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    Assessing the impact of the new Chapter 11 exclusivity deadline
    2007-01-29

    A debtor’s exclusive right to formulate and solicit acceptances for a plan of reorganization during the initial stages of a chapter 11 case is one of the most important benefits conferred under the Bankruptcy Code as a means of facilitating the successful restructuring of an ailing enterprise. By giving a chapter 11 debtor-in-possession time to devise a solution to balance sheet and operational problems without being burdened by the competing agendas of other stakeholders in the bankruptcy case, exclusivity levels the playing field, at least temporarily.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Shareholder, Debtor, Interest, Debt, Standing (law), Liquidation, Good faith, Balance sheet, Exclusive right, US Congress, Title 11 of the US Code, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    Jones Day
    Separation of enforcement from ownership leaves no leg to stand on
    2007-10-30

    In a case involving a bankruptcy reorganization in which a trustee in bankruptcy was given the right to pursue claims of misappropriation or infringement (but not ownership of the bankrupt’s intellectual property), the U.S. Court of Appeals for the Federal Circuit reversed the district court finding that the no trustee had standing to bring suit. Morrow, et al. v. Microsoft Corp., Case Nos. 06-1512, -1518, -1537 (Fed. Cir., Sept. 19, 2007 (Moore, J.; Prost, J., dissenting).

    Filed under:
    USA, Insolvency & Restructuring, Intellectual Property, Litigation, McDermott Will & Emery, Royalty payment, Bankruptcy, Costs in English law, Patent infringement, Beneficiary, Standing (law), Liquidation, Exclusive right, Microsoft, Trustee, United States bankruptcy court
    Location:
    USA
    Firm:
    McDermott Will & Emery
    Debtor should consider whether creditor has set-off rights before rejecting executory contracts
    2008-04-25

    In CDI Trust v. U.S. Electronics, Inc. (In re Communications Dynamics, Inc.),1 the United States Bankruptcy Court for the District of Delaware addressed the issue of whether a rejection damages claim is subject to setoff against a pre-petition debt owed by the creditor to the debtor. The Court found that a rejection damages claim should be treated as if it arose pre-petition, and that the provisions of section 553 permitted, rather than prevented, the setoff of the rejection damages claim against the pre-petition debt.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Breach of contract, Limited liability company, Debt, Subsidiary, Exclusive right, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Unanimous lender consent provisions may not provide the protection expected
    2009-08-21

    Credit agreements typically provide that any amendment permitting the release of “all or substantially all” of the collateral requires the unanimous consent of the lenders. Many market participants expect that this provision provides protection against the agent and other lenders from consenting to the sale of the collateral and releasing the corresponding liens without the consent of all lenders.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Richards Kibbe & Orbe LLP, Bankruptcy, Credit (finance), Debtor, Collateral (finance), Limited liability company, Option (finance), Consent, Consortium, Default (finance), Exclusive right, Secured loan, Chrysler, Second Circuit
    Location:
    USA
    Firm:
    Richards Kibbe & Orbe LLP
    Lehman files a proposed plan of reorganisation
    2010-03-16

    Lehman Brothers Holdings Inc. (“LBHI”) and its affiliate and subsidiary debtors (collectively, “Lehman”) filed their proposed chapter 11 plan of reorganization in their jointly administered chapter 11 proceedings on Monday, March 15, 2010 (Docket No. 7572). Monday was the last day for Lehman to file a plan pursuant to section 1121(d) of the Bankruptcy Code in order for Lehman to maintain the exclusive right to file and obtain confirmation of a plan.¹

    Filed under:
    USA, Insolvency & Restructuring, Richards Kibbe & Orbe LLP, Debtor, Unsecured debt, Asset management, Discovery, Debt, Prejudice, Subsidiary, Exclusive right, Consolidation (business), Lehman Brothers
    Location:
    USA
    Firm:
    Richards Kibbe & Orbe LLP
    Lehman Brothers debtors file joint plan
    2010-03-17

    Lehman Brothers Holdings Inc. (LBHI) and its affiliated U.S. chapter 11 debtors (the “Debtors”) filed a joint plan with the Bankruptcy Court on March 15, the last day on which the Debtors who filed petitions on September 15, 2008, had the exclusive right to file a plan. As a result of the filing, the Debtors have an additional 60 days during which no other party may file a plan.

