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    The Netherlands: providing financial support to related parties
    2009-07-15

    Summary

    Providing financial support to related parties that are in financial distress may be in the interest of the group as a whole, but is not necessarily in the direct interest of the individual group company providing such support. This client briefing discusses that issue from a Dutch corporate law and tax law perspective, including the potential consequences if there is a material difference between the financial risks assumed by the Dutch company and the benefits of entering into such a transaction.

    Introduction  

    Filed under:
    Netherlands, Insolvency & Restructuring, Freshfields Bruckhaus Deringer LLP, Debtor, Collateral (finance), Interest, Articles of association
    Location:
    Netherlands
    Firm:
    Freshfields Bruckhaus Deringer LLP
    The Belgian Act on Continuity
    2009-04-01

    New restructuring legislation was recently adopted in Belgium and comes into force on 1 April 2009. The Act of 31 January 2009 on the continuity of undertakings (the Act on Continuity) aims to replace the existing judicial composition procedure (concordat judiciaire/ gerechtelijk akkoord) with a more effective and flexible restructuring instrument.  

    The key features of the Act on Continuity are:

    Filed under:
    Belgium, Insolvency & Restructuring, Freshfields Bruckhaus Deringer LLP, Bankruptcy, Debtor, Collateral (finance), Accounts receivable, Interest, Employment contract, Debt, Moratorium (law)
    Location:
    Belgium
    Firm:
    Freshfields Bruckhaus Deringer LLP
    Contractor insolvency – be prepared
    2009-03-17

    In the construction industry, contractor insolvency delays projects, increases costs and may deprive the employer of remedies and third parties of meaningful warranty protection. In 2008, it was reported that the number of construction firms facing grave financial concerns was 547 per cent higher than in 2007 (Building, 14 November 2008). As contractor insolvencies are likely to increase in 2009, how can an employer protect its position at the start of a project and when contractor insolvency occurs?  

    Contractual safeguards  

    Filed under:
    United Kingdom, Construction, Insolvency & Restructuring, Freshfields Bruckhaus Deringer LLP, Bond (finance), Surety, Collateral (finance), General contractor, Independent contractor, Option (finance), Subcontractor, Withholding tax, Warranty, Default (finance), Subsidiary, Parent company, House of Lords
    Location:
    United Kingdom
    Firm:
    Freshfields Bruckhaus Deringer LLP
    Hungarian bankruptcy and corporate legislation revised
    2007-03-12

    Changes to Hungarian bankruptcy law mean that priority will be given to creditors who pledge property as security or collateral. Minor changes to Hungarian corporate legislation require companies to list specific court registration information on their official correspondence and websites.

    Introduction

    Filed under:
    Hungary, Company & Commercial, Insolvency & Restructuring, Freshfields Bruckhaus Deringer LLP, Public company, Bankruptcy, Costs in English law, Credit (finance), Debtor, Collateral (finance), Liquidation, Liquidator (law), Capital punishment, Dissolution (law)
    Location:
    Hungary
    Firm:
    Freshfields Bruckhaus Deringer LLP
    ION Media: second-lien lenders beware
    2010-04-15

    Despite the prevalence of first-lien/secondlien structures in the loan market over the course of the recently-ended leveraged transaction cycle, fully-litigated cases interpreting the provisions of first-lien/second-lien intercreditor agreements remain something of a rarity. As a result, cases providing guidance on the extent to which customary waivers included in such intercreditor agreements would be enforced are always welcomed by finance practitioners. It comes as no surprise then, that the decision of Judge Peck of the U.S.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Waiver, Debt, Personal property, Standing (law), Leverage (finance), Secured loan, Federal Communications Commission (USA), United States bankruptcy court
    Authors:
    Ingrid Bagby , Michele C. Maman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Pre-plan settlements that violate the absolute priority rule may face obstacles
    2007-09-21

