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The transaction is straightforward: A buyer purchases certain assets and assumes certain liabilities of a seller under an asset purchase agreement. However, after the transaction closes, the buyer files for bankruptcy under Chapter 11 of the Bankruptcy Code and eventually rejects the asset purchase agreement. From a deal lawyer's perspective, the issue is: What impact does the bankruptcy filing and the contract rejection have on the carefully drafted, thoroughly negotiated asset purchase agreement?
Some guidance on this issue was recently provided by the U.S. Bankruptcy Court for the District of Delaware in In re Taylor-Wharton International LLC v. Blasingame, 2010 Bankr. LEXIS 3994 (Bankr D. Del. Nov. 23, 2010). The key facts in the case are as follows:
The Bankruptcy Court's Analysis
In dismissing Taylor-Wharton's claims, the Bankruptcy Court focused on how the rejection of executory contracts operates under the Bankruptcy Code. Under ' 365 of the Bankruptcy Code, debtors and debtors-in-possession have the right to assume or reject contracts that are “executory” as of the date of the bankruptcy petition. As defined in the case law, an executory contract is a contract under which the obligations of both parties are so far unperformed that the failure of either party to complete performance would constitute a material breach excusing the performance of the other party. The Bankruptcy Court stated that rejection of an executory contract constitutes a breach of contract, not a rescission of the contract, and has the effect of relieving the debtor from future performance of the contract but does not undo past performance. The Bankruptcy Court also added that an executory contract must be assumed or rejected in its entirety; a debtor cannot pick and choose provisions to assume or reject.
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