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Katten Muchin Rosenman LLP, Debtor, Unsecured debt, Interest, Liquidation, Exclusive right, Secured loan, US Congress, Lehman Brothers, United States bankruptcy court
    Authors:
    Noah Heller , Lance A. Zinman
    Location:
    USA
    Firm:
    Katten Muchin Rosenman LLP
    Assessing the impact of the new Chapter 11 exclusivity deadline
    2007-01-29

    A debtor’s exclusive right to formulate and solicit acceptances for a plan of reorganization during the initial stages of a chapter 11 case is one of the most important benefits conferred under the Bankruptcy Code as a means of facilitating the successful restructuring of an ailing enterprise. By giving a chapter 11 debtor-in-possession time to devise a solution to balance sheet and operational problems without being burdened by the competing agendas of other stakeholders in the bankruptcy case, exclusivity levels the playing field, at least temporarily.

    Filed under:
    USA, Insolvency & Restructuring, Jones Day, Bankruptcy, Shareholder, Debtor, Interest, Debt, Standing (law), Liquidation, Good faith, Balance sheet, Exclusive right, Title 11 of the US Code, US Congress, United States bankruptcy court, Trustee
    Location:
    USA
    Firm:
    Jones Day
    Debtor should consider whether creditor has set-off rights before rejecting executory contracts
    2008-04-25

    In CDI Trust v. U.S. Electronics, Inc. (In re Communications Dynamics, Inc.),1 the United States Bankruptcy Court for the District of Delaware addressed the issue of whether a rejection damages claim is subject to setoff against a pre-petition debt owed by the creditor to the debtor. The Court found that a rejection damages claim should be treated as if it arose pre-petition, and that the provisions of section 553 permitted, rather than prevented, the setoff of the rejection damages claim against the pre-petition debt.

    Background

    Filed under:
    USA, Insolvency & Restructuring, Litigation, Cadwalader Wickersham & Taft LLP, Debtor, Breach of contract, Limited liability company, Debt, Subsidiary, Exclusive right, Title 11 of the US Code, United States bankruptcy court, US District Court for District of Delaware
    Location:
    USA
    Firm:
    Cadwalader Wickersham & Taft LLP
    Bankruptcy court permits second lien creditor to oppose bid procedures for judicial sale
    2010-11-04

    A New York bankruptcy judge held on October 4, 2010, that second lien lenders could object to a debtor’s bid procedures approved by the first lien lenders despite the terms of an intercreditor agreement inIn re Boston Generating, LLC, No. 10-14419 (SCC) (Bankr. S.D.N.Y. Oct. 4, 2010).1 The intercreditor agreement provided the first lien lenders with the “exclusive right to…make determinations regarding the…sale” of the collateral. According to the court, however, the agreement did not expressly preclude the second lien lenders from objecting to bid procedures.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Schulte Roth & Zabel LLP, Bankruptcy, Debtor, Unsecured debt, Collateral (finance), Waiver, Fiduciary, Debt, Unsecured creditor, Exclusive right
    Authors:
    David M. Hillman , Lawrence S. Goldberg , James T. Bentley
    Location:
    USA
    Firm:
    Schulte Roth & Zabel LLP
    New insolvency regime for Dubai World and its subsidiaries
    2009-12-16

    On 14 December 2009, the same day on which Nakheel, a Dubai World subsidiary, was due to make payment under its 2009 sukuk, the Government of Dubai announced that it had received support from the Government of Abu Dhabi and the UAE Central Bank and would pay the US$4.1 billion due. It also announced that it had secured funding of an additional US$5.9 billion to be used to meet “interest expenses and working capital [of Dubai World] through April 30, 2010 – conditioned on the company being successful in negotiating a standstill”.

    Filed under:
    United Arab Emirates, Insolvency & Restructuring, Dentons, Debtor, Injunction, Liquidation, Subsidiary, Exclusive right, Dubai International Financial Centre, Court of Appeal of England & Wales
    Location:
    United Arab Emirates
    Firm:
    Dentons

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