In a decision to be hailed by buyers of distressed debt and bankruptcy claims on the secondary loan market, on Oct. 15, 2009, the New York Court of Appeals (the “Court”), in a fact-specific ruling, held that an assignment of claim does not violate New York’s champerty statute (forbidding trading in litigation claims) if the purpose of the assignment is to collect damages by means of a lawsuit for losses on a debt instrument in which the assignee holds a pre-existing proprietary interest. Trust for the Certificate Holders of the Merrill Lynch Mortgage Investors, Inc.
A Florida bankruptcy court, on Oct. 13, 2009, issued a 182-page decision after a 13-day trial, among other things, avoiding on fraudulent transfer grounds (a) secured subsidiary guarantees of $500 million and (b) $420 million pre-bankruptcy payments. In re Tousa, Inc., et al., Case No. 08-10928; Adv. P. 08-1435 (S.D. Fla. Oct. 13, 2009). The decision is on appeal to the district court.
Relevance
The United States Bankruptcy Court for the Southern District of New York entered an order on Sept. 17, 2009, granting a motion filed by Lehman Brothers Special Financing Inc. (“LBSF”) to compel Metavante Corporation (“Metavante”) to continue to make payments to LBSF under an ISDA Master Agreement.
On April 16, 2009 and April 22, 2009, General Growth Properties, Inc. (“GGP”) and certain of its subsidiaries (the “Debtors”), including many subsidiaries structured as special purpose entities (the “SPE Debtors”), filed voluntary petitions for relief under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of New York (the “Court”).
On July 27, 2009, Arclin Canada Ltd. and related Canadian entities filed under the CCAA in Ontario and related U.S. entities filed under Chapter 11 of the U.S. Bankruptcy Code in Delaware. Arclin announced that it had reached agreement with certain of its key senior lenders to reduce its debt from US $234 million to US $60 million and that it would receive a US $25 million debtor in possession (DIP) financing facility.
The Nortel restructuring continues to be what many observers consider the most interesting Canadian restructuring in recent memory. Most recently, it was an international battle for certain of the once Canadian icon's valued assets.
On July 21, 2009, Quebecor World Inc. and its affiliated debtors announced that they emerged from creditor protection under the CCAA and Chapter 11 of the U.S. Bankruptcy Code. Quebecor announced that it had completed its Canadian and U.S. reorganization plans, closed a US $800 million exit financing facility and had drawn down approximately US $540 million with which it repaid its debtor in possession (DIP) facility.
On June 29, 2009, Nexient Learning Inc. filed under the CCAA in Ontario. Nexient announced that it made arrangements with The Vengrowth Traditional Industries Fund Inc., one of its lenders, to provide debtor in possession (DIP) financing to support its ongoing operations. Nexient also announced that on July 8, 2009 it received approval from the Ontario Superior Court of Justice to conduct a sale process for the sale of its assets and that it had entered into a stalking horse asset purchase agreement. The sales process is expected to be completed by August 15, 2009.
Allarco Entertainment
On June 16, 2009, Allarco Entertainment Inc. and Allarco Entertainment 2008 Inc. filed under the CCAA in Alberta.
Allarco Entertainment owns Super Channel, an Edmonton-based TV network. According to Court documents, Super Channel has approximately 222,000 subscribers. Super Channel broadcasts feature films, original series, specials and mini-series in high definition.
Eddie Bauer
The Alberta Court of Queen's Bench recently permitted a debtor to establish a "hardship" fund to pay obligations incurred prior to the debtor's CCAA filing to local suppliers operating in the debtor’s community.