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Latham & Watkins LLP

Can Lenders Stay in the Driver’s Seat? The Enforceability of Make-Whole Premiums in Bankruptcy

Latham & Watkins LLP on

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

Cadwalader, Wickersham & Taft LLP

From Big Ben to the Big Apple, June 2025 - Westminster Meets Wall Street: U.S. Law Considerations in English Law Facilities...

Cadwalader, Wickersham & Taft LLP on

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

Jones Day

Chapter 11 Filing Without Consent of Independent Director Dismissed as Unauthorized

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Courts disagree over whether provisions in a borrower's organizational documents or loan agreements designed to restrict or prevent the borrower from filing for bankruptcy are enforceable as a matter of federal public policy...more

Clark Hill PLC

How Bankruptcy Courts Interpret Intercreditor Agreements: The Uncertainty of Judicial Perspective

Clark Hill PLC on

Intercreditor Agreements typically are contractual arrangements among lenders of similar or differing priorities to a single borrower secured by the assets of the borrower, often including real estate assets. These multiple...more

Nelson Mullins Riley & Scarborough LLP

Make-Whole Premiums in Bankruptcy: Clarity in Drafting, Certainty in Recovery

Nelson Mullins Riley & Scarborough LLP on

In the world of commercial lending, certain contract provisions often go unnoticed—until the moment they matter most. Make-whole premiums are one such example. Typically tucked deep in loan agreements, these provisions are...more

Morris James LLP

Proactive Steps for Creditors Facing a Customer’s Bankruptcy: Key Takeaways from ALFA International 2025

Morris James LLP on

When a customer or business partner files for bankruptcy, creditors often feel uncertain about their rights and financial exposure. At the ALFA International 2025 International Client Seminar, I had the opportunity to speak...more

Jones Day

Uptiers in 2025: Impact of the Serta and Mitel Decisions on Liability Management Exercises

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Late last year, the U.S. Court of Appeals for the Fifth Circuit and the Appellate Division of the Supreme Court of the State of New York issued important rulings regarding the validity of uptier “liability management...more

Kilpatrick

When Provisions in a Loan and LLC Agreements Do Not Impermissibly Restrict a Bankruptcy Filing

Kilpatrick on

In In re 301 W North Avenue, LLC, 2025 WL 37897 (Bankr. N.D. Ill. 2025), a bankruptcy court recently addressed provisions in a loan agreement and limited liability company (“LLC”) operating agreement as to their effect on...more

Morrison & Foerster LLP

Latest Uptier Decisions in Serta and Mitel Remind Contract Language Matters

Morrison & Foerster LLP on

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

Cadwalader, Wickersham & Taft LLP

Fore!ward June 2023 - Make-Whole Clauses: It's All About the Enforceability Question

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Make-whole clauses (also known as prepayment premiums, call premiums or call protection) are provisions in financing transactions that require the borrower to make a specified payment to the lender if a loan is prepaid before...more

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