1 Bankruptcy Remote Structuring by David W. Forti April 1-3, 2001 Copyright 2001 Dechert. All rights reserved. Materials have been abridged from laws, court decisions and administrative rulings and should not be considered as legal opinions on specific facts or as a substitute for legal counsel.
2 BANKRUPTCY REMOTE STRUCTURING David W. Forti Dechert A. Single Purpose Entity Working Definition: A single purpose entity ( SPE ) is an entity which is unlikely to become insolvent as a result of its own activities and which is adequately insulated from the consequences of a related party s insolvency. Rationale: Credit analysis assumes borrower is not subject to economic problems unrelated to the mortgaged property. 1. Limitations Limitation on Purpose: SPE should be limited to owning and operating the mortgaged property; Limitation on Indebtedness: Debt should be limited to mortgaged debt and other ordinary course debt related to ownership and operation of mortgaged property; and Prohibitions on Certain Fundamental Actions: SPE should be prohibited from engaging in any dissolution, liquidation, consolidation, merger or material asset sale while the loan is outstanding. 2. Insulation from Third Party Liabilities Separateness Covenants (to be included in organizational documents and loan documents; see Annex A): - To maintain books and records separate from any other person or entity; - To maintain its accounts separate from any other person or entity; - To conduct its own business in its own name; - To maintain separate financial statements; - To pay its own liabilities out of its own funds; - To observe all organizational formalities; Copyright 2001 Dechert. All rights reserved. Materials have been abridged from laws, court decisions and administrative rulings and should not be considered as legal opinions on specific facts or as a substitute for legal counsel.
3 - To pay the salaries of its own employees and maintain a sufficient number of employees in light of its contemplated business operations; - To allocate fairly and reasonably any overhead for shared office space; - To use separate stationery, invoices and checks; - To hold itself out as a separate entity; and - To correct any known misunderstanding regarding its separate identity; Non-consolidation Opinion pairings (generally an opinion that the assets and liabilities of the SPE will not be consolidated with the assets and liabilities of its 49% or greater equity holder(s) (and certain others such as affiliated property managers) in bankruptcy proceedings involving the equity holders). Pre-existing Entity Problems liabilities past behavior 3. Insulation from Dissolution SPE Component Equity Prohibitions on Dissolution 4. Avoidance of Voluntary Bankruptcy Filings when Borrower is Solvent Independent Director (vote required for voluntary bankruptcy filings) Sample definition: "Independent Director" means a duly appointed member of the board of directors of the relevant entity who shall not have been, at the time of such appointment, at any time after appointment, or at any time in the preceding five (5) years, (i) a direct or indirect legal or beneficial owner in such entity or any of its affiliates, (ii) a creditor, supplier, employee, officer, director, manager or contractor of such entity or any of its affiliates, (iii) a person who -2-
4 B. Single Member LLCs controls such entity or any of its affiliates, or (iv) a member of the immediate family of a person defined in (i), (ii) or (iii) above. In re Kingston Square Associates, 214 B.R. 713 (Bankr. S.D.N.Y. 1997); see Annex B recourse provisions professional independent directors Independent Manager Delaware entity Delaware opinions -3-
5 Annex A LANGUAGE TO BE INCLUDED IN THE PARTNERSHIP AGREEMENT OF A LIMITED PARTNERSHIP BORROWER (single property) Section Mortgage Loan Requirements. Notwithstanding anything in this Agreement to the contrary, unless and until that certain loan (the "Loan") from (together with its successors and assigns, the "Lender") to the Partnership made pursuant to that certain Loan Agreement dated on or about, 200_ (the "Loan Agreement") is paid in full in accordance with the Loan Documents, each Partner agrees and covenants as follows, with capitalized terms used but not defined in this Section having the meanings ascribed to them in the Loan Agreement: (a) Single Purpose Entity. (i) The Partnership and the SPE Equity Owner shall each be a Single Purpose Entity as defined in Section (b) hereof and (ii) the Partnership and each Partner shall act in a manner to cause the Partnership and each SPE Equity Owner to be, and neither the Partnership nor any Partner shall take any action that could cause the Partnership or any SPE Equity Owner not to be, a Single Purpose Entity. (b) "Single-Purpose Entity" means a corporation, limited partnership, or limited liability company which, at all times since its formation and thereafter (i) was and will be organized solely for the purpose of (x) owning the Facility or (y) acting as the managing member of the limited liability company which owns the Facility or (z) acting as the general partner of a limited partnership which owns the Facility, (ii) has not and will not engage in any business unrelated to the (x) the ownership of the Facility or (y) acting as a member of a limited liability company which owns the Facility or (z) acting as a general partner of a limited partnership which owns the Facility, (iii) has not and will not have any assets other than (x) those related to the Facility or (y) its member interest in the limited liability company which owns the Facility or (z) its general partnership interest in the limited partnership which owns the Facility, as applicable, (iv) has not and will not engage in, seek or consent to any