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Wednesday, February 9, 2011 • New York, New York
Capitalizing on Real-Estate-Driven Workouts and Liquidations
©2011 Foley & Lardner LLP • Attorney Advertisement • Prior results do not guarantee a similar outcome • 321 North Clark Street, Chicago, IL 60654 • 312.832.4500
TABLE OF CONTENTS
AGENDA ...................................................................................................... TAB 1 CAPITALIZING ON REAL-ESTATE DRIVEN WORKOUTS PRESENTATION .......................... TAB 2 PROFILES .................................................................................................... TAB 3
©2011 Foley & Lardner LLP • Attorney Advertisement • Prior results do not guarantee a similar outcome • 321 North Clark Street, Chicago, IL 60654 • 312.832.4500
WEDNESDAY, FEBRUARY 9, 2011 FOLEY & LARDNER LLP
NEW YORK, NY
A G E N D A
3:00 p.m. — 4:00 p.m. Presentation
–Doug Spelfogel, Harold Kaplan, Barry Felder, Brian Cohen, Foley & Lardner LLP –Tim Dragelin, William Nolan, FTI Consulting
4:30 p.m. — 7:00 p.m. Networking Reception
– Metrazur, Grand Central Station
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
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ago,
IL
60654 •
31
2.8
32
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Dou
glas
E. S
pelfo
gel
dspe
lfoge
l@fo
ley.
com
Har
old
L. K
apla
nhk
apla
n@fo
ley.
com
Bria
n M
. Coh
enbc
ohen
@fo
ley.
com
Mar
k H
ebbe
lnm
hebb
eln@
fole
y.co
mB
arry
G. F
elde
rbg
feld
er@
fole
y.co
m
Tim
Dra
gelin
tim.d
rage
lin@
ftico
nsul
ting.
com
Willi
am N
olan
will
iam
.nol
an@
ftico
nsul
ting.
com
Mat
t Gre
enbl
att
mat
t.gre
enbl
att@
ftico
nsul
ting.
com
Febr
uary
9,2
011
3:00
p.m
. –4:
00 p
.m.
Fole
y &
Lar
dner
, LLP
(212
) 682
-747
4(2
12) 8
41-9
375
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Rec
ent T
rend
s in
Tro
uble
d R
eal E
stat
e/B
ankr
uptc
y•
Cur
rent
sta
te o
f the
mar
ket
–U
nres
train
ed c
apita
l flo
ws
driv
en b
y si
gnifi
cant
inve
stor
act
ivity
and
a re
laxa
tion
of u
nder
writ
ing
stan
dard
s le
d to
low
erin
g of
deb
t and
equ
ity c
osts
, com
pres
sion
of
requ
ired
retu
rn ra
tes,
and
ste
ep v
alue
gro
wth
thro
ugh
2006
-200
7–
Sin
ce 2
007,
due
to th
e co
ntra
ctio
n of
deb
t and
equ
ity c
apita
l mar
kets
, sha
rply
di
min
ishe
d tra
nsac
tion
volu
me,
and
ero
ding
eco
nom
ic fu
ndam
enta
ls, a
sset
va
lues
hav
e de
terio
rate
d–
Col
laps
e in
real
est
ate
dem
and
desp
ite n
ear-
reco
rd lo
w m
ortg
age
inte
rest
rate
s,
sale
s of
new
hom
es d
own
to lo
wes
t lev
els
sinc
e W
WII
–A
bsen
ce o
f rea
sona
bly-
pric
ed fi
nanc
ing
and
cred
it te
rms,
und
erw
ritin
g st
anda
rds
tight
ened
–C
omm
erci
al le
ndin
g in
stitu
tions
with
ass
ets
exce
edin
g $1
0 bi
llion
and
co
mm
erci
al re
al e
stat
e lo
ans
in e
xces
s of
100
% o
f reg
ulat
ory
capi
tal,
with
sm
alle
r le
nder
s up
to 3
50%
of l
endi
ng c
apita
l—hi
gh ri
sk–
Mor
tgag
e de
linqu
enci
es c
ontin
ue to
rise
–D
iffer
ence
from
real
est
ate
slum
p in
198
1-82
whe
re p
rime
rate
hit
21.6
% a
nd
mor
tgag
e in
tere
st ra
tes
wer
e hi
gher
than
15%
–Fe
w e
xper
ts a
re p
redi
ctin
g a
robu
st e
cono
mic
reco
very
any
tim
e so
on–
Com
mer
cial
real
est
ate
still
hasn
’t hi
t a c
lear
“bot
tom
”and
the
wor
st m
ay li
e ah
ead
–P
ossi
ble
“dou
ble
dip”
rece
ssio
n in
mon
ths
to c
ome
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Rec
ent T
rend
s in
Tro
uble
d R
eal E
stat
e/B
ankr
uptc
y•
Futu
re o
f Rea
l Est
ate
Lend
ing
Indu
stry
–Le
nder
s w
ill b
e re
quire
d to
re-u
nder
writ
e lo
ans
usin
g so
met
hing
oth
er th
an e
cono
mic
mea
sure
s•
For e
xam
ple,
lend
ers
will
be
rely
ing
on w
heth
er th
e bo
rrow
er is
tru
stw
orth
y an
d fin
anci
ally
cap
able
of r
idin
g ou
t the
slu
mp
–D
ebt h
eld
by m
any
diffe
rent
inve
stor
gro
ups
–M
ore
com
plex
loan
s in
volv
ing
mor
tgag
e-ba
cked
sec
urity
lo
ans,
com
plex
sen
ior/m
ezza
nine
stru
ctur
es, a
nd o
ther
as
sorte
d de
bt s
truct
ures
•M
any
of th
ese
com
plex
stru
ctur
es a
re b
eing
test
ed fo
r the
firs
t tim
e in
a
real
est
ate
dow
ntur
n, s
o cr
edito
rs a
nd d
ebto
rs a
re le
arni
ng a
sth
ey
go•
Lack
of p
rece
dent
allo
ws
for c
reat
ivity
•Pr
evio
usly
use
d fin
anci
al s
truct
ures
that
wer
e on
ce a
ppea
ling
are
dysf
unct
iona
l in
this
eco
nom
y an
d ar
e un
likel
y to
retu
rn
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
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2.8
32
.4500
•Pr
icew
ater
hous
eCoo
pers
sur
vey
indi
cate
s re
al e
stat
e pa
rtici
pant
s be
lieve
the
com
mer
cial
real
est
ate
reco
very
is
real
. –
Stab
ilizi
ng p
ricin
g–
Insu
ranc
e co
mpa
nies
incr
easi
ng m
ortg
age
allo
catio
ns–
Impr
ovin
g fu
ndam
enta
ls–
Incr
easi
ng d
eman
d
•A
num
ber o
f ins
titut
ions
hav
e re
surr
ecte
d th
eir C
MB
S
lend
ing
oper
atio
ns
•Th
e pa
ce o
f com
mer
cial
loan
mod
ifica
tions
is q
uick
enin
g
Are
We
Ther
e Y
et?
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
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e 2800,
Chic
ago,
IL
60654 •
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2.8
32
.4500
•D
oes
Moo
dy’s
R
eal
Com
mer
cial
P
rope
rty In
dex
indi
cate
a
Pla
teau
or a
t le
ast s
ome
firm
ing?
Moo
dy’s
Rea
l Pro
perty
Inde
x
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
•Ev
en w
ith m
arke
t opt
imis
m d
elin
quen
cy ra
tes
hit a
noth
er h
igh
Trep
pWire
Del
inqu
ency
Rep
ort 1
-5-1
1
Del
inqu
ency
Rat
es
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
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e 2800,
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ago,
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A S
mat
terin
g of
Thi
ngs
to
Con
side
r:•
Com
mer
cial
’s s
hado
w in
vent
ory
•U
nem
ploy
men
t•
The
Tale
of T
wo
Citi
es–
“A”p
rope
rties
in g
atew
ay c
ities
vs
“B-C
”pr
oper
ties
in n
on-g
atew
ay c
ities
and
the
pric
ing
of
each
•C
ompe
titio
n fo
r mar
quee
pro
perti
es•
Stru
ctur
e an
d w
here
in th
e ca
pita
l sta
ck d
oes
one
wan
t to
play
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Ban
krup
tcy
Tool
•B
ankr
uptc
y is
usu
ally
a la
st re
sort
for a
co
mpa
ny th
at c
omes
afte
r a p
erio
d of
liq
uida
ting
asse
ts to
pay
cre
dito
rs a
nd
atte
mpt
ing
to s
ettle
and
reso
lve
debt
issu
es
with
the
cred
itors
. •
Som
etim
es, t
he c
redi
tors
are
so
aggr
essi
ve
and
thre
aten
to ta
ke a
dver
se a
ctio
n th
at w
ill cr
ippl
e th
e co
mpa
ny o
r the
deb
t is
so g
reat
th
at th
e on
ly o
ptio
n is
ban
krup
tcy.
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Ban
krup
tcy
Tool
•W
hat d
oes
bank
rupt
cy d
o?–
Cle
an b
alan
ce s
heet
–R
estru
ctur
e co
mpl
ex s
truct
ures
–G
ain
Leve
rage
in T
rans
actio
ns/R
estru
ctur
e–
Allo
ws
for r
ejec
tion
of b
urde
nsom
e co
ntra
cts
–O
ppor
tuni
ties
to In
vest
: As
devi
ce fo
r a
Sal
e/P
urch
ase
of R
eal P
rope
rty o
r Deb
t-to-
Ow
n–
Allo
ws
for h
ostil
e an
d fri
endl
y ta
keov
er b
ids
–Pu
ts p
ress
ure
on s
peci
al s
ervi
cers
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Adv
anta
ges
of a
B
ankr
uptc
y Fi
ling
•Fi
nalit
y-Th
e bi
gges
t adv
anta
ge is
that
the
debt
or w
ill re
ceiv
e a
disc
harg
e if
a C
hapt
er 1
1 pl
an is
com
plet
ed
and
the
esta
te w
ill b
e cl
osed
, bin
ding
all
cred
itors
and
dis
posi
ng o
f all
issu
es;
•S
ectio
n 36
3 sa
le-A
sec
tion
363
sale
allo
ws
the
asse
ts s
old
to b
e “c
lean
sed”
or s
old
free
and
clea
r of l
iens
an
d en
cum
bran
ces,
whi
ch is
a b
ig a
dvan
tage
to b
uyer
s an
d m
ay in
crea
se th
e am
ount
of r
ecov
ery.
Sec
tion
363
also
allo
ws
the
cour
t to
mak
e a
findi
ng o
f the
buy
er’s
“goo
d fa
ith;”
•R
ejec
tion/
Assu
mpt
ion
of E
xecu
tory
Con
tract
s-th
e Ba
nkru
ptcy
Cod
e al
low
s th
e de
btor
to re
ject
con
tract
s th
at
are
not h
elpf
ul in
its
busi
ness
or a
ssum
e an
d as
sign
con
tract
s th
at a
re v
alua
ble.
The
deb
tor c
an o
btai
n a
valu
e fo
r the
se c
ontra
cts
thro
ugh
assu
mpt
ion
or a
ssig
nmen
t or r
ejec
t the
m re
sulti
ng in
pay
ing
a fra
ctio
n of
the
cont
ract
val
ue (a
s da
mag
es w
ill b
e tre
ated
as
prep
etiti
on s
ecur
ed o
r uns
ecur
ed c
laim
s) ra
ther
than
the
entir
e am
ount
;•
Aut
omat
ic s
tay-
The
auto
mat
ic s
tay
stop
s an
y lit
igat
ion
or c
olle
ctio
n ef
forts
(inc
ludi
ng g
arni
shm
ents
, re
poss
essi
ons,
and
fore
clos
ures
) aga
inst
the
debt
or. T
his
is a
sub
stan
tial a
dvan
tage
ove
r the
non
-ban
krup
tcy
optio
ns, e
spec
ially
if th
e de
btor
is s
ubje
cted
to o
ngoi
ng li
tigat
ion
or p
erce
ives
that
it w
ill b
e in
the
futu
re;
–S
tay
may
be
lifte
d ea
rly o
n in
the
case
if a
ban
krup
tcy
invo
lvin
g re
al e
stat
e•
A C
hapt
er 1
1 pl
an a
llow
s a
debt
or to
pay
its
cred
itors
ove
r tim
ean
d at
low
er a
mou
nts.
