Their contact with the Debtor was solely as third-party purchaser of stock of Xantrex Technology, Inc. Also, the Merrill Lynch Defendants did not seek out the Debtor; instead it was the Debtors, through an intermediary, who reached out to the Merrill Lynch Defendants in Europe.
Neither of the Merrill Lynch Defendants were registered to do business in the United States, and neither filed proofs of claim in the bankruptcy case.
The Merrill Lynch defendants thereafter filed a motion to dismiss the amended complaint for lack of personal jurisdiction.
The complaint was subsequently amended to add the Merrill Lynch defendants, the third-party purchasers of the Xantrex stock, as additional defendants.
(Id., ¶ 57.) During the four years preceding the petition date, DBSI transferred no less than ,742,253.58 to Wavetronix LLC ("Wavetronix") through its affiliate DBSI Redemption Reserve ("DRR"), an Idaho general partnership. The basis for this argument is the Guaranty's "non-impairment" provision, which reads as follows: At any time and from time to time, without terminating, affecting, or impairing the validity of this Guaranty or the obligations of Arnold hereunder, Stellar may deal with the Company in the same manner and as fully as if this Guaranty did not exist, and shall be entitled, among other things, to grant to the Company such extension or extensions of time to perform, or to waive any duty of the Company to perform, any of the Obligations, as Stellar may deem advisable. September 29, 2009 for the 2003 Promissory Note." (Doc. The Guaranty defines "claims made" in the following language: This prorated Guaranty is granted by Arnold to Stellar on a "claims made" basis only, meaning that this Guaranty shall only be effective with respect to claims or demands made under this Guaranty, pertaining to the Obligations, while this Guaranty remains in full force and effect and prior to any termination hereof, and not with respect to any claims arising or asserted after the termination of this Guaranty.
("DBSI"), and that these unproductive investments benefitted only the DBSI Insiders, who were able to obtain tax advantages therefrom: Although the Technology Company investment was neither productive for the DBSI Companies as a whole nor for the Investors whose cash was diverted to pay for them, it was structured in such a way that it facilitated the siphoning off of substantial distributions to the Insiders and the appropriation of significant tax advantages for them that otherwise would have belonged to the DBSI Companies. Thus, they argue that when Wavetronix and Stellar extended the maturity dates to September 1, 2008 and September 30, 2008, the Guaranty's termination date was likewise extended. C.) Trustees argue that "[t]he `non-impairment' provision preserved that one-year claims period and permitted claims to be made under the Guaranty up to August 31, 2009 for the 2002 Promissory Note and ... The Guaranty itself defines what "claims made" means; therefore, there is no basis to incorporate the meaning of "claims made" insurance policies.
In reviewing a facial attack, which is a challenge to the sufficiency of pleading in the complaint, the court must "`accept all well-pleaded allegations in the complaint as true and view them in the light most favorable to the plaintiff.'" Id. First, Defendant argues that the "Bankruptcy Court's entry of judgment in this matter would be the unconstitutional exercise of `judicial power'" since Plaintiff's claims are state law "suits at common law and clearly could exist outside the context of bankruptcy." (Def.'s Br., at 10.) Defendant cites the recent Supreme Court decision Stern v.
D., the Company’s Chief Executive Officer, and of Thomas Stiner, the Company’s Chief Financial Officer, from their respective executive positions with Astro Power and February 1, 2004 – Astro Power, Inc. PK) announced today that it has reached an agreement to sell certain of its U. Since the Christina School District acquired the building wi th plans to convert it into a middle school, a financial crisis at the district, prompted by a severe budget shortfall, forced the plan to be delayed.
# 1341.) Specifically, the Plan "effects a transfer of all of the Debtors' Assets for the purposes, among others, of making distributions to the Holders of Allowed Claims and Interests, pursuing Causes of Action, and otherwise completing the liquidation of the Estates." (Plan, at 1.) The Plan further provides that "Debtors and the [Official Committee of Unsecured Creditors] will form the Liquidating Trust to administer certain post-confirmation responsibilities under the Plan, including but not necessarily limited to, those responsibilities associated with the pursuit and collection of Litigation Claims as specified in the Liquidating Trust Agreement." (Id.