Momentive Performance Materials Stay Appeal Filed


U.S. Bank National Association, as indenture trustee of Momentive Performance Materials, filed with the U.S. Bankruptcy Court a motion (i) for stay pending appeal, (ii) to shorten the designation period and (iii) to expedite transmittal of record on appeal to the U.S. District Court. The motion explains, “After raising the issue on the first day of the cases, U.S. Bank sought to have the subordination issue resolved on an expedited basis through summary judgment in a separate adversary proceeding before confirmation of the Debtors’ plan. U.S. Bank was clear from the outset that it would appeal any adverse ruling on the subordination issue….While the other parties face little to no harm from a stay of the Court’s Confirmation Order, U.S. Bank and the Senior Sub Note holders will be significantly prejudiced if U.S. Bank is denied its appellate rights…the Debtors are not in danger of losing financing or support for the Plan if the Confirmation Order is stayed for an expedited appeal of the subordination issue. Nor is there any evidence that the Debtors’ operations will suffer as a result of a stay; to date, there is no evidence that the Debtors have suffered during their very short stay in chapter 11 as a result of the pendency of the bankruptcy cases. On the other hand, denial of the stay may cause U.S. Bank to permanently lose its right of appeal, as the Debtors have been clear regarding their intention to seek to ‘equitably moot’ any appeal. Given U.S. Bank’s diligence throughout this process, such a result would be anything but ‘equitable.’ The interpretation of the Indenture and particularly the definition of Senior Indebtedness therein, are subject to de novo review. U.S. Bank respectfully believes that, on appeal, there is a significantly likelihood that a reviewing court would conclude that the Second-Priority Notes are subordinate and junior to approximately $1.5 billion in other claims against the Debtors (the ‘Senior Lender Claims’) in some respect.” The Court scheduled a September 9, 2014 hearing to consider the motion.

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