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OBJECTION OF DEUTSCHE BANK AG, LONDON BRANCH TO MOTION OF THE PLAN ADMINISTRATOR FOR AN ORDER IN AID OF EXECUTION OF THE PLAN
08-13555-scc Doc 57490 Filed 01/17/18 Entered 01/17/18 16:04:07 Main Document
3. The Plan Administrator's characterization of "issuing the Substituted Preferred
Stock [as] an act in furtherance of the Plan but not expressly authorized by it" is beyond a
stretch. The Plan and Confirmation Order (i) cancelled the type of securities that LBHI would
now issue; (ii) fixed the constituents of LBHI Class 12 to which the ECAPS Holders would now
be added; (iii) rejected the Partnership Agreements that LBHI apparently now intends to enforce,
(iv) nullified the LBHI Charter under which LBHI would now issue securities; and (v) effected
the LBHI Amended Charter and Amended By-Laws under which LBHI is expressly prohibited
from issuing such securities. While the relief sought might eventually indirectly benefit LBHI's
creditors, this Court cannot grant that relief without rewriting the Plan, rewriting the LBHI
Amended Charter, rewriting the Amended By-Laws, rewriting the Confirmation Order, rewriting
the Bankruptcy Code, and rewriting history. That end cannot justify these means. Indeed,
granting such relief would require this Court to disregard fundamental principles of bankruptcy
law. The Motion should be denied based on the terms of the confirmed, effective and
substantially consummated Plan and applicable bankruptcy law.
4. Even if the Plan were silent on the subject, this Court would doubtless have
compunctions about permitting LBHI to travel back in time to 2008, in order to issue a few
million shares of preferred stock on the first day of its chapter 11 case; then travel forward in
time to 2012, so that those same shares could be cancelled and replaced with Class 12 interests
when the Plan went effective (but without stopping off in 2011 to give the holders of those ill-
2 DB's position is that to the extent the Partnership Agreements remain in place, their terms do not permit or
require any party to replace the ECAPS with Substituted Preferred Stock. This is a question of English law and is
expected to be brought before the High Court in due course. But this Court should have no doubt that DB's position
is that the parties' bargained-for rights under the Partnership Agreements do not allow for a Preferred Securities
Substitution and that to allow such would provide a windfall to LBHI.
Si è svegliata Deutsche Bank: per fortuna non riguarda le classi 3 e 5!
08-13555-scc Doc 57490 Filed 01/17/18 Entered 01/17/18 16:04:07 Main Document
3. The Plan Administrator's characterization of "issuing the Substituted Preferred
Stock [as] an act in furtherance of the Plan but not expressly authorized by it" is beyond a
stretch. The Plan and Confirmation Order (i) cancelled the type of securities that LBHI would
now issue; (ii) fixed the constituents of LBHI Class 12 to which the ECAPS Holders would now
be added; (iii) rejected the Partnership Agreements that LBHI apparently now intends to enforce,
(iv) nullified the LBHI Charter under which LBHI would now issue securities; and (v) effected
the LBHI Amended Charter and Amended By-Laws under which LBHI is expressly prohibited
from issuing such securities. While the relief sought might eventually indirectly benefit LBHI's
creditors, this Court cannot grant that relief without rewriting the Plan, rewriting the LBHI
Amended Charter, rewriting the Amended By-Laws, rewriting the Confirmation Order, rewriting
the Bankruptcy Code, and rewriting history. That end cannot justify these means. Indeed,
granting such relief would require this Court to disregard fundamental principles of bankruptcy
law. The Motion should be denied based on the terms of the confirmed, effective and
substantially consummated Plan and applicable bankruptcy law.
4. Even if the Plan were silent on the subject, this Court would doubtless have
compunctions about permitting LBHI to travel back in time to 2008, in order to issue a few
million shares of preferred stock on the first day of its chapter 11 case; then travel forward in
time to 2012, so that those same shares could be cancelled and replaced with Class 12 interests
when the Plan went effective (but without stopping off in 2011 to give the holders of those ill-
2 DB's position is that to the extent the Partnership Agreements remain in place, their terms do not permit or
require any party to replace the ECAPS with Substituted Preferred Stock. This is a question of English law and is
expected to be brought before the High Court in due course. But this Court should have no doubt that DB's position
is that the parties' bargained-for rights under the Partnership Agreements do not allow for a Preferred Securities
Substitution and that to allow such would provide a windfall to LBHI.
Si è svegliata Deutsche Bank: per fortuna non riguarda le classi 3 e 5!
