Part One of this article, published in the last edition of the Restructuring Review, examined recent developments in the gaming industry, focusing on strategies employed by gaming companies to increase liquidity and avoid insolvency. Part Two focuses on how potential buyers can use the bankruptcy process to purchase gaming facilities, free and clear of prior liens, and describes certain complications inherent in the acquisition of this type of asset.

Acquiring Gaming Facilities through Chapter 11

Sale Process

On Thursday, August 6, 2009, the United States Senate confirmed Justice Sonia Sotomayor to the Supreme Court of the United States. As a former Judge on the Court of Appeals for the Second Circuit, Judge Sotomayor’s jurisprudence includes a number of decisions involving noteworthy bankruptcy cases. This article provides a brief survey of these decisions.

On September 15, 2009, in an order read from the bench, the Honorable James M. Peck, Bankruptcy Judge in the United States Bankruptcy Court for the Southern District of NewYork, and the presiding judge in the Chapter 11 proceedings of Lehman Brothers Holdings Inc. (“LBHI”) and other associated Lehman Brothers United States entities, held a key provision of the standard ISDA Master Agreement unenforceable in a bankruptcy context.

In a significant decision recently handed down in the Lehman bankruptcy case, the United States Bankruptcy Court for the Southern District of New York held that a non-defaulting counterparty acted improperly by suspending payments under an open derivative contract with Lehman Brothers Special Financing Inc. ("LBSF").

In our update of October 20, 2008, we reported on whether "negative equity" can be part of a purchase money security interest. (http://www.masudafunai.com/showarticle.aspx?Show=3093) "Negative equity" is the excess of the amount owed on a trade-in item over the market value of the item.

latest Distressed Assets Opportunities lists prepared by our colleagues in the Business Reorganization and Bankruptcy Group and the Real Estate Group. The lists can be accessed by clicking the hyperlinks.

Yesterday, the OCC closed Southern Colorado National Bank, headquartered in Pueblo, Colorado, and the FDIC was named as receiver. As receiver, the FDIC entered into a purchase and assumption agreement with Legacy Bank, headquartered in Wiley, Colorado, to assume all of the deposits of Southern Colorado National Bank for a 1% premium.

Today, the Michigan Office of Financial and Insurance Regulation closed Warren Bank, headquartered in Warren, Michigan, and the FDIC was named as receiver.

The court has set November 30, 2009 at 5:00 p.m. (Eastern Time) as the deadline for all creditors to file a Proof of Claim for pre-petition amounts which may be due from the debtors to creditors including those associated with open invoices entitled to priority treatment under the Bankruptcy Code for deliveries in the 20-day period immediately preceding the bankruptcy filing and the post-petition termination/rejection of executory contracts.

On September 15, 2009, the United States Bankruptcy Court of the Southern District of New York ordered Metavante Corporation (“Metavante”) to make payments to Lehman Brothers Special Financing Inc. (“LBSF”) under a prepetition interest rate swap agreement guaranteed by Lehman Brothers Holdings Inc. (“LBHI” and, together with LBSF, “Lehman”) after Metavante had suspended ordinary course settlement payments under the swap.1 Metavante claimed a contractual right to withhold payment under Section 2(a)(iii) of the 1992 ISDA Master Agreement as a result of Lehman’s bankruptcy.