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Reorganizations Under Chapter 11 of the Bankruptcy Code

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by Richard F. Broude


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“Discusses all aspects of the Chapter 11 proceeding...very helpful.”
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Reorganizations Under Chapter 11 of the Bankruptcy Code is the most complete and up-to-date one-volume treatment of this important business-planning tool. It contains a thorough discussion of Chapter 11 law and practice, including significant changes in: exclusivity; key employee retention plans; pre-petition severance pay; the debtor's ability to retain turnaround specialists; conversion and dismissal of cases; the obligation of creditors' committees to share information with members of the constituencies; and the way in which small business and single-asset real estate cases are conducted.

This authoritative volume also brings you legal analysis and practical guidance on such subjects as: bankruptcy court jurisdiction; voluntary and involuntary petitions; creditors' committees; managing and operating the debtor and its business, including obtaining post-petition financing; treatment of secured creditors; dealing with executory contracts and unexpired leases; filing and allowance of proofs of claims and interests; the content, modification and confirmation of plans of reorganization, including a discussion of how claims may be classified; the effect of plan confirmation; and post-confirmation appeals and plan consummation.

Reorganizations Under Chapter 11 of the Bankruptcy Code will keep you current on the latest statutory and regulatory developments while briefing you on the often conflicting decisions handed down by the courts.

Book #00595; looseleaf, one volume, 880 pages; published in 1986, updated as needed; no additional charge for updates during your subscription. Looseleaf print subscribers receive supplements. The online edition is updated automatically. ISBN: 978-1-58852-034-0.


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  • Availability: Available
  • Brand: Law Journal Press
  • Product Type: Books
  • Edition: 0
  • Page Count: 880
  • ISBN: 978-1-58852-034-0
  • Pub#/SKU#: 595
  • Volume(s): 1

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  • Richard F. Broude

Richard F. Broude is a graduate of Washington University in St. Louis and of the University of Chicago Law School. Mr. Broude practices in New York City, and represents debtors, owners, investors, claims buyers and other parties in interest in Chapter 11 cases. He is a member of the board of editors and a contributing editor of Collier on Bankruptcy and the Collier International Business Insolvency Guide. He is a member of the National Bankruptcy Conference and The American Law Institute and was the past Co-Chair of the Insolvency and Creditor's Rights Committee of the International Bar Association. Mr. Broude frequently lectures on the subjects of bankruptcy and creditors' rights.


CHAPTER 1
Introduction

§ 1.01 Out-of-Court Procedures
§ 1.02 The Bankruptcy Reform Act of 1978
[1] An Introduction to the Bankruptcy Code
[2] The History of Chapter 11
[3] Amendments to the Bankruptcy Reform Act of 1978
§ 1.03 The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”)

CHAPTER 2
The Case Begins: Petitions and Jurisdiction

§ 2.01 Voluntary Petitions
[1] “Persons” Eligible to Seek Voluntary Relief
[2] Other Prerequisites to Voluntary Relief
[3] Special Requirements Applicable to Corporations and Partnerships
[4] Prebankruptcy Planning
§ 2.02 Involuntary Petitions
[1] Eligible Debtors
[2] Who May File an Involuntary Petition
[3] Answers to Involuntary Petitions
[4] The “Involuntary Gap”
[5] Grounds for Relief
[6] Award of Fees and Damages to Alleged Debtor
§ 2.03 [Reserved] 
§ 2.04 Jurisdiction of the District Court and Bankruptcy Courts
[1] Northern Pipeline Construction Co. v. Marathon Pipe Line Co. and Stern v. Marshall
[2] Jurisdiction of the District Courts
[3] Jurisdiction of the Bankruptcy Courts
[4] Withdrawal of the Reference
[5] Abstention

