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Caveat Intercreditor: Bankruptcy May Be Coming
While intercreditor agreements (ICAs) are not necessarily the most attention-grabbing of the various loan documents common to large financing transactions, they are nevertheless important, and lack of attention to detail with respect to their provisions could lead to unintended results in any future bankruptcy case. For example, in Momentive Performance Materials, Inc. v. BOKF, NA (In re MPM Silicones, L.L.C.) (MPM) –F.3d–, 2017 WL 4700314, Nos. 15-1682 (2nd Cir. Oct.20, 2017), and in In re Energy Future Holdings Corp., 842 F.3d 247 (3d Cir. 2016), the first lien creditors may have assumed that the second lien creditors had agreed to be subordinated and silent during bankruptcy, but the second lien lenders were nonetheless able to participate materially in those cases and to obtain value at the expense of senior creditors, primarily because the pertinent sections in the applicable ICAs were not sufficiently clear and explicit.
Greater attention has been devoted to ICAs in recent years (by arrangers or underwriters of particular debt financings, as well as by potential investors in such debt), and enhanced scrutiny of the language utilized in ICAs has become the norm. This article highlights some of the key issues that arise in the drafting of ICAs related to the relative rights of holders of different layers of debt in the event of bankruptcy.
Background on Intercreditor Agreements
In exchange for permitting second lien secured creditors to receive junior liens, first lien secured creditors typically seek through the ICA to retain primary control over the collateral and the most significant decisions affecting such collateral, particularly in the event of bankruptcy. The formulation of the most material bankruptcy-related provisions of ICAs generally turn on the extent to which first lien creditors are able to limit second lien creditors from exercising various rights both in and outside of bankruptcy, especially those rights that are not explicitly linked to the second lien creditors' status as secured creditors, while at the same time providing second lien creditors with some limited rights, to address their likely contention that they should not have fewer rights than the borrower's unsecured creditors merely by virtue of having received subordinated interests in the collateral.
Unsecured Creditors' Rights
For this reason, it is also common for ICAs to include some form of acknowledgement of the second lien secured creditors' ability to assert certain rights that could otherwise be asserted by unsecured creditors, in an attempt to ensure that second lien creditors do not end up worse off than if they had not taken liens at all. It is helpful for first lien secured creditors, however, for an ICA to include language providing that the second lien creditors may only exercise unsecured creditor rights “to the extent not otherwise inconsistent with, or in contravention of,” the other provisions of the ICA, the other loan documents, and applicable law. It is also helpful for first lien creditors if an ICA does not include any lead-in language to the unsecured creditors' rights provision in the form of “notwithstanding anything to the contrary in this agreement,” to avoid any unintended override of other agreed-upon restrictions on the rights of second lien creditors.
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