Debt Exchange Offers Under the Five-Day Order: Structure Choice and Exit Consents That Survive Holdout Suits

David Ni, Partner | O’Melveny & Myers LLP

David Ni is a partner in the New York office of O’Melveny & Myers LLP, where he practices in the firm’s Capital Markets group within its Corporate & Transactions practice and works closely with its Special Credit & Liability Management team. He represents issuers, underwriters, initial purchasers, and selling security holders across the full spectrum of public and private securities transactions — initial public offerings, follow-on offerings, acquisition and leveraged financings, debt restructurings, liability management transactions, PIPEs, SPAC IPOs and de-SPAC transactions, at-the-market programs, and bank note and medium-term note offerings — and he has advised on investment-grade and high-yield debt, common and preferred stock, depositary shares, warrants, trust preferred securities, regulatory capital instruments, Eurobonds, convertible notes, and other hybrid securities. A significant part of his practice is devoted to the precise subject of this program: the design and execution of debt tender offers, exchange offers, and consent solicitations, where he has guided issuers through liability management transactions for companies such as Energy Future Holdings, Cox Communications, Titan International, Prologis, Dycom Industries, DigitalGlobe, Norwegian Cruise Line, Welltower, and U.S. Bancorp.

• Education & Credentials

Mr. Ni earned his J.D. from the University of Toronto Faculty of Law in 2008 and his B.Sc. from the University of Toronto in 2005. He is admitted to practice in New York. Early in his career he completed two secondments that continue to inform his approach to deal execution: one on the equity capital markets desk of a bulge-bracket investment bank, where he worked alongside bankers on live offerings, and one in the Office of the Prosecutor at the International Criminal Tribunal for Rwanda.

• Recognition & Leadership

Mr. Ni is recommended by The Legal 500 US in both Capital Markets: Debt Offerings and Capital Markets: Equity Offerings (2026), and he was named an IFLR1000 “Rising Star” for ten consecutive years (2015–2024). He is a sought-after speaker on structured and alternative financing, having presented “Plumbing the PIPEs: SPACs and Private Equity” at The SPAC Conference Europe (December 2023), “How Accounting, Finance and Legal Experts Can Help You De-Risk Deal Executions” at The SPAC Conference (June 2023), “Navigating a Challenging PIPE Market and Alternative De-SPAC Financing Structures” at The SPAC Conference (June 2022), and “Funding and IPO Guide in Korea and U.S.A.” at Bioplus-Interphex Korea 2021. He co-authored “Practical Implications of Proposed Testing the Waters for All Issuers under U.S. Securities Law,” published by the Harvard Law School Forum on Corporate Governance (March 2019).

• Professional Involvement

Beyond transaction execution, Mr. Ni advises public companies on corporate governance, ongoing SEC reporting obligations, and stock exchange listing requirements — the regulatory framework within which every exchange offer, consent solicitation, and tender offer must be structured and disclosed. His practice spans the energy, technology, media and telecommunications, life sciences, and financial services sectors, and extends to the data center industry. He also represents sophisticated investors — including K2 HealthVentures, GIC, Genting, Great Hill Partners, Fortress, Sixth Street Partners, Vanguard, Commonwealth Asset Management, and Taconic Capital — in their portfolio investments, giving him a working command of how holders, as well as issuers, evaluate the economics and legal mechanics of a proposed exchange.

