2006 NORTON BANKRUPTCY LAW SEMINAR MATERIALS

CHAPTER 11 OPERATIONS

By Hon. Randolph J. Haines

Provisions that deem prepetition secured debt to be postpetition debt, or that use postpetition loans from a prepetition secured creditor to pay all or part of that creditor's prepetition debt.
Provisions that provide disparate treatment for the committee's professionals from the professionals retained by the debtor with respect to a professional fee carevout.
Provisions that prime any secured lien without the lienholder's consent.
DLR 4001-2(a)(i)(A) Ð (F).
In addition to requiring that such provisions be identified and justified, the rules provide

that interim financing orders containing any of these provisions will not be granted "in the absence of extraordinary circumstances." DLR 4001-2(b). Final hearings on financing orders shall generally be held at least ten days after the organizational meeting of the creditors' committee. DLR 4001-2(c).

One bankruptcy court has relied on such a general order governing first day orders to deny a type of cross collateralization that may have been intended by the creditor but that was not made conspicuous as required by the general order.⁸

B. Paying Prepetition Wages and Benefits

One of the most common first day motions seeks permission to pay employees' prepetition wages. Even if these fall within the priority amounts (currently $4,925 earned within 90 days prepetition), the Code does not authorize payment prior to confirmation of a plan. Debtors frequently fear that such employees will quit and seek other work if they are not paid their prepetition wages when due on payroll day, which often comes shortly after the filing.

⁸Zurich Am. Ins. Co. v. Int'l Fibercom, Inc., 311 B.R. 862 (Bankr. D. Az. 2004).

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