Master Services Agreement Executory Contract

The Bankruptcy Court, while recognizing that the possibility of distributing the consideration under a framework contract was a potential factor that a court could consider, found that the distribution of rent under the main tenancy agreements was not a conclusive factor. The distribution of payments between certain elements alone is not always determinative in determining whether the parties want to view a contract as divisible. In that finding, the Bankruptcy Court cited the 2006 Seventh Circuit decision in In re United Airlines, Inc., in which the Court of Appeal ruled that an agreement on the lease of land at an airport and the repayment of certain debts was an integrated contract, while the agreement provided for separate payments due to the lease commitment and the bond debt. Circuit Seventh`s participation referred to the fact that, despite the distribution of payments between the lease commitment and the bond debt, the parties to the agreement would not have entered into the agreement if they had not included both the lease and the elements of the loan. Finally, the Bankruptcy Court reviewed the planned language of the captain`s contract to justify by the parties that the purchase orders are separate contracts. As noted above, the main agreement states that any new order must "constitute separate contracts." In light of this express intent, the Tribunal found that the main contract and the order were separate agreements. In October 2013, NewPage`s Trustee (Trustee) trust sued CRM to avoid and preferentially recover more than US$2 million that NewPage had paid to CRM before NewPage launched its Chapter 11 petition. CRM responded by stating that it had a full defence under Kiwi against the prevention and restoration of pre-petition transfers. In particular, CRM submitted that the master`s agreement was taken over by NewPage in accordance with the acceptance provision. CRM therefore submitted that allegedly avoidable transfers that were paid under the framework contract could not be avoided. The agent objected and argued that the assignments were made on the basis of the various orders, each constituting a divisible contract that was not supported by NewPage. The parties filed motions for summary judgment on a pre-defined recording and asked the court to decide whether NewPage had taken over the captain`s contract and the controls, which would give CRM a full kiwi defence.



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