dissolution, winding up, liquidation, consolidation or merger, and, except as otherwise expressly permitted by the Loan Agreement, has not and will not engage in, seek or consent to any asset sale, transfer of partnership or membership or shareholder interests, or amendment of its limited partnership agreement, articles of incorporation, articles of organization, certificate of formation or operating agreement (as applicable), (v) if such entity is a limited partnership, has and will have as its only general partners, general partners which are and will be Single-Purpose Entities which are corporations, (vi) if such entity is a corporation, at all relevant times, has and will have at least one Independent Director, (vii) the board of directors of such entity has not taken and will not take any action requiring the unanimous affirmative vote of 100% of the members of the board of directors unless all of the directors, including without limitation all Independent Directors, shall have participated in such vote, (viii) has not and will not fail to correct any known misunderstanding regarding the separate identity of such entity, (ix) without the unanimous
6 consent of all of the partners, directors (including without limitation all Independent Directors) or members, as applicable, has not and will not with respect to itself or to any other entity in which it has a direct or indirect legal or beneficial ownership interest (a) file a bankruptcy, insolvency or reorganization petition or otherwise institute insolvency proceedings or otherwise seek any relief under any laws relating to the relief from debts or the protection of debtors generally; (b) seek or consent to the appointment of a receiver, liquidator, assignee, trustee, sequestrator, custodian or any similar official for such entity or all or any portion of such entity's properties; (c) make any assignment for the benefit of such entity's creditors; or (d) take any action that might cause such entity to become insolvent, (x) has maintained and will maintain its accounts, books and records separate from any other person or entity, (xi) if such entity is a limited liability company, has and will have at least one member that is and will be a singlepurpose entity which is and will be a corporation, and such corporation is and will be the managing member of such limited liability company (xii) has maintained and will maintain its books, records, resolutions and agreements as official records, (xiii) has not commingled and will not commingle its funds or assets with those of any other entity, (xiv) has held and will hold its assets in its own name, (xv) has conducted and will conduct its business in its name, (xvi) has maintained and will maintain its financial statements, accounting records and other entity documents separate from any other person or entity, (xvii) has paid and will pay its own liabilities out of its own funds and assets, (xviii) has observed and will observe all partnership, corporate or limited liability company formalities as applicable, (xix) has maintained and will maintain an arms-length relationship with its affiliates, (xx) (a) if such entity owns the Facility, has and will have no indebtedness other than the Indebtedness and unsecured trade payables in the ordinary course of business relating to the ownership and operation of the Facility which (1) do not exceed, at any time, a maximum amount of [one percent (1%)] of the Loan Amount and (2) are paid within [thirty (30)] days of the date incurred, or (b) if such entity acts as the general partner of a limited partnership which owns the Facility, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as general partner of the limited partnership which owns the Facility which (1) do not exceed, at any time, [Ten Thousand Dollars ($10,000.00)] and (2) are paid within [thirty (30)] days of the date incurred, or (c) if such entity acts as a managing member of a limited liability company which owns the Facility, has and will have no indebtedness other than unsecured trade payables in the ordinary course of business relating to acting as a member of the limited liability company which owns the Facility which (1) do not exceed, at any time, [Ten Thousand Dollars ($10,000.00)] and (2) are paid within [thirty (30)] days of the date incurred, (xxi) has not and will not assume or guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of any other entity except for the Indebtedness, (xxii) has not acquired and will not acquire obligations or securities of its partners, members or shareholders, (xxiii) has allocated and will allocate fairly and reasonably shared expenses, including, without limitation, shared office space and uses separate stationery, invoices and checks, (xxiv) except pursuant to the Loan Agreement, has not and will not pledge its assets for the benefit of any other person or entity, (xxv) has held and identified itself and will hold itself out and identify itself as a separate and distinct entity under its own name and not as a division or part of any other person or entity, (xxvi) has not made and will not make loans to any person or entity, (xxvii) has not and will not identify its partners, members or shareholders, or any affiliates of any
