Shopping Centers
| ID | Name | Group | Other | Code
Sec |
Cross
Ref | Problem
Referenced | Proposed
Solutions |
NBRC-
0001 | "Shopping Centers Today" |
|
| 365 | 502(b)(6) | 1. Abuse of rejection provisions; 2. Retention of poor mgmt.; 3.
Lenient insolvency test | 1. Absolute limit on
time to assume or reject leases; 2. Restrict employment &
compensation of senior management in bankruptcy; 3. Permit Shopping
Center landlords to serve on creditors' committee prior to filing proof
of claim |
NBRC-
0001 | "Shopping Centers Today" |
|
| 365 | 502(b)(6) | 1. Abuse of rejection provisions; 2. Retention of poor mgmt.; 3.
Lenient insolvency test | 1. Absolute limit on
time to assume or reject leases; 2. Restrict employment &
compensation of senior management in bankruptcy; 3. Permit Shopping
Center landlords to serve on creditors' committee prior to filing proof
of claim |
NBRC-
0439 | International Council of Shopping Centers | International Council of Shopping Centers, not signed by an
individual, no address given |
| 1102(a)(2) |
| Shopping Center landlords must
provide post-petition services to the debtor without protections in the
Code that are afforded to other creditors, and without the assurance of
the landlord's representation on the creditor's committee. Current
statutory language in the Code and Federal Rules of Bankruptcy Procedure
allow the courts to review the membership of creditors' committees and
to appoint additional committees, but does not permit the courts to
alter the membership of a creditors' committee. | ICSC supports the Chapter 11 Working Group proposal that the
statutory language of §1102(a)(2) of the Code be amended to permit
the court to review and alter the membership of a creditors' committee.
While only interpreted in the commentary describing the proposal, ICSC
supports the Working Group's intent to grant the court de novo power to
review the membership of a creditors' committee. ICSC believes the
court should consider a set of guidelines in asserting its powers for
altering the membership of the committee, and sets forth its suggestions
of what those guidelines should include. |
NBRC-
0668 | International Council of Shopping Centers |
|
| 365 |
| ICSC feels that the suggested deletion of
"executoriness" and the "material breach" tests
would "completely resontruct the fundamentals of bankruptcy
contract law" and would not help matters, but in fact cause further
confusion. | Do not delete the test of
"executoriness" and "material breach" from section
365. |
NBRC-
0668 | International Council of Shopping Centers |
|
|
|
| ICSC objects to the proposed substitution of the new concept of
"election to breach" in place of the concept of
"rejection". ICSC feels that such a change would not
materially clarify the concept expressed. Instead of reducing the
amount and complexity involving a debtor's decision to reject a
prepetition contract, which at the present plays out against a backdrop
of fairly well-developed case law, the suggested revieion will
necessarily result in a glut of new litigation as the courts struggle to
delineate the consequences of a debtor's election to
breach. | Do not substitute the concept of
"election to breach" for the current concept of
"rejection". |
NBRC-
0668 | International Council of Shopping Centers |
|
| 365 | 544, 547,
548 | "Professor Westbrook rightly
eschews a debtor's use of the rejcetion power to avoid a pre-petition
grant of "dominion over a specific asset," where the avoidance
of the transfer could not be achieved under sections 544, 547 or 548 of
the Bankruptcy Code, and certainly most bankruptcy participants would
agree that contract rejection may not be employed in bankruptcy to avoid
rights in property created by the contract. ICSC believes, however,
that the vast majority of the opportunities to use rejection as an
acoiding pposer have been foreclosed by sections 365(h) and (n), and
that any revision to clarify that rejection is not an avoiding power
should leave untouched such "special interest" remedial
provisions." | "Rejection is clearly
not an avoiding power and section 365 might prudently be amended to so
state but the "Special Interest" provisions of that Section
should not be deleted." |
NBRC-
0668 | International Council of Shopping Centers |
|
|
|
| "Although Professor Westbrook believes that temporary
performance and interim protectin orders will somehow make the
assumption/rejection process more"fair," it is clear that any
such orders will most surely involve the revision of contact [sic} terms
to the detriment of the non-debtor party. ICSC would object to any new
provision of the Bankruptcy Code which would undermine the protections
afforded non-debtor parties to executory contracts and unexpired leases
under sections 365(d) (3) and 365(d) (10) of the Bankruptcy
Code. |
|
NBRC-
0668 | International Council of Shopping Centers |
|
|
|
| ICSC has "no particularly strenuous objection" to
clarifying the option of "assumption" if the intent is to
clarify that an "election to perform" and subsequent
assignment releases the debtor of the continuing obligations under the
assigned contract, or that the "election to perform" is not
contingent upon an additional finding that the contract would be
assignable under nonbankruptcy law. "ICSC does, however, echo the
concerns set forth in the "Competing Considerations" section
of the proposal that the concepts of "assumption" and
"assignment" have been less problematic than the concept of
"rejection" and that the change in terminology will almost
inevitably result in additional and unnecessary
litigation." | "ICSC submits
that the concepts of "assumption" and "assignment"
are not so far broken as to compel a legislative fix at this
time." |