CHAPTER 3
The Principal Players in a Chapter 11 Case
§ 3.01 The Debtor in Possession
[1] In General
[2] Fiduciary Duties of a Debtor in Possession
[3] Corporate Governance
§ 3.02 Committees
[1] Creation and Changes in Composition of Committees
[2] Who May Serve on Committees
[3] Reimbursement of Expenses of Committee Members
[4] Duties of a Committee
[4A] Attorney-Client Privilege; Duty to Share Information
[5] Suits Against Committee Members
[6] Committee Professionals
§ 3.03 Trustees
[1] Legislative History
[2] The Process of Electing or Appointing a Trustee
[2A] Cause for the Appointment or Election of a Trustee
[3] Who May Serve as a Trustee
[4] The Trustee’s Duties
[5] Suits Against a Trustee
[6] Appointment of Trustee in Cases of Suspected Fraud
§ 3.04 Examiners
§ 3.05 The United States Trustee
[1] The History of the United States Trustee System
[2] The Role of the United States Trustee
[3] Financing the United States Trustee System
§ 3.06 Professionals
[1]  Employment of Professionals
[2]  Compensation of Professionals
§ 3.07 Party in Interest

CHAPTER 4
The Automatic Stay

§ 4.01 The Automatic Stay
[1] In General
[2] Judicial and Administrative Proceedings
[3] Enforcement of Judgments
[4] Acts to Obtain Possession of or Exercise Control Over Property of the Estate
[5] Acts Respecting Liens on Property of the Estate
[6] Acts Regarding Property of the Debtor
[7] Acts to Collect Prepetition Debts
[8] Setoff and Recoupment
[9] Tax Court Proceedings
[10] Scope of the Stay
§ 4.02 Applicability of the Stay to Third Persons
§ 4.03 Exceptions to the Automatic Stay
[1] General
[2] Postpetition Perfection of Interests in Property
[3] Governmental Units
[4] Lessors of Real Property
[5] Property Tax Liens
[6] Other Exceptions
§ 4.04 Duration of the Automatic Stay
§ 4.05 Terminating the Automatic Stay
[1] Grounds for Relief
[2] Single Asset Real Estate
[2A] Abusive Filings
[3] Prepetition Agreements
[4] Procedure
§ 4.06 Adequate Protection
[1] History of Adequate Protection
[2] Development of Adequate Protection Under the Code
[3] The Undersecured Creditor
[4] Valuing the Collateral
[5] Stipulations
§ 4.07 Appealability of Orders Regarding the Automatic Stay
§ 4.08 Violating the Automatic Stay

CHAPTER 5
The Secured Creditor

§ 5.01 Use of Collateral
[1] In General
[2] Adequate Protection
[3] Rents
[4] Procedure
[5] Unauthorized Use of Cash Collateral
§ 5.02 Secured Creditor’s Interest in Postpetition Property
§ 5.03 Turnover
§ 5.04 The Secured Creditor's Right to Postpetition Interest, Attorneys’ Fees, and Other Charges
§ 5.05 Determining the Amount of the Secured Claim
§ 5.06 Surcharging the Secured Creditor

CHAPTER 6
Managing and Operating the Debtor and Its Business

§ 6.01 Operating the Debtor’s Business
[1] Generally; First Day Orders
[1A] 28 U.S.C. § 959
[2] Paying Prepetition Creditors
[3] Dealing With Employees
[4] Operations in the Ordinary Course of Business
[4A] Maintaining Utility Service
[5] Sarbanes-Oxley and Chapter 11
§ 6.02 Obtaining Credit
[1] The Administrative Priority; Unsecured Credit
[2] Secured Borrowing
[3] Priming Prior Liens
[4] Appeals of Borrowing Orders
§ 6.03 Procedures for Financing the Debtor in Possession
[1] Procedural Alternatives
[2] Cross-Collateralization
[3] Contents of Borrowing Order
§ 6.04 Sale, Use or Lease of Assets
[1] Sale, Use or Lease in Ordinary Course of Business
[2] Sale, Use or Lease Out of the Ordinary Course of Business
[3] Sales Free and Clear of Liens and Other Interests
[4] Sales of All or Substantially All of the Estate’s Assets
[5] Appeal of Sale Orders
§ 6.05 Executory Contracts and Unexpired Leases
[1] Executory Contracts and Unexpired Leases as Part of the Bankruptcy Estate
[2] Definition of Executory Contract
[3] Ipso Facto Clauses
[4] Executory Contracts and Unexpired Leases Before Assumption or Rejection; Administrative Rent
[5] Time for Assumption or Rejection
[6] Assumption
[7] Assignment
[8] Rejection
§ 6.06 Labor Contracts
§ 6.07 Retiree Benefits
§ 6.08 Intellectual Property
§ 6.09 Aircraft Equipment and Vessels

