Securities Alert February 1, 2016 E&P Restructurings: Focus on Uptiering Transactions By: Jennifer Wisinski, Paul Amiel, Bill Nelson and Kristina Trauger Times are tough, very tough, for many mid-cap and small-cap exploration and production (“E&P”) companies. Crude oil prices have fallen from more than $100/barrel in July 2014 to a twelve-year low of less than $30/barrel in January 2016. Natural gas prices are at a three-year low. The growing consensus is that depressed prices will experience a slow recovery that may continue into the 2020s.
Most companies do not own all of the intellectual property (IP) rights that their businesses rely on. It is not uncommon for some portion of a company’s IP rights to be in-licensed from other persons or entities under a license agreement. In such cases, the licensee has contractual rights to use the IP that is the subject of an in-license but not full ownership of such IP. In the day-to-day operations of a company, the distinction between owned IP rights and in-licensed IP rights can easily get lost.
Sophisticated real estate lenders spend significant amounts of time and energy attempting to insulate themselves from potential bankruptcy filings by their borrowers. A primary reason, which many an experienced real estate lender has found out the hard way, is the risk that a debtor in bankruptcy may “cram down” a plan of reorganization over its lender’s objection. Under a typical cramdown plan, a debtor may stretch out payments to its secured creditor for several years and attempt to replace its negotiated interest rate with a new, below- market rate of interest.
The Court of Chancery issues a liberal ruling on creditor derivative standing and more obsequies for the “zone of insolvency.”
It is trite to observe that issues related to the insolvency of a company are not arbitrable. However, the generality of this broad proposition can be misleading. In this the first of two articles on the arbitrability of claims, we look at how a court may approach a winding up petition in the face of a claim that the purported debt on which the petition is based relates to a dispute that is to be arbitrated.
A recent decision by a New Jersey bankruptcy court scrambles the law regarding rejected trademark licenses.1 Crumbs was a multi-location bakery that also licensed its trademarks and trade secrets to third parties. In July of 2014 Crumbs filed a Chapter 11 reorganization case and in August of 2014 the court entered an order selling substantially all of the assets of Crumbs to LFAC2 free and clear of liens, claims, encumbrances, and interests.
In a case that should cause lenders heartburn, the United States District Court for the Western District of North Carolina recently ruled that common provisions in a Chapter 11 plan prevented the debtor’s lender from executing on a judgment against the non-debtor owner of the debtor.1 Biltmore is a corporation2 that operates manufactured home parks and sells and rents manufactured homes. McGee is the president and controlling shareholder of Biltmore. Biltmore filed Chapter 11 in January of 2011, and TD Bank was Biltmore’s largest secured creditor.
On August 26, 2014, Judge Robert D. Drain of the Bankruptcy Court for the Southern District of New York issued a bench ruling in In re MPM Silicones, LLC, Case No. 14-22503 (RDD), on several aspects of the plan of reorganization filed by debtor Momentive Performance Materials, Inc., a specialty chemicals manufacturing company, and its affiliated debtors.
On August 15, 2014, the Eleventh Circuit entered a Memorandum Opinion in the Wortley v. Chrispus Venture Capital, LLC case (In re Global Energies, LLC, “Global”)1 unwinding a section 363 sale order entered in 2010 by the Bankruptcy Court for the Southern District of Florida based on a finding of bad faith in the filing of an involuntary bankruptcy case in 2010.
The court provides guidance on liability if a subsidiary goes bankrupt because of the misconduct and careless management of its parent company.
Over the last few years, employees have increasingly sought to hold the parent companies of their employers liable for the subsidiaries’ actions by trying to demonstrate that the parent entity is the employee’s co-employer, i.e., that the employee has two employers: the company that hired him or her and its parent company.
To demonstrate this co-employment situation, the employee must prove either that