of commercial properties.
     
  • Represented a bank in the workout of a multi-million dollar loan to a landscaping company. In addition to liquidating the inventory and collecting on accounts receivables, the firm addressed and resolved a number of complex issues with the UCC in what was essentially a farm loan.
     
  • Represented a bank in Connecticut with a sale of non-performing loans. In order to consummate the sale, we reviewed, organized and re-documented approximately 25 loans.
     
  • Represented lender in all aspects of workout for failed condominium development and sale of future develpoment rights.

General Bankruptcy Matters

  • In re Jie Xiao; In re LXEng, LLC (Bankr. D. Conn. 2019) - Represented unsecured creditor in investigating pre-bankruptcy asset transfers of individual and his closely held company, which both filed for Chapter 7 bankruptcy. The investigation uncovered that the debtor improperly used a pension plan to hide assets and substantially all of his non-exempt assets were transferred to his former spouse on the eve of bankruptcy as part of a consensual property settlement in their divorce. We assisted the Chapter 7 Trustees of the debtors’ bankruptcy estates in successfully prosecuting fraudulent transfer actions against the former spouse in the approximate amount of $2.5 million and obtaining a judgment that the debtor’s pension was not exempt from the reach of his creditors.
     
  • In the Matter of an Application under Section 192 of the Canada Business Corporations Act, R.S.C. 1985, c. C-44, as amended, and in the Matter of Bellatrix Exploration Ltd. and 11260049 Canada Limited (Ontario Superior Court of Justice, Commercial List, 2019) - Represented national bank as trustee in restructuring proceedings filed by Bellatrix Exploration Ltd. resulting in the restructuring of over $200 million of senior secured notes and unsecured debentures, including the issuance of new notes and implementation of a recapitalization transaction through a Court approved Plan of Arrangement.
     
  • In the Matter of the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, as amended and In the Matter of a Plan or Compromise or Arrangement of Bellatrix Exploration Ltd. (Court of Queen’s Bench of Alberta, Calgary, Alberta 2019) - Represented national bank as trustee for secured second lien notes in Canadian proceedings filed by Bellatrix Exploration Ltd.
     
  • In re First NBC Holding Company (Bankr. E.D. La. 2017) - Represented national bank as trustee for $60 million of unsecured notes in Chapter 11 proceedings.
     
  • In re DB Holdco, Inc. (David’s Bridal) (Bankr. D. Del. 2018) - Represented global financial services firm as agent for Debtor in Possession financing in Chapter 11 proceedings, including the successful negotiation, confirmation and implementation of the Debtors’ chapter 11 plan.
     
  • In re Newbury Common Associates, LLC (Bankr. D. Del. filed 2015) - Represented bank with mortgage loan secured by hotel property in connection with cash collateral issues, Section 363 sale, and pay-off of loan from sale proceeds.
     
  • In re AGC, Inc. (Bankr. D. Conn. 2013) - A team of business and bankruptcy lawyers successfully completed and closed a Section 363 Sale for an aviation component manufacturer in just 34 days.

Mass Tort Cases

  • Represented insurers in numerous mass tort cases, including In re Crosier Fathers (Bankr. D. Minn, plan confirmed 2018); In re Archdiocese of St. Paul/Minneapolis (Bankr. D. Minn., plan confirmed 2018); In re USA Gymnastics, Inc. (Bankr. S.D. Ind., filed 2018, ongoing); In re Boy Scouts of America (Bankr. D. Del. filed 2020, ongoing).

Retail

  • Represented secured creditors, agents, and trade creditors, manufacturers, and suppliers in cases involving retailers and related businesses, including In re Southern Foods Group, LLC (“Dean Foods”) (Bankr. S.D. Tex. 2019) (dairy supplier); In re FULLBeauty Brands Holdings Corp. (Bankr. S.D.N.Y. 2019) (retail; pre-pack confirmed in one day); In re Specialty Retail Shops Holding Corp., et al. (Bankr. D. Neb. 2019) (retail chain); In re General Wireless Operations Inc. (dba Radioshack), et al. (Bankr. D. Del. 2017) (retail chain); In re The Fresh Ice Cream Company, LLC (Bankr. S.D.N.Y. 2017) (ice cream supplier); and In re Sports Authority Holdings, Inc., et al. (Bankr. D. Del. 2016) (retail chain).

Franchise and Distribution

  • Represented national franchisors and suppliers in bankruptcy cases filed by franchisees, distributors, or their principals, including In re Worley & Obetz, Inc., et al. (Bankr. E.D. Pa. 2018) (distributor/retailer); In re Pizza Palz, Inc. (Bankr. N.D. Ala. 2017) (franchisee); In re Patrick Williams (Bankr. E.D. Va. 2017) (principal of franchisee); In re Mega, Inc. (Bankr. S.D. Fla. 2015) (franchisee); and In re CRS Pizza, Inc. (Bankr. S.D. Ala. 2015) (franchisee).

