Once upon a time, under the Bankruptcy Act of 1898,.
subordination agreements entered into outdoors bankruptcy were.
usually imposed by bankruptcy courts, however the issue was delegated to.
the discretion of the courts to be figured out on a case-by-case.
basis. Since 1979, when the existing Bankruptcy Code entered.
impact, however, the treatment of subordination contracts in.
bankruptcy has been governed by statute: A subordination.
contract is enforceable in a case under this title to the exact same.
extent that such arrangement is enforceable under suitable.
nonbankruptcy law. 11 USC. 510(a).
Because a bankruptcy court is supposed to impose a subordination.
agreement that is enforceable under appropriate nonbankruptcy law,.
area 510(a) closes the door on the exercise of case-by-case.
discretion by bankruptcy courts, but the statute nevertheless opens.
up a series of other concerns that the courts have actually been grappling.
with for over 35 years now. What makes up a.
subordination arrangement? Should a bankruptcy court.
implement all the arrangements of a subordination.
contract? What about rights of the celebrations that are.
not spelled out in the contract (including rights that are obtained.
from fair concepts) or that are handled in the arrangement.
in unclear terms? How are the answers to such concerns.
affected by area 510(a)# 39; s mandate that subordination.
contracts should be implemented in bankruptcy cases?
The Bankruptcy Code does not specify either the term.
subordination or subordination agreement,.
however it is usually accepted that there are two types of.
subordination and subordination agreements: financial obligation subordination and.
lien subordination.1 In a debt
subordination arrangement, lenders of a common debtor.
concur between themselves that the financial obligations of the typical debtor to one.
of the lenders will certainly be subordinated to the.
debtor # 39; s obligations to the other creditor. This is.
typically understood to imply that any payments from the typical.
debtor to one of the contracting lenders are to be applied to.
subordinated debt just after the senior.
financial obligation is paid in full.
Some subordination contracts consist of the debtor as a.
party,2 and, in those arrangements, the celebrations commonly.
agree that the debtor is not making, and the subordinated creditor.
is not to receive, any payments until the senior is paid in full;.
if in some way, despite this, the subordinated creditor gets any.
payments, per the agreement among the debtor and the creditors,.
those payments are deemed to have been made on account of the.
senior financial obligation and the subordinated lender is required to hold them.
in trust for the senior.
Often, however, the debtor is not a party to the.
subordination contract, and the contract simply constitutes an.
plan in between the 2 creditors. In those cases,.
getting payments into the hands of the senior creditor.
may include a little more intricacy considering that the creditors can # 39; t.
themselves concur that a payment by the debtor to one lender.
actually makes up a payment by the debtor to the other. Where.
the debtor is not a celebration, payments to the subordinated lender.
generally must be credited to the subordinated financial obligation the.
creditors put on # 39; t have the right to redirect the payment from one.
to the other without the debtor # 39; s consent, but, under the.
subordination arrangement, the subordinated creditor has actually concurredaccepted.
turn the payments over to the senior creditor up until the senior has.
received, from the debtor and the subordinated lender, the complete.
quantity of the senior responsibilities.3 In this.
scenario, to the level that the senior financial obligation is paid of.
amounts turned over by the subordinated creditor, the debtor has.
not released its obligations to the senior. The subordinated.
lender is, therefore, subrogated (see conversation.
below) to the continuing to be rights of the senior to get payments.
from the debtor and, after the senior has actually received the full amount.
it is sue, the subordinated creditor the amounts it has turned over.
to the senior by receiving all payments from the debtor on account.
of the quantity of the senior debt the debtor did not pay itself.
So, for example, say the debtor D owes $100 to senior Creditor A.
and $50 to subordinated Lender B. D pays $50 to A and $50.
to B. If there is a three-party subordination agreement, the.
payment to B will be considered, in accordance with the contract, a.
payment to A. B will certainly be deemed to have received the payment.
in trust for A so that A will certainly have gotten $100 from.
