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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Bankruptcy

Date & Time
  • event Date

    Wednesday, August 2, 2023

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$297.00
CLE
ALL

This CLE webinar will discuss the effect on the beneficiary and issuer of a letter of credit (LOC) if the account party (a/k/a the applicant) files for bankruptcy. The panel will identify key provisions in LOCs, post-petition draw demands, possible preference liability and related defenses, how proceeds of the LOC are applied to an outstanding claim, and drafting strategies to minimize risks. The panel will also discuss issues that arise for the other parties if the issuer or the beneficiary files for bankruptcy.

Faculty

Patrick E. Fitzmaurice
Partner
Pillsbury Winthrop Shaw Pittman LLP

Mr. Fitzmaurice's practice focuses on representing lenders and other creditors in workouts, restructurings, litigation and bankruptcy matters. He regularly represents clients in fraudulent transfer and other types of avoidance litigation. Mr. Fitzmaurice is also frequently involved in advising creditors in foreclosure and other types of enforcement actions involving real estate and UCC collateral.

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William D. Gardner
Shareholder
von Briesen & Roper, s.c.

Mr. Gardner is a Shareholder and Chair of the firm’s Restructuring & Insolvency Section. Clients value his extensive experience representing banks, non-bank lenders, and borrowers in loan originations, workouts, financial restructurings, and insolvency proceedings. Mr. Gardner partners with clients to define their business objectives and develop legal strategies. Clients regularly consult with him on issues arising under UCC Article 8 and UCC Article 9 and in connection with Chapter 128 Wisconsin receiverships and bankruptcies. Mr. Gardner is committed to continually improving client relationships and finding innovative ways to be a better business partner. He tracks legislative, regulatory and other developments that impact the financial services industry, including adoption of the new proposed UCC Article 12 that will govern certain rights in digital assets such as virtual currencies and non-fungible tokens (NFTs).

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Description

Landlords and vendors dealing with financially volatile tenants or customers find standby LOCs attractive. If the LOC is carefully and properly drafted, and the applicant owes the beneficiary money, the beneficiary can draw on the LOC even after the account party files bankruptcy without violating the automatic stay. Whether the issuer can be reimbursed or can keep a reimbursement already paid presents separate issues.

When the applicant files bankruptcy, drawing on LOCs can quickly become complicated and unpredictable. In certain situations, debtors and trustees may seek to recover LOC proceeds as preferences or even fraudulent conveyances. If the LOC is not exercised, payments actually made by the debtor may nonetheless be attacked as preferences. If an LOC is drawn upon and the debt falls into multiple priorities, disputes may arise over where to apply the LOC proceeds.

Listen as this experienced panel of bankruptcy attorneys discusses the hidden risks of LOCs, issues that arise when an account party files bankruptcy, and what a potential beneficiary should consider before insisting on an LOC.

Outline

  1. Overview of LOCs
  2. Pre-petition draw on the LOC
  3. Post-petition draw on the LOC
  4. Preference risks and defenses
  5. Indirect transferees
  6. Strategies for beneficiaries before and after bankruptcy

Benefits

The panel will review these and other key issues:

  • How are LOC proceeds applied to the cap on lease damages in Section 502?
  • When might the issuer be an indirect transferee of a preference?
  • What happens if the account party is not the debtor but a guarantor of the debtor?
  • Does it matter if the LOC is secured when the security interest arose?
  • When would drawing on an LOC violate the automatic stay?