Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Debtor-in-Possession Financing

By Gretchen M. Santamour
October 03, 2005

There has been much discussion among bankruptcy practitioners and scholars as to whether the courts have abdicated their responsibility to enforce the Bankruptcy Code and whether debtors and creditors committees are too easily pressured by lenders such that control of bankruptcy cases has been effectively ceded to secured creditors. One of the areas where many would say this is most prevalent is with post-petition lending.

Under Section 364(c) of the Bankruptcy Code, a post-petition lender may be entitled to a super-priority administrative claim, a lien on unencumbered assets or a junior lien on encumbered assets if the debtor is unable to obtain unsecured debt. Section 364 permits the granting of liens that are equal to or prime pre-petition liens if adequate protection can be provided to the existing lienholders and the debtor “is unable to obtain such credit otherwise.” 11 U.S.C. ' 364(d) “Unable to obtain unsecured debt” or “unable to obtain such credit otherwise” means that it is incumbent upon the debtor to show that it cannot obtain financing that is unsecured or secured by a junior lien.

The Code is silent as to what other terms may be included in a post-petition loan transaction. However, most debtor-in-possession financing includes terms beyond those contained in a typical loan transaction, and grant the lender rights or effectuate waivers which arguably are less related to the post-petition loan than to protecting the pre-petition debt. There is often simply no opposition by the creditor's committee or other parties in interest because they conclude that alternate financing on more favorable terms is unavailable. It is difficult for courts to deny motions to approve debtor-in-possession financing when all the parties are in favor of it. Even post-petition financing that violates bankruptcy principles has been justified as being consistent with the Code's purpose of encouraging business reorgani-zation if the debtor has no other source and needs the post-petition credit to operate.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?

Fresh Filings Image

Notable recent court filings in entertainment law.