|
|
|
|
Cash Collateral, Adequate Protection, and Operating Capital
Although the preparation, confirmation,
and implementation of a plan of
reorganization is at the heart of a chapter
11 case, other issues may arise
which must be addressed by the debtor
in possession. The debtor in possession
may use, sell, or lease property of the
estate in the ordinary course of its business,
without prior approval, unless
the court orders otherwise. 11 U.S.C.
§ 363(c).
[an error occurred while processing this directive]
If the intended sale or use is
outside the ordinary course of its business,
the debtor must obtain permission
from the court. A debtor in possession
may not use "cash collateral," i.e., collections
of accounts subject to security
interests or proceeds from the sale of
pledged inventory or equipment, without
the consent of the secured party or
authorization by the court which must
first examine whether the interest of the
secured party is adequately protected.
11 U.S.C. § 363.
When "cash collateral" is used
(spent), the secured creditors are entitled
to receive additional protection
under section 363 of the Bankruptcy
Code. Section 363 defines "cash collateral"
as cash, negotiable instruments,
documents of title, securities, deposit
accounts, or other cash equivalents,
whenever acquired, in which the estate
and an entity other than the estate have
an interest. It includes the proceeds,
products, offspring, rents, or profits of
property and the fees, charges,
accounts or payments for the use or
occupancy of rooms and other public
facilities in hotels, motels, or other
lodging properties subject to a creditor's
security interest.
The debtor in
possession must file a motion requesting
an order from the court authorizing
the use of the cash collateral. Pending
consent of the secured creditor or court
authorization for the debtor in possession's
use of cash collateral, the debtor
in possession must segregate and
account for all cash collateral in its possession.
11 U.S.C. § 363(c)(4).
A party
with an interest in property being used
by the debtor may request that the
court prohibit or condition this use to
the extent necessary to provide "adequate
protection" to the creditor.
Adequate protection may be required
to protect the value of the creditor's
interest in the property being used by
the debtor in possession. This is especially
important when there is a
decrease in value of the property. The
debtor may make periodic or lump sum
cash payments, or provide an additional
or replacement lien that will result in
the creditor's property interest being
adequately protected. 11 U.S.C. § 361.
When a chapter 11 debtor needs
operating capital, it may be able to
obtain it from a lender by giving the
lender a court-approved "superpriority"
over other unsecured creditors or
a lien on property of the estate.
11 U.S.C. § 364.
|
|
|
Sue Your Boss Law CA expands lawsuits for violations of the labor code. New ebook has 100+ ways employers can be sued |
Repair Your Credit How to easily and effectively fix your credit report. Get the money, car, house and loans you need. |
|
|