Recent Trends In Enforcement of Intercreditor Agreements and Agreements Among Lenders in Bankruptcy

By Seth Jacobson, Ron Meisler, Carl Tullson and Alison Wirtz (Skadden, Arps, Slate, Meagher & Flom LLP)*

Over the last several decades, the enforcement of intercreditor agreements (“ICAs”) and agreements among lenders (“AALs”) that purport to affect voting rights and the rights to receive payments of cash or other property in respect of secured claims have played an increasingly prominent role in bankruptcy cases. On certain of the more complex issues that have arisen in the context of a bankruptcy, there have been varying interpretations and rulings by the bankruptcy courts. Some courts have enforced these agreements in accordance with their terms, while others have invalidated provisions in these agreements on policy and other grounds. Still others seem to have enforced agreements with a results-oriented approach.

In this article, we examine three recent leading cases: Energy Future Holdings (“EFH“), Momentive, and RadioShack. These cases addressed whether the bankruptcy court was the proper forum for intercreditor disputes, the ability of junior creditors to object to a sale supported by senior creditors, and whether an agreement providing only for lien subordination restricts a junior creditor’s ability to receive distributions under a plan of reorganization.

These leading cases illustrate three trends. First, bankruptcy courts are increasingly willing to insert themselves with respect to disputes among lenders that affect a debtor’s estate, thereby establishing that the bankruptcy court is the proper forum for interpreting ICAs and AALs. Second, the courts are applying the plain language of ICAs and AALs to the facts of the case to reach their conclusions. And, finally, senior creditors appear to continue to bear the risk of agreements that do not limit junior creditors’ rights in bankruptcy using clear and unambiguous language.

The full article is available here.

*Seth Jacobson is a partner and global co-head of the banking group at Skadden, Arps, Slate, Meagher & Flom LLP. Ron Meisler is a corporate restructuring partner, Carl Tullson is a corporate restructuring associate and Alison Wirtz is a banking associate at Skadden. They are all based in the firm’s Chicago office. The opinions expressed in this article are solely the opinions of the authors and not of Skadden, Arps, Slate,¬†Meagher & Flom LLP.