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Bankruptcy, Restructuring and Workout

Overview

Our deep experience in bankruptcy, workouts, restructurings and turnarounds, combined with our expertise in commercial finance, brings a demonstrated track record of success to our clients seeking bankruptcy guidance. Our lawyers have represented both debtors and creditors, so we know the strategies commonly used on each side of the negotiating table.

Members of our team have gained nationwide recognition for their work as banking and finance counsel, and Nutter represents 7 of the top 10 commercial banks in the country. As a result, we know what it takes to negotiate a working bargain for borrowers and for lenders. What’s more, we know how to turn down the temperature when businesses are in crisis, staying focused on the development of rational and creative solutions to debt problems.

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Our Team

Our workout, restructuring and bankruptcy team includes: 

  • Four lawyers named in the peer-reviewed “Best Lawyers in America”; 
  • Three lawyers named as Massachusetts Super Lawyers by Boston Magazine, and a young trial lawyer named as a “Rising Star;” 
  • Three lawyers listed as “leaders in their field” by Chambers USA; 
  • A former private practice colleague of a current Massachusetts Bankruptcy Court Judge; and 
  • Several lawyers who have authored or co-authored articles or books about bankruptcy, business litigation, or banking and commercial finance.

Our firm has also been: 

  • Listed among the ranked firms nationwide in banking and finance, as well as litigation by Chambers USA; and 
  • Rated as a tier one Boston law firm in banking and finance by U.S. News & World Report.

Who We Represent

Our attorneys have represented many different clients in the context of workout, restructuring or bankruptcy, including the following.

Lenders and creditors: 

  • National, regional and community banks, individually, as agents and in consortia; 
  • Life insurance companies and pension funds; 
  • Mortgage warehouse lenders; 
  • Equipment lessors; 
  • Loan originators, master servicers and special servicers of commercial mortgage-backed securities (CMBS); 
  • Government agencies, including the Federal Deposit Insurance Corporation (FDIC), the Resolution Trust Corporation (RTC) and their servicers; 
  • REITS, corporations, individuals and other private lenders, including private equity funds and investors; 
  • Community development corporations; 
  • Retailers; and 
  • Senior secured parties, mezzanine lenders, subordinate lenders and unsecured parties.

Borrowers, guarantors and debtors: 

  • Public and private businesses and individuals; 
  • Not-for-profit entities; and 
  • Parties involved in a broad range of economic sectors, including advertising, art and antiques, commercial real estate investment and/or development (for offices, industrial facilities, multi-family or affordable housing, nursing homes, hospitals, condominiums, and hotels), education, equipment leasing, health care, high technology, insurance, life sciences, manufacturing, mortgage lending, professional services, publishing/media, and telecommunications.

Third parties/other interested persons: 

  • Landlords and tenants affected by the bankruptcy proceedings as third parties; 
  • Creditors’ committees (both formal and informal) in bankruptcies; 
  • Purchasers of assets and businesses from distressed companies, through bankruptcy proceedings or otherwise; 
  • Charitable organizations collecting on pledges; 
  • Credit support parties in bond transactions; 
  • Parties involved in assignments for the benefit of creditors; 
  • Parties involved in state court receivership proceedings; 
  • Parties involved in conservatorship proceedings; 
  • Turnaround consultants and other similar advisors; and 
  • Independent fiduciaries and indentured trustees.

What We Do

Nutter has helped clients to formulate strategies, negotiate agreements, document deals and otherwise facilitate the reworking of a distressed company or the collection of debts associated with a distressed enterprise. We have performed these services in connection with: 

  • Workout, forbearance and standstill agreements; 
  • Loan modification agreements; 
  • Debtor-in-possession (DIP) financing arrangements; 
  • Enforcement of notes, guaranties and other loan obligations; 
  • Fraudulent transfer and preference actions; 
  • Exercise of rights under mortgage loan documents, including taking possession of property and collecting rents; 
  • Foreclosures and deeds in lieu of foreclosure; 
  • Enforcement of rights under leased documents; 
  • Summary process eviction proceedings; 
  • Enforcement of UCC security interests, including foreclosure of liens on equity interests and personal property liens; 
  • Repossession of collateral, including leased personal property; 
  • Collection of debt, and pursuit and liquidation of assets both domestically and internationally; 
  • Interpretation and enforcement of inter-creditor issues; 
  • Litigation and settlement of claims in state and federal courts; 
  • Structuring of out-of-court compositions and arrangements; 
  • Sale and operation of companies in state court receiverships; 
  • Sale and acquisition of debt instruments; 
  • Sale and acquisition of distressed assets, including intellectual property assets; 
  • Secured party sales arrangements; 
  • Permitting, construction, operation, management, leasing and sale of properties following foreclosure; and 
  • Tax planning related to structured reorganizations and settlements.

Bankruptcy practice and litigation

Nutter attorneys are well equipped to represent clients in bankruptcy court in Chapter 11 bankruptcy reorganizations, Chapter 7 bankruptcy liquidations, and Chapter 13 bankruptcy proceedings. We know how and when to take the appropriate actions in order to deliver value and optimal results to a client, including:

For clients who are creditors: 

  • Obtaining relief from the automatic stay to conduct foreclosure-related proceedings; 
  • Supporting or opposing the adequacy of disclosure statements and the confirmation of plans of reorganization; 
  • Defending objections to the priority and the allowance of claims; 
  • Obtaining the appointment of Trustees and Examiners; 
  • Moving to dismiss or convert Chapter 11 cases; 
  • Contesting the valuations of assets and the reorganization of securities; 
  • Contesting whether assets are subject to the debtor’s bankruptcy filing; 
  • Providing post-petition financing to debtors-in-possession; 
  • Defending fraudulent conveyance and preference claims; 
  • Seeking the estimation and allowance of contingent claims for reimbursement; 
  • Purchasing, selling or otherwise transferring claims; 
  • Asserting claims for reclamation; 
  • Contesting the assumption or rejection of executory contracts and leases; 
  • Enforcing rights under executory contracts and leases; and 
  • Considering offers of status as “critical vendors” or “essential trade creditors.”

