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.

Description

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.

Outline

  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

Benefits

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?

Faculty

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.


Recordings

CLE On-Demand - Streaming Video

Includes recorded streaming video of full program plus PDF handouts.

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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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Recorded Event

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Strafford is an approved provider and self-study CLE credit is available in most states.

AK, AZ, CA, CO, CT, FL, GA, HI, IA, ID, IL, KY, ME, MN, MO, MT, ND, NJ, NM, NY, OR, PA, TN, TX, UT, VT, WA, WV, WY (Note: Some states restrict CLE eligibility based on the age of a program. Refer to our state CLE Map for additional information.)

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Webinar

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Program Materials

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Program Materials

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CLE Credits

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Customer Reviews

I honestly thought this seminar was fantastic and offered real practical advice.

Jamie (E.) Kinkaid

Johnson Law Office

Strafford’s program was very well tailored to issues encountered in actual practice and the speakers were extremely knowledgeable, experienced and provided analysis beyond the case law.

Kelly Walsh

Parker Hudson Rainer & Dobbs

This was an excellent seminar. The speaker's were well versed and the material was excellent.

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Kaye Scholer

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Rath, Young & Pignatelli

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Banking & Finance Law Advisory Board

Irving C. Apar

Partner

Thompson Hine

Mark N. Berman

Adjunct Professor

Northeastern University

Willa Cohen Bruckner

Partner

Alston & Bird

Lawrence Kaplan

Of Counsel

Paul Hastings

Kevin Petrasic

Partner

White & Case

Laura D. Richman

Counsel

Mayer Brown

Robert M. Stern

Partner

Orrick Herrington & Sutcliffe

Andrew Stutzman

Partner

Stradley Ronon Stevens & Young

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