This entry is part of Nelson Mullins’s ongoing “Bankruptcy Basics” blog series that is intended to address foundational aspects of bankruptcy for non-bankruptcy practitioners and professionals. This entry will discuss how...more
Most every business relies on executory contracts, which often contain at least one bankruptcy provision. It is important for businesses to be aware of the common bankruptcy provisions that cannot be enforced in a bankruptcy...more
David examines the impact of ipso facto clauses with reference to UK and Dutch insolvency proceedings by Simeon Gilchrist and Nicolaes Tollenaar. Originally published in Eurofenix, Winter 2020/2021. ...more
The Hong Kong government is proposing much-anticipated legislation for the introduction of a corporate rescue procedure and insolvent trading regime. Hong Kong has, for years, struggled to introduce a statutory corporate...more
"Cramdown" chapter 11 plans, under which a bankruptcy court confirms a plan over the objection of a class of creditors, are relatively common. Less common are the subset of cramdown plans known as "cram-up" chapter 11 plans....more
The new UK Corporate Insolvency and Governance Act (CIGA), which took effect in June 2020, ushers in permanent changes to the English insolvency and restructuring landscape as well as temporary, and largely retrospective,...more
Swaps, together with repurchase agreements, forward contracts, securities contracts and commodities contracts receive special treatment under the bankruptcy code-they are largely exempt from the automatic stay, bankruptcy...more
Almost 12 years after the commencement of the Lehman Brothers bankruptcy case, we now know the answer to one of that case’s most interesting questions—namely, whether so-called “flip clauses” are protected settlement payments...more
COVID-19 Pandemic Likely to Increase Bankruptcy Filings- As the COVID-19 pandemic forces authorities across the country to swiftly react to public health developments and setbacks, the process of reopening businesses to...more
The Supreme Court of Canada recently granted leave to appeal from the Alberta Court of Appeal's decision in Capital Steel Inc v Chandos Construction Ltd, 2019 ABCA 32. The case addresses the enforceability of clauses that...more
In Part 1, we discussed how, despite widespread usage, termination in the event of bankruptcy clauses (“ipso facto” clauses) are generally unenforceable pursuant to the bankruptcy code. In this second part, we discuss why...more
Practically all commercial transactions, including licenses, services agreements, and supply agreements, contain a provision that triggers termination rights, without notice, to a party whenever the other party files for...more
On January 17, 2019, the United States Court of Appeals for the Fifth Circuit issued a decision holding that “impairment” under a plan of reorganization does not arise even if a creditor is paid less than it would be entitled...more
On January 15th, 2019, the U.S. Bankruptcy Court for the Northern District of Ohio held that the end user of an electricity forward contact was not entitled to the benefits of the safe harbor provisions under Section 556 of...more
As discussed in a recent Dechert OnPoint, section 365(e)(1) of the U.S. Bankruptcy Code provides that an executory contract of a debtor may not be terminated solely because of a provision in such contract that is conditioned...more
Section 365 of the U.S. Bankruptcy Code does not address the legal status of an executory contract that is not assumed or rejected in a chapter 11 proceeding. In such cases where a chapter 11 plan is confirmed, courts adopt...more
IPSO FACTO CLAUSE/PROVISION: A contract clause that terminates or modifies, or grants the non-debtor party the right to terminate or modify, the contract upon the debtor’s bankruptcy filing or the insolvency or financial...more
The "Devil's Dictionary" is a quick-reference guide for commercial lenders and other restructuring professionals. In this series, we highlight many of the buzz words found in the Dictionary and used in today's bankruptcy...more
Indentures typically contain provisions that offer protection to bondholders and borrowers in the event of early repayment of or, in some instances, default on the loan. This includes make-whole provisions, which...more