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    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, Lehman Brothers, Title 11 of the US Code, Constitution, United States bankruptcy court, US District Court for the Southern District of New York
    Authors:
    Mark C. Ellenberg , Peter M. Dodson
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    PIF revisited - no right not to be diluted
    2011-10-07

    On 5 October 2011 Justice Barrett of the Supreme Court of NSW handed down a decision in Centro Retail Limited and Centro MCS Manager Limited in its capacity as Responsible Entity of the Centro Retail Trust [2011] NSWSC 1175 (“Centro”) where he found that the responsible entity of Centro Retail Trust would be justified in modifying the constitution of the trust without unitholder approval to a insert a provision permitting the issue of units at a price different to that provided for by the pre-existing provisions.

    Filed under:
    Australia, New South Wales, Insolvency & Restructuring, Litigation, King & Wood Mallesons, Retail, Security (finance), Investment funds, Market value, Net asset value, Constitutional amendment, Corporations Act 2001 (Australia), Constitution, Australian Securities Exchange, ING Group, Federal Court of Australia, New South Wales Supreme Court
    Location:
    Australia
    Firm:
    King & Wood Mallesons
    Harrisburg City Council responds to objections to Chapter 9 eligibility
    2011-11-15

    As expected the Harrisburg City Council has filed a reply to the numerous objections to the Chapter 9 filing of Harrisburg initiated by the City Council.  The City Council’s brief (harrisburg response.pdf) appears to be the only timely filed reply to the objections to the Chapter 9 filing. 

    Filed under:
    USA, Pennsylvania, Insolvency & Restructuring, Litigation, Public, Mintz, Bankruptcy, Solicitor, US Constitution, Constitution, United States bankruptcy court
    Authors:
    William W. Kannel
    Location:
    USA
    Firm:
    Mintz
    Defense costs advanced under interim funding agreement deemed property of debtor's estate
    2009-07-27

    The United States District Court for the Southern District of New York has affirmed a bankruptcy court's ruling that defense costs advanced by an insurer to a debtor under an Interim Fee Advancement and Non-Waiver Agreement (the Interim Agreement) were not held in trust and, therefore, constituted property of the debtor's estate. Great Am. Ins. Co. v. Bally Total Fitness Holding Corp. (In re Bally Total Fitness of Greater N.Y.), No. 09-CV-4052, 2009 WL 1684022 (S.D.N.Y. June 15, 2009).

    Filed under:
    USA, New York, Insolvency & Restructuring, Insurance, Litigation, Wiley Rein LLP, Bankruptcy, Costs in English law, Debtor, Waiver, Beneficial interest, Constitution, United States bankruptcy court, US District Court for SDNY
    Location:
    USA
    Firm:
    Wiley Rein LLP
    A perpetual headache: ‘flip’ clause declared unenforceable by US Bankruptcy Court
    2010-01-28

    The US Bankruptcy Court has issued a declaratory judgment that the relevant clause flipping priority from the swap counterparty to the noteholders constituted an ipso facto provision and was therefore unenforceable – a judgment that produces a different result under US law to that established by the Court of Appeal in the Perpetual Trustee case from November 2009.

    Filed under:
    United Kingdom, USA, Insolvency & Restructuring, Litigation, Freshfields Bruckhaus Deringer LLP, Swap (finance), Constitution, Trustee
    Location:
    United Kingdom, USA
    Firm:
    Freshfields Bruckhaus Deringer 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
    Trustee in Meridian Automotive Systems files preference complaints
    2011-08-21

    On August 7,  2009, Meridian Automotive Systems ("Meridian") filed a voluntary petition for relief under chapter 7 of the United States Bankruptcy Code.  Soon after Meridian filed its petition for bankruptcy, the Office of the United States Trustee appointed George L.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Fox Rothschild LLP, Bankruptcy, Debtor, Interest, Debt, Liability (financial accounting), Title 11 of the US Code, Constitution, United States bankruptcy court, Third Circuit, Seventh Circuit, Trustee
    Authors:
    L. Jason Cornell
    Location:
    USA
    Firm:
    Fox Rothschild LLP
    Dubai Financial Support Fund to spearhead restructuring of Dubai World
    2009-11-27

    The Government of Dubai issued a press release on 25 November 2009 confirming that, through its Supreme Fiscal Committee (SFC), it has authorised the Dubai Financial Support Fund (DFSF) to spearhead the restructuring of Dubai World with immediate effect. Aidan Birkett, Managing Director of Corporate Finance at Deloitte, has been appointed as Chief Restructuring Officer (CRO) to "oversee the restructuring process and ensure the continuity of Dubai World's operation".  

    Filed under:
    United Arab Emirates, Insolvency & Restructuring, Dentons, Legal personality, Debtor, Debt, Maturity (finance), Constitution, Deloitte, Chief executive officer
    Location:
    United Arab Emirates
    Firm:
    Dentons

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