Areas of Practice

 

 


Luskin, Stern & Eisler
concentrates in bankruptcy, creditors’ rights, loan restructurings, workouts, a wide variety of bank financing transactions and related litigation.  Our attorneys are known for their hands-on approach, complete dedication to our clients’ needs, and focus on solving problems efficiently and expeditiously. 

Bankruptcy and Creditors’ Rights

Luskin, Stern & Eisler primarily represents domestic and foreign banks. We also represent international corporations, finance and leasing companies, hedge funds, landlords, trade creditors, bondholders, asset purchasers, claims traders, investors and official and unofficial committees of creditors.  The firm has been involved in every aspect of bankruptcy proceedings since we founded it in 1989.  Our experience ranges from representation of large groups in high profile chapter 11 cases and cross-border insolvency proceedings to individual creditors and trustees in chapter 7 cases.  Our recent representations include: 

  • Financial institutions as agents and lenders in the Mineral Park chapter 11 cases in Delaware (owner and operator of copper mine); the Midway Gold chapter 11 case in Colorado (owner and operator of gold mine); the AES Eastern Energy chapter 11 cases and the Longview Power chapter 11 cases in Delaware and the Panda Hereford chapter 11 case in Dallas (owners and operators of power plants); the Emerald Oil chapter 11 case and Chaparral Energy case in Delaware (oil and gas exploration); the Abengoa Bioenergy US Holding, LLC cases in Missouri (energy); the Abeinsa Holding, Inc. cases in Delaware (energy); the Peabody Energy Corp. cases in Missouri (coal); the Linn Energy and Berry Petroleum cases in Texas (oil and gas); the Penn Virginia Corp. chapter 11 cases in Virginia (oil and gas); the Transmar Commodity Group Ltd. cases in New York (commodities); the Dewey LeBoeuf chapter 11 case in New York (law firm); the American Airlines and Republic Airlines chapter 11 cases in New York (airlines); the Adelphia Communications chapter 11 cases in New York (telecommunications company); the Primorsk chapter 11 case in New York (ship owner); the Millennium Lab chapter 11 case in Delaware (health care); and chapter 11 cases of middle market companies in a broad range of industries around the country and international companies in cross-border insolvency proceedings.

  • The Chapter 11 Examiner in the Caesar’s Entertainment chapter 11 cases, as conflicts counsel in the examiner’s investigation of certain pre-petition transactions, and preparation of his final report.

  • The Chapter 11 Trustee of Fletcher International Ltd., a private equity/hedge fund, in the trustee’s wide-ranging investigation of the fund’s financial affairs and the successful confirmation of a chapter 11 plan.

  • Hedge Funds as secured creditors in the chapter 11 cases of U.S. Coal and its subsidiaries in Kentucky.

  • Global multimedia companies in contractual relationships with Relativity Media, a television and film production and distribution company in chapter 11, as an intellectual property licensor and member of the unsecured creditors’ committee in the chapter 11 proceeding of THQ, Inc., a developer and publisher of video games, and one of the largest creditors of Rdio Inc., a music streaming company in chapter 11 in San Francisco.

  • The Fee Examiner in the Eastman Kodak chapter 11 cases in which we were responsible for reviewing and reporting to the bankruptcy court on the fee applications of over 20 professionals and Examiners in the North General Hospital chapter 11 case in New York and in the Nellson Nutraceutical chapter 11 case in Delaware.

  • The Official Fee Committee in the General Growth Properties chapter 11 case in which we advised on fee applications filed in an aggregate amount exceeding $200 million.

  • A Special Committee of the Board of Directors of a parent company in connection with the chapter 11 case of its subsidiary, which confirmed a plan of reorganization to address thousands of asbestos-related claims.

  • A foreign government as a creditor and post-petition lender in the Chrysler and General Motors chapter 11 cases.


