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Funds Insider | Issue 8
2023-03-30

As the economic headwinds indicate that borrowers will continue to face financial pressures in 2023 and beyond, lenders are seeking ways to exercise more leverage as “covenant-lite” facilities prevail. Material adverse change clauses in finance documents UK and US perspective By Olga Galazoula, Jacques McChesney and Charlotte Harvey 4 FUNDS INSIDER FUNDS INSIDER 5 The event relied upon by the lender to enforce this clause was the making of an arbitration award that could potentially result in significant damages being awarded against the borrower.

Filed under:
Luxembourg, United Kingdom, USA, Capital Markets, Company & Commercial, Corporate Finance/M&A, Environment & Climate Change, Insolvency & Restructuring, Litigation, Real Estate, Libor, Private equity, Climate change, Supply chain, Mediation, Due diligence, Carbon neutrality, Euribor, ESG, Anti-money laundering, COP26, Economic Crime (Transparency and Enforcement) Act 2022 (UK), House of Lords
Location:
Luxembourg, United Kingdom, USA
View Original Article
Foreign Representatives Failure to Communicate with Bankruptcy Court Warrants Closure of Chapter 15 Case
2023-03-30

Like debtors, bankruptcy trustees, official committees, examiners, and estate-compensated professionals, foreign representatives in chapter 15 cases have statutory reporting obligations to the bankruptcy court and other stakeholders as required by the plain language of the Bankruptcy Code. Such duties include the obligation to keep the U.S. bankruptcy court promptly informed of changes in either the status of the debtor's foreign bankruptcy case or the status of the foreign representative's appointment in that case. Furthermore, chapter 15 provides a U.S.

Filed under:
USA, Insolvency & Restructuring, Litigation, Jones Day, Insolvency, UNCITRAL
Authors:
Corinne Ball , Dan T. Moss , Michael C. Schneidereit , Isel M. Perez , Mark G. Douglas
Location:
USA
Firm:
Jones Day
View Original Article
Sell-Side Directors May Be Liable for Breach of Fiduciary Duty Claims for Failing to Investigate Company's Post-Closing Solvency
2020-12-28

In In re Nine West LBO Securities Litigation (Case No. 20-2941) (S.D.N.Y. Dec. 4, 2020), a federal district court denied in part a motion to dismiss claims brought by the Nine West liquidating trustee against former directors (the "Defendants") of The Jones Group, Inc. (the "Company"), Nine West's predecessor, for, among other things, (i) breaches of their fiduciary duties of care and loyalty, and (ii) aiding and abetting breaches of fiduciary duties. The litigation arises from the 2014 LBO of the Company by a private equity sponsor ("Buyer").

Filed under:
USA, Company & Commercial, Insolvency & Restructuring, Litigation, Winston & Strawn LLP, Private equity, Due diligence
Authors:
Dominick DeChiara , Bryan C. Goldstein , Carey D. Schreiber , Bradley C. Vaiana
Location:
USA
Firm:
Winston & Strawn LLP
View Original Article
CFTC Proposes Major Revamp of Its Bankruptcy Rule; Changes Mostly Codify Status Quo
2020-05-03

The Commodity Futures Trading Commission proposed its first comprehensive overhaul of its bankruptcy rules since 1983. The recommended new rules do not substantively change anything but codify many CFTC interpretations and views developed over 40 years and refresh references to means of communication and recordkeeping practices to reflect current norms.

Filed under:
USA, Derivatives, Insolvency & Restructuring, Katten Muchin Rosenman LLP, Commodity Futures Trading Commission (USA)
Authors:
Gary DeWaal
Location:
USA
Firm:
Katten Muchin Rosenman LLP
View Original Article
Bankruptcy Court Rejects US Trustee Fees on Distributions From Trust in 'Paragon Offshore'
2021-09-08

In the recent decision of Paragon Offshore, No. 16-10386 (CSS), 2021 (Bankr. D. Del. June 28, 2021), the U.S. Bankruptcy Court for the District of Delaware (the court) addressed the issue of whether the Office of the United States Trustee (OUST) could collect its quarterly fees against assets that were previously transferred to a litigation trust (the litigation trust) free and clear of any and all claims, liens and other encumbrances pursuant to a confirmed plan of liquidation.

