Yes, but only if the government declines to intervene in the action. United States ex rel. Kolbeck v. Point Blank Solutions, Inc., 1:08-cv-1187 (E.D. Va.), recently addressed this issue.
Can a debtor seeking debtor-in-possession (“DIP”) financing under Section 364 of the Bankruptcy Code grant a lender a lien on a leasehold interest in the face of an express anti-hypothecation provision in the underlying lease?
Under section 449E(2) of the Corporations Act 2001 (Cth), the Court may review the remuneration of the administrator of a company on the application of the administrator. In the recent decision of Paul’s Retail Pty Ltd v Morgan, the New South Wales Court of Appeal considered the issue of whether an administrator could be precluded from access to the abovementioned statutory provision for the review by the Court of remuneration already determined.
The Facts
The Second Circuit Court of Appeals issued a summary order this week upholding the aggressively unfavorable treatment of a senior secured creditor under the reorganization plan (the “Plan”) of DBSD North America, f/k/a ICO North America (“DBSD”).
On 13 October 2010 ASIC released the National Insolvent Trading Program (NITP) Report, which sets out key messages, promoting greater director responsibility by encouraging directors to remain properly and fully informed about a company’s financial affairs, and to be aware of the implications of insolvent trading; and to seek (timely) professional advice from accountants, lawyers and insolvency practitioners.
After consulting over 1500 companies displaying solvency concerns, ASIC has identified several possible insolvency indicators including:
Some legal commentators have lamented the extent to which lenders have been able to use debtor in possession (“DIP”) financing arrangements to gain control over an entire Chapter 11 case.
Bankruptcy lawyers who are regularly involved in distressed m&a deals have been wondering for the past few months about the potential fallout from Philadelphia Newspapers.
REDMOND v. FIFTH THIRD BANK (October 20, 2010)
COSTELLO v. GRUNDON (October 18, 2010)