• Experience

Mr. Ni rejoined O’Melveny after serving as a capital markets partner at another global law firm. Over the course of his career he has handled debt restructurings, tender and exchange offers, and consent solicitations for Energy Future Holdings, Cox Communications, Titan International, Prologis, Dycom Industries, DigitalGlobe, Norwegian Cruise Line, Welltower, and U.S. Bancorp. His high-yield experience as issuer’s or initial purchasers’ counsel includes offerings for AMC Networks, Arch Coal, DreamWorks Animation, Dycom Industries, Energy Future Holdings, Entravision Communications, Grupo de Inversiones Suramericana, National Amusements, NCL Corporation, NuStar Logistics, RSI Home Products, Steel Dynamics, The GEO Group, Titan International, Univision Communications, Vistra Energy, United Airlines, Norwegian Cruise, Affinity Gaming, CPI Card Group, U.S. Acute Care Solutions, and Jefferies Finance. He has represented issuers and underwriters in initial public offerings for Bausch + Lomb, GigCapital3, GoHealth, Norwegian Cruise Holdings, SolarEdge Technologies, and Eros International; in convertible note offerings for Yahoo! (including its US$1.3 billion 0.00% Convertible Senior Notes due 2018 and the related bond hedge and warrant transactions), MasTec, Southwest Airlines, Steel Dynamics, Finisar, Electronics for Imaging, and LendingTree; and in debt, preferred, and common stock offerings for AT&T, Leslie’s, McAfee, TPG Inc., Intapp, KeyCorp and KeyBank, Truist and Truist Bank, U.S. Bancorp and U.S. Bank, Affiliated Managers Group, Selective Insurance Group, Protective Life, Hyundai Capital America, Nissan Motor Acceptance, Cox Communications, Eaton Vance, Janus Capital, Lions Gate Entertainment, Textainer, Life Technologies, Markel, Perrigo, Prologis, Sensata Technologies, Sterling Bancorp, Southwest Airlines, Telephone and Data Systems, Thermo Fisher Scientific, Triton International, Time Warner Cable, St. Jude Medical, Walgreens Boots Alliance, and WellPoint, as well as bond offerings — including an inaugural green bond — for a Cupertino-based technology company. He has also represented SPAC investors in numerous SPAC IPOs and after-market investments, including the Pershing Square Tontine SPAC. Having drafted the offering documents, consent solicitation statements, and supplemental indentures on both sides of the issuer–holder divide, Mr. Ni is uniquely positioned to walk practitioners through the choice between a five-business-day tender or exchange offer and a longer-dated structure, the mechanics of exit consents, and the drafting decisions that determine whether a transaction withstands a holdout challenge.

Ana Alfonso, Partner | O’Melveny & Myers LLP

Ana Alfonso is a partner in the Restructuring Practice of O’Melveny & Myers LLP in New York, where she has built a national reputation as counsel to secured lenders. She represents administrative agents, bank groups, ad hoc creditor groups, bilateral credit providers, hedge counterparties, and other creditors in restructurings, in-court insolvency proceedings, out-of-court workouts, enforcement actions, and the litigation that follows them — including the holdout and minority-creditor disputes that arise when an exchange offer, exit consent, or restructuring support agreement is challenged. She also counsels financial institutions on risk management in complex financing transactions, frequently from the drafting stage, so that the credit documents, intercreditor arrangements, and indenture terms are built to survive distress. Her industry experience runs deep in oil and gas, power, renewable energy, commodities trading, and insurance and reinsurance, and her matter list reads as a history of the largest restructurings of the past two decades, from Enron and Lehman Commercial Paper to LyondellBasell, MF Global, Patriot Coal, Samson Resources, McDermott International, Fieldwood Energy, and Carestream.

• Education & Credentials

Ms. Alfonso earned her J.D. from New York University School of Law in 1997 and her B.S. from Vanderbilt University in 1994. She is admitted to practice in New York and before the United States District Courts for the Southern and Eastern Districts of New York and the United States Court of Appeals for the Third Circuit.

• Recognition & Leadership

Ms. Alfonso is recognized as a leading bankruptcy and restructuring practitioner by The Best Lawyers in America for Bankruptcy and Creditor Debtor Rights / Insolvency and Reorganization Law (2025–2026), by The Legal 500 US as a recommended lawyer for Restructuring (including Bankruptcy): Corporate, by Lawdragon among its 500 Leading U.S. Bankruptcy & Restructuring Lawyers (2020, 2022–2024), by IFLR1000 as a Notable Practitioner in Restructuring and Insolvency, and by Super Lawyers for Bankruptcy and Creditor Debtor Rights for twelve consecutive years (2013–2024). She serves on the Board of Directors of the New York City Bar Association as its Treasurer and is Past Chair of the City Bar’s Bankruptcy & Corporate Reorganization Committee (2020–2023). Since 2016 she has served on the Law360 Editorial Advisory Board for Bankruptcy, helping shape the publication’s coverage of the restructuring market.

