Insights on Indenture Trustees, Agents & Corporate Trust Services

The Plain Meaning Language of an Intercreditor Agreement Determines Whether it Governs Plan Distributions or Adequate Protection Payments

In reaching his decision, Judge Gross employed a “forward-thinking” analysis based on the facts existing at the time the trustee acted.

This decision from the Appellate Division reversed a finding that an indenture trustee did not have the relevant standing to pursue fraudulent transfer claims, among other claims.

In its ruling, the Appellate Court partially reversed the lower court’s limited approval of the Settlement by finding that the lower court improperly seconded-guessed the judgment of the Trustee and did not accord that judgment proper deference when considering approval of the Settlement.

A recent Delaware District Court decision concerning an appeal of a bankruptcy settlement clearly provides support for the use of tender offers or other exchange, or settlement mechanics permitted under applicable federal securities laws prior to and outside a plan of reorganization.

Questions Standing of Indenture Trustees to Pursue Fraudulent Conveyance Claims
 

On April 13, 2014, MPM Silicones, LLC and certain debtor affiliates (the Debtors) filed for bankruptcy protection under Chapter 11 of the United States Bankruptcy Code. The Debtors filed their plan of reorganization (the Plan) about a month later.

The Third Circuit agreed with the Bankruptcy Courts finding that the proposed releases were not adequately disclosed to the bondholders as required by Bankruptcy Rule 3016(c), and therefore would not be approved.

Often times indenture trustees seek to sit on creditors committees in furtherance of their fiduciary duties to holders. Obviously, the professional fees and expenses can be paid as a first priority pursuant to a charging lien as provided for under the indenture documents.

On June 26th, Arent Fox managing partner Andrew Silfen will be a moderator for the panel entitled, “Views on the Bench” at the 11th Annual Philadelphia Credit & Restructuring Summit 2018.