Loan Restructurings and Workouts

A large portion of our practice involves the representation of agents, lender groups and individual lenders in the out-of-court restructuring, refinancing and repayment of loans, conversion of debt to equity and acceptance of collateral in satisfaction of debt.  We have represented creditors in workouts involving financially troubled companies in a wide spectrum of industries, including companies in the automotive, commodities, energy, real estate, art dealership, airline, aircraft leasing, manufacturing, retailing, mining, entertainment, school construction, radio broadcasting, equipment supply, publishing and advertising industries.  Much of our restructuring work has involved syndicated loan transactions, including project finance loans, asset and mortgage backed securitizations, collateralized debt obligations, failed leveraged buyouts and roll-ups and the refinancing of senior debt facilities.  More specifically, our restructuring experience includes:

  • Energy company restructurings:  out-of-court workouts of loans to domestic and international oil and gas producers and companies in the oilfield services industry including the restructuring of reserve based secured loans.

  • Hedge fund restructuring:  out-of-court restructuring of a syndicated facility secured by equity interests in operating companies and assignment of advisory and investment management agreements.

  • Project finance and infrastructure restructurings:  out-of-court restructuring of troubled project finance loans secured by power plants, ethanol plants, methane projects, alternative energy projects, and parking facilities.  On several of these restructurings, we represented lenders in converting debt to equity and forming entities to take ownership of the projects.

  • Law firm restructuring:  the workout of a loan secured by the accounts receivable of an AmLaw 50 law firm.

  • Mining company restructurings:  out-of-court restructurings of troubled loan and commodity and FX hedging obligations of a Canadian operator of a gold mine in Brazil and operators of copper mines in Arizona and Mexico.

  • Real estate restructurings:  the workout and restructuring of a loan secured by a medical facility in Philadelphia, Pennsylvania; the workout and restructuring of a loan secured by a condominium development in Miami, Florida; the restructuring of a loan secured by a portfolio of commercial buildings in Sacramento, California, and recapitalization of the borrower; the restructuring of a loan secured by three parcels of land and certain transferable development rights designated for governmental service agency buildings; the workout and repayment of several defaulted loans to a group of affiliated borrowers secured by golf courses and mixed-use developments; and the workout of a $300 million warehouse line of credit secured by over 50 loans to landowners and developers.

  • Swap, hedge and foreign exchange agreement restructurings:  the workout of exposure on credit default swaps to Ambac, Syncora, Bluepoint, MBIA, CIFG, FGIC, and ACA; the out-of-court restructuring of interest rate swap agreements held by three financial institutions with the owner of a power generating facility in Arkansas; the workout of the exposure of a group of financial institutions under commodities hedges with the owner of a copper mine under construction in Mexico; and the workout of the exposure of a financial derivatives provider under unsecured foreign exchange contracts.

  • Commodities broker restructuring:  the workout of margin debt owed by a member of the Chicago Mercantile Exchange.

  • Latin American restructurings:  the workout of a loan to Cerro Negro, an oil and gas company owned by the government of Venezuela; insolvency proceedings involving companies involved in the trading and production of sugar, metals and other commodities; and the workout of loans to a Brazilian food manufacturer and a Brazilian soybean exporter. 

  • Shipping industry restructurings:  the workout of syndicated loan facilities secured by containerships, other types of shipping vessels and assignments of operating charters.

  • Subprime mortgage restructurings:  the workout and bankruptcy proceedings of borrowers in the subprime mortgage industry including C-Bass, American Home Mortgage, and New Century Capital Corp.

  • Airline restructurings:  the restructuring of leveraged leases and other aircraft financings in the chapter 11 cases of several major airlines.

  • Municipality restructurings:  the restructuring of bond debt secured by buildings owned by a California municipality and of certificates of participation issued to fund pension liabilities of the City of Detroit.


Commercial Litigation

Our commercial litigation practice focuses on the enforcement and preservation of creditors’ rights in bankruptcy, other federal and state courts and arbitration proceedings.  We represent financial institutions as plaintiffs and defendants throughout the country as well as in cross-border matters. We also frequently litigate in bankruptcy court issues relating to first day orders, use of cash collateral, relief from stay, sale of assets and bidding procedures. The following matters are illustrative of our insolvency-related litigation experience:

  • Enforcement of creditor rights:  plaintiffs in an action to enforce the terms of a credit facility against a real estate developer; in the foreclosure of a mortgage secured by a retail mall; in various loan enforcement proceedings against a regional fast food franchisee, a printing company, car dealerships, commercial airlines, energy supply companies and retailers; in actions involving sub-prime and alt-A securitizations, equipment loans and asset based loans; in a fraudulent conveyance action brought by several banks against MBIA, challenging the restructuring of its monoline insurance business; in an action seeking a declaratory judgment with respect to termination of billions of dollars of credit default swaps by FGIC; and in an action involving a massive check-kiting scheme, and as a claimant in related bankruptcy and criminal proceedings.

