Negotiating Intercreditor Agreements as Bankruptcy Filings Soar
Strategies for First and Second Lienholders in an Uncertain Enforcement Environment
Recording of a 90-minute CLE teleconference with Q&A
Conducted on Tuesday, May 26, 2009
Recorded event now available
This seminar will discuss the current gray areas surrounding the enforceability of intercreditor agreements in bankruptcy proceedings and offers best practices for negotiating an enforceable agreement.
Description
The second lien financing market has exploded in recent years, growing from $570 million in 2002 to over $16 billion in 2005. The current wave of major bankruptcies will present several issues regarding the enforceability of intercreditor agreements between first lien and second lien lenders.
Even though the Bankruptcy Code clearly defines lien subordination and payment subordination, the law remains unclear on the enforceability of intercreditor agreement provisions that take away fundamental bankruptcy rights.
The negotiation of intercreditor agreements between first and second lienholders is often complicated because the risks are high and the financial interests of the lenders are extremely opposed. A clear understanding of the issues important to each lender supports smoother negotiations.
Listen as our panel of attorneys discusses the enforceability of intercreditor agreements in bankruptcy proceedings and how first lien and second lien lenders can best protect their economic interests in the event of bankruptcy.
Outline
- Current trends in second lien financing
- Recent (limited) case law on the enforceability of intercreditor agreements in bankruptcy proceedings
- Courts holding that an intercreditor agreement cannot waive a second lien lender’s fundamental bankruptcy rights
- Courts holding that an intercreditor agreement may waive statutory bankruptcy rights if enforceable as a matter of applicable state law
- Lessons learned from drafting and negotiating intercreditor agreements
Benefits
The panel will review these and other key questions:
- How have courts ruled regarding the enforceability of intercreditor agreements during bankruptcy proceedings?
- What critical lessons have creditors' counsel learned in their experiences drafting and negotiating intercreditor agreements?
- What are the key provisions in intercreditor agreements — and how can each lender minimize risk through these provisions?
Faculty
Mark N. Berman,
Partner
Nixon Peabody, Boston
He is a member of the firm's Financial Restructuring and Bankruptcy Practice Group and supports the Securitization and Structured Finance Team, the Leveraged Finance Team and the Public Finance Group. He has represented virtually every kind of interest involved with a financially troubled business for over 30 years. He also participates in the firm's Hedge Fund Initiative.
C. Edward Dobbs,
Partner
Parker Hudson Rainer & Dobbs, Atlanta
His practice for more than 36 years has focused on documenting and closing commercial loans for banks and other financial institutions; representing financial institutions in debt restructurings, workouts and forbearance arrangements; and defending financial institutions in litigation regarding fraudulent conveyances, preferences and lender liability claims.
Randall L. Klein,
Principal
Goldberg Kohn, Chicago
He chairs the firm's Bankruptcy and Creditors' Rights Group. He focuses on protection and enforcement of creditors' rights, representing institutional lenders and purchasers of distressed claims.
Ordering
Online CLE - Audio Recording
Includes audio streaming of full program plus handouts (available 24 hours after live seminar).
CLE:
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(*Indicates that Strafford must report attendance.)
Online CLE Audio $149.00
Available 24 hours after the live event
Recorded Event
Includes full event recording plus handouts (available after live seminar).
CLE: Pre-approved for self-study credit in: AK, AZ, CA, CT, HI, MO, MT, NY, TX*, VT, WA, WV. Upon request, self-study credit is also available in: CO, FL, GA, ID, KY, ME, ND, NE, NH, NM, NV, OR, UT, WI, WY. If you are applying for self-study credit in one of these states, contact Strafford CLE at 1-800-926-7926 ext. 35 or CLE@straffordpub.com. (*Indicates that Strafford needs to process the CLE — see below to purchase this option.)
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Available 24 hours after the live event
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plus $9.45 S&H
Available ten business days after the live event
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Customer Reviews
Strafford provided an excellent seminar on an interesting and important subject.
Joseph T. Mancuso
Hancock Estabrook, LLP
Very good and concise CLE.
Anthony DiSandro
Stevens & Lee
I liked the substance of the program and the ease of participating.
Paul L. Hammann
First American Title Insurance Company
I appreciated the personal-level insights of the speakers.
Kendall Carter
King & Spalding, LLP
The speaker's practical discussions were particularly helpful.
Kenneth J. Clarkson
Sullivan, Ward, Asher & Patton
Finance Law Advisory Board
Partner
Gibson Dunn & Crutcher
Partner
Nixon Peabody
Partner
Alston & Bird
Counsel
Mayer Brown
Partner
O’Melveny & Myers
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