The
deb
tor a
lso
has
the
optio
n to
pur
sue
a C
hapt
er 1
1 liq
uida
ting
plan
;•
Con
trol:
com
pany
can
con
tinue
ope
ratio
n an
d al
low
s th
e co
mpa
ny to
reta
in a
nd c
ontro
l of a
sset
s an
d th
e bu
sine
ss o
pera
tions
, to
the
exte
nt th
at th
ere
are
any;
•A
llow
s fo
r all
issu
es to
be
litig
ated
in o
ne fo
rum
rath
er th
an ri
skin
g lit
igat
ion
in m
ultip
le fo
rum
s if
a no
n-ba
nkru
ptcy
opt
ion
in p
ursu
ed;
•Th
e B
ankr
uptc
y C
ode
prov
ides
a m
echa
nism
for d
eter
min
ing
prio
rity
and
exte
nt o
f lie
ns;
•C
hapt
er 1
1 B
ankr
uptc
y m
ay a
llow
for a
sal
e of
all
asse
ts o
n a
goin
g co
ncer
n ba
sis,
whi
ch m
ay a
llow
for a
hi
gher
sal
e pr
ice;
•Th
e de
btor
has
the
abili
ty to
sur
char
ge th
e se
cure
d cr
edito
r’s c
olla
tera
l for
reas
onab
le, n
eces
sary
cos
t and
ex
pens
es o
f pre
serv
ing
or d
ispo
sing
of t
he c
olla
tera
l und
er 1
1 U
.S.C
. sec
tion
506(
c) u
nles
s ot
herw
ise
wai
ved
(and
wai
ver i
s co
mm
on w
here
the
secu
red
cred
itor a
lso
prov
ides
the
DIP
fina
ncin
g);
•Th
e C
hapt
er 1
1 de
btor
may
be
able
to o
btai
n re
leas
es fr
om c
redi
tors
.
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Dis
adva
ntag
es o
f Fili
ng
Ban
krup
tcy
•M
ore
cost
ly th
an th
e ou
t-of c
ourt
optio
ns, e
spec
ially
if a
sec
tion
363
sale
is in
volv
ed.
The
debt
or w
ill b
e pa
ying
pro
fess
iona
l fee
s (in
clud
ing
for a
com
mitt
ee’s
pro
fess
iona
ls
and
likel
y se
cure
d cr
edito
rs’p
rofe
ssio
nals
), a
larg
er fi
ling
fee,
ban
krup
tcy
fees
, ad
min
istra
tive
fees
, etc
.;•
Can
be
very
long
and
com
plex
;•
Pub
lic-a
ll pl
eadi
ngs
are
post
ed fo
r the
pub
lic to
vie
w a
nd a
ll he
arin
gs a
re o
pen
to th
e pu
blic
;•
It do
es n
ot p
rote
ct th
e pr
inci
pals
of t
he c
ompa
ny—
espe
cial
ly if
ther
e ar
e co
rpor
ate
gove
rnan
ce a
nd/o
r avo
idan
ce is
sues
. It a
lso
does
not
dis
pose
of o
blig
atio
ns u
nder
pe
rson
al g
uara
ntee
s of
the
prin
cipa
ls;
•C
redi
tors
hav
e th
e op
portu
nity
to li
ft th
e st
ay to
com
e af
ter c
olla
tera
l or c
ontin
ue
litig
atio
n;•
A C
hapt
er 1
1 Tr
uste
e or
an
unse
cure
d cr
edito
rs c
omm
ittee
cou
ld b
e ap
poin
ted
to
over
see
the
oper
atio
ns o
f the
deb
tor;
•A
Cha
pter
11
debt
or u
sual
ly re
quire
s so
me
form
of D
ebto
r In
Pos
sess
ion
finan
cing
, w
hich
may
be
diffi
cult
and
expe
nsiv
e to
obt
ain
in th
is e
cono
mic
env
ironm
ent.
The
exis
ting
lend
er w
ould
like
ly h
ave
to fu
nd th
is o
r the
cre
dito
rs w
ould
;•
If a
Cha
pter
11
plan
is n
ot fe
asib
le, t
he c
ase
coul
d be
con
verte
d to
a C
hapt
er 7
;•
Neg
ativ
e cr
edit
mar
ket r
espo
nse
•S
tigm
a
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Sta
y W
aive
rs
•Th
e st
ay a
rises
upo
n th
e fil
ing
of th
e ba
nkru
ptcy
pet
ition
and
pro
hibi
ts
actio
ns a
gain
st th
e de
btor
’s p
rope
rty to
allo
w th
e de
btor
a “b
reat
hing
spe
ll”•
It al
so p
rote
cts
cred
itors
bec
ause
it p
reve
nts
a ra
ce to
the
cour
thou
se a
nd
puts
all
cred
itors
on
equa
l foo
ting
•To
obt
ain
relie
f fro
m s
tay,
the
lend
er h
as to
sho
w “c
ause
”or c
an s
how
that
th
e bo
rrow
er la
cks
equi
ty in
the
colla
tera
l and
the
colla
tera
l is
not n
eces
sary
fo
r an
effe
ctiv
e re
orga
niza
tion
•Fo
rbea
ranc
e ag
reem
ents
are
beco
min
g m
ore
com
mon
for l
ende
rs w
hen
a bo
rrow
er is
hav
ing
diffi
culty
mak
ing
paym
ents
•Le
nder
s ar
e in
clud
ing
lang
uage
in th
ese
agre
emen
ts th
at w
aive
the
auto
mat
ic s
tay
in th
e ev
ent t
hat t
he b
orro
wer
file
s fo
r ban
krup
tcy
•Fo
r exa
mpl
e, th
e la
ngua
ge m
ay s
ay “A
s co
nsid
erat
ion
to th
e le
nder
for t
he
with
in fo
rbea
ranc
e ag
reem
ent,
in th
e ev
ent o
f a b
ankr
uptc
y ca
se,t
he le
nder
sh
ould
be
acco
rded
relie
f fro
m th
e au
tom
atic
sta
y, a
nd th
e bo
rrow
er a
gree
s no
t to
cont
est t
he te
rmin
atio
n of
the
auto
mat
ic s
tay
by th
e le
nder
.”
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Sta
y W
aive
rs (c
ont.)
•M
ost c
ourts
are
enf
orci
ng th
e st
ay w
aive
rs b
ut h
old
that
they
are
not
“sel
f-exe
cutin
g”•
In o
ther
wor
ds, t
he le
nder
will
stil
l hav
e to
obt
ain
a co
urt o
rder
. •
Cou
rts h
ave
held
that
the
stay
wai
ver m
ay b
e th
e “c
ause
”req
uire
d to
lift
the
stay
. In
re S
hady
Gro
ve
Tech
Cen
ter A
ss. L
td.,
216
B.R
. 386
(Ban
k. D
. Md.
19
98).
•Th
e co
urt m
ay a
lso
look
to o
ther
fact
ors
to d
eter
min
e w
heth
er th
e w
aive
r is
enfo
rcea
ble
incl
udin
g•
The
soph
istic
atio
n of
the
party
mak
ing
the
wai
ver
•Th
e co
nsid
erat
ion
for t
he w
aive
r•
Whe
ther
oth
er p
artie
s ar
e ef
fect
ed b
y th
e w
aive
r •
The
feas
ibilit
y of
the
debt
or’s
reor
gani
zatio
n pl
an
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
1111
(b) E
lect
ion
•N
orm
ally
, an
unde
rsec
ured
cla
im w
ould
be
brok
en in
to 2
par
ts—
a se
cure
d an
d an
uns
ecur
ed c
laim
(for
the
defic
ienc
y ba
lanc
e)•
Sect
ion
1111
(b) E
lect
ions
: allo
ws
an u
nder
secu
red
cred
itor t
o ha
ve it
s en
tire
clai
m tr
eate
d as
a n
onre
cour
se s
ecur
ed c
laim
—fo
rego
ing
any
unse
cure
d de
ficie
ncy
clai
m•
How
ever
, bew
are
that
a 1
111(
b) e
lect
ion
does
not
nec
essa
rily
pres
erve
due
-on
-sal
e pr
ovis
ions
. Cou
rts h
ave
held
that
thes
e pr
ovis
ions
are
term
s of
the
agre
emen
t rat
her t
han
lien
right
s an
d ca
n be
mod
ified
in a
ban
krup
tcy.
See
A
iradi
gm C
omm
. v. F
CC
(In
re A
iradi
gm),
519
F.3d
640
(7th
Cir.
200
8).
•Al
so, i
n so
me
case
s, th
e co
urt m
ay a
llow
the
secu
red
cred
itor a
reco
urse
cl
aim
, whi
ch w
ould
allo
w th
e se
cure
d cr
edito
r to
have
a s
ecur
ed c
laim
and
an
uns
ecur
ed c
laim
for t
he d
efic
ienc
y an
d, th
eref
ore,
a ri
ght t
oac
cept
or
reje
ct th
e ba
nkru
ptcy
pla
n. S
ee G
reat
Nat
’l Li
fe In
s. C
o. v
. Pin
e G
ate
Ass
ocs,
197
6 W
L 35
9641
(Ban
kr. N
.D.G
a. O
ctob
er 2
0, 1
976)
.
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Spe
cial
Pur
pose
Ent
ities
(“S
PE
”)
in th
e W
ake
of G
ener
al G
row
th•
An S
PE
is u
sed
to is
olat
e le
nder
s fro
m fi
nanc
ial r
isk
by
requ
iring
spe
cific
pro
visi
ons
in th
e or
gani
zatio
nal d
ocum
ents
to
redu
ce th
e po
ssib
ility
of a
ban
krup
tcy
filin
g•
How
ever
, Gen
eral
Gro
wth
and
its
subs
idia
ries
wer
e pe
rmitt
ed
to s
tay
in b
ankr
uptc
y de
spite
bei
ng S
PE
s. S
ee 4
09 B
.R. 4
3 (B
ankr
. S.D
.N.Y
. 200
9).
•Th
e co
urt h
eld
that
an
SP
E’s
fidu
ciar
y du
ties
ran
to it
s sh
areh
olde
rs a
nd n
ot it
s cr
edito
rs.
•Th
e co
urt h
eld
that
eve
n th
ough
the
SP
Es
had
repl
aced
thei
r in
depe
nden
t dire
ctor
s on
the
eve
of b
ankr
uptc
y, th
is d
id n
ot
amou
nt to
bad
faith
bec
ause
the
inte
rest
s of
all
of th
e de
btor
s as
a w
hole
sho
uld
be c
onsi
dere
d, n
ot s
impl
y th
e in
tere
st o
f th
e S
PE
. •
Ther
efor
e, th
e ba
nkru
ptcy
cou
rt de
clin
ed to
dis
mis
s th
e S
PE
s’re
spec
tive
bank
rupt
cy p
etiti
ons.
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
SP
E’s
(con
t.)
•Fu
ture
impa
ct o
f Gen
eral
Gro
wth
–N
ot li
kely
to e
limin
ate
use
of S
PE
s bu
t rat
her f
orce
lend
ers
to lo
ok c
lose
ly a
t SP
E s
truct
ure
whe
n do
cum
entin
g lo
ans
–Le
nder
s w
ill li
kely
requ
ire th
eir S
PE
bor
row
ers
to re
vise
thei
r or
gani
zatio
nal d
ocum
ents
by:
•In
clud
ing
prov
isio
ns th
at re
quire
two
inde
pend
ent d
irect
ors
(frie
ndly
to
the
lend
ers,
of c
ours
e),
•co
nsen
t of t
he le
nder
s fo
r rem
oval
or a
ppoi
ntm
ent o
f tho
se d
irect
ors,
•
a pr
ovis
ion
that
aut
omat
ical
ly li
fts th
e au
tom
atic
sta
y un
der s
ectio
n 36
2 of
the
Ban
krup
tcy
Cod
e if
a ba
nkru
ptcy
is fi
led
(a “s
tay
wai
ver”)
, •
a w
aive
r of f
iduc
iary
dut
ies
if st
ate
law
per
mits
suc
h w
aive
r, an
d•
cons
ider
atio
n of
the
lend
er’s
inte
rest
if b
ankr
uptc
y is
con
tem
plat
ed.
–H
owev
er, t
he le
galit
y of
suc
h pr
ovis
ions
will
und
oubt
edly
be
chal
leng
ed in
the
futu
re.
–N
ote
that
ther
e ha
ve b
een
no d
ecis
ions
cha
lleng
ing
Gen
eral
G
row
th a
nd th
e de
cisi
on w
as n
ot a
ppea
led.
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
SP
E’s
(con
t.)
•Ex
ampl
e of
new
lang
uage
to u
se in
agr
eem
ents
in
volv
ing
SP
Es
–“B
orro
wer
is a
new
ly fo
rmed
lim
ited
liabi
lity
com
pany
fo
rmed
und
er th
e la
w o
f the
Sta
te o
f X.
As
long
as
the
Inde
bted
ness
is o
utst
andi
ng, B
orro
wer
sha
ll ha
ve a
t lea
st
two
Inde
pend
ent M
anag
ers
(as
defin
ed in
its
Aut
horit
y D
ocum
ents
). U
nder
its
Aut
horit
y D
ocum
ents
(as
defin
ed
on E
xhib
it A
), th
e vo
te o
f the
Inde
pend
ent M
anag
ers
are
requ
ired
for B
orro
wer
to ta
ke a
ny M
ater
ial A
ctio
n (a
s de
fined
in it
s A
utho
rity
Doc
umen
ts).”