D, and B will still be owed $50. If, nevertheless, A and B entered into.
a subordination arrangement to which D is not a celebration, then B will.
have actually been paid $50 however will be required, by the bi-lateral.
subordination agreement, to turn that $50 over to A. A will.
then have gotten $100 but only $50 of it directly from D. D will,.
for that reason, still owe $50 to A. When and if D pays the $50.
exceptional on its financial obligation to A, B will recover the $50 it turned over.
to A by being subrogated to A # 39; s rights to get.
the remaining $50 from the debtor.
A Note on Subrogation.
In the 2nd example above, the subordinated lender was stated.
to be subrogated to the rights of the senior..
Subrogation4 developed as an equitable doctrine to.
prevent unjustified enrichment when one individualsomeone satisfies the obligations.
of another. Subrogation allows the person who pays the financial obligation.
of another to stand in the shoes of the recipient.
creditor subrogation has actually often been explainedreferred to as the.
equivalent of alternative and to impose the rights the.
lender has versus the debtor. To prevent unfair enrichment, the.
principle of fair subrogation applies automatically, whether.
or not it is supplied for in an agreement; however, since the.
teaching of equitable subrogation locations limitations on the rights.
of subrogation and since courts have discretion in.
figuring out how (as well as whether) the teaching of equitable.
subordination is applied, contracting celebrations, such as the parties.
to a subordination agreement, regularly choose not to rely exclusively.
upon their fair rights and instead to spell out the regards to.
the subrogation arrangement as a legal.
solution.5 It deserves keeping in mind that
, where there is a court. involved for instance,
where the common debtor is the subject. of bankruptcy procedures, even when the subordination arrangement is. bilateral, if the senior lender can get the court to impose the. subordination contract, the senior will certainly be able to anticipate the. threats inherent in allowing payments to go to the subordinated. creditor, who will then need to turn them over to the senior. lender and seek to recover by method of subrogation. Lien Subordination. Lien subordination arrangements are similar to financial obligation
subordination. contracts except that, instead of subordinating debt to debt, lien. subordination agreements, as the
name recommends, include the. subordination of lien to lien.6 A true lien.subordination contract would include the contractual subordination. of an otherwise senior lien to one that would otherwise be junior. in priority or, potentially, of a lien to
another lien of equal. top priority. For instance, the holder of a very first top priority. security interest could agreeconsent to contractually subordinate its lien. to that of the holder of a junior security interest. As. versus 3rd parties3rd parties, the first would still be first, but, in between. the parties, it would be agreed that the profits of security,. when distributed, would go initially to the junior lienor. Arguably,. considering that the earnings would go to satisfy the financial obligation protected by the. contractually senior lien prior to the earnings are used to the. debt protected by the contractually junior lien(liens wear # 39; t have. amounts; they secure quantities ), a true lien.
subordination arrangement is truly just an unique type of debt.
Exactly what are often called lien subordination agreements are truly.
simply inter-creditor contracts that include neither financial obligation nor lien.
subordination however include mainly restrictions on the exercise of.
contractual and statutory treatments of a lawfully junior lienholder.
for the advantage of the lawfully senior lienholder. In these.
inter-creditor agreements, such limitations are the heart of the.
arrangement. In real subordination agreements, the.
subordination of debt to debt or lien to lien is the heart of the.
agreement, and restrictions on the rights of the junior lender.
are commonly explained as ancillary solutions.
Supplementary Legal Solutions.
Such ancillary treatments typically consist of one or.
another variation of the following:
- Acknowledgment by the subordinated lender of the validity,.
enforceability, perfection and top priority of the senior # 39; s debt.
and lien and arrangement not to contest or challenge the senior # 39; s.
debt or lien.
- Contract by the subordinated lender not to extend further.
credit to, or make equity financial investments in, the debtor without the.
permission of the senior creditor.
- Contract by the subordinated lender that it will certainly not.
work out any default solutions without the authorization of the senior.
creditor or throughout a contractually specified standstill period.
- Agreement by the subordinated lender not to submit or support.
the filing of an involuntary bankruptcy petition, or commencement.
of any similar case, versus the debtor.
- Waiver by the subordinated lender of any marshaling.
rights (that is, any rights to require the senior to proceed.
first versus security in which the junior does not have an.
interest prior to proceeding against typical collateral).
- Contract by the subordinated lender that in any bankruptcy.
case or comparable proceeding involving the debtor the subordinated.
creditor will certainly:
- Allow the senior creditor to submit or amend proofs of claim on.
behalf of the subordinated creditor.