7 of them as a division or part of it, (xxviii) if such entity is a limited liability company, such entity shall dissolve only upon the bankruptcy of the managing member, and such entity's articles of organization, certificate of formation and/or operating agreement, as applicable, shall contain such provisions, (xxix) has not entered and will not enter into or be a party to, any transaction with its partners, members, shareholders or its affiliates except in the ordinary course of its business and on terms which are intrinsically fair and are no less favorable to it than would be obtained in a comparable arms-length transaction with an unrelated third party, (xxx) has paid and will pay the salaries of its own employees from its own funds, (xxxi) has maintained and will maintain adequate capital in light of its contemplated business operations and (xxxii) if such entity is a limited liability company or limited partnership, and such entity has one or more managing members or general partners, as applicable, then such entity shall continue (and not dissolve) for so long as a solvent managing member or general partner, as applicable, exists and such entity's organizational documents shall contain such provision. (c) Transfers. The Partnership and each Partner shall not engage in or consent to any Transfer (as hereinafter defined) other than a Permitted Transfer. As used in this Section (c), "Transfer" means any conveyance, transfer (including, without limitation, any transfer of any direct or indirect legal or beneficial interest (including, without limitation, any profit interest) in the Partnership or the SPE Equity Owner, sale, Lease (including, without limitation, any amendment, extension, modification, waiver or renewal thereof), or Lien, whether by law or otherwise, of, on or affecting any Collateral or the Partnership or the SPE Equity Owner, other than a Permitted Transfer. (d) Priority of Distributions. At all times, the Partnership s assets shall be utilized to satisfy fully any and all of the Partnership s obligations and liabilities to Lender in accordance with the Loan Documents prior to paying or distributing any of such proceeds to satisfy other obligations or liabilities of the Partnership. (e) Conflicts. To the extent that this Section conflicts with any other provision of this Agreement, this Section shall control. To the extent that this Section or this Agreement conflicts with any Loan Documents, such Loan Documents shall control.
8 Annex B In Re Kingston Square Associates, et al., 214 B.R. 713 (Bankr. S.D.N.Y. 1997). An institutional lender made mortgage loans to eleven affiliated bankruptcy remote borrowers, which were controlled by a common principal. The lender later transferred the loans to a trustee in a CMBS transaction. The articles of incorporation of each borrower had provisions which precluded filing bankruptcy without the consent of an independent director. The borrowers had the same independent director, an affiliate of the original lender. The independent director did not, however, participate in the corporate affairs of the borrowers. The borrowers defaulted on their mortgage loans and the lender commenced foreclosure and receivership actions. In response to the lender s enforcement actions, the principal of the borrowers hired a law firm to solicit creditors to file involuntary bankruptcy petitions against each borrower. The lender filed motions to dismiss the bankruptcy petitions as collusive and bad faith attempts to circumvent the independent director requirements in each borrower s corporate documents. In ruling on the lender s motions, the bankruptcy court noted that cases with similar facts typically would be dismissed: the borrowers were single asset entities with no employees; the involuntary bankruptcy petitions were solicited solely to circumvent the corporate governance restrictions of the borrowers; and the borrowers were embroiled in disputed foreclosures with their secured creditor. Nonetheless, the court refused to dismiss the bankruptcies, finding that the principal s solicitation of friendly involuntary bankruptcy petitions was not a sufficient basis to find bad faith. Moreover, the court found that the borrowers principal had not violated any agreements with the lender in soliciting the involuntary bankruptcies. The court further questioned the actions and inactions of the independent director, and the independent director s failure to participate in or even stay informed regarding the borrower s affairs. The court declined, however, specifically to address whether the corporate charter provision requiring the vote of an independent director in order for the borrowers to file bankruptcy, should be nullified as void against public policy. Developments since Kingston Since Kingston there has been no published case law addressing this issue. Commentators have suggested, however, that as a result of the Kingston decision individuals may be less willing to serve as independent directors because of the potential personal liability for breaching fiduciary duties. As noted by the bankruptcy court in Kingston, all directors, including independent directors, have fiduciary obligations to act in the best interests of the entity for which they serve. Under state corporation law, after an entity is insolvent the director s fiduciary duty shifts to acting in the best interests of all creditors of that entity, not just the secured creditor. Accordingly, under certain circumstances it may be in the best interests of the entity and its creditors to file bankruptcy, and the independent director may have a fiduciary obligation to vote for such a bankruptcy. In point of fact, several bankruptcy remote entities recently have filed bankruptcy with the affirmative vote of the independent director. Moreover,
9 in order to have credibility with courts, it would appear that the independent director should be truly independent, and not controlled (or perceived to be controlled) by the lender. Independent directors that are not independent may cause a risk of liability for lenders. Finally, in structuring transactions and workouts lenders may consider requiring a covenant from the borrower s principals against solicitation of involuntary bankruptcy filings.
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