• Professional Involvement

Ms. Alfonso is a frequent faculty member at the profession’s leading restructuring programs. She has spoken on “Cross-Border Financing” for the Association of Commercial Finance Attorneys (May 2024); on “Distress in Times of Volatility” for Reorg Research (June 2023); on “Turning it Around — Hot Topics in Dealing with Debtors, Preserving Value and Emergence from Bankruptcy, Including Contested Plan Issues” at PLI’s Bankruptcy & Reorganizations 2021; at PLI’s Bankruptcy & Reorganizations 2019 and 2018 Current Developments programs; on “Leveraged Finance Restructuring” at PLI’s Leveraged Financing 2018; on the application of the U.S. Fed’s QFC Rule to common clearing agreements for the Futures Industry Association (November 2018); on “Restructuring and Intercreditor Issues (Recent Issues in E&C and E&P Workouts)” at the American College of Investment Counsel Spring Conference (April 2018); on “Recent Evolution of E&P RBL Financing” for Debtwire (October 2017); on “Hot Spots in a Cold Bankruptcy World: Energy and Healthcare Restructurings” at the 90th Annual National Conference of Bankruptcy Judges (October 2016); on “Current Issues in the Energy Sector” at the American Bankruptcy Institute’s 18th Annual New York City Bankruptcy Conference (May 2016); and on “Issues in Media Restructurings” at AIRA’s 30th Annual Bankruptcy & Restructuring Conference (June 2014). Her publications include “Tackling Distress in the US Healthcare Sector” (Financier Worldwide, October 2017); “E&P Financing: RBLs Trend Toward a New Normal” (Turnaround Management Association, September 2017); “Zing VII and the Future of ‘Bankruptcy-Remote'” (Asset Securitization Report, November 2011); “Second Circuit Court of Appeals Holds ‘Gift’ From Secured Creditor to Shareholder Under a Chapter 11 Plan Violates Absolute Priority Rule” (Metropolitan Corporate Counsel, April 2011); and “Calyon: Mortgage Loan Investors and Safe Harbors” (New York Law Journal, January 2008).

• Experience

Ms. Alfonso has represented secured lenders, lender groups, and agents in the chapter 11 cases of Lincoln Power, Carestream, McDermott International, Southland Royalty, Ursa Piceance, Aegean Bunkering, Fieldwood Energy, Energy XXI, Goodrich Petroleum, Samson Resources, Sabine Energy, Patriot Coal, MF Global, Vertrue, Extended Stay Hotels, FairPoint Communications, SemGroup, LyondellBasell, American Home Mortgage, C-BASS, Lehman Commercial Paper, Enron, Centennial Health, and PG&E National Energy Group. Outside of court, she has acted for secured lenders and agents in restructurings and enforcement actions across the oil and gas exploration and production, midstream and gathering, fossil-fuel and renewable power, commodities trading, mortgage origination and servicing, telecommunications, marketing, and retail industries. She regularly represents financial institutions in their capacities as hedge providers, letter of credit issuers, treasury management providers, and other banking product providers — including in the cases of Talen Energy, McDermott International, LATAM Airlines, Chesapeake Energy, Ditech Financial, Philippine Airlines, Rockdale Marcellus, Gulfport Energy, Extraction, Ultra Petroleum, Just Energy, Nine Point Energy, Jonah Energy, Denbury Resources, EP Energy, Panda Temple II, MF Global, and SemGroup — and she has represented institutional creditors in state-court insurer insolvency proceedings and served on a multidisciplinary team advising a major financial institution on distressed renewable energy projects. Because her clients are so often the creditors who must decide whether to consent to, participate in, or litigate against a proposed exchange, Ms. Alfonso brings to this program the holder’s and the agent’s perspective on structure choice and exit consents: how creditor groups organize, where the leverage lies when a minority holds out, what claims a non-consenting holder can credibly assert, and how the transaction documents and the indenture’s sacred-rights provisions determine who prevails when the exchange offer ends up in court.

SESSION 1 – Choosing the Liability Management Structure and Calendar Under the 2026 Five-Day Order | David Ni & Ana Alfonso | 12:00pm – 1:00pm

This session is designed for issuer and dealer-manager counsel choosing among five-day, twenty-day, 3(a)(9) and registered exchange structures under the SEC’s June 30, 2026 debt tender offer exemptive order. It takes attendees through the eligibility disqualifiers, the QDS and investor-audience limits, proration and consent thresholds, and the five-day change deadlines, using post-order deals such as OpenText and Brandywine. Drawing on hands-on experience with dealer-managers, tender agents and launch diligence, the session turns the order’s text into a decision tree and working calendars attendees can use on their next deal.

BREAK | 1:00pm – 1:10pm

SESSION 2 – Drafting Exit Consents and Supplemental Indentures That Survive Holdout Noteholder Challenges | David Ni & Ana Alfonso | 1:10pm – 2:10pm

This session teaches issuer and dealer-manager counsel how to draft exit consents and supplemental-indenture sequences in New York-law indentures that hold up against holdout noteholders. The hour reads the amendment article against the Wesco district court holding and TIA 316(b), and ties the majority-only consent condition to the June 30, 2026 five-day order. It draws on recent experience negotiating trustee deliverables on a multi-step sequence and on the post-Wesco anti-dilution language now appearing in new-issue indentures.