Corporate Restructuring in Malaysia

By KC Chia, KC Chia & Noor

“Corporate restructuring is an effective tool to resurrect distressed companies with a view of giving them a new lease of life, therefore enabling them to positively contribute to the nation’s future social and economic development…” Many companies in an economic downturn are making losses and may find themselves in a position of insolvency, meaning that they are unable to pay their debts as and when they fall due. Being trapped in such position is precarious, as there is a risk of the company being wound up, causing undue hardship to employees, creditors and shareholders alike. In addition, creditors will rush to enforce their debts, which is usually  disastrous state of affairs. This may eventually lead to the end of a company following a harsh liquidation process, which is costly, less efficient and time consuming. However, there are revival mechanisms in place to address such issues, depending on the root cause.

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Trade Creditors Beware - Debtor’s Setoff Rights Apply to Administrative Expense Claims (Including Claims asserted under 11 U.S.C. § 503(b)(9))

By Natasha M. Songonuga and Mark Conlan, Gibbons P.C.

In a May 5, 2015 decision, Judge Kevin J. Carey of the U.S. Bankruptcy Court for the District of Delaware rejected certain trade creditors’ objections to the joint motion filed by the debtors and the official committee of unsecured creditors in the ADI Liquidation, Inc. (f/k/a AWI Delaware Inc.) chapter 11 cases, jointly administered under Case No. 14-12092 (KJC), seeking authorization to offset trade credits, vendor overpayments and other amounts owed to the debtors against the creditors’ administrative and secured claims (the “Joint Motion”).  In granting the Joint Motion, Judge Carey concluded that the Bankruptcy Code (including its underlying policies) and case law provide ample support for allowing the debtors to exercise their discretion in determining to first offset funds owed to the debtors against a creditor’s administrative and/or secured claim (including Bankruptcy Code section 503(b)(9) claims) before applying such setoff rights against the creditor’s general unsecured claims.  See Docket No. 2052.  The decision highlights the risks trade creditors face in having their administrative priority claims under section 503(b)(9) diluted by a debtor’s setoff rights.

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Restructuring instruments of the bankruptcy code in Austria

By Mario Kapp, KAPP & STRIMITZER Rechtsanwälte GmbH

The successful and sustainable reorganisation of a company cannot be limited to the approval of a haircut by the creditors. In fact, the company must use the proper restructuring proceedings for its actions. In this regard, the Austrian Bankruptcy Act (IO) provides several substantive restructuring instruments.

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Proposed FASB update to “going concern” presumption

By Brett Theisen, Gibbons P.C

GAAP-compliant financial statements are prepared under a presumption that the reporting entity will continue as a going concern, i.e., assets will be realised and obligations met in the ordinary course of business. The presumption lasts until an entity’s liquidation is imminent; thereafter, liquidation accounting must be used.

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Strategies for acquiring assets in U.S. bankruptcy cases

By Leslie A. Berkoff and Marc L. Hamroff, Moritt Hock & Hamroff LLP

A key strategy in acquiring assets from a bankruptcy estate is by utilising existing debt and liens to credit bid for the assets that may be in play. However, over the past few years the ability of secured creditors to evaluate this strategy in a case based upon the value of their lien position has been undercut by several developing areas of the law.

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Enterprise restructuring in Italy, legal options and business opportunities

By Claudio Ceradini, SLT – Studi Legali e Tributari

Since 2007, Italy has been facing one of the deepest and longest financial and industrial crises ever seen. The number of bankruptcies has grown very rapidly. Consequently, the government has decided to develop restructuring rules with new options offered to those companies which detected their situation promptly and decided to react with a recovery and turnover plan.

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Financing of recent big corporate transactions in Spain

By Higini Marsal, Grup Vilar Riba

Transactions such as CVC and Deoleo and the merger of the IDC Salud (Capio) and Quirón hospital groups have been possible thanks to the application of the covenant lite or covlite formula, a structure which, for its nature and characteristics, tends to be associated with situations in which excess cash flow and a lack of opportunities has forced lenders to relax guarantees in order to ensure profitability and the survival of their business.

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Provisional attachment of assets as a means of debt collection

By Seiichi Yoshikawa, Koga & Partners Legal

As I wrote in a former article, it is often advisable for a creditor to secure a court order for provisional attachment on debtor’s assets before commencing a legal action for debt collection (main action). The attachable assets include real estate, personal property, ships or transportation vessels and the debtor’s claim to a third party. The creditor commences the procedure by filing an application together with documentary evidence to prove prima facie that it has a valid claim to the debtor and the necessity for provisional attachment.

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