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    Curing Substantive Ambiguities in Debt Documentation (and More)
    2016-07-19

    Virtually all public indentures contain provisions allowing the issuer to cure ambiguities and make other technical changes to the debt documentation without debtholder consent. When the purported ambiguities have substantive consequences, however, issuers may not be able to get away with an amendment that lacks debtholder approval. InGSO Coastline Credit Partners L.P. v. Global A&T Electronics Ltd. (NY App. Div. 1st Dept. May 3, 2016), a New York lower court bought into a “cure of ambiguity” argument and on that basis granted a motion to dismiss.

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Shareholder, Credit (finance), Collateral (finance), Covenant (law), Debt, Line of credit, Secured loan
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    The Un-Section 316(b): The Different World of Individual Rights Under Credit Agreements
    2016-05-31

    With the current interest being focused on Section 316(b) of the Trust Indenture Act, this may be a good time to examine the differing rights of noteholders under an indenture governed by the TIA and the rights of lenders under credit agreements governed by New York law.

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Debtor, Interest, Debt
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Citibank v. Norske: Enjoining Violations of Indentures? — Not So Fast
    2016-05-31

    A recent case out of the Southern District of New York, Citibank, NA, London Branch v. Norske Skogindustrier ASA(S.D.N.Y. March 8, 2016), once again illustrates the difficulty of obtaining injunctive relief against prospective indenture violations of a financially troubled issuer.

    The Facts

    Filed under:
    USA, New York, Banking, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Kramer Levin Naftalis & Frankel LLP, Surety, Injunction, Debt, Citibank
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Seventh Circuit: failure to file proof of claim does not foreclose your rights
    2011-08-30

    The Bottom Line:

    Filed under:
    USA, Banking, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Collateral (finance), Federal Reporter, Budget, Debt, Mortgage loan, Foreclosure, Secured creditor, In rem jurisdiction, US Code, United States bankruptcy court, Seventh Circuit
    Authors:
    Anita Wong
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Fifth Circuit: recharacterization, it’s not just for insiders anymore
    2011-08-17

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Royalty payment, Bankruptcy, Conflict of laws, Debtor, Interest, Debt, Legal burden of proof, Maturity (finance), United States bankruptcy court, Fifth Circuit, Fourth Circuit
    Authors:
    Matthew Ziegler
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Now that’s settled – Second Circuit in Enron exempts redemption of commercial paper
    2011-07-11

    The Bottom Line:

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Security (finance), Statutory interpretation, Safe harbor (law), Debt, Maturity (finance), Fair market value, Commercial paper, US Code, ING Group, Westlaw, Enron, Second Circuit, United States bankruptcy court, Trustee
    Authors:
    Benjamin C. Wolf
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Special purpose entities – the new Chapter 11 debtors: General Growth bankruptcy court takes the “remoteness” out of bankruptcy structured financings
    2009-08-17

    Introduction

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Debtor, Unsecured debt, Debt, Mortgage loan, Bad faith, Refinancing, Commercial mortgage-backed security, Memorandum opinion, Secured loan, Title 11 of the US Code, MetLife, Second Circuit, United States bankruptcy court
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Recent decision interpreting LSTA standard terms and conditions
    2008-07-16

    On April 9, 2008, in the M. Fabrikant & Sons, Inc. bankruptcy case pending in the Southern District of New York, Chief Judge Stuart M. Bernstein held that a seller of bank debt under the standard LSTA claims transfer documents transfers all of its rights except for those explicitly retained, including unmatured contingent claims, thus giving broad construction to the term “Transferred Rights” under the standard LSTA trade documents.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Contractual term, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Debt, Attorney's fee, Secured loan, United States bankruptcy court
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    No WARN liability for lender despite exercise of substantial control
    2008-04-24

    The Worker Adjustment and Retraining Notification Act (“WARN”) requires an employer to give 60 days’ advance written notice prior to a plant closing or mass layoff. Frequently, as a company encounters financial distress—a situation that often leads to a plant closing or mass layoff— creditors exercise greater control over the entity in an attempt to recover debts owed to them. When the faltering company fails to provide the requisite WARN notice, terminated employees often assert that WARN liability should attach to such creditors. In Coppola v. Bear, Stearns & Co.

    Filed under:
    USA, Employment & Labor, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Debtor, Fraud, Debt, Mortgage loan, General counsel, Liquidation, Line of credit, Bear Stearns, Eighth Circuit, Second Circuit
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Southern District of New York rules that non-impairment clauses do not apply in bankruptcy
    2007-10-04

    While many amendments to bond indentures can be made without consent from all bondholders, “non-impairment” clauses provide that the indenture may not be amended or restructured in any way that will affect or impair a bondholder’s right to receive principal and interest when due without unanimous consent.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Bankruptcy, Debtor, Interest, Debt, Dissenting opinion, Default (finance), Stay of execution, Second Circuit, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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