Jack B. wrote in the other day, asking us to explain what a composition agreement is.
A composition agreement is a contract between a debtor and multiple creditors providing for the reduction or delay in payment of amounts owed by the debtor to the creditors entering into the composition. Entering into a composition is an alternative to filing Chapter 11 that can provide some, but not all, of the benefits of Chapter 11.
One of the drawbacks to a composition is that it only binds the consenting creditors, thus creating the potential for “holdouts” and related issues. The possibility of holdouts can also dissuade otherwise agreeable creditors from consenting to a composition. The relief available through a composition can be further limited by the need for unanimous approval.
Moreover, a composition does not provide any of the procedural or substantive advantages of the Bankruptcy Code, such as the protection of the automatic stay or the ability to reject burdensome executory contracts.
In contrast to a composition, a court-approved restructuring under the Bankruptcy Code binds holdouts and provides a debtor with certain procedural and substantive benefits (e.g., the assumption of beneficial, or rejection of burdensome, executory contracts or leases). Under the Bankruptcy Code’s class-based voting scheme, a class is deemed to accept a plan if 2/3 in amount and more than 1/2 in number of the voting class members vote to accept the plan. Further, in certain circumstances, a plan can be confirmed via “cramdown” to bind rejecting classes. In addition, the Bankruptcy Code provides a debtor with the tools to implement a more substantial restructuring of its capital structure and operations. Bankruptcy, however, is typically slower and more expensive than a composition.[Editor’s Note: This 90 Second Lesson is part of our irregular series in which we answer readers’ questions. If you have a question, submit it to firstname.lastname@example.org and we will try to answer it. This lesson is based, in substantial part, in material reprinted from Commercial Bankruptcy Litigation 2d and/or Strategic Alternatives for and Against Distressed Businesses, with permission of Thomson Reuters.
The editors and editorial board of DailyDAC include preeminent restructuring and insolvency professionals, journalists, and editors. They are devoted to providing reliable and plain English education and deal intelligence about assignments, corporate bankruptcy, receiverships, out-of-court workouts and similar topics.
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