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

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

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Tuesday, October 22, 2024 (in 11 days)

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

or call 1-800-926-7926

This CLE course will guide commercial finance counsel in drafting intercreditor agreements and those seeking to enforce or resist 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. An intercreditor agreement executed by first and second lien lenders who have separate credit agreements with the borrower is quite typical.

Section 510 of the Bankruptcy Code states that subordination agreements are enforceable in bankruptcy cases under non-bankruptcy law. Over the years, case law has evolved regarding the enforceability of provisions that restrict (what some courts believe are) fundamental bankruptcy rights.

Listen as the panel of experienced finance and bankruptcy attorneys discusses the forms of intercreditor agreements, current case law on the enforceability of intercreditor agreements in bankruptcy proceedings, and how first lien and second lien lenders can protect their economic interests in the event of bankruptcy.

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Outline

  1. 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
  2. Best practices when drafting and negotiating intercreditor agreements to protect lender interests, including discussion of forms of intercreditor agreements currently being used in the market

Benefits

The panel will review these and other relevant 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 lien and subordinate lien lenders best protect their interests in bankruptcy?

Faculty

Dressel, Christopher
Christopher M. Dressel

Counsel
Skadden, Arps, Slate, Meagher & Flom

Mr. Dressel represents companies and their stakeholders in a range of distressed transactions and situations, including...  |  Read More

Erens, Brad
Brad B. Erens

Partner
Jones Day

Mr. Erens has counseled clients for more than 30 years in some of the most complex and cutting-edge chapter 11...  |  Read More

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You may pre-order a recording to listen at your convenience. Recordings are available 48 hours after the webinar. Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

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