Non-Impairment Plan

“This is an interesting theoretical possibility but is seldom, if ever, actually seen. A plan that does not impair any class of creditors and thus does not have to be accepted by any class of creditors. Such a plan need not comply with the One-Impaired-Class-Must-Accept-The-Plan Rule since there is no impaired class.

While non-impairment generally requires that contractual rights not be altered in any respect, Section 1124 provides that a class of claims can be deemed unimpaired and therefore to have accepted the debtor’s plan if the plan:

  1. cures any default (except certain types of defaults need not be cured as noted below);
  2. reinstates the maturity of the claim as it existed prior to the default;
  3. compensates the holder of the claim for any damages incurred in reliance on its right of acceleration; and
  4. compensates the holder of the claim for any actual pecuniary loss incurred in connection with a default of a non-monetary obligation (unless the holder of the claim is an insider or the default arises from failure to operate a nonresidential real property lease); and
  5. does not otherwise alter the legal rights of the holder of the claim.

Certain types of defaults need not be cured in order for the class of claims to be deemed unimpaired—a default that is a breach relating to (1) the insolvency or financial condition of the debtor, (2) the filing of bankruptcy, (3) the appointment of a custodian or the appointment of a trustee in bankruptcy, or (4) satisfying a penalty rate or provision arising from the failure to perform nonmonetary obligations under an executory contract or unexpired lease.”

This definition is courtesy of our friends at Polsinelli who publish the Devil’s Dictionary of Bankruptcy Terms. You can access the Devil’s Dictionary here.

For more information about non-impairment plans, read Considerations When Selling a Bankruptcy Claim and Dealing With Distress For Fun & Profit Installments #18-19: How to Confirm a Chapter 11 Plan and  Chapter 11 Plan Acceptance, Getting a Class to Accept a Plan.

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