–“A
s pr
ovid
ed in
its
Aut
horit
y D
ocum
ents
and
so
long
as
the
Inde
bted
ness
(as
defin
ed in
the
Loan
Agr
eem
ent)
is
outs
tand
ing,
AB
C C
ompa
ny w
ill be
with
out a
utho
rity
to
perm
it B
orro
wer
to ta
ke a
ny M
ater
ial A
ctio
n (a
s de
fined
in
its A
utho
rity
Doc
umen
ts) w
ithou
t the
writ
ten
cons
ent o
f the
tw
o In
depe
nden
t Man
ager
s.”
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
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31
2.8
32
.4500
Cas
e S
tudy
•Ex
ampl
e of
com
plex
fina
ncin
g st
ruct
ures
–Ex
tend
ed S
tay:
$8
billio
n in
deb
t, B
lack
ston
e, a
priv
ate
equi
ty,b
ough
t in
2004
, sol
d to
Lig
htst
one
and
Arb
or R
ealty
Tru
st fo
r $1b
cas
h an
d$7
b de
bt a
t pea
k of
mar
ket,
dow
ntur
n in
hos
pita
lity
busi
ness
mar
ket l
eft h
otel
ch
ain
with
too
muc
h co
mpl
ex d
ebt
–D
ebt t
ook
form
of c
omm
erci
al m
ortg
age-
back
ed s
ecur
ities
, sec
uriti
es
wer
e th
en c
hopp
ed in
to 1
8 pi
eces
, ran
ked
in o
rder
of p
riorit
y in
a w
ater
fall
stru
ctur
e–
Seni
or h
olde
rs w
ould
take
cut
and
then
cre
dito
rs b
enea
th th
em u
ntil
mon
ey ra
n ou
t—th
ose
at th
e bo
ttom
got
not
hing
–C
ompl
ex le
gal l
angu
age
gove
rned
the
rela
tions
hip
betw
een
each
gro
up–
Hun
dred
s of
pag
es a
bout
how
the
debt
stru
ctur
e w
orke
d–
Wer
e no
t des
igne
d to
go
into
ban
krup
tcy
(incl
uded
a g
uara
ntee
by
one
owne
r tha
t he
wou
ld b
e pe
rson
ally
liab
le fo
r $10
0m if
wen
t int
o ba
nkru
ptcy
)
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
–O
ctob
er 2
006:
Tis
hman
Spey
er P
rope
rties
LP
and
Bla
ckro
ck R
ealty
pur
chas
e S
tuyv
esan
t Tow
n/P
eter
Coo
per V
illage
for $
5.4
billio
n, fi
nanc
ed in
par
t by
a $3
billi
on
first
mor
tgag
e an
d $1
.4 b
illion
in m
ezza
nine
deb
t.–
Janu
ary
2010
: Ti
shm
an/B
lack
rock
mis
s $1
6.1
milli
on p
aym
ent o
n th
e de
bt.
A
grou
p of
sen
ior m
ezza
nine
deb
t hol
ders
led
by W
inth
rop
Rea
lty T
rust
indi
cate
that
th
ey w
ould
pur
sue
right
s an
d re
med
ies,
incl
udin
g a
pote
ntia
l for
eclo
sure
sal
e, if
pa
ymen
t was
not
mad
e w
ithin
10
days
.–
Janu
ary
2010
: Ti
shm
an/B
lack
rock
han
d ov
er c
ontro
l of t
he p
rope
rty to
CW
Cap
ital,
a sp
ecia
l ser
vice
r rep
rese
ntin
g in
vest
ors
who
hol
d th
e $3
billi
on fi
rst m
ortg
age.
–
Febr
uary
201
0: A
ppal
oosa
Inve
stm
ents
file
s a
mot
ion
chal
leng
ing
CW
Cap
ital’s
fo
recl
osur
e ef
forts
. A
ppal
oosa
indi
cate
s in
cou
rt fil
ings
that
it h
ad p
urch
ased
$75
0 m
illion
of t
he m
ortg
age,
prim
arily
in ju
nior
tran
ches
, in
the
perio
d le
adin
g up
to th
e de
faul
t. A
ppal
oosa
arg
ues
that
CW
Cap
ital i
s no
t act
ing
in th
e in
tere
sts
of a
ll de
bt
hold
ers.
Fe
dera
l jud
ge d
enie
s Ap
palo
osa’
s re
ques
t.–
Aug
ust 2
010:
Pers
hing
Squ
are
Cap
ital M
anag
emen
t and
Win
thro
p R
ealty
Tru
st
anno
unce
par
tner
ship
whe
reby
they
had
pur
chas
ed $
300
milli
on in
sen
ior m
ezza
nine
de
bt fo
r $45
milli
on a
nd w
ere
seek
ing
to fo
recl
ose
on th
e ow
ners
, a p
artn
ersh
ip
cont
rolle
d by
Tis
hman
Spe
yer.
The
fore
clos
ure
wou
ld a
llow
the
new
ly fo
rmed
pa
rtner
ship
to ta
ke c
ontro
l of t
he p
rope
rties
and
ass
ume
the
$3 b
illion
in d
ebt.
–A
ugus
t 201
0:Ju
dge
halts
the
fore
clos
ure
atte
mpt
s of
Per
shin
g/W
inth
rop
Rea
lty.
CW
Cap
ital h
ad s
ued
the
partn
ersh
ip, c
laim
ing
that
they
wer
e th
reat
enin
g a
brea
ch
of th
e in
terc
redi
tora
gree
men
t to
whi
ch th
ey w
ere
boun
d.–
Oct
ober
201
0:C
W C
apita
l pur
chas
es P
ersh
ing/
Win
thro
p R
ealty
’s ju
nior
deb
t for
$4
5 m
illion
and
as
a re
sult
deci
des
not t
o co
ntin
ue w
ith th
e fo
recl
osur
e au
ctio
n.
Firs
t Mor
tgag
e,
Sen
ior T
ranc
hes
-C
W C
apita
l re
pres
ents
the
inve
stor
s in
this
gr
oup
Firs
t Mor
tgag
e,
Juni
or T
ranc
hes
-Ap
palo
osa
Sen
ior M
ezza
nine
-Pe
rshi
ng
Squa
re/W
inth
rop
Rea
lty
Juni
or
Mez
zani
ne
Stu
yves
ant T
own
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
–Ju
ne 2
007:
Lig
htst
one
Gro
up L
LC p
urch
ases
the
Ext
ende
d S
tay
Hot
el p
ortfo
lio fo
r $8
billi
on fr
om B
lack
ston
e. T
he a
cqui
sitio
n w
as fi
nanc
ed in
par
t by
a $4
.1 b
illio
n fir
st
mor
tgag
e an
d $3
.3 b
illion
in m
ezza
nine
loan
s.–
May
200
9: W
acho
via,
as
adm
inis
trativ
e ag
ent f
or M
ezza
nine
B le
nder
s, s
ends
no
tice
of d
efau
lt to
the
Mez
zani
ne B
bor
row
er in
dica
ting
unpa
id o
pera
ting
expe
nses
of
$3.
5 m
illion
and
adv
ises
juni
or m
ezza
nine
lend
ers
(C-J
tran
ches
) of t
he d
efau
lt.–
June
200
9: J
unio
r mez
zani
ne d
ebt h
olde
rs L
ine
Trus
t Cor
p an
d D
euce
Pro
perti
es
Ltd
file
suit
agai
nst L
ight
ston
ean
d th
e se
nior
lend
ers
alle
ging
that
the
even
t of
defa
ult w
as m
anuf
actu
red
so a
s to
sec
ure
a tra
nsfe
r in
lieu
prio
r to
June
13,
the
date
th
at a
sig
nific
ant p
ortio
n of
deb
t was
to c
ome
due.
The
affe
ct o
f thi
s de
faul
t, th
e pl
aint
iffs
clai
med
, wou
ld b
e to
effe
ctiv
ely
wip
e ou
t the
deb
t jun
ior t
o th
e M
ezza
nine
B
leve
l. J
udge
issu
es te
mpo
rary
rest
rain
ing
orde
r, bu
t the
sui
t is
drop
ped
follo
win
g ba
nkru
ptcy
filin
g.–
June
200
9: E
xten
ded
Sta
y fil
es fo
r ban
krup
tcy
prot
ectio
n an
d in
dica
tes
$7.1
billio
n of
ass
ets
and
$7.4
billi
on in
deb
t.–
June
200
9: L
ine
Trus
t Cor
p an
d D
euce
pro
perti
es b
ring
forth
sec
ond
suit
alle
ging
th
at L
ight
ston
ew
as in
duce
d to
pus
h E
xten
ded
Sta
y in
to b
ankr
uptc
y by
the
seni
orle
nder
s in
retu
rn fo
r ind
emni
ty w
ith re
gard
s to
a $
100
milli
on g
uara
ntee
with
the
mez
zani
ne le
nder
s. C
ase
is re
man
ded
to th
e N
Y di
stric
t cou
rt.–
June
200
9: M
ezza
nine
deb
t hol
der F
ive
Mile
Cap
ital f
iles
suit
agai
nst C
erbe
rus
and
Cen
terb
ridge
alle
ging
that
they
neg
otia
ted
dire
ctly
with
the
debt
ors
prio
r to
the
bank
rupt
cy fi
ling.
Cas
e is
rem
ande
d to
the
NY
dist
rict c
ourt.
–M
ay 2
010:
Cen
terb
ridge
Partn
ers,
Pau
lson
& C
o, a
nd B
lack
ston
e G
roup
LP
agr
ee
to p
ay $
3.92
5 bi
llion
to a
cqui
re E
xten
ded
Sta
y. U
nder
the
agre
emen
t, al
mos
t all
of
the
secu
red
debt
wou
ld b
e re
paid
, whi
le h
olde
rs o
f the
mez
zani
nede
bt w
ould
not
re
ceiv
e pa
ymen
t.
Firs
t Mor
tgag
e -
Cer
beru
s,
Cen
terb
ridge
, O
ther
s
Mez
zani
ne A
&B
-W
acho
via,
Ban
k of
Am
eric
a, U
S B
ank
Mez
zani
ne C
-J -
Line
Tru
st,
Deu
ce
Prop
ertie
s
Ext
ende
d S
tay
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
–A
pril
2007
:JE
R P
artn
ers
agre
es to
acq
uire
Hig
hlan
d H
ospi
talit
y fo
r app
roxi
mat
ely
$2.1
billi
on.
The
acqu
isiti
on w
as fi
nanc
ed in
par
t by
$90
0 m
illion
in s
ecur
ed lo
ans
and
$900
milli
on in
mez
zani
ne lo
ans.
–Ja
nuar
y 20
10:
Bla
ckst
one
Gro
up L
P a
cqui
res
$320
milli
on o
f the
mos
t sen
ior
tranc
hes
of m
ezza
nine
deb
t at a
sig
nific
ant d
isco
unt t
o fa
ce v
alue
. T
he m
ove
plac
es B
lack
ston
e ju
st b
ehin
d th
e se
cure
d le
nder
s in
term
s of
sen
iorit
y.
Wac
hovi
a/W
ells
Far
go a
nd B
arcl
ays
own
the
maj
ority
of t
he s
ecur
ed d
ebt.
–Ju
ly 2
010:
Ash
ford
and
Pru
dent
ial p
urch
ase
an a
dditi
onal
$98
milli
on o
f mez
zani
ne
debt
that
is s
enio
r to
the
near
ly $
200
milli
on p
iece
alre
ady
owne
d by
the
pair.
The
m
ove
is d
esig
ned
to e
nsur
e th
at th
e tw
o ju
nior
lend
ers
wou
ld h
ave
a sa
y in
any
re
stru
ctur
ing
initi
ativ
es.
–A
ugus
t 201
0: H
ighl
and
Hos
pita
lity
defa
ults
on
the
mez
zani
ne d
ebt.
Bla
ckst
one
wor
ks w
ith th
e co
mpa
ny a
nd it
s se
nior
lend
ers
tow
ards
a p
oten
tial p
re-p
acka
ged
bank
rupt
cy.
–O
ctob
er 2
010:
Ash
ford
and
Pru
dent
ial s
et fo
rth p
lans
for a
fore
clos
ure
auct
ion.
The
au
ctio
n is
con
tinuo
usly
del
ayed
as
cred
itors
wor
k w
ith e
ach
othe
r, JE
R P
artn
ers,
and
H
ighl
and
Hos
pita
lity
to d
evel
op a
rest
ruct
urin
g pl
an.
