As markets react to the Coronavirus Disease 2019 (COVID-19) pandemic, the trading prices of loans and notes have declined. In light of these developments, borrowers and their affiliates, including private equity sponsors, are considering whether to buy back outstanding debt at a discount. In analyzing the potential benefits and drawbacks of pursuing debt repurchases, borrowers and private equity sponsors should consider the following:

Outstanding Debt Documents

Ice Miller is carefully monitoring the rapidly changing developments of the coronavirus (COVID-19) pandemic. It is our goal to provide you with the most up-to-date information available, along with advice on best practices and strategies to minimize loss and maximize long-term financial stability.

Below are some strategies for assessing exposure and preparing and responding to bad debt, slow-paying or delinquent counter-parties, bankruptcies or related creditors' rights litigation. Note: The steps and strategies below should be pursued simultaneously despite the numbered steps.

The Coronavirus Aid, Relief and Economic Security Act of 2020 (“CARES Act”) which Congress approved last week, together with the Small Business Reorganization Act of 2019 (the “SBRA”) which became effective on February 19, 2020, will make Chapter 11 bankruptcy protection much more attractive for small business debtors.

The COVID-19 pandemic is a public health crisis unprecedented in modern history, and the resulting economic dislocation has caused financial distress across supply chains worldwide. In light of this extraordinary crisis—and in anticipation of a wave of defaults by businesses large and small in the months to come—shippers, vendors, and other suppliers are assessing their potential exposures in the event of a customer failure.

The newly enacted Coronavirus Aid, Relief and Economic Security Act (CARES Act) contains some significant bankruptcy-related provisions, including those which amend the Small Business Reorganization Act of 2019 (SBRA) to make bankruptcy relief available to an increased number of small businesses.

For those who are contemplating the need to develop a bankruptcy strategy – and for creditors evaluating a debtor’s bankruptcy plan – it is important to understand these changes in the law.

Three recent court decisions address the scope and limits of bankruptcy injunctions barring future asbestos claims. The decisions – from the Second Circuit Court of Appeals, a Maryland bankruptcy court, and the Montana Supreme Court – underscore that (i) broad notice of proposed injunctions is critical and (ii) channeling injunctions under § 524(g) of the Bankruptcy Code apply only to liabilities that are derivative of the debtor’s liabilities, not to a company’s own liabilities.

Introduction

A recent decision from the United States District Court for the Southern District of New York (the District Court) in the bankruptcy cases of Sears Holdings Corp. may loom large in a day and age when shopping mall operators are seeking creative alternatives to the traditional, retail-oriented anchor-store business model.

On February 19, 2020, the federal Small Business Reorganization Act (SBRA) took effect, providing qualifying small businesses access to a streamlined and less expensive version of the traditional Chapter 11 bankruptcy process. On the heels of SBRA, and in light of the coronavirus outbreak, the March 27, 2020 enactment of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) provided further relief and opportunity to small businesses by including particular bankruptcy provisions.

Eligibility to File Bankruptcy under the SBRA and CARES Act

In an opinion issued on March 24, 2020, the District Court for the District of Delaware held that pre-petition environmental fines accrued by Exide Technologies were dischargeable debts in Exide’s Chapter 11 bankruptcy case and that penalties that Exide accrued during the pendency of its bankruptcy case were not entitled to administrative priority. South Coast Air Quality Management District v. Exide Technologies, Civ. No. 19-891 (D. Del. March 24, 2020).

The “Coronavirus Aid, Relief and Economic Security Act” (CARES Act) includes bankruptcy-specific provisions that provide enhanced relief for individuals and businesses that have been negatively impacted by the coronavirus outbreak.