CONFIRMING A CHAPTER 11 PLAN

plan presumably satisfied the market valuation requirement of 203 N. LaSalle one might have expected that that alleviated any need to terminate exclusivity to satisfy the dictates of 203 N. LaSalle. Instead, however, the court relied on the auction provision in the debtor's plan as a reason to terminate exclusivity, because it meant that the "debtor's exclusive right to propose and gain acceptance of a plan has effectively been forfeited because any party can bid on the Debtor's equity interest and assume control," and because a competing plan "is a preferable procedural mechanism to auction" because of the additional information provided by the disclosure statement.³⁸⁸ Another court terminated exclusivity in an individual case that could be confirmed only under the new value corollary.³⁸⁹

If termination of exclusivity alone will satisfy 203 N. LaSalle, then a debtor could simply terminate exclusivity, or allow it to expire, and then file a new value plan. The secured creditor may file a liquidating plan. The bankruptcy court may then be faced with two competing plans, both of which are confirmable assuming that the new value corollary can be satisfied once exclusivity has been terminated. In deciding which of two confirmable plans to confirm under § 1129(c), the bankruptcy court might conclude that reorganization is to be preferred over liquidation,³⁹⁰ or that the debtor's new value plan provides more to creditors, including the secured creditor, than does the liquidating plan.