–Ja
nuar
y 20
11:
Wal
l Stre
et J
ourn
al re
ports
that
Hig
hlan
d H
ospi
talit
y is
clo
se to
se
curin
g a
deal
with
its
lend
ers
that
wou
ld re
finan
ce it
s su
bsta
ntia
l deb
t out
side
of
bank
rupt
cy c
ourt.
The
dea
l, it
is re
porte
d, w
ould
hav
e A
shfo
rd a
nd P
rude
ntia
l sw
itch
alm
ost a
ll of
thei
r deb
t ove
r to
equi
ty a
nd ta
ke c
ontro
l of t
he h
otel
cha
in.
The
mov
e w
ould
als
o re
quire
that
Ash
ford
and
Pru
dent
ial w
ould
hav
e to
pay
an a
dditi
onal
$17
0 m
illion
to re
pay
a po
rtion
of t
he s
ecur
ed m
ortg
age.
Sec
ured
Cre
dit -
Wac
hovi
a/W
ells
Fa
rgo
and
Bar
clay
s
Mez
zani
ne D
ebt,
Sen
ior T
ranc
hes
-B
lack
ston
e
Mez
zani
ne D
ebt,
Juni
or T
ranc
hes
-As
hfor
d an
d Pr
uden
tial
Mez
zani
ne D
ebt,
Low
est T
ranc
hes
Hig
hlan
d H
ospi
talit
y
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
–A
pril
2007
:A
pollo
Inve
stm
ents
acq
uire
s In
nkee
pers
US
A fo
r $1.
5 bi
llion
inca
sh p
lus
the
assu
mpt
ion
of
Innk
eepe
r’s d
ebt,
whi
ch in
clud
es a
n $
825.
4 m
illio
n fix
ed ra
te m
ortg
age
loan
sec
ured
by
45 h
otel
pr
oper
ties
and
sold
into
the
CM
BS
mar
ket i
n tw
o se
para
te tr
usts
.An
add
ition
al $
250
mill
ion
float
ing
rate
lo
an s
ecur
ed b
y 20
hot
el p
rope
rties
is a
lso
assu
med
, as
wel
l as
$207
milli
on in
add
ition
al C
MB
S d
ebt
secu
red
agai
nst 7
diff
eren
t hot
el p
rope
rties
.–
Apr
il 20
10:
The
$825
.4 m
illion
loan
is tr
ansf
erre
d to
spe
cial
ser
vici
ng d
ue to
a m
isse
d lo
an p
aym
ent.
M
idla
nd L
oan
Ser
vice
s is
iden
tifie
d as
the
spec
ial s
ervi
cer o
f the
con
trollin
g tru
st .
Fiv
e M
ile C
apita
l is
the
cont
rollin
g cl
ass.
LN
R P
artn
ers
is s
peci
al s
ervi
cer o
f the
non
-con
trollin
g tru
st.
–Ju
ly 2
010:
Inn
keep
ers
files
for b
ankr
uptc
y pr
otec
tion
and
imm
edia
tely
file
s a
reor
gani
zatio
n pl
an th
at
calls
for L
ehm
an to
tran
sfer
100
% o
f its
$25
0 m
illion
loan
to e
quity
and
then
sel
l 50%
of t
hat e
quity
for a
pu
rcha
se p
rice
of $
107.
5 m
illio
n ba
ck to
Apo
llo w
ithin
45
days
. Th
e pl
an a
lso
calls
for a
redu
ctio
n of
the
$825
.4 m
illion
fixe
d ra
te d
ebt t
o $5
50 m
illion
. M
idla
nd a
nd o
ther
cre
dito
rs o
bjec
t to
the
plan
on
the
basi
s th
at i
t con
stitu
tes
a “n
on-c
onfir
mab
le n
ew v
alue
pla
n.”
–A
ugus
t 201
0: M
idla
nd fi
les
a m
otio
n re
ques
ting
to a
llow
its
CM
BS
hold
ers
to s
ubm
it a
com
petin
g pl
an
of re
orga
niza
tion,
indi
catin
g th
at it
had
a c
omm
itmen
t fro
m F
ive
Mile
to a
cqui
re a
ll of
the
reor
gani
zed
debt
or’s
equ
ity fo
r $23
6 m
illio
n.–
Sept
embe
r 201
0: B
ankr
uptc
y ju
dge
reje
cts
Innk
eepe
rs p
lan
of re
orga
niza
tion
due
to is
sues
rais
ed b
y M
idla
nd a
nd o
ther
s.–
Oct
ober
201
0: L
NR
pus
hes
Innk
eepe
rs to
war
ds a
n ag
reem
ent w
here
by th
e co
mpa
ny w
ould
pur
sue
othe
r sui
tors
in a
dditi
on to
Fiv
e M
ile C
apita
l. L
NR
als
o pe
titio
ns th
e N
Y su
prem
e co
urt t
o ap
poin
t LN
R
as s
peci
al s
ervi
cer o
ver t
he e
ntire
ty o
f the
$82
5.4
mill
ion
loan
. Ea
rlier
in th
e ye
ar, L
NR
had
acq
uire
d se
vera
l pie
ces
of c
ontro
lling
clas
s de
bt in
an
effo
rt to
upe
nd M
idla
nd’s
role
in th
e re
stru
ctur
ing
proc
eedi
ngs.
–Ja
nuar
y 20
11:
Innk
eepe
rs fi
les
decl
arat
ion
in s
uppo
rt of
a m
odifi
ed F
ive
Mile
/Leh
man
bid
that
wou
ld
have
Fiv
e M
ile p
urch
ase
50%
of t
he e
quity
in th
e ne
w e
ntity
for $
174.
1 m
illio
n an
d Le
hman
con
vert
it’s
debt
to e
quity
for t
he o
ther
50%
and
$26
.2 m
illio
n in
cas
h.
Innk
eepe
rs
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Non
-Ban
krup
tcy
Opt
ions
: W
orko
uts/
Deb
t Res
truct
urin
g•
Adva
ntag
es to
wor
kout
/deb
t res
truct
urin
g–
Priv
ate,
out
-of-c
ourt;
–U
sual
ly fa
ster
bec
ause
ther
e is
no
cour
t inv
olve
d;
–C
ost-e
ffect
ive;
–Fl
exib
le b
ecau
se th
ere
are
no c
ourt
rule
s th
at h
ave
to b
e fo
llow
ed;
–Le
nder
can
see
k ad
ditio
nal b
enef
its fr
om th
e bo
rrow
er in
clud
ing
addi
tiona
l cap
ital i
nves
tmen
t or c
redi
t sup
port
in th
e w
ay o
f gua
rant
ees;
–Be
caus
e of
the
curre
nt e
cono
my,
the
lend
er a
nd b
orro
wer
may
neg
otia
te
term
s th
at w
ere
impo
ssib
le in
the
past
incl
udin
g in
tere
st ra
te
mod
ifica
tions
, ext
ensi
on o
f the
mat
urity
dat
e, p
rinci
pal r
educ
tion
in th
e fo
rm o
f a d
isco
unte
d pa
yoff;
–Bo
rrow
er c
an re
tain
the
prop
erty
and
(hop
eful
ly) m
aint
ain
cash
flow
, al
low
ing
the
lend
er to
con
tinue
to m
ake
mon
ey fr
om th
e pr
oper
ty ra
ther
th
an s
uffe
ring
an e
xpen
sive
fore
clos
ure
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Non
-Ban
krup
tcy
Opt
ions
: W
orko
uts/
Deb
t Res
truct
urin
g•
Dis
adva
ntag
es to
a d
ebto
r eng
agin
g in
a w
orko
ut/d
ebt r
estru
ctur
ing
–N
o fin
ality
—cr
edito
rs a
re n
ot b
ound
, the
re a
re g
ener
ally
no
rele
ases
and
ther
e is
no
cou
rt or
der a
ppro
ving
or c
losi
ng th
e co
mpa
ny, w
hich
mea
ns c
redi
tors
cou
ld
sue
the
debt
or in
the
futu
re;
–C
redi
tors
cou
ld fo
rce
debt
or in
to a
n in
volu
ntar
y ba
nkru
ptcy
;–
In a
wor
kout
for a
larg
e co
mpa
ny, i
t is
very
diff
icul
t to
guar
ante
e th
at it
has
re
ache
d ou
t to
all c
redi
tors
and
tied
up
all l
oose
end
s th
roug
h cr
edit
agre
emen
ts;
–If
the
debt
or is
not
mak
ing
the
paym
ents
to a
sec
ured
cre
dito
r, th
e cr
edito
r cou
ld
choo
se to
fore
clos
e an
d se
ll th
e as
sets
at a
n au
ctio
n sa
le, p
ossi
bly
leav
ing
the
debt
or to
pay
a d
efic
ienc
y ba
lanc
e if
the
asse
ts s
ell f
or le
ss th
an th
e se
cure
d cr
edito
r is
owed
;–
Ther
e is
no
inde
pend
ent f
act-f
inde
r to
assi
st in
reso
lvin
g di
sput
es;
–Th
ere
is n
o au
tom
atic
sta
y in
pla
ce p
rote
ctin
g th
e de
btor
from
litig
atio
n an
d co
llect
ion
actio
n;–
Ther
e m
ay b
e no
mot
ivat
ion
for c
redi
tors
to w
ork
with
the
debt
oran
d ag
ree
to
settl
e fo
r les
s th
an 1
00%
;–
Usu
ally
hav
e to
obt
ain
secu
red
cred
itor’s
con
sent
bef
ore
selli
ng a
sset
s if
the
asse
ts w
ill b
e so
ld fo
r les
s th
an s
ecur
ed a
mou
nt;
–Th
e de
btor
wou
ld li
kely
be
forc
ed to
sur
rend
er a
ny c
olla
tera
l sec
urin
g de
bt.
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Non
-Ban
krup
tcy
Opt
ions
: Fo
recl
osur
es•
Mor
e co
mm
erci
al lo
ans
are
expe
cted
to d
efau
lt th
is y
ear
•As
of M
ay 3
1, 2
010,
mor
e th
an 4
,500
com
mer
cial
loan
s to
talin
g $8
1.3
billio
n ar
e in
def
ault
•Le
nder
s ar
e no
t in
the
busi
ness
of p
rope
rty m
anag
emen
t and
sal
e—bu
sine
ss is
to m
ake
mon
ey c
olle
ctin
g in
tere
st a
nd fo
recl
osur
e pu
ts e
nd to
th
at•
Taki
ng ti
tle to
real
est
ate
thro
ugh
fore
clos
ure
mea
ns le
nder
is re
spon
sibl
e fo
r ne
w c
osts
, cre
dito
r cla
ims
and
poss
ible
liab
ility
for e
nviro
nmen
tal i
ssue
s•
Addi
tiona
lly, t
he d
ebto
r may
cho
ose
to d
iscu
ss w
ith th
e se
cure
d cr
edito
r a
fore
clos
ure
of it
s co
llate
ral.
Thi
s w
ould
allo
w th
e se
cure
d cr
edito
r to
sell
the
asse
ts a
t a fo
recl
osur
e sa
le.
How
ever
, if t
he a
sset
s se
ll fo
r les
s th
an th
e am
ount
ow
ed to
the
secu
red
cred
itor,
the
secu
red
cred
itor c
ould
cho
ose
to
go a
fter t
he d
ebto
r or t
he g
uara
ntor
(if t
he d
ebt i
s gu
aran
teed
)for
the
defic
ienc
y.•
Adva
ntag
es: f
inal
ity, a
llow
s le
nder
to h
old
on to
pro
perty
for b
ette
r pric
e in
fu
ture
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Non
-Ban
krup
tcy
Opt
ions
: N
ote
Sal
es•
A n
ote
sale
is th
e sa
le o
f a n
ote
allo
win
g th
e se
ller-l
ende
r to
dive
st it
self
of th
e co
ntin
uing
ris
k of
a lo
an fo
r a s
et a
mou
nt (u
sual
ly a
t a
disc
ount
).•
Pur
chas
er o
f the
not
e ac
quire
s th
e no
te a
nd
the
right
s of
the
orig
inal
lend
er a
t a p
rice
mor
e re
flect
ive
of c
urre
nt e
cono
mic
con
ditio
ns.
•A
dvan
tage
s: M
ay o
ffer t
he fa
stes
t way
to
mon
etiz
e an
d ex
it fro
m a
n un
derp
erfo
rmin
g lo
an
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Non
-Ban
krup
tcy
Opt
ions
: A
ppoi
ntm
ent o
f a R
ecei
ver
•W
here
a d
efau
lted
borro
wer
is in
terfe
ring
with
th
e m
aint
enan
ce, o
pera
tion,
or p
oten
tial s
ale
of th
e co
llate
ral,
a le
nder
can
see
k ap
poin
tmen
t of a
rece
iver
.•
Dep
endi
ng o
n st
ate
law
, the
lend
er m
ay b
e re
quire
d to
sho
w th
at a
rece
iver
is n
eces
sary
to
pre
vent
was
te o
n th
e pr
oper
ty.