Energy

  • Represented various secured and unsecured creditors, including trade creditors and contract counterparties, power plant lessees, and renewable energy creditors, as well as DIP agents and exit financing lenders in bankruptcy cases involving mining companies, electricity suppliers, energy producers, and companies involved in the oil and gas industry, including In re Black Jewel, LLC (In re Bankr. S.D.W.V. 2019) (coal mining company); In re GEEnergy Holding Co. LLC (Bankr. D. Del. 2019) (energy supplier); In re Starion Energy Inc., et al. (Bankr. D. Del. filed 2018) (retail energy supplier); In re Big Apple Energy, LLC, et al. (Bank. E.D.N.Y. 2018) (retail energy supplier); In re Midway Oilfield Constructors, Inc. (Bankr. S.D. Tex. 2018) (service provider to oil and gas industry); In re GenOn Energy, Inc., et al. (Bankr. S.D. Tex. 2017) (wholesale energy generator); and In re Westinghouse Electric Company, LLC, et al. (Bankr. S.D.N.Y. filed 2017) (nuclear energy); In re ESML Holdings Inc. (Bankr. D. Del. 2016) (mining); and In re Magnum Hunter Resources Corp. (Bankr. D. Del. 2015) (oil and gas).

Health Care

  • Represented various trade creditors, secured creditors, equipment lessors, and contract counterparties in Chapter 9 and 11 cases of hospitals, laboratories, pharmaceutical companies, and medical groups, including In re Thomas Health System, Inc. (Bankr. S.D.W.V. 2020) (hospital system); In re Purdue Pharma L.P. (Banrk. S.D.N.Y. 2019) (pharmaceuticals); In re Insys Therapeutics, Inc. (Bankr. D. Del. 2019) (pharmaceuticals); In re Calais Regional Hospital (Bankr. D. Me. 2019); In re Mercy Diagnostics, Inc. (Bankr. W.D.N.C. 2019) (laboratory); In re Verity Health Systems, Inc., et al. (Bankr. C.D. Cal. 2018) (health care system); In re Campbellton-Graceville Hospital Corp. (Bankr. N.D. Fla. 2017) (hospital); In re Little River Healthcare Holdings, LLC, et al. (Bankr. W.D. Tex. 2018) (hospitals and medical groups); In re Surprise Valley Health Care District (Bankr. E.D. Cal. 2018) (health care district); In re Southern Inyo Healthcare District (Bankr. E.D. Cal. 2016) (health care district); In re Institute of Cardiovascular Excellence, PLLC, et al. (Bankr. M.D. Fla. 2016) (medical group); and In re Health Diagnostic Laboratory, Inc., et al. (Bankr. E.D. Va. 2015) (laboratory).

Maritime

  • Represent trustees and agents in exit financing for vessel/shipping companies in Chapter 11, including In re Pacific Drilling S.A. (Bankr. S.D.N.Y. 2018); and In re Tidewater Inc. (Bankr. D. Del. 2017).

Creditors’ Rights Litigation

  • Natixis Funding Corp. v. Genon Mid-Atlantic, LLC, 2020 N.Y. Slip Op. 01701 (N.Y. App. Div. 2020); See also, Natixis Funding Corp. v. Genon Mid-Atlantic, LLC, 2019 N.Y. Misc. LEXIS 2853, 2019 N.Y. Slip Op 31511 ((N.Y. Sup. Ct. May 28, 2019); In re GenOn Energy, Inc. (Bankr. S.D. Texas 2017) - Represented national bank as trustee in Texas bankruptcy proceeding and subsequent litigation involving enforcement of $45 million of letters of credit, which had served as collateral on bond debt, brought in the Supreme Court of New York. Obtained trial court judgment in favor of trustee and debt holders, and affirmation on appeal following briefing and oral argument at New York State Appellate Division of the Supreme Court, First Judicial Department.
     
  • In re Jie Xiao (Bankr. D. Conn. 2019) - Represented unsecured creditor in obtaining a judgment that the debtor was not entitled to a bankruptcy discharge as a result of his intentional fraudulent transfers to his spouse in the weeks preceding his bankruptcy filing.
     
  • ISO New England Inc. v. Union Atlantic Electricity (Conn. Super. Ct. 2019) - Obtained judgment in excess of $250,000 against electricity supplier for breach of contract arising from its participation in New England electricity market.
     
  • Michaelson v. Oxford Health Plans (In re Federation Employment and Guidance Service, Inc.) (Bankr. E.D.N.Y. 2017) - Represented defendant in successfully settling multi-million dollar preference claim after moving for summary judgment for relatively nominal reduction in priority claim.
     
