Following the third-party circuit decision, you expect that inter-creditor agreements will be drafted specifically to address the issues raised in Energy Future Holdings and to ensure that the rules for waterfalls govern distributions in accordance with Chapter 11 plans as well as appropriate protection payments or similar payments. Parties to inter-constitutional agreements should review all languages relevant to the distribution priority and consider extending this language to payments on the orders of a bankruptcy court or other court or bankruptcy plan. The e-subsection provides protection that is not always available under existing legislation. The subsection sets a certain time frame within which the bankruptcy court must rule on the adequacy of the protection of decisions relating to collateral creditors. If the court does not rule within 30 days of an application for exemption from the length of stay, the stay is automatically interrupted with respect to the property in question. To accommodate more complex cases, the subsection allows the Tribunal to rule prejudicially after a preliminary hearing. After a preliminary hearing, the court can only continue the stay if there is a likelihood that the party opposing the stay will take over at the last hearing. Since the stay is essentially an injunction, the three stages of stay can be analogous to the three stages of an injunction. The filing of the petition leading to the automatic stay is like an injunction. The preliminary hearing is similar to that of a referral order, and the last hearing and order are similar to the oral proceedings and the granting or denial of a permanent injunction. The main difference is which party should take the matter to court. While in the judgment of the order, the party who has the injunction to sue, the party must move on the exemption from the automatic suspension. However, the difference does not delay the burden of proof.
Subsection g leaves this burden to the party who refuses an exemption from suspension (i.e. the party seeking the continuation of the injunction) on the issue of adequate protection and the existence of capital. However, it must not be strictly limited to the constitutional requirement. This section and the concept of adequate protection are based on both political and constitutional reasons. Secured creditors should not be deprived of the benefit of their bargains.