•A
dvan
tage
s: fa
ster
and
less
exp
ensi
ve s
ale
of
the
prop
erty
(with
out t
he s
tigm
a of
a
fore
clos
ure
or b
ankr
uptc
y).
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Non
-Ban
krup
tcy
Opt
ions
: D
eeds
in L
ieu
•In
the
even
t tha
t the
lend
er m
ust t
ake
title
to th
e pr
oper
ty, t
his
may
offe
r a m
ore
effic
ient
met
hod
than
fo
recl
osur
e.•
The
borr
ower
vol
unta
rily
“han
ds o
ver t
he k
eys”
to th
e co
llate
ral i
n sa
tisfa
ctio
n of
the
debt
.•
Use
is m
ost e
ffect
ive
whe
n th
e va
lue
of th
e pr
oper
ty
is c
lear
ly le
ss th
an th
e am
ount
of t
he d
ebt b
ecau
se
neith
er p
arty
wan
ts to
litig
ate
over
the
nega
tive
equi
ty.
•Ad
vant
ages
: spe
edy
and
cost
-effe
ctiv
e w
ay to
tra
nsfe
r titl
e
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Ban
krup
tcy
vs. N
on-
Ban
krup
tcy
Opt
ions
•H
ow to
dec
ide:
–W
hat a
re y
ou tr
ying
to a
chie
ve?
–W
eigh
pro
s an
d co
ns–
Wha
t do
you
wan
t to
happ
en w
ith th
e co
llate
ral?
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Take
away
s
•C
omm
erci
al re
al e
stat
e ha
s no
t hit
botto
m•
New
and
com
plex
fina
ncin
g st
ruct
ures
for c
omm
erci
al re
al
esta
te a
re e
mer
ging
as
a re
sult
of th
e ec
onom
ic ti
mes
•Le
nder
s sh
ould
con
side
r inc
ludi
ng la
ngua
ge re
quiri
ng tw
o in
depe
nden
t dire
ctor
s to
vot
e on
any
mat
eria
l cha
nge
whe
n an
S
PE
is in
volv
ed•
Bank
rupt
cy is
an
impo
rtant
tool
that
can
hel
p re
orga
nize
tro
uble
d co
mpa
nies
and
/or f
or le
vera
ge in
neg
otia
ting
an o
ut o
f co
urt d
eal.
•St
ay w
aive
rs m
ay b
e us
eful
in th
e le
ndin
g co
ntex
t to
allo
w th
e le
nder
to fo
recl
ose
mor
e ef
ficie
ntly
whe
n ba
nkru
ptcy
is fi
led
•Th
ere
are
man
y no
n-ba
nkru
ptcy
opt
ions
that
lend
ers
can
use
to
rest
ruct
ure
debt
that
are
gen
eral
ly m
ore
effic
ient
and
cos
t-ef
fect
ive
than
a b
ankr
uptc
y
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Take
away
s (c
ont.)
•Ke
y Ta
keaw
ays
in th
e tra
nche
war
fare
–W
ar is
exp
ensi
ve w
ith u
nkno
wn
resu
lts–
Bank
rupt
cy is
an
“equ
itabl
e”fo
rum
–W
ho c
ontro
ls th
e de
cisi
ons
–D
o yo
ur h
omew
ork
–Fi
ght w
ill b
e ov
er v
alue
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Que
stio
ns a
nd A
nsw
ers
©2011
Fol
ey &
Lar
dner
LLP
•Att
orney
Adve
rtis
ing
•P
rior
res
ult
s do n
ot
guar
ante
e a
sim
ilar
outc
ome
•M
odel
s use
d a
re n
ot c
lients
but
may
be
repre
senta
tive
of cl
ients
•321
N. C
lark
Str
eet,
Suit
e 2800,
Chic
ago,
IL
60654 •
31
2.8
32
.4500
Net
wor
king
Rec
eptio
n
Met
razu
r40
4 G
rand
Cen
tral T
erm
inal
, Eas
t Bal
cony
New
Yor
k, N
Y4:
30 p
.m. t
o 7:
00 p
.m.
©2011 Foley & Lardner LLP • Attorney Advertisement • Prior results do not guarantee a similar outcome • 321 North Clark Street, Chicago, IL 60654 • 312.832.4500
PROFILES
Douglas E. Spelfogel ....................................................................................................................1 Harold L. Kaplan..........................................................................................................................3 Brian M. Cohen..........................................................................................................................12
Barry G. Felder ..........................................................................................................................14 Mark F. Hebbeln ........................................................................................................................19 Timothy Dragelin .......................................................................................................................24 William Nolan ............................................................................................................................26
Matthew Greenblatt ...................................................................................................................28
©2011 Foley & Lardner LLP • Attorney Advertisement • Prior results do not guarantee a similar outcome • 321 North Clark Street, Chicago, IL 60654 • 312.832.4500
DOUGLAS E. SPELFOGEL
PARTNER
90 PARK AVENUE
NEW YORK, NY 10016-1314 (212) 338-3566
Douglas Spelfogel is a partner with Foley & Lardner LLP and head of its Bankruptcy & Business Reorganizations Practice in the New York office. He concentrates his practice on representation of creditors, creditors’ committees, venture funds, lenders, landlords, trustees, officers, directors, and debtors in complex financial restructurings, asset sales, workouts, and business reorganizations both out-of court and through Chapter 11 of the Bankruptcy Code. Mr. Spelfogel has appeared as counsel of record in over two dozen reported decisions and served as counsel for various parties in such national reorganizations and liquidations, including Bernard L. Madoff Investment Securities LLC; General Growth Properties, Inc.; Frontier Insurance Group; Williams Communications; Enron, Inc.; Herman’s Sporting Goods, Inc.; and Sesame Street Retail Stores, Inc. Mr. Spelfogel has also represented Fortune 100 companies, fiduciaries, and financial institutions in various roles in bankruptcy proceedings and bankruptcy-related litigation, including the Special SIPA trustee for Bernard L. Madoff Investment Securities, LLC; General Electric as secured lender; Wilmington Trust and Law Debenture as indenture trustee and plan trustee; Cordell Funds as non-institutional secured creditors; and Simon Properties and its predecessor, Corporate Property Investors, as landlord and creditor.
Based upon his experience, Mr. Spelfogel has been named one of the top 10 unsecured creditor attorneys in the nation by Bankruptcy Insider, a prominent industry publication.
Prior to joining Foley, Mr. Spelfogel was a partner with Baker Hostetler where he was the head of their bankruptcy and creditors’ rights practice in New York City and was also appointed a senior trial attorney with the United States Department of Justice, Office of United States Trustee earlier in his career, where he oversaw many of the largest Chapter 11 cases in New York. This was an appointment with distinction under the
©2011 Foley & Lardner LLP
2
prestigious United States Attorney General’s Honors Program earned following his graduation from law school. While with the Justice Department, Mr. Spelfogel supervised hundreds of reorganizations, conducted numerous trials, presided over statutory meetings of creditors and addressed congressional and public inquiries.
Mr. Spelfogel has lectured before bar associations and trade organizations, including the New York State Bar Association on bankruptcy law, and the National Business Institute on revised Article 9 secured transactions, commercial lending, and bankruptcy law. He taught bankruptcy law courses at Hofstra University and Lehman College, City University of New York, and served as moot court judge for Touro University and St. John’s University Law Schools. In 2009, Mr. Spelfogel was a panelist and co-authored the publication for the fraud seminar for the American Bankruptcy Institute Northeast Conference Fraud Panel.
Mr. Spelfogel has been rated as preeminent in his field with the highest ethical standard by Martindale-Hubbell, an authoritative resource on the legal profession.
Mr. Spelfogel is a board certified mediator and has been appointed to the Mediation Panels for the U.S. Bankruptcy Courts for the Southern and Eastern Districts of New York. He is a member of the American, New York State, and Nassau County Bar Associations.
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HAROLD L. KAPLAN
PARTNER
321 NORTH CLARK STREET SUITE 2800
CHICAGO, IL 60654-5313 (312) 832-4393
90 PARK AVENUE
NEW YORK, NY 10016-1314
Harold L. Kaplan is a partner with Foley & Lardner LLP. He, among other things, is the leader of the firm's Corporate Trust and Bondholders Rights Team and is a member of the firm's Bankruptcy & Business Reorganizations Practice. Over the last three decades, Mr. Kaplan has represented financial institutions, debtors, trustees under the Bankruptcy Code and the Securities Investors Protection Act, foreign liquidators in ancillary proceedings, creditors committees, and other creditor groups, including representing indenture trustees and bondholder interests.
In addition to more traditional areas of practice, he has extensive experience in claims trading and regulated industry matters, including railroad, airline and other transportation reorganizations; utility industry matters; securities industry and broker-dealer matters; insurance and bank insolvencies; telecommunications, gaming, oil and gas and mining proceedings; and health care industry matters, including health care finance, reorganizations, insolvencies, and other proceedings.
Mr. Kaplan was named one of 12 outstanding bankruptcy lawyers in the country in 2005, 2004 and 2003, and one of 13 in 2001, by Turnarounds & Workouts magazine. He is recognized as one of Chambers USA's 2006-2010 "Leaders in their Field" for bankruptcy. Mr. Kaplan was selected for inclusion in the 2010 edition of The Best Lawyers in America® in the specialties of bankruptcy and creditor-debtor rights law and corporate law. He was also selected for inclusion in the Illinois Super Lawyers® lists for his bankruptcy work (2005-2011). In 2010, the Legal 500 recognized Mr. Kaplan for his work in corporate restructuring.
Mr. Kaplan has authored numerous articles and spoken on transactional, bondholder/corporate trust, health care and bankruptcy topics. He is a member of the American Bankruptcy Institute, where he is a contributing editor to
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the ABI Journal’s "Intensive Care" column on health care related issues. He has been a presenter at numerous conferences on corporate reorganization, distressed debt, distressed real estate, health care financing and bond default, and chairs the Annual Corporate Reorganizations Conference held in Chicago. He is a past chair of the Chicago Bar Association Bankruptcy and Reorganization Committee; past chair of the American Bar Association Health Care and Nonprofits in Bankruptcy Subcommittee; and chair of the American Bar Association Committee on Trust Indentures and Indenture Trustees, as well as serving on several related committees, including the advisory drafting group of the Subcommittee on Revision of the Model Simplified Indenture. He is also a member of the editorial board of the American Bankers Association Trust and Investments magazine, and was a member of the editorial board of Network News, a publication for corporate trustees. He recently served as an original member of the Cornerstone Council, an advisory group that makes recommendations to the Turnaround Management Association (TMA) Management Committee on the uses of Cornerstone 15 funds for academic research.
Mr. Kaplan received his law degree from the University of Chicago Law School (J.D. 1975). He is a graduate of the University of Wisconsin (M.A. 1975, B.A. 1972).
Mr. Kaplan is admitted to practice in Illinois and New York and has appeared in courts and cases throughout the United States.
Previous and Current Representative Major Bond/Indenture Trustee/Creditor Cases:
ASARCO, AbitibiBowater, Aleris International, Bally Total Fitness, Charter Communications, Primus Telecommunications, Simmons Bedding, Extended Stay, Inc., General Growth, Hartmarx, HRP Myrtle Beach Holdings LLC, Kimball Hill, Remy International, UAL Corp., Northwest Airlines Corp., FLYi, Inc., Mirant Corp., Loral Orion, USGen New England, Atlas Air, Tower Automotive, WHX Corp., Kaiser Aluminum, Conseco, Petro-Geo, HealthSouth, Magellan Health Services, NCS
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Healthcare, AHERF, Home Products International, Inc., Fleming, Kmart, Redback Networks, USN Communications, Favorite Brands, Southern Mineral, United Companies Financial, ContiFinancial, Sunterra, Crown Vantage, Kitty Hawk, Safety-Kleen, Reliant Building Products, Wheeling-Pittsburgh, Metal Management, Armstrong World Industries, Outboard Marine, Loewen Group, Globe Manufacturing, Pacific Gas & Electric, AMRESCO, Goss Holdings, Thermadyne Holdings, Jacobson Stores, Farmland Industries, Hunt International Resources, Sunshine Mining, Eastern Air Lines, Telemundo, Bally’s Grand, Wedtech, Manville Forest Products, Venture Stores, Rock Island Railroad, Milwaukee Road, and WPPSS.
Recent publications and speaking engagements from 2006 to present (partial list):
• The Bank of New England Case and the Rule of Explicitness," co-authored with Mark F. Hebbeln, Network News Column, ABA (American Bankers Association) Trust & Investments, January/February 2011
• "Chapter 9 Municipal Bankruptcy Primer," co-authored with Mark F. Hebbeln, Corporate Trust Section, ABA (American Bankers Association) Trust & Investments, November/December 2010.