Filed under:
USA, Delaware, Insolvency & Restructuring, Litigation, Duane Morris LLP, Bankruptcy
Authors:
Lawrence J. Kotler
Location:
USA
Firm:
Duane Morris LLP
View Original Article
Opportunities created by The Sbarro's bankruptcy filing
2014-03-18

On Monday, March 10, 2014, the companies that own and operate the Sbarro pizza chain, Sbarro LLC and 33 affiliates, filed for bankruptcy reorganization under Chapter 11 of the federal Bankruptcy Code.  The Sbarro companies operate 217 restaurants in the U.S. and there are 582 franchised restaurants, 176 in the U.S. and 406 at international locations.

Filed under:
USA, Insolvency & Restructuring, Leisure & Tourism, Litigation, Wiley Rein LLP
Authors:
Robert A. Smith , H. Jason Gold , Valerie P. Morrison
Location:
USA
Firm:
Wiley Rein LLP
View Original Article
Supreme Court Holds That Fraud Exception to Debt Discharge can Include Fraud by Someone Other Than the Debtor
2023-03-29

We have previously blogged about Bartenwerfer v. Buckley, No. 21-908, a Supreme Court case concerning the scope of the fraud exception to the dischargeability of debts in bankruptcy. Section 523 of the Bankruptcy Code exempts from discharge “any debt . . . for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained by . . .

Filed under:
USA, Insolvency & Restructuring, Litigation, Patterson Belknap Webb & Tyler LLP, Bankruptcy, Debtor, US Congress, Supreme Court of the United States
Authors:
Jonah Wacholder , Daniel A. Lowenthal
Location:
USA
Firm:
Patterson Belknap Webb & Tyler LLP
View Original Article
Highland Capital Fails Bid to Recuse Presiding Judge (US)
2023-03-29

In January, we wrote about Highland Capital Management, L.P. and the reorganized debtor’s filing of a petition for a writ of certiorari, by which the reorganized debtor asked the Supreme Court to consider whether section 524(e) of the Bankruptcy Code prohibits non-debtor exculpations.

Filed under:
USA, Insolvency & Restructuring, Litigation, Squire Patton Boggs, Supreme Court of the United States
Location:
USA
Firm:
Squire Patton Boggs
View Original Article
Eleventh Circuit Establishes Bright-Line Rule on Additional Disclosure and Re-Solicitation of Votes for Modified Chapter 11 Plan
2023-03-30

A chapter 11 plan may be modified after votes have been solicited on the plan, but prior to confirmation, without providing creditors and interest holders with an amended disclosure statement and another opportunity to vote on the modified plan, provided, among other things, that the modifications do not adversely affect creditors or interest holders who previously voted to accept the plan.

Filed under:
USA, Insolvency & Restructuring, Litigation, Jones Day, Supreme Court of the United States
Authors:
Oliver S. Zeltner , Mark G. Douglas
Location:
USA
Firm:
Jones Day
View Original Article
Chapter 15 Recognition Limited to Foreign Insolvency, Liquidation, or Restructuring Proceedings
2023-03-30

In In re Global Cord Blood Corp., 2022 WL 17478530 (Bankr. S.D.N.Y. Dec. 5, 2022), the U.S. Bankruptcy Court for the Southern District of New York denied without prejudice a petition filed by the joint provisional liquidators for recognition of a "winding-up" proceeding commenced under Cayman Islands law.

Filed under:
USA, Compliance Management, Insolvency & Restructuring, Litigation, Jones Day, Corporate governance, Mediation, Articles of association, Insolvency, UNCITRAL
Authors:
Corinne Ball , Dan T. Moss , Michael C. Schneidereit , Isel M. Perez , Mark G. Douglas
Location:
USA
Firm:
Jones Day
View Original Article

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