美国法院的判决对SPV结构可能产生深远影响.docVIP

发件人: Zhang, Yi 发送时间: 2010年7月14日 15:36收件人: all-lawyers主题: RE: 美国法院的判决对SPV结构可能产生深远影响 ? ? In re General Growth Properties, Inc. Order Denying Motions to Dismiss the Cases of Various SPE Subsidiaries AUGUST 18, 2009 In a ruling issued last week, Bankruptcy Judge Allan L. Gropper of the Southern District of New York denied motions to dismiss the Chapter 11 cases of certain “bankruptcy-remote” special purpose entities that are subsidiaries of General Growth Properties, Inc., which filed the largest real estate Chapter 11 case in U.S. history. In denying the motions, Judge Gropper held that the entities did not file for bankruptcy in bad faith and that they were justified in considering the interests of their corporate parent when deciding whether to file. Background General Growth Properties, Inc. (the “Company”), a publicly-held real estate investment trust that owns or manages more than 200 shopping centers in 44 states across the country, filed for bankruptcy on April 16, 2009. About $15 billion of the Company’s approximately $27 billion in outstanding debt is in the form of collateralized mortgaged-backed securities (“CMBS”), making the Company the largest borrower in the CMBS markets. The Company is the ultimate parent of hundreds of subsidiaries—many of which are organized as “bankruptcy-remote” special purpose entities (“SPEs”)—that were, to the surprise of many market participants, also included in the Company’s Chapter 11 proceedings (the “SPE Debtors”). The governing documents and loan agreements of SPEs typically contain restrictions that require them to limit their debt principally to mortgages and to maintain their separate existence from their parent and other affiliates. Also, in an attempt to create an impediment to a bankruptcy filing, the SPEs’ governing documents often contain a requirement that the SPE retain at least one independent director obligated, to the extent permitted by law, to consider only the interests of the SPE, “including its respec