• "Diagnosing Medical Malpractice Coverage and Treatment in Health Care Chapter 11s: Part 2 of 2," co-authored with Andrew M. Troop, ABI (American Bankruptcy Institute) Journal, Intensive Care, September/October 2010.
• "To Bid or Not to Bid? Gamesmanship in Credit Bidding," co-authored with Mark F. Hebbeln, Corporate Trust Section, ABA (American Bankers Association) Trust & Investments, September/October 2010.
• "Diagnosing Medical Malpractice Coverage and Treatment in Health Care Chapter 11s: Part 1 of 2," co-authored with Andrew M. Troop, ABI (American Bankruptcy Institute) Journal, Intensive Care, July/August 2010.
• "None Dare Call it Champerty - at Least Not in New York," co-authored with Mark F. Hebbeln,
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Network News Column, ABA (American Bankers Association) Trust & Investments, July/August 2010.
• "Rule 2019 Flurry Distressing 'Distressed' Investors," co-authored with Mark F. Hebbeln, Network News Column, ABA (American Bankers Association) Trust & Investments, March/April 2010.
• Speaker, "Secured Debt in a Low Valuation Tight Credit Economy – Trustees and Bondholders Caught in the Middles," ABA Capital Markets Forum for Corporate Trust Professionals, April 18-20, 2010 (St. Petersburg, Florida).
• Speaker, "Breaking News from the Trenches," ABA Capital Markets Forum for Corporate Trust Professionals, April 18-20, 2010 (St. Petersburg, Florida).
• "General Growth Decision Undercuts Presumption of SPE Insulation From Bankruptcy," Network News Column, ABA (American Bankers Association) Trust & Investments, January/February 2010.
• "Sigma Finance Redux--Uncertain Victory of Pari Passu," Network News Column, ABA (American Bankers Association) Trust & Investments, January/February 2010.
• "Rating Agencies Under the Microscope," co-authored with Nick Colic and James Sorrels, Network News column, ABA (American Bankers Association) Trust & Investments, November/December 2009.
• Speaker, "Maximizing Profits in the Distressed Debt Market," 16th Annual Distressed Investing Conference, November 30, 2009 (New York).
• "Trustee Lessons From the United Kingdom: The SIV Cases," co-authored with Daniel R. Fisher, Corporate Trust Section, ABA (American Bankers Association) Trust & Investments, July/August 2009.
• "The Opportunity and "Duty" to Restructure Nonprofit Health Care Debt," co-authored with Anu R. Singh, ABI (American Bankruptcy Institute) Journal, Intensive Care, June 2009.
• "Tranche Warfare: Leapfrogging Debt Through Exchange Offers," co-authored with Mark F.
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Hebbeln, Corporate Trust Section, ABA (American Bankers Association) Trust & Investments, March/April 2009.
• "BCE Post-Mortem," co-authored with Mark F. Hebbeln, Network News column, ABA (American Bankers Association) Trust & Investments, January/February 2009.
• "BCE: Bondholder ‘Oppression Remedies’ Under Canadian Law," co-authored with Mark F. Hebbeln, Network News column, ABA (American Bankers Association) Trust & Investments, November/December 2008.
• "Covenants Count: Current CaseLaw," co-authored with Mark F. Hebbeln, Network News column, ABA (American Bankers Association) Trust & Investments, September/October 2008.
• "News Brief: Loewen Decision on Trustee Pre-Default Ministerial Conduct," co-authored with Mark F. Hebbeln, Network News column, ABA (American Bankers Association) Trust & Investments, September/October 2008.
• "Trusting Trust Accounts -- Comparative Safeguards of Customer Accounts," Corporate Trust section, ABA (American Bankers Association) Trust & Investments, September/October 2008.
• "Doing Well by Doing Right: The Ethical-Legal Challenge of the Indenture Trustee in an Activist World," co-authored with Mark F. Hebbeln, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, July-August 2008.
• "Keeping a Level Playing Field: The Evolution of Discriminatory Consent Solicitations and Exchange Offers," co-authored with Mark F. Hebbeln, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, March/April 2008.
• "The Evolving Standards For the Appointment of a Patient Care Ombudsman: Section 333 in "Operation"," co-authored with Samuel R. Maizel, ABI (American Bankruptcy Institute) Journal, Intensive Care, March 2008.
• "Recent Developments Possibly Putting Investor Privacy and Purchased Debt Claims at Risk," co-authored with Daniel Northrop, Network News
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column, ABA (American Bankers Association) Trust & Investments, January/February 2008.
• "Aggressive Enforcement of Indenture Covenants: The No-Action Clause in an Activist World," co-authored with Mark F. Hebbeln and Daniel Northrop, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, November/December 2007.
• "Indenture Trustee Role and Obligation in Settlements Affecting Bondholder Rights: The Kenton County Bonds/Delta Air Lines Case," co-authored with Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, November/December 2007.
• "Recoupment in Health Care Bankruptcies: A Shrinking Issue?," co-authored with Timothy R. Casey, ABI (American Bankruptcy Institute) Journal, Intensive Care, October 2007.
• "Grand Old Trustee Standard of Care Cases Draw to a Close Bluebird, Semi-Tech, Holmes Harbor," co-authored with Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, September/October 2007.
• "Indenture Trustee Fees and Expenses in Bankruptcy - A Strategic Consideration Update," co-authored with Mark F. Hebbeln and Daniel Northrop, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, May/June 2007.
• "Update on Trustee Litigation in the United Airlines Case: Lease Recharacterization," co-authored with Mark F. Hebbeln and Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, May/June 2007 (Part 2 of 2).
• "Update on Trustee Litigation in the United Airlines Case: Lease Recharacterization," co-authored with Mark F. Hebbeln and Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, March/April 2007 (Part 1 of 2).
• Speaker, "Recent Developments in Corporate Trust--Litigation and Defaults," The Fiduciary and Investment Risk Management Association, Inc.
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Corporate Trust Senior Managers Forum, February 27, 2007 (Ponte Vedra Beach, Florida).
• "Reading Indentures Strictly: The Rise of Delayed SEC Filing Defaults and Aggressive Bondholders," co-authored with Daniel Northrop, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, January/February 2007.
• "Putting New Bankruptcy Code Information-Sharing Provisions Into Practice: Creditors' Committee Protocols," co-authored with Daniel Northrop, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, November/December 2006.
• "Update on NOL Trading Orders and Trading Wall Orders," co-authored with Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, November/December 2006.
• Co-Chair of Conference, Renaissance American Management, Inc. & Beard Group, Ninth Annual Conference on Corporate Reorganizations, June 22-23, 2006 (Chicago, Illinois).
• "Hospitals Face New Financial Threat of Charity Care Legislation," co-authored with Linda S. Moroney, ABI (American Bankruptcy Institute) Journal, Intensive Care, June 2006.
• "Denial of Antitrust Claims Against United EETC Trustees," co-authored with Mark F. Hebbeln and Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, January/February 2006.
• Speaker, "Recent Developments in Corporate Trust--Litigation and Defaults," The Fiduciary and Investment Risk Management Association, Inc. Corporate Trust Senior Managers Forum, January 19, 2006 (Ponte Vedra Beach, Florida).
• "BAPCPA: Health Care Lenders Beware?," ABI (American Bankruptcy Institute) Journal, December/January 2006.
Publications and speaking engagements before 2006 are available upon request.
Recent honors (partial list):
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• Chair of Gardner Carton & Douglas (2004-2006); Co-Chair of Corporate Restructuring Group (1999-2007)
• Named to List of 12 Outstanding Bankruptcy Lawyers for 2005, Turnarounds & Workouts, December 15, 2005
• Named to List of 12 Outstanding Bankruptcy Lawyers for 2004, Turnarounds & Workouts, December 15, 2004
• Named to List of 12 Outstanding Bankruptcy Lawyers for 2003, Turnarounds & Workouts, December 15, 2003
• Named to List of 13 Outstanding Bankruptcy Lawyers for 2001, Turnarounds & Workouts, December 15, 2001
• ABI (American Bankruptcy Institute) Journal, Contributing Editor, "Intensive Care" Column (2004-present)
• American Bar Association Healthcare and Nonprofits in Bankruptcy Subcommittee, Chair (2000-2009)
• American Bar Association Health Care-Related Insolvency Working Group, Vice-Chair (1998-2000)
• American Bar Association Committee on Trust Indentures and Indenture Trustees, Chair (2009-present) and former Vice Chair (2006-2009)
• American Bar Association Subcommittee on Revision of the Model Simplified Indenture, Advisory Drafting Group Member (Revised Model Simplified Indenture Published in 2000)
• American Bankers Association, Trust & Investments, Editorial Board (2000-present)
• American Bankers Association Network News, Editorial Board (1998-1999)
• Chicago Bar Association, Bankruptcy & Reorganization Committee, Chair (2002-2003)
• Chicago Bar Association, Bankruptcy & Reorganization Committee, Vice Chair (2001-2002)
• Chicago Bar Association, Bankruptcy & Reorganization Committee, Educational Chair (2000-2001)
• Chicago Bar Association, Large Law Firm
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Committee, Co-Chair (2005-2006) • Annual Renaissance American Management, Inc.
& Beard Group Corporate Reorganization Conference (Chicago), Chair (1998-2008)
• Annual Renaissance American Management, Inc. & Beard Group Healthcare Restructuring/Transactions Conference (Chicago), Chair and/or Sponsor (2000-2009)
• Faculty, Cannon Banking Institute (1999) • Turnaround Management Association,
Cornerstone Council 15 Member (2004-2008) • Jewish National Fund Lawyers for Israel, National
Chair (2009-present) • Jewish National Fund, 2010 Negev Nights/Tree of
Life Honoree • Jewish National Fund, Regional Board (2008-
present) • Jewish United Fund (Chicago), Chair 2006
Lawyers Division Event • Anti-Defamation League, Regional Board Member
(2005-present)
*The Illinois Supreme Court does not recognize certifications of specialties in the practice of law and no award or recognition is a requirement to practice law in Illinois.
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BRIAN M. COHEN
OF COUNSEL
90 PARK AVENUE
NEW YORK, NY 10016-1314 (212) 338-3581
Brian Cohen is of counsel with Foley & Lardner LLP and a member of the firm’s Real Estate Practice. Mr. Cohen’s practice at the firm focuses on representing investors, developers, REITs and lenders in all aspects of commercial real estate transactions, including the acquisition, disposition and development of office, retail, hotel and multifamily properties; commercial mortgage, mezzanine and construction financing; joint ventures; and loan purchases, sales and restructurings. He also represents landlords and tenants in commercial leasing transactions.
Prior to joining Foley, Mr. Cohen was the general counsel of Kushner Companies, a diversified real estate owner, manager and developer where he also served as general counsel of The New York Observer, a print and on-line media concern. Earlier in Mr. Cohen’s career, he was a shareholder in the Real Estate Department of Greenberg Traurig, LLP.
Mr. Cohen’s significant representations include:
• Representation of a commercial REIT and a multinational real estate developer in a $545 million real estate transaction involving the sale of the ownership interest in a 20-property office portfolio located in New Jersey
• Representation of a commercial REIT in a joint venture to acquire a seven-property portfolio in the Greater Boston area comprised of approximately 667,000 square feet for $53.6 million
• Representation of a leading construction lender in an approximately $228 million construction loan for the development of a 29-story mixed use luxury condominium building in Manhattan
• Representation of a luxury rental apartment owner/developer in the purchase of office buildings and parking structures to assemble a
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mixed-use development in midtown Manhattan with approximately 570 rental apartment units
• Representation of a commercial REIT in the sale of several office properties in Manhattan, including the sale of a landmark property in Times Square for $160 million
• Representation of a private equity firm in the purchase of a $65 million mezzanine portion of a $650 million debt package relating to a 38 property apartment portfolio
• Representation of various not-for-profit entities in the disposition of real estate assets and representation to obtain approvals from the NY State Attorney General and applicable courts
(Mr. Cohen handled these matters while at his prior law firm.)
Mr. Cohen earned his law degree from Benjamin N. Cardozo School of Law, Yeshiva University (J.D., 1996). He received his undergraduate degree from The George Washington University (B.A., 1992).
Mr. Cohen received the 2009 UJA-Federation of New York Volunteer Service Award and the 2005 UJA-Federation of New York Lawyers Division’s James H. Fogelson Award.
Mr. Cohen serves on the board of directors of the Jewish Community Relations Council of New York. He is a member of the legal committee for the Jewish National Fund and is actively involved with UJA-Federation of New York.
Mr. Cohen is admitted to practice in New York, New Jersey and the District of Columbia.
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BARRY G. FELDER
PARTNER
90 PARK AVENUE
NEW YORK, NY 10016-1314 (212) 338-3540
Barry Felder is a partner at Foley & Lardner LLP and a member of the Business Litigation & Dispute Resolution, IP Litigation, Privacy, Security & Information Management and Information Technology & Outsourcing Practices.
