Quadrant Structured Prods. Co., LTD. v. Vertin, 115 A.3d 525 (Del. Ch. 2015)
Did you know as an officer or director of a Delaware corporation you may owe fiduciary duties to creditors and not just shareholders? If your company is insolvent, you do. But directly or derivatively? What duties? And what if your company later becomes solvent? The Court of Chancery decision Quadrant Structured Products Company, LTD. v. Vertin from earlier this year went a long way to clarifying this area of the law.
In Quadrant Structured Products Company, Ltd. v. Vertin (Oct. 20, 2015), the Delaware Court of Chancery, in a post-trial decision, rejected Quadrant’s challenges to transactions by Athilon Capital Corp., with Athilon’s sole stockholder (private equity firm Merced), after Athilon had returned to solvency following a long period of insolvency. Merced held all of Athilon’s equity and all of its junior notes; and both Quadrant and Merced held the company’s publicly traded senior notes.
In this post-trial decision, the Court of Chancery held that a company’s repurchase of senior notes from an insider approximately six months after returning to solvency did not violate the express or implied terms of the indenture, constitute a fraudulent transfer, nor give rise to fiduciary duty claims on which the creditor had standing to sue.
When a bankruptcy case is dismissed for cause pursuant to section 1112(b) of the Bankruptcy Code, the effect of the dismissal on orders entered during the case is not always clear. A recent District of Delaware decision,
In Del. Trust Co. v. Energy Future Intermediate Holding Co. LLC (In re Energy Future Holdings Corp.), 527 B.R. 178 (Bankr. D. Del. 2015), the bankruptcy court ruled that, even though a chapter 11 debtor repaid certain bonds prior to maturity, a "make-whole" premium was not payable under the plain terms of the bond indenture because automatic acceleration of the debt triggered by the debtor's chapter 11 filing was not a "voluntary" repayment.
A bankruptcy court’s characterization of a debtor’s pre-petition conveyance of an overriding royalty interest (“ORRI”) has an important effect on whether that ORRI is part of an oil and gas debtor’s bankruptcy estate and, in turn, what rights the ORRI holder has with respect to that interest. If an ORRI conveyance is characterized as the transfer of a real property interest, the conveyance is generally excluded from the debtor’s bankruptcy estate and the ORRI holder’s interest may not be affected by the bankruptcy.
If repayment of debt is accelerated as a result of bankruptcy, are debtholders eligible to receive a make-whole premium? The answer from an increasing number of courts is, without specific language in the indenture, no. Indentures usually include specific language to protect investors by declaring that upon certain designated “bankruptcy events,” all outstanding securities issued under that indenture become immediately due and payable (without further action from the holders of the securities).
Today, August 13, 2015, Hercules Offshore, Inc. and 14 of its affiliates filed a prepackaged chapter 11 bankruptcy case in the United States Bankruptcy Court for the District of Delaware. Hercules and its affiates are, according to the petition, providers of shallow-water drilling and marine services to the oil and natural gas exploration and production industry globally. The cases have been assigned to the Honorable Kevin J.
On July 23, 2015, in an action arising from the huge TCEH chapter 11 bankruptcy, Judge Paul A. Engelmayer of the U.S. District Court for the Southern District of New York issued an opinion in Delaware Trust Company v.