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Epstein Becker Green attorneys understand the unique issues our clients may face in transactions involving distressed assets. Clients initially seek to stabilize distressed assets in order to preserve value in the projects. We analyze distressed assets from a legal perspective and then advise our clients on possible options and limitations in handling the distressed assets. Throughout the process, we work with our clients and other professionals such as consultants and business advisers to create a strategy that helps reposition the distressed assets and, in many cases, enhances the value of the project. We understand each client has specific business objectives in a distressed-asset transaction, and we strive to provide legal advice tailored to those objectives.  EBG attorneys also advise clients regarding opportunities available under federal economic stimulus initiatives including the disposition of toxic assets under the Troubled Asset Relief Program (TARP) pursuant to the Emergency Economic Stabilization Act of 2008; the purchase of toxic assets under the Public-Private Investment Program (PPIP) implemented by the U.S. Department of the Treasury; and incentives under the American Recovery and Reinvestment Act of 2009 (ARRA).  Our experience includes:

  • Loan Workouts and Restructurings

Attorneys in EBG's financing and financial institutions practices are experienced in workouts and loan restructuring transactions for financial institutions as well as private lenders and borrowers. We recognize the value of negotiating workouts and restructurings on behalf of lenders and borrowers, and we advise our clients on strategies designed to protect the value of the collateral while reducing potential risks. When enforcement actions are needed, our attorneys further advise clients regarding the exercise of state law collection remedies and related litigation.

 

  • Bankruptcy and Corporate Reorganization

The Bankruptcy and Corporate Reorganization practice group at EBG advises clients on bankruptcy and corporate reorganization matters as well as distressed asset transactions. Experienced in structuring and implementing distressed asset transactions, our attorneys advise sellers, buyers, lenders, and official committees throughout the distressed asset disposition process including preparing bid information and transaction documents; aiding in the evaluation of offers; negotiating "stalking horse" proposals; directing the auction process; and handling closing and post-closing activities.

 

  • Acquisition and Sale of Distressed Assets

EBG attorneys represent sellers, purchasers, lenders, and investors in transactions involving the acquisition and sale of distressed assets. We represent banks, insurance companies, asset managers, financial institutions, and other lenders in the sale of distressed properties in both single-asset and portfolio transactions. EBG attorneys facilitate the disposition of REO and other distressed assets by prioritizing and addressing issues which a prospective purchaser or its lender may raise.

For our clients – including investment funds – which seek to purchase distressed assets, we perform pre-offer due diligence to assist our clients in evaluating the assets, followed by a more-extensive due diligence review of title, survey, environmental, zoning, permits and entitlements, and physical plant matters.

 

  • Environmental Liability in Distressed-Asset Transactions

Attorneys in EBG's environmental practice advise banks, equity funds, and other lenders on the range of environmental liability limitations available to them under applicable environmental law as well as the requirements necessary to qualify and maintain such limitations in the event of foreclosure, bankruptcy or other similar situations of distress. A number of our lawyers are experienced in litigating and resolving environmental obligations before federal bankruptcy courts and in working with creditor committees and bankruptcy trustees.

 

  • Environmental Compliance / Permits and Other Entitlements

Environmental lawyers at EBG also assist distressed asset holders and potential purchasers in evaluating the status of environmental operational and compliance considerations including, among others, erosion, sedimentation and pollution control issues; NPDES and other storm water discharge permitting requirements; stream buffer matters; wetlands permitting, banking, and mitigation; waste handling and disposal obligations; and overall waste, water and air quality compliance for operating facilities.

Our attorneys also evaluate whether existing permits, licenses, and other entitlements are deemed transferred to holders and potential purchasers of distressed assets or whether notice or a new application must be submitted to the issuing authority.

 

  • Distressed Health Care Real Estate Assets

EBG attorneys represent medical institutions in restructuring their finances, including transactions involving new lines of credit or renewed bond financing. EBG represents a major regional hospital in negotiations with banks, investment bankers and local and regional governments as the hospital restructures its short- and long-term debt.

Our attorneys also advise operators of nursing homes and long-term care facilities desiring to sell, purchase, or refinance distressed assets as part of a corporate reorganization.

 

  • Distressed Planned Community and Condominium Assets

Representing clients involved in planned community and condominium projects both nationally and internationally, EBG attorneys counsel lenders, developers, and other investors owning, acquiring, or operating distressed planned community or condominium projects.

Our attorneys recognize the viability of a planned community or condominium project rests upon a keen understanding of the status of the development, knowledge of the risks and liabilities related to distressed assets and the strategies to protect the investment. We advise clients on issues related to potential successor developer liability; the governing structure; association matters; rights and responsibilities with respect to the common areas/elements, recreational facilities, and amenities; existing contract holders; and termination of the condominium regime as well as title, land use, zoning, and environmental matters.

Experienced in the detailed requirements for complying with the federal Interstate Land Sales Full Disclosure Act and similar state land sales laws, EBG attorneys help clients avoid the inadvertent violation of land sales laws that could result in monetary penalties and that could also allow purchasers to rescind their contracts. In some instances, the rescission rights may survive the purchaser's closing so our attorneys advise lenders, investors, and other successor owners of distressed planned community and condominium assets regarding those potential liabilities.

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