The Ohio Supreme Court overturned the First Appellate District’s ruling in Huntington National Bank v. Schneider (Case No. 2024-0208), clarifying when banks must disclose material information to loan guarantors. In a case...more
Confidentiality provisions in subscription credit facilities have always served a central purpose – protecting sensitive fund and investor information. These provisions have grown more detailed, more prescriptive, and, for...more
The Italian Ministry of Economy and Finance (“MEF”) issued a public consultation on a draft legislative decree containing the Italian implementation of Directive (EU) 2023/2225 on credit agreements for consumers (“CCD2”) and...more
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
Withholding Tax Rules Under Current Law - Current US tax law provides for a 30% withholding tax on interest paid by a US borrower to foreign lenders. However, many foreign lenders are exempt from this tax, either under the...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
It’s here at last—well, the next set of steps towards a brave new dawn for consumer credit, at least. No sooner have we taken down the bunting and put the final champagne glasses in the dishwasher, having celebrated the 40th...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
As during the emergence of the COVID-19 pandemic in March 2020, private credit lenders today face the challenge of adapting to rapidly shifting circumstances driven by a volatile macroeconomic landscape. If past is at all...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
In In re Serta Simmons Bedding, LLC, 125 F.4th 555 (5th Cir. 2024), as amended, No. 23-20281 (5th Cir. Jan. 21, 2025), revised and superseded, No. 23-20181 (5th Cir. Feb. 14, 2025), reh'g denied, No. 23-20181 (5th Cir. Feb....more
In entering into a fund financing, both the Lender and the Fund have expectations that the relationship will be a success. The Lender is appreciative of the association, and the Fund is confident in its ability to raise...more
On December 31, 2024, the Fifth Circuit Court of Appeals overturned the Bankruptcy Court for the Southern District of Texas’ (the “Bankruptcy Court”) decision that the exchange by certain lenders of Serta Simmons Bedding, LLC...more
On December 31, 2024, the United States Court of Appeals for the Fifth Circuit and the New York Appellate Division, First Department, both issued decisions evaluating the validity of so-called “uptier” transactions under New...more
In a landmark ruling, the US Court of Appeals for the Fifth Circuit ruled that a June 2020 refinancing transaction (the Uptier Transaction) entered by Serta Simmons Bedding, LLC (SSB, or the Debtor) and certain of its lenders...more
On December 31, 2024, the U.S. Court of Appeals for the Fifth Circuit issued its long-awaited decision regarding the permissibility of the Serta Simmons Bedding (Serta) uptier liability management exercise (the 2020 Uptier)...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
Market participants might be wary of opinions that begin with a recitation of academic literature and then turn to dictionaries. The former tend to be authored with an eye toward systemic change rather than direct experience...more
On December 31, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit (the Court or the Fifth Circuit) held that the controversial $200 million Serta Simmons Bedding (SSB) uptier financing...more
The United States Court of Appeals for the Fifth Circuit (the “Fifth Circuit”) ruled on December 31, 2024 that Serta Simmons Bedding’s (“SSB”) 2020 uptier exchange included a transaction that, contrary to the assertions of...more