In his 30 years of practice, he has successfully worked on a diverse range of matters ranging from his role as co-trial counsel in People v. Sihpol, the first "late-trading" case brought to trial by Eliot Spitzer's office (after a six week trial, the jury acquitted Mr. Sihpol of 29 felony counts) to representing Playboy Enterprises in cutting edge litigation challenging as trademark infringement and dilution the sale of the term "playboy" as a keyword by an Internet search engine. Mr. Felder has extensive experience in the real estate workout and foreclosure arena, having foreclosed on hundreds of multi-family, hotel, shopping center and office building properties for leading financial institutions throughout the country in both federal and state courts.
Mr. Felder was selected for inclusion in the 2006-2010 New York Super Lawyers® lists in the area of intellectual property litigation. He co-authored a book entitled "Information Technology Litigation: Law and Analysis," published by ALM/Law Journal Press.
Mr. Felder is a graduate of Fordham Law School (J.D., cum laude, 1977) where he served as commentary editor of the Fordham Law Review. He earned his bachelor’s degree from Hofstra University (B.A., magna cum laude, 1974) and graduated Phi Beta Kappa.
Mr. Felder is admitted to practice in California, New Jersey and New York and before the Supreme Court of the United States; U.S. Courts of Appeals for the Second and Ninth Circuits; and various Federal District Courts.
Reported Decisions
• Playboy Enterprises, Inc. v. Netscape Communications Corp., 354 F.3d 1020,69 U.S.P.Q. 2d1417 (9th Cir. 2004) (in reversing the District Court's grant of
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summary judgment the Ninth Circuit became the first Circuit Court to hold that use of trademarks in buried code for purposes of prompting contextual advertisements constitutes "trademark use").
• MAG Portfolio Consultant, GMBH v. Merlin Biomed Group LLC, 268 F.3d 58 (2d Cir. 2001) (vacating order compelling arbitration; the Circuit changed its position as a result of the oral argument).
• MT Property, Inc. v. IRA Weinstein and Larry Weinstein, LLC, 50 A.D.3d 751, 855 N.Y.S.2d 627 (2d Dep't 2008) (Appellate Division reversed the lower court and granted summary judgment dismissing plaintiffs' unjust enrichment claim based on an alleged implied agreement where a written agreement between the parties expressly covered the subject matter).
• Robert Plan Corp. v. Perot Systems Corp., 278 A.D.2d 119, 718 N.Y.S.2d 50 (1st Dep't 2000) (upholding lower court's dismissal of punitive damages claims and all claims against Ross Perot individually).
• Wells Fargo Bank Minnesota, N.A. v. Mark F. Cohn, 4 A.D.3d 189, 771 N.Y.S.2d 649 (1st Dep't 2004) (New York's one action rule does not apply where property securing the loan is out of New York State).
Trademarks and Unfair Competition
• Lead counsel to a well-known publishing and entertainment company in cutting-edge litigation challenging as trademark infringement and dilution the sale of the term "playboy" as a keyword by an Internet search engine.
• Represented manufacturer of bio-medical devices, including vascular pumps, in its trade dress claim against competitor and obtained a preliminary injunction.
• Prosecuted, on behalf of a sportswear manufacturer and distributor, one of the first ICANN domain name arbitrations.
• Represented a national automobile rental company against its major competitor in an action involving Lanham Act claims arising from certain advertising claims made by the client's competitor.
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Copyright
• Represented well-known manufacturing company in litigation against software vendor seeking to enjoin extraction of client data based on novel theory of database protection.
• Represented a well-known entertainment company in litigation relating to the licensing in Europe of a classic film library.
• Represented a software company in a copyright infringement suit in obtaining injunctive relief against the maker of devices that enable the unauthorized reproduction of copyrighted software.
Privacy
• Represented a leading Internet privacy services provider in a federal litigation in which the plaintiff claimed that the client had an obligation to and failed to resolve certain privacy issues between plaintiff and Microsoft and Comcast, among other defendants. Arguing that the plaintiff lacked standing to bring claims against our client, Mr. Felder obtained a complete dismissal for the client from litigation.
Trade Secrets
• Represented medical laboratory in defense of trade secret misappropriation claim.
• Representing various executives in the financial and consulting areas in defense of unfair competition/theft of trade secrets allegations.
• Represented Internet start-up venture and its founder-president in litigation involving claims of trade secret misappropriation and novel question as to whether a B2B multi-vendor web site for distributors of medical and dental supplies competes with a leading healthcare products distributor.
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Technology
• Represented one of the nation's largest companies in a dispute against a former provider of computer maintenance and related services.
• Represented that company in a lawsuit brought against its major software licensor to ensure the continued operation of enterprise essential software.
Real Estate Litigations, Workouts and Foreclosures
• Represented a major real estate owner in a three week trial over the proceeds of escrow monies from a $1.9 billion portfolio sale and obtained a complete victory, including the award of the over $25 million in escrow plus attorney’s fees.
• Represented major financial institutions in federal and state court in successfully foreclosing on multifamily and commercial properties and obtaining orders, mostly ex parte, appointing receivers for those properties.
Speeches
• International Trademark Association, 128th Annual Meeting, Toronto, "MAXXXIMUM EXPOSURE -- Moonshine, Major League, and Preliminary Injunction Madness"; represented the "defendant" in a moot court preliminary injunction argument, May 9, 2006.
• Speaker, PLI 25th Annual Institute on Computer & Internet Law -- "Search Engines Spawning Trademark Litigation," March 10, 2005.
• Participant, "The Main Event -- Moot Court: Trademark Protection on Trial -- Trademark v. Search," Search Engines Strategies Conference, San Jose, CA, August 27, 2004.
• Speaker, Search Engine Strategies NYC Brand Summit, "Life After Geico-Google," March 2, 2005.
• Panelist, NYSBA Intellectual Property Law Section Fall Meeting at Lake George, 2004 & 2006.
• Speaker, AIPLA Trademark Committees Meeting -- Dallas, May 14, 2004, "Playboy v. Excite:
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Trademarks and On-line Advertising," May 14, 2004.
Media Articles Quoting Mr. Felder
• WSJ.com, "Sihpol Headed Back to Court," July 7, 2005.
• ZDNet.10.UK, "Case Threatens Search Engines' Use of Trademarks," Jan. 16, 2004.
• Business Week (online edition), "John, Paul, George, Ringo ... and Steve?," Sept. 30, 2004 (re trademark issues between Apple Computer and the Beatles' Apple mark).
• CNN Money.com, "Ebbers gets 25 Years," Sept. 23, 2005.
• Managing Intellectual Property, "MAXXXIMUM Victory," May 10, 2006 (re above-referenced INTA moot court argument).
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MARK F. HEBBELN
PARTNER
321 NORTH CLARK STREET SUITE 2800
CHICAGO, IL 60654-5313 (312) 832-4394
Mark F. Hebbeln is a partner with Foley & Lardner LLP, and is a member of the firm's Bankruptcy & Business Reorganizations Practice. He concentrates his practice in corporate restructuring, which includes the representation of indenture trustees, creditors' committees, securitization trustees, assignees for the benefit of creditors, and individual creditors in insolvency proceedings in state and federal courts.
Mr. Hebbeln has represented indenture trustees and bondholder interests in national bankruptcy cases, including Trico Marine, Abitibi-Bowater, Extended Stay, Remy International, Bally, ASARCO, United Air Lines, Inc., Atlas Air, Mirant Corporation, Kaiser Aluminum, Pacific Gas and Electric Company, Jacobson Stores, and International Utility Structures, Inc. He has also represented indenture trustee and bondholder interests in health care reorganizations, insolvencies and other proceedings. He has extensive experience in representing securitization trustees in insolvency and bankruptcy proceedings and in representing official creditors' committees in chapter 11 proceedings.
Mr. Hebbeln has written extensively on bankruptcy and insolvency, including articles on indenture trustee and bondholder interests, break-up fees and the automatic stay. He has also presented at several conferences, including the 2002 American Bar Association meeting held in conjunction with the National Conference of Bankruptcy Judges, the 2003, 2006 and 2008 Corporate Reorganizations Conference and the 2005, 2008 and 2010 American Bankers Association Capital Markets Conference. Turnarounds & Workouts recognized him as one of 12 outstanding young restructuring lawyers in the nation in 2005 and as one of 14 outstanding young restructuring lawyers in the nation in 2006. He has been selected for inclusion in the 2008, 2009 and 2010 Illinois Super Lawyers–Rising Stars® Editions for his bankruptcy work.*
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Mr. Hebbeln received his J.D. from Emory University School of Law (1997), where he was an articles editor for the Bankruptcy Developments Journal. He received his bachelor's degree, cum laude, in economics and politics from Wake Forest University (B.A., 1993), where he was admitted to the Pi Sigma Alpha (political science) and Omicron Delta Epsilon (economics) national honor societies.
Mr. Hebbeln is admitted to practice in Illinois and Georgia. He is a member of the American Bar Association, the American Bankruptcy Institute, and the Chicago Bar Association. He serves on the Wake Forest University Alumni Council.
Mr. Hebbeln also serves as a member of the editorial board of the American Bankers Association Trust & Investments Magazine.
Previous and Current Representative Major Bond/Indenture Trustee/Creditor Cases:
Trici Marine, Abitibi-Bowater, BankUnited, Hartmarx, Extended Stay, Charter Communications, Atrium, Haights Cross, Primus Telecommunications, Simmons Bedding, ASARCO, Bally Total Fitness, Kimball Hill, Remy International, UAL Corp., Northwest Airlines Corp., FLYi, Inc., Mirant Corp., Atlas Air, Kaiser Aluminum, Conseco, Petro-Geo, HealthSouth, Magellan Health Services, NCS Healthcare, Home Products International, Inc., Redback Networks, United Companies Financial, Globe Manufacturing, Pacific Gas & Electric, Jacobson Stores.
Publications:
• "The Bank of New England Case and the Rule of Explicitness," co-authored with Harold L. Kaplan, Network News Column, ABA (American Bankers Association) Trust & Investments, January/February 2011.
• "Chapter 9 Municipal Bankruptcy Primer," co-authored with Harold L. Kaplan, Corporate Trust Section, ABA (American Bankers Association) Trust
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& Investments, November/December 2010. • "To Bid or Not to Bid? Gamesmanship in Credit
Bidding," co-authored with Harold L. Kaplan, Corporate Trust Section, ABA (American Bankers Association) Trust & Investments, September/October 2010.
• "None Dare Call it Champerty - at Least Not in New York," co-authored with Harold L. Kaplan, Network News Column, ABA (American Bankers Association) Trust & Investments, July/August 2010.
• "Rule 2019 Flurry Distressing 'Distressed' Investors," co-authored with Harold L. Kaplan, Network News Column, ABA (American Bankers Association) Trust & Investments, March/April 2010.
• Speaker, "Breaking News from the Trenches," ABA Capital Markets Forum for Corporate Trust Professionals, April 18-20, 2010 (St. Petersburg, Florida).
• "Tranche Warfare: Leapfrogging Debt Through Exchange Offers," co-authored with Harold L. Kaplan, Corporate Trust Section, ABA (American Bankers Association) Trust & Investments, March/April 2009.
• "BCE Post-Mortem," co-authored with Harold L. Kaplan, Network News column, ABA (American Bankers Association) Trust & Investments, January/February 2009.
• "BCE: Bondholder "Oppression Remedies" Under Canadian Law," co-authored with Harold L. Kaplan, Network News column, ABA (American Bankers Association) Trust & Investments, November/December 2008.
• "Covenants Count: Current CaseLaw," includes News Brief: "Loewen Decision on Trustee Pre-Default Ministerial Conduct," co-authored with Harold L. Kaplan, Network News column, ABA (American Bankers Association) Trust & Investments, September/October 2008.
• "Trusting Trust Accounts -- Comparative Safeguards of Customer Accounts," Corporate Trust section, ABA (American Bankers Association) Trust & Investments, September/October 2008.
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• "Doing Well by Doing Right: The Ethical-Legal Challenge of the Indenture Trustee in an Activist World," co-authored with Harold L. Kaplan, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, July/August 2008.
• "Keeping a Level Playing Field: The Evolution of Discriminatory Consent Solicitations and Exchange Offers," co-authored with Harold L. Kaplan, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, March/April 2008.
• "Aggressive Enforcement of Indenture Covenants: The No-Action Clause in an Activist World," co-authored with Harold L. Kaplan and Daniel Northrop, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, November/December 2007.
• "Indenture Trustee Fees and Expenses in Bankruptcy - A Strategic Consideration Update," co-authored with Harold L. Kaplan and Daniel Northrop, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, May/June 2007.
• "Update on Trustee Litigation in the United Airlines Case: Lease Recharacterization," co-authored with Harold L. Kaplan and Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, May/June 2007 (part 2 of 2).
