In re Denman, 513 B.R. 720 (Bankr. W.D. Tenn. 2014), the Court found that company agreements entered into under the Tennessee Limited Liability Company Act are not in themselves enforceable contracts, as “unique elements and characteristics under state law inconsistent with contract law”. As regards the company agreement in question, the Court found that the members did not appear to have any essential obligations other than the requirement of an initial capital injection. “In summary, the LLC enterprise agreement is not an executable contract and is considered an instrument of business creation and governance.” 513 R.B. to 726. The Tribunal decided that the debtor`s interest in LLC was the property of the estate referred to in Section 541(c)(1); Article 365 was not applicable because the company agreement was not enforceable; and that the other member of the LLC has not been able to impose an ipso facto clause providing for a right to purchase the interests of another member when events are triggered, including the bankruptcy of a member. For example, when establishing a lease agreement, you should consider the following aspects: there is no general rule applicable to LLC operating contracts. Whether an LLC enterprise agreement is an executable agreement depends on the extent of the non-compliance with the remaining commitments. This requires an analysis of the company agreement as a whole, applicable limited liability company law, and other applicable state laws.

In re Tsiaoushis, 383 B.R.616, 620 (E.D. Va. 2007). In 1999, Noble Energy purchased certain assets of Alma Energy through Alma`s Business 11. Nearly 20 years later, the Texas Supreme Court ruled in a divided opinion that Noble owed $63 million to a third party, ConocoPhillips, based on a compensation provision in an exchange agreement adopted and awarded to Noble by an “accepted-non-rejected” boilerplate provision in Alma`s Chapter 11 plan without specific disclosure. Noble recently filed a petition for certiorari and requested reconsideration by the U.S. Supreme Court. The riddle of Article 365 is dealt with in an accompanying article to this newsletter, “Limited Liability Shares as Ownership of a Debtor Asset – Performance Contracts and Section 365 Puzzle”. However, suffice it to say that if Joe Smith ceases to maintain control of the debtor, the unbundling event for the debtor`s stake in the company is indicated, the company agreement should indicate why Joe Smith`s continued ownership of the debtor and the business is essential to the business purpose of the business. . .

.