Before: THOMPSON, TASHIMA, and GRABER, Circuit Judges. Criswell, Ball Janik LLP, Portland, Oregon, for the appellant. Johnson, Ater Wynne LLP, Portland, Oregon, for appellee Bank of New York, Indenture Trustee. They subordinate payment on the Notes to payment of “Senior Indebtedness.” The Indenture defines “Senior Indebtedness” as essentially any indebtedness (as defined by the contract) of SPFC that “by its terms ․ it is stated to be not superior in right of payment to the Notes.” Indenture at 7. Section 12.3 of the Indenture provides that in the event of dissolution, liquidation, reorganization, or distribution of the assets of SPFC, the Senior Indebtedness must be paid in full before any payments are made on the Notes. See Plan § 3.2.6(b) (providing that “until [the claims of Senior Indebtedness] have been paid in full, all Distributions of Available Cash that would be payable to [holders of the Notes] in the absence of the Subordination Provisions shall be distributed Pro Rata to the [holders of Senior Indebtedness]”). Factual determinations are reviewed for clear error, while legal conclusions and mixed questions of law and fact are reviewed de novo. It empowers the bankruptcy trustee to “assume or reject any executory contract or unexpired lease of the debtor,” subject to court approval. Edward Fox, Pryor Cashman Sherman & Flynn LLP, New York, New York, for appellee HSBC Bank USA, Indenture Trustee. We have jurisdiction over this timely appeal pursuant to 28 U. “Indebtedness” does not include ordinary trade debt, so Senior Indebtedness does not include it, either. Section 12.2 further provides that if any payments are made on the Notes in violation of section 12.2, those payments must be turned over to the Senior Indebtedness until the Senior Indebtedness is paid in full or the default is cured. In the bankruptcy court, Spieker objected to this provision of the Plan on the ground that it enforced section 12.3 of the Indenture, which Spieker argued violated 11 U. It operated under various trade names, including Engle Homes, Newmark Homes, Trophy Homes and others and had 1700 employees until the chapter 11 filing of TOUSA, Inc. Various approaches were explored and attempted by the Debtors to maximizing the results of the restructuring effort.
Because the phrase "business transactions and general business work" doesn't tell you much, here are .Because of my diverse legal background and experience, I am able to help my clients handle the myriad of important details critical to the success of their projects and transactions.Appellees are the liquidating trust created by the Plan and the trustees under the indenture agreement that is the focus of Spieker's objections. The district court had jurisdiction over Spieker's appeal pursuant to 28 U. That is, the Senior Indebtedness receives a “double dividend” in the section 12.3 context-it gets its share plus any share to which the holders of the Notes would otherwise be entitled. The bankruptcy court approved the Plan and rejected Spieker's argument, apparently on the grounds that: (1) under 11 U. On appeal, the district court rejected Spieker's argument as well, but for a different reason. “[A] contract is executory if the obligations of both parties are so unperformed that the failure of either party to complete performance would constitute a material breach and thus excuse the performance of the other.” Unsecured Creditors' Comm. For convenience, we continue to refer to Appellant as Spieker.2. In addition, we are not unmindful of the fact that more than .8 trillion in debt securities and bank loans have been extended in reliance on the type of subordination agreement that Spieker asks us to invalidate.
Spieker argued that the Indenture was an executory contract, that section 12.3 purported to modify SPFC's payment obligations conditioned on SPFC's insolvency, and that section 12.3 was therefore invalid under § 365(e)(1). § 510(a), a subordination agreement is to be enforced according to its terms; and (2) if Spieker's argument were accepted, it would essentially put all unsecured debt on a par with Senior Indebtedness. P., was merged into EOP Operating Limited Partnership. For the sake of simplicity, we will generally use “insolvency” as a catchall, intending it to cover each of the provisions of § 365(e)(1).4. Spieker also argues that the bankruptcy court erred in applying 11 U. Because we have concluded that § 365(e)(1) does not apply to the Indenture in this case, we need not reach this argument.
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However, a relatively small portion of the homebuilding assets remained to be administered and liquidated.