Enforceability of Intercreditor Agreements in Bankruptcy: Maximizing Recovery for First and Second Lienholders

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, August 2, 2017
Recorded event now available

This CLE webinar will provide guidance to commercial finance counsel seeking to enforce or resist enforcement of intercreditor agreements during bankruptcy proceedings. The panel will discuss ways that first-lien and second-lien lenders can best protect their economic interests in the event of bankruptcy.


Bankruptcy courts must often resolve issues regarding the enforceability of intercreditor agreements between first- and second-lien lenders. Intercreditor arrangements are usually evidenced by an intercreditor agreement executed by senior and subordinated lenders who have separate credit agreements with the borrower, but they may also be contained in a single, unitranche agreement executed by all of the parties.

Section 510 of the Bankruptcy Code states that subordination agreements are enforceable in bankruptcy cases just as they are under non-bankruptcy law. However, case law provides limited guidance on the enforceability of provisions that restrict what some courts believe are fundamental bankruptcy rights.

Listen as our authoritative panel of finance and bankruptcy attorneys discusses the forms of intercreditor agreements now being used, current case law addressing 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.


  1. Forms of intercreditor agreements currently being used in the market
  2. Recent case law on the enforceability of intercreditor agreements in bankruptcy proceedings
    1. Cases holding that an intercreditor agreement cannot waive a second-lien lender’s fundamental bankruptcy rights
    2. Cases holding that an intercreditor agreement may waive statutory bankruptcy rights if enforceable as a matter of applicable state law
  3. Best practices when drafting and negotiating intercreditor agreements to protect lender interests


The panel will review these and other key issues:

  • What are the lessons for lenders’ counsel from recent bankruptcy case law regarding intercreditor agreements?
  • Which intercreditor provisions require special attention as to enforceability in bankruptcy?
  • How can senior and subordinate lenders best protect their interests in bankruptcy?


Eric W. Anderson, Partner
Parker Hudson Rainer & Dobbs, Atlanta

Mr. Anderson concentrates his practice in bankruptcy, workouts, financial restructuring and commercial finance. He regularly represents banks, financial institutions, secured asset-based lenders, investors, trustees, debtors-in-possession, and other parties in bankruptcy and financial restructuring matters. This includes representation in workouts and restructuring matters both in and out of bankruptcy.

C. Edward Dobbs, Partner
Parker Hudson Rainer & Dobbs, Atlanta

Mr. Dobbs’ practice for more than 41 years has been concentrated in documenting and closing commercial loans for banks and other financial institutions, including asset-based lending arrangements; representing financial institutions in debt restructurings, workouts and forbearance arrangements; defending financial institutions in litigation involving alleged fraudulent conveyances, preferences and lender liability claims; representing financial institutions as secured and unsecured creditors in Chapter 11 bankruptcy cases; and representing debtors, unsecured creditors, and creditors’ committees in Chapter 11 reorganization cases. In addition to his experience representing both debtors and creditors in bankruptcy cases and in representing financial institutions in large commercial loan transactions, Mr. Dobbs has also served as an expert witness on various commercial law and bankruptcy matters.


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*Only available for attorneys admitted for more than two years. For OH CLE credits, only programs recorded within the current calendar year are eligible - contact the CLE department for verification.

**NH attendees must self-determine if a program is eligible for credit and self-report their attendance.

CLE On-Demand Video $297.00

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Johnson Law Office

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Parker Hudson Rainer & Dobbs

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Banking & Finance Law Advisory Board

Irving C. Apar


Thompson Hine

Mark N. Berman

Adjunct Professor

Northeastern University

Willa Cohen Bruckner


Alston & Bird

Lawrence Kaplan

Of Counsel

Paul Hastings

Kevin Petrasic


White & Case

Laura D. Richman


Mayer Brown

Robert M. Stern


Orrick Herrington & Sutcliffe

Andrew Stutzman


Stradley Ronon Stevens & Young

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