CHAPTER 6A
Claims

§ 6A.01 Definition of Claim
§ 6A.02 Prepetition Claims
[1] In General
[2] Secured Claims
[3] Priority Claims
[4] General Unsecured Claims
[5] Attorneys’ Fees as Part of Unsecured Claims
[6] Prepayment Premiums and Other Make-Whole Provisions
§ 6A.03 Administrative Claims
[1] Claims that Are Entitled to Administrative Status
[2] Seeking Payment of Administrative Expenses
§ 6A.04 Filing Proofs of Claim
[1] General
[2] Bar Dates and Notice Thereof
§ 6A.05 Objections to Claims
[1] Procedure
[2] Claim Determined as of Petition Date
[3] Grounds for Objection
§ 6A.06 Estimation of Claims
§ 6A.07 Subordination of Claims
[1] Subordination Agreements
[2] Securities Claims
[3] Equitable Subordination
[4] Recharacterizing Debt as Equity
§ 6A.08 Interests

CHAPTER 7
Dismissal and Conversion of a Chapter 11 Case

§ 7.01 Converting a Case to CHAPTER 11
§ 7.02 Dismissing or Suspending a Chapter 11 Case Under Section 305
§ 7.03 Converting a Chapter 11 Case at the Request of the Debtor
§ 7.04 Converting or Dismissing a Chapter 11 Case at the Request of a Party in Interest
[1] In General
[2] Chapter 11 Cases Filed Before October 17, 2005
[3] Chapter 11 Cases Filed On or After October 17, 2005
[4] Dismissal Because of Lack of Good Faith
[5] Conversion Versus Dismissal
§ 7.05 Appointment of a Trustee or Examiner in Lieu of Converting or Dismissing 
§ 7.06 Sua Sponte Conversion or Dismissal
§ 7.07 Restraints on Conversion or Dismissal
§ 7.08 Effect of Conversion or Dismissal; “Structured” Dismissal

CHAPTER 8
Plan Exclusivity: Who May File a Plan

§ 8.01 Introduction
§ 8.02 Pre-Code Law
§ 8.03 Plan Exclusivity and How It May Be Lost
§ 8.04 Who May File Chapter 11 Plan
§ 8.05 Appeal of Orders Regarding Exclusivity

CHAPTER 9
Plans of Reorganization: Contents and Classification

§ 9.01 Introduction; Preemption of Nonbankruptcy Law
§ 9.02 Mandatory Plan Provisions: Classification of Claims and Interests
[1] Secured Claims
[2] Unsecured Claims
[3] Subordinated Claims
[4] Bankruptcy Rule 3013
[5] Objections to Classification
§ 9.03 Classification of Small Claims
§ 9.04 Exclusions from Classification
§ 9.05 Mandatory Plan Provisions: Specification of Non-Impaired Classes
§ 9.06 Mandatory Plan Provisions: Treatment of Impaired Classes
§ 9.07 Mandatory Plan Provisions: Treatment of Class Members
§ 9.08 Mandatory Plan Provisions: Adequate Means for the Execution of the Plan
[1] Introduction
[2] Retaining Property of the Estate
[3] Sale of Property; Mergers
[4] Other Means of Implementing the Plan
[5] Issuance of Securities
§ 9.09 Mandatory Plan Provisions: Modification of the Debtor’s Charter
§ 9.10 Mandatory Plan Provisions: The Public Interest
§ 9.10A Mandatory Plan Provisions: Retiree Benefits
§ 9.11 Permissive Plan Provisions
[1] In General
[2] Dealing with Classes of Claims and Interests
§ 9.12 Permissive Plan Provisions: Executory Contracts and Unexpired Leases
§ 9.13 Permissive Plan Provisions: Dealing with Assets of the Estate
[1] Claims and Interests
[2] Sale of Property
§ 9.13A Permissive Plan Provisions: The Debtor’s Principal Residence
§ 9.14 Permissive Plan Provisions: Other Appropriate Provisions
§ 9.15 Cases Concerning Individuals
§ 9.16 Determining Amount Necessary to Cure a Default

CHAPTER 10
Impairment

§ 10.01 Introduction: History of Section 1124
§ 10.02 Claims
[1] Leaving Claims Unaltered
[2] Reinstatement
§ 10.03 Interests
§ 10.04 Relationship of Section 1124 to Section 1126(f)

