Midstream Executory Contracts in Bankruptcy After Sabine

Navigating Court Treatment of Transportation, Gathering and Processing Agreements; Negotiating Midstream Agreements

*** The date for this program has been postponed from 8/31/17. New date TBD. ***

A live 90-minute CLE webinar with interactive Q&A

Saturday, December 30, 2017
(Alert: Event date has changed from 8/31/2017!)
1:00pm-2:30pm EST, 10:00am-11:30am PST

This CLE webinar will provide guidance for energy counsel for exploration and production (E&P) companies and midstream providers on the recent bankruptcy court decision in Sabine Oil & Gas Corp. and the impact of that decision on executory contracts in bankruptcy. The panel will discuss best practices for evaluating risk in bankruptcy and negotiating executory contracts in light of Sabine.


A U.S. Bankruptcy Court judge ruled, and the District Court affirmed that Sabine Oil & Gas Corp. can reject certain midstream contracts under Bankruptcy Code §365(a). Importantly, the court further held that Sabine’s obligations under these executory contracts are not covenants running with the land under state law. The contracts were with pipeline companies, who argued Sabine’s requirements were covenants running with the land and that bankruptcy could not break the agreements.

While the determination that Sabine’s obligations are not covenants running with the land is nonbinding, the impact of the decision is significant and may jeopardize midstream facilities if exploration companies can reject the agreements with midstream companies in bankruptcy. Further, the decision provides exploration companies significant leverage when negotiating executory agreements with midstream providers.

Counsel for both E&P companies and midstream providers should examine the midstream agreements that are currently in place to evaluate whether they would be at risk in bankruptcy. Additionally, they must understand court treatment of executory contracts as they negotiate agreements going forward, especially in the current environment of low prices.

Listen as our authoritative panel of practitioners examines how the courts are treating executory contracts in bankruptcies, comparing the Sabine decision with rulings from other courts. The panel will also examine the impact of Sabine on E&P and midstream companies and offer best practices for E&P companies to obtain concessions from midstream providers as well as best practices for midstream providers to evaluate the risks associated with bankruptcy filings.


  1. Court treatment of executory contracts in bankruptcies
    1. Sabine Oil and Gas (Bankr. S.D.N.Y.)
    2. Quicksilver Resources Inc. (Bankr. D. Del.)
    3. Other court treatment
  2. Impact of Sabine on E&P and midstream companies
  3. Best practices for E&P companies
  4. Best practices for midstream providers


The panel will review these and other key issues:

  • What are the oil and gas company’s rights and obligations under §365(a)? What is the impact on executory contracts?
  • What are the bankruptcy implications for covenants running with the land?
  • What will the likely effect of the Sabine decision be on negotiations of midstream agreements?


Eric M. English, Partner
Porter Hedges, Houston

Mr. English has a diverse restructuring and bankruptcy practice, including the representation of debtors, secured lenders, creditors' committees and asset purchasers. He has significant experience a number of industries including oil and gas, healthcare, hospitality and restaurants, financial services, mining, construction, solar energy, and real estate.

Denis A. (Archie) Fallon, Partner
King & Spalding, Houston

Mr. Fallon represents energy companies and strategic investors in acquisitions and divestitures, joint ventures, energy project development and finance and corporate governance matters. He has significant experience advising clients in the structuring, finance and development of energy projects both in the U.S. and internationally. He is knowledgeable about structures that are not clearly voidable contracts in bankruptcy based on the recent jurisprudence, and strategies aiming to achieve those structures.

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