  • Defense of creditor rights:  defendants in a “lender liability” case arising out of the Adelphia chapter 11 case; in a California “lender liability” action arising out of a bankruptcy proceeding and litigation in France; in mortgage “put back” litigation brought by CIFG; and in various preference and fraudulent conveyance actions, including actions to recover “false profits” in Ponzi schemes. 

  • Bankruptcy litigation:  the mortgagee in the Coltex single-asset real estate chapter 11 case in which we obtained a ruling from the Court of Appeals for the Second Circuit rejecting confirmation of a “new value” plan and significantly limiting the availability of such plans; and a financial institution in multiple litigations concerning a check-kiting scheme and subsequent chapter 7 proceeding.

  • Arbitration:  a financial institution in an arbitration relating to ownership interests in an investment management firm.

  • Stay-related litigation:  the Puerto Rico Oversight Board in stay and related litigation in the U.S. District Court for Puerto Rico and in the First Circuit Court of Appeals.


Bank Financing, Asset-Based Lending and Leveraged Finance

Our loan origination practice includes the negotiation and documentation of secured and unsecured revolving and term loans, acquisition loans, asset based loans, real property and construction loans, margin loans, art and other types of personal investment-related loans, letter of credit facilities, industrial revenue bond financings, repurchase agreements and pre-export financing for Latin American borrowers, chapter 11 debtor-in-possession and exit financings and various types of structured financings.  We represent agents and arrangers and participant lenders in syndicated transactions as well as individual lenders in bilateral secured and unsecured facilities.  When drafting documents, we incorporate safeguards against the bankruptcy, insolvency and structural risks that we frequently encounter and we advise our clients how best to protect against the potential insolvency of their borrowers and counterparties.  Recent representations include: 

  • Commodity financing:  revolving loan and letter of credit borrowing base facility to a global exporter of ferrous and non-ferrous metals and its Hong Kong based affiliates; revolving loan and letter of credit borrowing base facility to a BVI-based exporter of metals and its Mexico and Brazil-based affiliates; revolving loan and letter of credit facility to a global exporter of petroleum and its Belgium and England-based affiliates; facilities secured by precious metals; revolving loan and letter of credit borrowing base facilities to agricultural producers and commodities traders secured by grain, livestock, sugar, coffee and other commodities.

  • Asset based loans:  bilateral and syndicated asset-based borrowing base, revolving credit and term loan facilities to companies in a wide variety of industries including an owner/operator of shipping ports; a private oil and gas holding company; oil and gas producers; a frozen food importer and exporter; a manufacturer of chemicals; a metal fabricator; a purchaser of farm subsidies; a consumer products company; a reality TV film company; a finance company that lends to law firms; a natural gas trader; and a lender to start-up businesses in the oil and gas industry.

  • Real estate financing:  the financing of land acquisition for a New York City hotel development project; the financing of shopping centers, office buildings and apartment complexes in Florida, Nevada, California and Washington.

  • Acquisition financing:  the financing of a public trust for the purchase of a Manhattan office building and the acquisition of a national hotel chain.

  • Revolving credit and term loan facilities:  $1 billion revolving credit facility secured on margin by marketable securities; revolving credit facilities to three feeder funds operating in the Cayman Islands, secured by equity interests in hedge funds; and a term loan and revolving credit facility to a real estate developer for the refinancing of a multi-use New York City office building; and a $150 million estate tax liquidity facility. 

  • Personal investment related loans:  facilities to high net worth individuals and their affiliates secured by investments such as marketable securities, Rule 144 securities, margin accounts, equity interests in hedge funds, fine art collections and aircraft; loans to executives of public and private companies secured by restricted common stock issued under employee stock incentive programs.

  • Repurchase agreements:  bilateral repurchase facilities to Latin American sellers of commodities such as coffee, grain and sugar.

  • DIP financing:  post-petition financing to numerous chapter 11 debtors including Quebecor, Warnaco, Sunterra, NRG Energy, Stellex, Owens Corning, Aleris, Delphi, Pacific Ethanol, Chrysler and General Motors.

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