Law.com Subscribers SAVE 30%

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

Subordination Agreements: Enforcement and Reorganization Participation

By Andrew C. Kassner and Joseph N. Argentina Jr.
July 01, 2021

Section 510 of the Bankruptcy Code recognizes that agreements between creditors of a debtor that one creditor's claim will be subordinated in payment to another creditor's claim will be enforceable in a bankruptcy case. As is often the case, over the years bankruptcy and finance practitioners expanded the concept of payment subordination in these agreements to include many terms anticipating any and every action and right the subordinated creditor may take or have in the bankruptcy case. So what provisions in a subordination agreement can be enforced, and can the subordinated creditor participate in the reorganization process if there is no prospect it will receive any distribution as a result of being subordinated?

These issues were addressed by Chief Bankruptcy Judge Dale L. Somers of the U.S. Bankruptcy Court for the District of Kansas in In re Fencepost Productions, Case No. 19-41545 (Bankr. D. Kan. Mar. 31, 2021). The court held that provisions in the subordination agreements that provided for the transfer of subordinated creditors' bankruptcy voting rights were unenforceable, but also held that because they were out of the money, the subordinated creditors did not have standing to object to the plan.

Deeply Subordinated Junior Creditors Sought to Assert Claims and Participate In Plan Process

According to the opinion, Associated Bank, N.A. (Associated) was the debtors' principal creditor, having provided a secured loan of up to $14 million. Associated and creditors BMS Management Inc. and related individuals (collectively, BMS) entered into subordination agreements that provided, among other things, that the payment of all of the debtors' obligations to BMS was postponed and subordinated to the payment in full in cash of all of the debtors' obligations to Associated. Further, in the event of a bankruptcy filing, all payments on account of the BMS obligations would be paid to Associated, Associated was authorized to vote for the debtors' bankruptcy plan with respect to BMS claims against the debtors, and BMS was prohibited from filing any motion or other pleadings or otherwise taking any action contrary to the priorities and other rights of Associated provided in the subordination agreements.

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.

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.

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.

Legal Possession: What Does It Mean? Image

Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.

The Anti-Assignment Override Provisions Image

UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?