  • In re LSC Liquidation, Inc., 699 Fed. Appx. 503 (6th Cir. 2017) - Obtained favorable decision for contract counterparty correcting order authorizing the sale of the debtor’s assets. The original order erroneously failed to include the client’s contract as being assumed by the debtor and assigned to the buyer under Section 365 of the Bankruptcy Code. Over the opposition of the Committee of Unsecured Creditors, the Bankruptcy Court corrected its order, which decision was affirmed by U.S. District Court for the Eastern District of Michigan and Sixth Circuit Court of Appeals. Based on the correction of the sale order, preference claim against contract counterparty was withdrawn.
     
  • Foreclosure Action (Conn. Super. Ct. filed 2017) - Represented lender in connection with defaulted mortgage on shopping center in foreclosure proceeding.
     
  • Webster Bank, National Association v. Pinto (Bankr. E.D.N.Y. filed 2015) - Represented bank in obtaining a judgment from Bankruptcy Court that debt owed under guaranty was nondischargeable in guarantor’s bankruptcy case.
     
  • In re Lester (D. Mass. decision 2015) - Successfully represented insurance company in obtaining a judgment that debt owed to insurance company could not be discharged under Section 523(a)(4) of the Bankruptcy Code because prior finding of fraud by state court was dispositive of fraud determination under Section 523(a)(4). The U.S. District Court for the District of Massachusetts affirmed this judgment on appeal.
     
  • Salisbury Bank & Trust Company v. Christophersen, et al., No. X08-FST-CV-10-6005847S, 2014 WL 5094320 (Conn. Super. Ct. Aug. 5, 2014), aff’d, 163 Conn. App. 429 (2016) - Represented lender in obtaining judgment of strict foreclosure and rejecting borrower’s defense that lender breached fiduciary duties, following multi-day trial (affirmed on appeal).
     
  • J.E. Robert Co. Inc. v. Signature Properties, LLC, 309 Conn. 307 (2013); 320 Conn. 91 (2016) - Represented CMBS trust in obtaining judgment of strict foreclosure of mortgage on commercial office building and $13 million deficiency judgment against guarantors due to breach of “bad boy” carve outs.  Both the foreclosure judgment and deficiency judgment were affirmed by the Connecticut Supreme Court.
     
  • PWR16-456 Sackett Point RD LLC v. Sackett Land Company LLC, et al. (Conn. Super. Ct. filed 2014) - Represented lender in connection with defaulted mortgage on industrial property in foreclosure proceeding, including obtaining order appointing receiver and pursuing claims against borrower’s principals; represented lender in negotiating short sale and global settlement.
     
  • Patriot National Bank v. NBE, LLC, et al. - Obtained judgment of strict foreclosure on behalf of bank whose customer operated gas station, convenience store and car wash.  Obtained relief from stay in related Bankruptcy Court litigation, enabling bank to complete foreclosure action.

Attorneys

Robert M. Borden
Partner
rmborden@goodwin.com
(860) 251-5823
Hartford Office
Kimberly S. Cohen
Partner
kcohen@goodwin.com
(860) 251-5804
Hartford Office
Scott M. Gerard
Partner
sgerard@goodwin.com
(203) 324-8195
Stamford Office
New York Office
Ira H. Goldman
Of Counsel
igoldman@goodwin.com
(860) 251-5820
Hartford Office
Eric S. Goldstein
Partner
egoldstein@goodwin.com
(860) 251-5059
Hartford Office
Kathleen M. LaManna
Partner
klamanna@goodwin.com
(860) 251-5603
Hartford Office
Edward B. Parks II
Partner
eparks@goodwin.com
(202) 469-7753
Washington, DC Office
Nathan Z. Plotkin
Partner
nplotkin@goodwin.com
(860) 251-5320
Hartford Office
Marie C. Pollio
Partner
mpollio@goodwin.com
(860) 251-5561
Hartford Office
James P. Ruggeri
Partner
jruggeri@goodwin.com
(202) 469-7752
Washington, DC Office
James C. Schulwolf
Partner
jschulwolf@goodwin.com
(860) 251-5949
Hartford Office
Jessica M. Signor
Associate
jsignor@goodwin.com
(203) 324-8138
Stamford Office
Kelly A. Trahan
Partner
ktrahan@goodwin.com
(203) 324-8198
Stamford Office
New York Office
Joshua D. Weinberg
Partner
jweinberg@goodwin.com
(202) 469-7754
Washington, DC Office
Jaime A. Welsh
Associate
jwelsh@goodwin.com
(860) 251-5522
Hartford Office
Michael L. Widland
Partner
mwidland@goodwin.com
(203) 324-8101
Stamford Office
Latonia C. Williams
Partner
lwilliams@goodwin.com
(860) 251-5037
Hartford Office
Tracy Ellis Williams
Counsel
tewilliams@goodwin.com
(203) 324-8136
Stamford Office
New York Office
Andrew M. Zeitlin
Partner
azeitlin@goodwin.com
(203) 324-8111
Stamford Office
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