Borrowers and lenders must both be aware of the risks relating to uncertainty regarding make-whole premiums in bankruptcy. The enforceability of “make-whole” premiums in bankruptcy has become a hotly contested issue in...more
Many subscription credit facilities will provide for the issuance of letters of credit in addition to the funding of loans. A letter of credit is an irrevocable undertaking for the payment of money issued by a bank at the...more
On December 31, 2024, the Fifth Circuit Court of Appeals (the “Court”) struck down the controversial 2020 “uptier transaction” executed by Serta Simmons Bedding (“Serta”). The Serta case and several other state court and...more
Before a subscription lender can enter into a subscription credit facility with a fund, the subscription lender will need to review the limited partnership agreement (“LPA”) of such fund to confirm the LPA allows for...more
Over the past year, we have seen a significant increase in Events of Default (each, an “EoD”) arising from financial underperformance. This trend is largely driven by the high interest rate and inflationary environment, with...more
Fund finance is and always has been by nature a cross border enterprise. While there are a number of lenders that we represent in the United States that lend to funds exclusively organized in the U.S.– typically in Delaware –...more
In its New Year’s Eve decision in Serta Simmons Bedding, the Fifth Circuit underscored the importance of drafting debt documents with clarity and precision and cautioned against borrowers’ reliance on ambiguous language to...more
EXECUTIVE SUMMARY - Participations are increasingly being utilized in the finance industry, serving as a mechanism for lenders to manage credit exposure, diversify loan portfolios, optimize capital utilization, and...more
The term “boilerplate” originates from the printing industry, where “boilerplate” referred to metal plates with standardized text used for newspapers and other publications. In legal documents and contracts, boilerplate...more
The caselaw on “uptiers” as liability management exercises (LMEs) grew by two opinions on the last day of 2024. In Serta, the Fifth Circuit reversed the bankruptcy court’s blessing of the pre-bankruptcy uptier and...more
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has unanimously held that the debt exchange undertaken by Serta Simmons Bedding did not qualify as an "open market purchase" under the terms of Serta's...more
Bill 72, An Act to protect consumers against abusive commercial practices and to offer better transparency with respect to prices and credit, was recently tabled by the Québec government. This legislation includes amendments...more
We have said it before – the “credit cornerstone” of a subscription credit facility is the limited partnership agreement (the “LPA”) – it is the primary contract, together with any side letters, governing the relationship...more
The ruling, which held that the transaction did not violate the implied covenant of good faith and fair dealing, highlights the importance of carefully drafting lending documents. On June 6, 2023, Judge David Jones of the...more
During times of market disruption and economic uncertainty, the representations and covenants set forth in a credit agreement play an even more important role in the ongoing relationship among the loan parties and lenders....more
Credit documentation transfer provisions, which may in the past have been viewed as rather boilerplate, have increasingly become points of contention in the documentation process. Today these provisions are often highly...more
In last week’s edition of FFF, we discussed the Revlon case involving an erroneous payment by an administrative agent to the syndicate lenders, which is currently up on appeal before the Second Circuit Court of Appeals....more
With the COVID-19 pandemic continuing to adversely impact businesses across the globe, for the past year lenders have been reviewing their portfolios for credit degradation. Credit agreements will often contain a clause in...more
As most in the loan market are by now aware, the United States District Court in the Southern District of New York issued a decision on February 16, 2021 In Re Citibank August 11, 2020 Wire Transfers that certain lenders were...more
Uncertainty over the scope and spread of the COVID-19 outbreak continues to negatively impact the domestic and worldwide economy. Disruptions to business as a result of stay-at-home or shelter-in-place orders, restrictions on...more
Due to the COVID-19 pandemic and its uncertain impact on business operations and business continuity, many companies are reviewing their credit agreements with an eye toward their ability to borrow/re-borrow and potential...more
The FDIC Fall 2019 edition of Supervisory Insights contained an article entitled “Leveraged Lending: Evolution, Growth and Heightened Risk”. In the article, the FDIC noted that the credit agreement terms have continued to...more
On June 14, 2019, the U.S. Court of Appeals for the Fifth Circuit issued an opinion affirming bankruptcy and district court decisions finding that, under the terms of the confirmed Chapter 11 bankruptcy plan, the debtor’s...more
Tax structuring under the previous regime - Prior to the issuance of the final regulations described below, under Section 956 of the Internal Revenue Code of 1986 and its related Treasury Regulations, for U.S. tax...more
Starting in 2019, public companies will need to adopt the new lease accounting rules set forth in the new Financial Accounting Standards Board (FASB) standard ASC 842 (Leases). Originally published in Law360 - January 16,...more