CHAPTER 11
Disclosure and Solicitation

§ 11.01 The Disclosure Statement
[1] Legislative History
[2] Function of Disclosure Statement
[3] “Adequate Information”
[4] Contents of a Disclosure Statement
[5] Disclosure Statements Filed by Third Parties
[6] Circumstances Not Requiring a Disclosure Statement
[7] When to File a Disclosure Statement
[8] Disclosure by Non-Proponents
[9] “Lock-Up” Agreements
§ 11.02 The Disclosure Statement Hearing
§ 11.03 Applicability of Securities Laws
§ 11.04 Solicitation of Votes
[1] Transmitting the Plan Documents
[2] Fixing the Date of Record
[3] When the Ballot Must Be Returned
§ 11.05 Acceptance of the Plan
[1] Acceptance Requirements
[2] “Designating” an Acceptance or Rejection
[3] Temporary Allowance for Voting Purposes
[4] Unimpaired Classes
[5] Classes Receiving No Property Under the Plan
[6] Changing Votes
[7] Assigning the Right to Vote
§ 11.06 Workouts; Prepackaged Plans

CHAPTER 12
Plans of Reorganization: Modification and Confirmation

§ 12.01 Modification of a Plan Prior to Confirmation
§ 12.02 The Confirmation Hearing: Objections to Confirmation
§ 12.03 The Confirmation Standards: In General
§ 12.04 Plan Compliance with Title 11
§ 12.05 Proponent Compliance with Title 11
§ 12.06 Good Faith
§ 12.07 Proponent Payments
§ 12.08 Disclosure of Post-Confirmation Management
§ 12.09 Regulatory Approval
§ 12.10 Best Interests of Creditors
§ 12.11 Class Acceptance
§ 12.12 Priority Claims
[1] Administrative Expenses and Involuntary Gap Claims
[2] Other Priority Non-Tax Claims
[3] Unsecured Tax Claims
[4] Late-Filed Priority Claims
§ 12.13 Minimum Acceptance
§ 12.14 Feasibility
§ 12.15 Payment of Fees
§ 12.16 Retiree Benefits
§ 12.16A “Special Interest” Confirmation Standards
§ 12.17 Acceptance of More than One Plan
§ 12.18 Improper Motives

CHAPTER 13
Cramdown

§ 13.01 Introduction
[1] The Absolute Priority Rule
[2] Valuing the Debtor
§ 13.02 Nonrecourse Claims: The Section 1111(b) Election
§ 13.03 Cramdown: In General
§ 13.04 Cramdown of Secured Claims
[1] Introduction
[2] Retention of the Collateral
[3] Sale of the Collateral
[4] Indubitable Equivalence
§ 13.05 Cramdown of Unsecured Claims
[1] Generally
[1A] “Gifting”
[2] The “New Value” Rule
[3] Cases Concerning Individuals
§ 13.06 Cramdown of Interests

CHAPTER 13A
Cases Involving a “Small Business Debtor”

§ 13A.01 Introduction and Definitions
§ 13A.02 Creditors’ Committees
§ 13A.03 Debtor’s Duties
§ 13A.04 Debtor’s Reporting Requirements
§ 13A.05 Duties of United States Trustee in Small Business Cases
§ 13A.06 Special Provisions Regarding the Automatic Stay
§ 13A.07 Plan Exclusivity
§ 13A.08 The Plan Confirmation Process
[1] Disclosure Statements
[2] Confirmation

CHAPTER 14
Beyond Confirmation

§ 14.01 The Effect of Confirmation
[1] Appeal of an Order of Confirmation
[2] Plan Binding on All Parties
[3] Property of the Estate
[4] Discharge
[4A] Due Process Limit on Discharge
[5] The Permanent Stay
[6] Effect of Confirmation on Third Parties
§ 14.02 Implementation of the Plan
[1] Carrying Out the Plan
[2] Post-Confirmation Jurisdiction of the Bankruptcy Court
[3] Distribution
[4] Exemption from Transfer Taxes
§ 14.03 Revocation of Confirmation
§ 14.04 Modification of a Confirmed Plan
§ 14.05 Serial Filings; Conversion and Dismissal
§ 14.06 Application of Securities Laws

Index