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Old 19th Sep 2005, 19:55
  #78 (permalink)  
idl1975
 
Join Date: Jun 2005
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While it is mis-used the intent is good but the price is high. For a start the management loses control of the company to a creditors committee who oversee and approve everything-they are usually the nastier sort of bankers -the financial worlds equivalent of an organsied crime 'enforcer'.
As briefly as possible and in the broadest of strokes:

It's a very rare event when a Committee runs a Chapter 11 case. Management doesn't 'lose control of the company', unless it's because management were all fired 30 minutes before the bankruptcy petitions were filed.

While a number of "official" committees may be appointed, the unsecured creditors committee is present in nearly every case. The Committee represents the interests of unsecured creditors, who are typically trade creditors, and not bankers. They are bankers only if someone has screwed up almightily (or been defrauded) and the banks have a large unsecured claim at the start of the case.

The Committee ensures that someone (theoretically) is looking out for the large body of unsecured creditors, who might otherwise lack effective representation because their claims are too small individually and of too low a priority (meaning, the order in which claims are paid) to make it worthwhile for them to actively participate in the case.

However, the Committee, like the federally-appointed "US Trustee", has a watchdog role rather than an administrative one: it is there to make sure that the bankruptcy petition gets scrutinized for good faith and, in theory, that troubled businesses can't cook up collusive deals with insiders or secured lenders that are unfair to other creditors.

Theoretically, chapter 11 provides for a debtor corporation to be administered by a "trustee". This is a trustee in bankruptcy and not the US Trustee. Although the code speaks of a "trustee", the debtor is permitted in a chapter 11 context to excercise the powers of a trustee, in which capacity it is known as a "debtor-in-possession", as in, in possession of its own estate. If the debtor truly lacks management (or honest management), a "true" chapter 11 trustee may be appointed who acts in a fashion broadly analogous to an administrator or receiver, although with responsiblities distinct from those of a chapter 7 (liquidating) trustee.

Note that businesses can and do liquidate within chapter 11. Chapter 7 is typically reserved for no-asset cases or where a debtor becomes administratively insolvent (basically, can't pay its debts as they come due after the petition date) during a chapter 11 proceeding. Companies can and do conduct an orderly liquidation via a chapter 11 plan.

Executory contracts: the prevailing definition of an executory contract subject to assumption or rejection is one where unperformed material obligations remain on both sides. When Acme industries ships NWA 2,000 patented bird-strike preventing widgets (with accessory spit-roaster) and sends them an invoice, a contractual obgliation exists, but not an executory contract. Acme owes NWA no further performance, and NWA simply owes Acme a monetary debt. NWA can't "reject" its debt, although it may well confirm a plan of reorganization in which Acme will receive little or nothing. In comparison, Delta's gate agreements with Fictional Airports Authority involve ongoing non-monetary obligations on both sides, and may be assumed or rejected. Ongoing leases, like executory contracts, are subject to assumption or rejection.
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