Introduction

The United States Bankruptcy Court for the Southern District of New York ruled recently on the validity of “gift plans” – plans of reorganization under which a senior creditor “gifts” assets to a junior creditor or equity holder.1 In In re Journal Register Co.,2 Bankruptcy Judge Alan L. Gropper approved a plan in which secured lenders gifted a portion of their recovery to certain trade creditors, and detailed some of the important limitations on gift plans.

Evolution of the Gift Plan Doctrine

Just in time for the fifth anniversary of the enactment of chapter 15 of the Bankruptcy Code, which allows foreign debtors to administer assets located in the U.S. or stay the actions of U.S. creditors – Judge Martin Glenn of the Bankruptcy Court for the Southern District of New York has issued a decision reaffirming the broad utility and scope of chapter 15.

As the economy boomed in 2005-2007 and leverage increased to staggering levels, LBOs took a prominent place in the deal economy. During that time, investors completed 313 LBOs in the United States for approximately $630 billion.1 Following the recent economic downturn, many of those LBOs have become sources of controversy in a number of bankruptcies and restructurings - prominent examples include Tribune Co. and Lyondell Chemical Co.

In a recent Hunton & Williams client alert, we discussed some of the issues relating to the termination of credit default swap agreements that were pending before the Lehman bankruptcy court, including the enforceability of so-called “flip clauses.” (“Swap Termination and the Subordination of Termination Payments in the Lehman Bankruptcy,” December 2009.) Recently, the court ruled for Lehman on many of these issues. The court’s ruling (Lehman Brothers Special Financing Inc.

Overcoming months of delay, regional local exchange carrier Fairpoint Communications filed a reorganization plan with a New York bankruptcy court that would reduce the carrier’s debt load by two-thirds and give secured creditors an ownership stake of 92% in the post-bankruptcy entity. At the same time, Fairpoint reached settlements with the states of New Hampshire and Vermont that address commitments to service quality and to the provision of broadband services in those states.

Over the next two years, billions of dollars in commercial real estate loans are expected to mature — loans that many property owners and landlords will not be able to pay off or refinance. As a result, a number of landlords that have purchased, built, renovated and/or refinanced their properties with short-term debt during the previous five years will find themselves in a precarious position. Market forces, combined with the tightening of credit markets, leave landlords holding over-leveraged property, unable to refinance their shortterm debt because of a lack of equity.

On Friday, the Office of the Comptroller of the Currency closed The La Coste National Bank , headquartered in La Coste, Texas, and the FDIC was named receiver.

On Friday, the Florida Office of Financial Regulation closed Marco Community Bank, headquartered in Marco Island, Florida, and the FDIC was named receiver. As receiver, the FDIC entered into a purchase and assumption agreement with Mutual of Omaha Bank., headquartered in Omaha, Nebraska, to assume all of the deposits of Marco Community Bank.

On Friday, the OTS closed La Jolla Bank, FSB, headquartered in La Jolla, California, and the FDIC was named receiver.

On Friday, the Illinois Department of Financial and Professional Regulation – Division of Banking closed George Washington Savings Bank, headquartered in Orland Park, Illinois, and the FDIC was named receiver.