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    Non-Contractual Claims of Noteholders: Who Can Bring Them and How Must They Be Brought?
    2016-10-24

    A recent decision by an appeals court of the State of New York highlights the deceptive complexity of bringing non-contractual claims by or on behalf of noteholders under the seemingly boilerplate remedies provisions in trust indentures. At issue was the standard indenture language that defines the authority of a trustee to bring claims under the indenture, and in particular whether the trustee has the power to bring non-contractual claims under its own volition (not directed by a majority in principal amount of bondholders) against persons not party to the indenture.

    Filed under:
    USA, New York, Capital Markets, Company & Commercial, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP
    Authors:
    Richard E. Farley
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Insurance Rehabilitation Proceeding in Curaçao Recognized by New York Bankruptcy Court
    2019-01-09

    The Bottom Line

    In In re ENNIA Caribe Holding N.V., 18-12908 (Bankr. S.D.N.Y. Dec. 20, 2018), a bankruptcy court in the Southern District of New York recognized a foreign insurance company’s rehabilitation proceeding in Curaçao as a “foreign main proceeding,” pursuant to Chapter 15 of the Bankruptcy Code, over objections from the insurance company’s nondebtor parent company. In doing so, the court examined, among other things, what is required for a “collective proceeding” in a foreign insolvency.

    What Happened

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Private Client & Offshore Services, Kramer Levin Naftalis & Frankel LLP, United States bankruptcy court, US District Court for SDNY
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Lyondell Decision Opens Door to Actual Fraudulent Conveyance Claims by Lenders in LBOs
    2016-09-19

    A recent decision from the Southern District of New York may reopen a door — which many had believed was all but closed — for disgruntled creditors seeking to challenge failed leveraged buyouts (“LBOs”) as fraudulent conveyances. In In re Lyondell Chemical Co., 2016 WL 4030937 (S.D.N.Y. July 27, 2016), District Judge Denise Cote reinstated an intentional fraudulent conveyance claim seeking to claw back $6.3 billion in distributions made to Lyondell Chemical’s shareholders through an LBO that failed quickly and dramatically.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Leveraged buyout, US District Court for SDNY
    Authors:
    Gregory A. Horowitz
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    SDNY District Court Holds That Bankruptcy Courts Have Core Jurisdiction and Constitutional Adjudicatory Authority over Involuntary Third-Party Releases
    2018-11-13

    The Bottom Line

    Filed under:
    USA, New York, Capital Markets, Corporate Finance/M&A, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bankruptcy, Res judicata and issue estoppel, US District Court for SDNY
    Authors:
    Alexandra Troiano
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Trust Indenture Act Litigation by Plaintiff Firms May Interfere With Out-of-Court Restructurings
    2016-08-16

    Several recent cases in the United States District Court for the Southern District of New York have created ambiguity about when distressed exchange offers violate Section 316(b) of the 1939 Trust Indenture Act (the “TIA”). It appears that plaintiffs’ lawyers are using this ambiguity to challenge distressed exchange offers. The threat of litigation may give minority bondholders a powerful tool to hinder less than fully consensual out-of-court restructurings and provide them with increased leverage in negotiations.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Bond (finance), Unsecured debt, Interest, Limited liability company, Debt, Maturity (finance), Debt restructuring, Secured loan, Second Circuit, US District Court for SDNY
    Authors:
    John Bessonette , Nathan Hyman
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP
    Addressing the Statute of Limitations in Serial Asset Sales Violating an Indenture
    2018-06-06

    Market participants invest billions of dollars each year in debt, secured and unsecured. The credit support for the debt would be illusory without carefully crafted covenants that prevent the company from selling or transferring its assets outside the reach of creditors. Reliance on these covenants is critical for investors.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP
    Authors:
    Douglas Buckley
    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
    Second Circuit Momentive Decision Adopts Two-Step Test for Cramdown Rate; Creates Make-Whole Circuit Split
    2017-11-03

    The Bottom Line

    On October 20, 2017, the U.S. Court of Appeals for the Second Circuit issued a long-awaited decision in In re MPM Silicones, LLC (“Momentive”) holding that, with one important exception, that the plan of reorganization confirmed by the bankruptcy court comports with Chapter 11. Case No. 15-1682 (2d Cir. Oct. 20, 2017).

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP, Second Circuit
    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
    Challenging Indenture Reserves
    2017-07-31

    Indentures and other agreements governing complex, multitiered structured debt products will typically contain a series of reserves, the adequacy of whose funding will take precedence over payments to noteholders. While the funding requirements of the reserve accounts will be set forth in the agreement, the formulation of these provisions will leave administrators considerable leeway in determining the cash maintenance levels appropriate for the various accounts. In a recent case, UMB National Association v. Airplanes Limited (S.D.N.Y.

    Filed under:
    USA, New York, Insolvency & Restructuring, Litigation, Kramer Levin Naftalis & Frankel LLP
    Authors:
    Abbe L. Dienstag
    Location:
    USA
    Firm:
    Kramer Levin Naftalis & Frankel LLP

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