• "Update on Trustee Litigation in the United Airlines Case: Lease Recharacterization," co-authored with Harold L. Kaplan and Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, March/April 2007 (Part I of 2).
• "Denial of Antitrust Claims Against United EETC Trustees," co-authored with Harold L. Kaplan and Daniel Northrop, Network News column, ABA (American Bankers Association) Trust & Investments, January/February 2006.
• "The Impact of New Bankruptcy Legislation on Indenture Trustees," co-authored with Harold L. Kaplan and Daniel Northrop, Corporate Trust
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section, ABA (American Bankers Association) Trust & Investments, July/August 2005.
• "Indenture Trustees and Lease Recharacterization," co-authored with Tracy L. Treger and Harold L. Kaplan, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, March/April 2005.
• "Is ‘Lease’ a Financing Agreement in Disguise? Rights of Both Sides Hinge on the Answer," The Journal of Corporate Renewal, July 2004 (with Tracy L. Treger).
• "Indenture Trustee Fees and Expenses in Bankruptcy: Theory and Practice," co-authored with Harold L. Kaplan, Corporate Trust section, ABA (American Bankers Association) Trust & Investments, May/June 2004.
• Contributing Author, 2002, Wiley Law Update. • "MSRB Proposes Rules for Communicating with
Beneficial Owners," co-authored with Harold L. Kaplan, ABA (American Bankers Association) Trust & Investments, May/June 2001.
• "Saga Continues in Eastern Case," co-authored with Harold L. Kaplan, ABA (American Bankers Association) Trust & Investments, May/June 2001
• "Prepetition Waivers of the Automatic Stay in Bankruptcy: The Economic Case for Nonenforcement," 115 Banking L.J. 126, February 1998.
• "The Economic Case for Judicial Deference to Break-Up Fee Agreements in Bankruptcy," 13 Bankr. Dev. J. 475, Spring 1997.
*The Illinois Supreme Court does not recognize certifications of specialties in the practice of law and no award or recognition is a requirement to practice law in Illinois.
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Timothy J. Dragelin
100 N. Tryon Street
Suite 3350
Charlotte, NC 28202
Tel: (704) 972-4102
Fax: (704) 972-4121
Certifications Certified Public Accountant, Commonwealth of Virginia
Professional Affiliations Association of Insolvency and Restructuring Advisors
Education B.B.A. in Accounting, the College of William and Mary
Tim Dragelin is a senior managing director in FTI’s Corporate Finance practice and is based in Charlotte. Mr. Dragelin has provided financial advisory services to debtors and creditors through in-court and out-of-court reorganizations and in troubled company situations in a number of industries for more than 15 years. These matters have included bankruptcy planning and management, turnaround consultation, interim management, lender advisory, buy-side due diligence, sell-side mandates, valuation, process improvement, forensic investigations and litigation advisory.
Mr. Dragelin has directed multiple engagements in the manufacturing, textile, construction, government contracting, real estate, subprime lending and healthcare industries. He has represented large creditor groups and individual lenders. His list of lender clients includes Bank of America, CIT Group, Citadel Investments and Wachovia Bank, N.A.
Mr. Dragelin has significant experience in advising middle-market companies and has been a lead advisor on a number of bankruptcy assignments. He has also shepherded numerous companies through the bankruptcy process. These companies include Senior Living Properties (long-term care), Kensington Furniture Manufacturing Company (manufacturing), Crown Simplimatic (manufacturing), Combined Properties (real estate) and Dominic F. Antonelli (personal and real estate).
Prior to specializing in distressed company consultancy, Mr. Dragelin served as an auditor for Coopers & Lybrand in a number of industries, including construction, real estate, biotechnology, manufacturing and government contracting. He worked as a controller and chief financial officer for a division of a Fortune 500 consumer finance company. He also served as director of sales for affinity cards and consumer financial services for the same company. Mr. Dragelin has been proffered and/or has appeared as an expert witness in accounting, forensic accounting, valuation, piercing the corporate veil, construction and environmental matters in arbitration and federal court.
Mr. Dragelin holds a B.B.A. in accounting from the College of William and Mary in Virginia. He is also a certified public accountant and a certified turnaround professional (awaiting certification) as well as a member of the Association of Insolvency and Restructuring Advisors. Mr. Dragelin is a published author with the Wiley Law and Aspen Law presses and is a frequent speaker on financial and accounting topics related to construction and environmental remediation before groups such as state bar associations and certified public accountant chapters. In addition, he has been a faculty member with Federal Publications, Inc. seminars.
Timothy J. Dragelin Senior Managing Director – Corporate Finance [email protected]
1
William Nolan
100 North Tryon Street
Suite 3350
Charlotte, NC 28202
Tel: (704) 972-4101
Fax: (704) 972-4121
Professional Affiliations American Bankruptcy Institute
Association of Insolvency and Restructuring Advisors
INSOL
Education MBA in finance, University of Pennsylvania Wharton School of Business
BS in Economics, University of Delaware
William Nolan is a senior managing director in FTI Consulting’s Corporate Finance practice. Mr. Nolan has over 20 years of experience working with companies and their lenders in financial and operational restructurings, loan workouts and business planning. Mr. Nolan has assisted many management teams in developing and implementing successful financial and operational turnaround strategies including executing debt restructurings, implementing controls over cash and reducing overhead and other operating costs. He is experienced in representing all stakeholders, including debtors, creditors and equity interests.
As a senior member of FTI Consulting’s Real Estate Group, Mr. Nolan’s background includes extensive experience in real estate and real estate structured finance. Having begun his career as a real estate credit analyst with Mellon Bank, he has worked through several real estate cycles including working for the Resolution Trust Corporation in the liquidation of the commercial property assets of Empire Savings Bank. In addition, Mr. Nolan worked extensively on the bankruptcy of the Southmark Corporation, then one of the nation’s largest organizers of real estate partnership syndications; he oversaw the liquidation of a portfolio of $400 million of mortgages and properties (including 2,500 homes in the City of Detroit), on behalf of a large bank group; he advised the management of Oakwood Homes, a large manufactured housing company, throughout their Chapter 11 bankruptcy including arranging a $300 million DIP facility.
Most recently, Mr. Nolan led a team which analyzed a $15 billion investment fund with commercial real estate investments in the US, Europe and Asia. Working on behalf of the senior lenders, FTI prepared a valuation of this large portfolio of real estate. The portfolio included a significant investment in Japanese resort hotels and roadside inns. Mr. Nolan was engaged by a large bank group to analyze and value a portfolio of health care related real estate investments held by a large publicly traded REIT. Mr. Nolan has also worked for the senior lenders to restructure a nationwide developer of continuing care retirement communities, a construction lender in the restructuring of a hotel/ retail/ amusement complex, a significant lender in the Extended Stay America bankruptcy as well as the out of court workout of another large extended stay owner/ manager. In addition, Mr. Nolan was also the financial advisor to creditors of VREP, LLLP, a developer and manager of an international destination club and the lenders to a ultra-high end private residence club in Aspen, Colorado.
Mr. Nolan also has extensive real estate secured lending experience and has been active in the restructuring of many mortgage lenders and servicers including Criimi Mae, who, at the time, was one of the nation’s largest investors in CMBS B pieces and one of the nation’s largest special servicers. Mr. Nolan also assisted LNR Property Corporation in its recent recapitalization.
Mr. Nolan has also worked in the restructuring of many other mortgage companies including Conti-Financial, United Companies, Mortgage Lenders Network, Peoples Choice, ResMae, First Alliance, Alliance Bancorp, American Business Financial Services and many more. Mr. Nolan recently participated in the successful restructuring of Credit-Based Asset Servicing and Securitization LLC, a large issuer, servicer and investor in residential mortgage assets. On behalf of JP Morgan Chase Bank, as agent to an 18 member senior lending group to C-BASS, Mr. Nolan was part of team that negotiated a successful global restructuring. Mr. Nolan also recently worked
William Nolan Senior Managing Director – Corporate Finance [email protected]
William Nolan
with the executive management of one of the nation’s largest originators and servicers of residential mortgages in restructuring its operations and enhancing profitability and liquidity to successfully meet the current challenges facing the mortgage industry.
Mr. Nolan also has extensive experience in working in international insolvencies and workouts. As a member of Coopers & Lybrand’s United Kingdom insolvency practice, Mr. Nolan gained experience in the specialized area of UK insolvency, working as a receiver and administrator. Mr. Nolan’s UK experience included managing and selling companies that had previously been associated with Polly Peck International, Plc., one of the UK’s largest ever insolvencies. In this role, Mr. Nolan worked with the Administrator to recover three resort hotels in the Turkish Republic of Northern Cyprus and managed and ultimately sold a ten farm Uruguayan citrus operation. Other experiences included working on behalf of the senior lenders in the financial and operational restructuring of one of Latin American’s largest soft drinks bottlers and working with a large international textile company in ongoing turnaround of a struggling international operation.
Prior to its acquisition by FTI Consulting, Mr. Nolan served as a partner in the US division of PricewaterhouseCoopers’ Business Recovery Services group. Mr. Nolan is a member of the American Bankruptcy Institute, Association of Insolvency and Restructuring Advisors and INSOL, an international bankruptcy association.
Mr. Nolan holds a MBA in Finance from the University of Pennsylvania’s Wharton School of Business and a BS in Economics from the University of Delaware.
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Firstname M. Lastname
Three Times Square
11th Floor
New York, NY 10036
Tel: (212) 841-9375
Fax: (212) 841-9350
Certifications Certified Public Accountant, New York and Pennsylvania
Certified Fraud Examiner
Certified in Financial Forensics
Professional Affiliations American Institute of Certified Public Accountants
New York State Society of Certified Public Accountants
Pennsylvania State Society of Certified Public Accountants
Association of Certified Fraud Examiners
Adjunct Professor, New York University School of Continuing and Professional Studies
Education B.S. in Accounting, Lehigh University
Matthew Greenblatt is a Senior Managing Director in the FTI Forensic and Litigation Consulting practice and is based in New York. Mr. Greenblatt has extensive experience in auditing and accounting matters, litigation consulting, forensic accounting and internal investigations, post-acquisition and shareholder disputes, anti-money laundering, and advising troubled companies.
Mr. Greenblatt has conducted multiple forensic investigations in connection with cases involving diversions of funds by fiduciaries and fraudulent accounting activity by management and has been involved in several internal forensic investigations conducted on behalf of Audit Committees and/or Boards of Directors for both public and private companies. Mr. Greenblatt is currently managing a team of FTI professionals and forensic accountants in connection with the firm’s retention by the court-appointed trustee under SIPA in the liquidation of Bernard L. Madoff Investment Securities LLC.
Mr. Greenblatt has advised on cases involving partnership disputes; lost profits; breach of contract claims; and accountants' malpractice. These include a multi-billion dollar lawsuit filed by the U.S. Trustee against an accounting firm hired as financial advisors to a debtor in a Chapter 11 proceeding. Mr. Greenblatt has additional expertise with matters involving acquisitions and divestitures; antitrust; price fixing; arbitration and mediation; bankruptcy reorganization; claims management; contract disputes; damages; directors & officers related claims; due diligence; expert testimony; forensic investigations; fraud and fraudulent conveyance; intellectual property, patent infringement and trademark; liquidation; product liability; solvency and insolvency; trustee and examiner issues and valuation.
Mr. Greenblatt has spoken on multiple panels in the area of forensic accounting and investigations and is an adjunct professor, teaching the course Prevention and Detection of Fraudulent Financial Reporting, a required course within the Forensic Accounting Program of New York University’s Finance, Law and Taxation Program of NYU’s School of Continuing & Professional Studies. In addition, Mr. Greenblatt is a recurring panel member on the Practising Law Institute’s annual program, Basics of Accounting for Lawyers: What Every Practicing Lawyer Needs to Know.
Prior to its acquisition by FTI, Mr. Greenblatt joined Kahn Consulting in June of 1998. Before that, Mr. Greenblatt was a Senior Auditor in the Entertainment, Media and Communications division of Price Waterhouse’s Audit and Business Advisory Services Group where he planned and supervised audits for multinational and middle-market clients in industries including publishing; manufacturing; high-tech; financial services; and non-profit organizations.
Mr. Greenblatt holds a B.S. in Accounting from Lehigh University. Mr. Greenblatt is a Certified Public Accountant and a Certified Fraud Examiner, and is Certified in Financial Forensics. Mr Greenblatt is a member of the American Institute of Certified Public Accountants, the New York State Society of Certified Public Accountants, the Pennsylvania State Society of Certified Public Accountants, and an associate member of the Association of Certified Fraud Examiners.
Matthew B. Greenblatt, CPA, CFE, CFF Senior Managing Director [email protected]
About Foley
Foley & Lardner LLP provides award-winning business and legal insight to clients across the
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