    In Motorola, Inc. v. Official Committee of Unsecured Creditors (In re Iridium Operating LLC), 478 F.3d 452 (2d Cir. 2007), the Official Committee of Unsecured Creditors (the “Committee”) and the debtors’ lenders sought approval of a settlement prior to confirmation of a plan of reorganization. While the Court concluded that many aspects of the settlement might otherwise be approved, it found that a provision that distributed funds in violation of the absolute priority rule lacked sufficient justification.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Unsecured debt, Collateral (finance), Breach of contract, Fraud, Fiduciary, Accounts receivable, Federal Reporter, Limited liability company, Remand (court procedure), Secured creditor, Unsecured creditor, Motorola, Second Circuit, United States bankruptcy court, First Circuit
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Third Circuit expected to rule on secured creditors’ right to credit
    2010-02-10

    On December 15, 2009, the Court of Appeals for the Third Circuit heard oral argument in a closely-watched bankruptcy appeal stemming from the In re Philadelphia Newspapers, LLC chapter 11 case pending in the United States Bankruptcy Court for the Eastern District of Pennsylvania. At issue in the appeal is the right of a secured creditor of a chapter 11 debtor to credit bid its secured claims, when the debtor proposes to sell the collateral to a third party, “free and clear” of the creditor’s lien, pursuant to a non-consensual (i.e., “cramdown”) plan of reorganization.

    Filed under:
    USA, Pennsylvania, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Secured creditor, Secured loan, Title 11 of the US Code, United States bankruptcy court, Third Circuit, US District Court for Eastern District of Pennsylvania
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Lehman court finds payment priority provision is unenforceable ipso facto clause, and must be part of swap for safe harbor protection
    2010-01-29

    On January 25, 2010, Judge James M. Peck of the United States Bankruptcy Court for the Southern District of New York ruled that provisions in a CDO indenture subordinating payments due to Lehman Brothers Special Financing Inc., as swap provider, constituted unenforceable ipso facto clauses under the facts and circumstances of this case. The Court also held that, because the payment priority provisions were not contained in the four corners of a swap agreement, the Bankruptcy Code’s safe harbor protections, which generally permit the operation of ipso facto clauses, did not apply.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Debtor, Collateral (finance), Safe harbor (law), Swap (finance), Deed, Default (finance), Collateralized debt obligation, Title 11 of the US Code, Constitution, Lehman Brothers, United States bankruptcy court, US District Court for SDNY
    Authors:
    Mark C. Ellenberg , Leslie W. Chervokas
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Delaware Bankruptcy Court Rules TCEH First Lien Distributions Are Governed by the Bankruptcy Code, Not by Intercreditor Agreement Waterfall
    2016-03-21

    On March 11, 2016, Judge Christopher Sontchi of the U.S. Bankruptcy Court for the District of Delaware issued an opinion in the Energy Future Holdings bankruptcy that resolved an intercreditor dispute over $90 million in proceeds to be distributed under the plan of reorganization.

    Filed under:
    USA, Delaware, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Bankruptcy, Collateral (finance), Title 11 of the US Code, United States bankruptcy court
    Authors:
    Thomas Curtin , Mark C. Ellenberg , Howard R. Hawkins Jr. , Michele C. Maman
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Structured finance subordination provisions upheld by High Court
    2009-08-14

    Introduction

    The High Court1 in England has confirmed the validity under English law of contractual provisions common in structured finance transactions which subordinate payments to a swap counterparty in circumstances where the swap counterparty has defaulted on its obligations under the terms of the relevant swap agreement.

    The Judgment

    Parties

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Cadwalader Wickersham & Taft LLP, Bankruptcy, Collateral (finance), Security (finance), Swap (finance), Standing (law), Default (finance), Title 11 of the US Code, Insolvency Act 1986 (UK), Lehman Brothers
    Authors:
    Nick Shiren , Assia Damianova
    Location:
    United Kingdom
    Firm:
    Cadwalader Wickersham & Taft LLP

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