For clients who are debtors: 

  • Objecting to, and negotiating, claims of landlords, creditors and investors; 
  • Obtaining confirmation of plans of reorganization; 
  • Liquidating and selling assets; 
  • Obtaining debtor-in-possession financing; 
  • Implementing assignments for the benefit of creditors; 
  • Negotiating compositions with creditors and other out-of-court arrangements with creditors; 
  • Assuming or rejecting executory contracts and leases; and 
  • Litigating avoidance actions, such as fraudulent transfers and preferences.

For other parties: 

  • Bankruptcy trustees investigating fraud claims and pursuing preference claims; 
  • Businesses and individuals purchasing real estate, equipment, inventory, intellectual property and other assets from court-appointed receivers or bankruptcy estates; 
  • Landlords exercising rights with respect to security deposits and rents; 
  • Indenture trustees representing holders of indentured securities; 
  • Independent fiduciaries seeking to protect employee-benefit plans; and 
  • Insurance commissioners in the bankruptcy of insurance holding companies.

Distressed Debt

Nutter’s Distressed Debt team advises on all aspects of leveraged transactions including documenting, enforcing, and restructuring senior, subordinated, secured and unsecured loans. We also advise clients active in buying, selling, and managing distressed debt assets in the robust middle market. We focus on protecting our clients’ rights in relation to borrowers and other lenders through effective inter-creditor agreements, agreements among lenders (AAL) and other documentation, as well as representing creditors in bankruptcy proceeds.

We represent hedge funds, private equity funds, brokers, asset managers, pension funds, banks, non-bank lenders and other capital providers. Our clients include opportunistic debt purchasers seeking a return on a financial investment and activist investors seeking to profit from loan-to-own strategies. We also work with registered and unregistered debt and high yield, senior loan investment funds, and money market funds. In that regard, we advise on application of the Investment Company Act to funds holding and transacting distressed debt in agency and principal transactions.

We help our clients: 

  • Understand debt structures and documentation to develop successful strategies given the unique facts of each transaction. With our deep experience in the middle market, we assist clients with due diligence, credit documentation review, initial investment structures and inter-creditor issues. 
  • Resolve intricate collateral and credit facility issues of every kind arising from complex structures, multiple lenders, distressed borrowers and unique collateral. 
  • Negotiate effective agreements in a variety of commercial finance transactions across all asset types including traditional asset based loans, revolving and term loans, senior loans, second lien loans, unitranche loans (first-in/last-out), mezzanine investments, multi-tranche credit facilities and other facilities. 
  • Assess legal risk regarding fund offering documents and advertising, investment management agreements, investment documentation, brokerage and custody arrangements, and compliance policies and procedures. 
  • Prepare for insolvency and bankruptcy challenges and engage during actual proceedings to protect rights and achieve strategic objectives. We help clients navigate debtor-in-possession (DIP) financing and cash collateral issues, and we advise on credit bidding and other issues arising in Section 363-sale transactions in both Chapter 11 and Chapter 7 proceedings. We also advise on out-of-court proceedings, including UCC Article 9 secured party sales, assignment for the benefit of creditors (AFBC) transactions and other out of court dispositions. 
  • Evaluate and implement post-transaction assessments to enable clients to strengthen core internal operations.

The Nutter Distressed Debt team is multi-disciplinary with decades of combined experience and leadership in this area. Our team members have years of experience that produce both the quality and creativity that this discipline requires. Those members practice in the following areas: 

  • Commercial finance 
  • Syndication and securitization 
  • Workouts, bankruptcy and restructurings 
  • Federal and state securities and commodities laws 
  • Tax and ERISA 
  • Derivatives (ISDA), securities lending and repurchase agreements 
  • Litigation analysis, strategy and prosecution

View Practice Team

Representative Matters

Representative Matters

  • Represented a real estate company in foreclosure and purchase of distressed property

    Represented a real estate company that wanted to foreclose on and purchase a distressed property. Nutter managed to lift the automatic stay in bankruptcy, which facilitated the client’s ability to accomplish its goals at minimal expense.

  • Represented lender in restructuring and partial liquidation of $125 million real estate loan portfolio

    Represented a lender in connection with the restructuring and partial liquidation of a $125 million real estate loan portfolio involving multiple borrowers, 3 lenders, and assets throughout the U.S. Successfully worked out inter-creditor proceeds sharing agreement among lenders and forced liquidation of specified assets.

  • Represented a group of borrowers in restructuring of four-property loan portfolio

    Represented a group of borrowers in connection with the restructuring of a four-property loan portfolio, which resulted in forbearance agreements and eventual amendment of the loan, providing workable terms and conditions for the borrowers.

  • Represented a commercial bank as trustee for registrered holders of commercial mortgage pass-through certificates

    Represented a commercial bank, as trustee for registered holders of commercial mortgage pass-through certificates, resulting in the workout of a commercial mortgage loan and planned foreclosure of a hotel property in Northborough, MA.

  • Represented a real estate investment trust in disposition of its healthcare assets to various parties resulting in more than $1.6 billion in proceeds

    Represented a real estate investment trust in connection with the disposition of its health care assets to various parties, resulting in more than $1.6 billion in proceeds coming from the sales of facilities, negotiation of subordinate purchase money financing and inter-creditor agreements, assignments of loans, settlement of outstanding claims and lawsuits, and early payoffs of outstanding loans.

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