United States Second Circuit

The bankruptcy court's decision authorizing debtors to obtain post-petition secured financing and to repay existing pre-petition debt owed to creditor U.S. Bank, and denying U.S. Bank's request for relief from the automatic stay is affirmed, where: 1) per the language of the notes' Indenture Agreements, the debtors' voluntary petition for bankruptcy triggered a default that accelerated the debt but required no Make-Whole Amount payment in connection with debt repayment; 2) the pertinent clauses, contained in non-executory contracts, are not within the scope of 11 U.S.C. section 365(e)(1) and are not rendered unenforceable by any other Bankruptcy Code provision identified by U.S. Bank; 3) the debtors complied with its section 1110(a) elections to perform its obligations under the Indentures and cure any non-exempt defaults by making regularly scheduled principal and interest payments, and it was not required to cure its bankruptcy default; and 4) the bankruptcy court did not err in denying U.S. Bank's motion to lift the automatic stay.

Appellate Information

• Decided 09/12/2013
• Published 09/12/2013

Judges

• LIVINGSTON

Court

• United States Second Circuit

Counsel