- Not look for relief from the automatic stay without the authorization of.
the senior creditor.
- Not seek adequate security without the authorization of.
the senior creditor.
- Not oppose any authorization for use of collateral, consisting of.
cash security, authorized by the senior lender.
- Not oppose any sale of collateral authorized by the senior.
- Not oppose any post-petition financing offered by the senior.
creditor to the bankruptcy estate and not provide to provide such.
financing itself, whether or not the senior concursconsents to offer.
- Not look for or support the consultation of a trustee or examiner.
without the authorization of the senior lender or choose any trustee.
candidate not supported by the senior.
- Not seek to have a chapter 11 case dismissed or converted to.
chapter 7 without the approval of the senior lender.
- Not work out the so-called 1111(b) election (that.
is, the election, under section 111(b) of the Bankruptcy Code, to.
have non-recourse debt dealt with as option), without the consent of.
- Not elect, or support the confirmation of, any strategy that is.
declined by, or the confirmation which is not supported by the.
senior (or, conversely, enable the senior lender to cast the.
vote of the subordinated creditor).
- Not vote to decline, or oppose the confirmation of, any plan the.
verification which is supported by the senior (or,.
alternatively, enable the senior creditor to cast the vote of the.
- Allow the senior creditor to submit or amend proofs of claim on.
The list above is not exhaustive, however it is illustrative of the.
type of constraints that can be put on the junior lender (and.
occasionally on the senior creditor) in a subordination agreement.
Numerous of the arrangements, for sensible reasons subordination.
agreements are, perhaps, checked most strenuously when the.
creditors # 39; common debtor is insolvent dealhandle exactly what the.
creditors can and can refrain from doing in a bankruptcy case.
Even if the celebrations have concurredsettled on such methods, and even.
though area 510(a) of the Bankruptcy Code normally mandates the.
enforcement of subordination contracts, bankruptcy courts are not.
completely constant in ruling on the enforceability of such.
ancillary remedies constructed into a subordination.
arrangement. Some courts have actually enforced subordination agreements in.
their totality.7 Some have actually been rigorous in their.
analysis of such contracts and declined to impose those they.
consider unclear or uncertain.8; a couple of have taken an.
probably even stricter view that just the actual subordination.
arrangements of a subordination arrangement ought to be.
implemented which secondary rights and solutions constructed into such an.
agreement do not fall within the required of section.
510(a).9 Other Bankruptcy-specific Problems. As should appear from the
conversation above, many of the concerns. involving subordination contracts occur or, at least, handle a. unique seriousness, in the bankruptcy context. Two such issues, in. certain, have generated substantial remark and litigation. The very first of these problems
includes the right of a senior. lender to collect post-petition interest from amounts that would. otherwise go to the subordinated creditor. This problem occurs from. the truth that, under section 506 (b)of the Bankruptcy Code, an. allowed safe claim consists of interest and
. affordable cost, expenses or charges to the degree that. that value of the security, after any allowed additional charge by the. bankruptcy estate, goes beyond the otherwise allowed quantity of the. claim. If, nevertheless, the lender is unsecured or undersecured,. then, under area 502 (b)(2)of the Bankruptcy Code, the allowed. amount of the lender # 39; s assert may not include post-petition. interest. The question then occurs: if the lender can
not recuperate. post-petition interest as part of its permitted claim.
from the bankruptcy estate, might the creditor still recuperate that. interest, pursuant to a subordination arrangement, from bankruptcy. distributions that would otherwise go to the subordinated. creditor? As on so manynumerous bankruptcy issues, the courts are not in contract
. on the answer to that concern. Some courts follow a principle
. that predates the enactment of the Bankruptcy Code the. so-called Guideline of
Explicitness, pursuant to which a. senior creditor is permitted
to recuperate post-petition interest from a.
subordinated creditor only if the subordination agreement is.
definitely specific in mandating that result.10 Others.
have taken the position that, as a matter of Federal common law
,. the Guideline of Explicitness did not make it through the enactment of the. Bankruptcy Code, however this leaves the matter to be fixed under. suitable non-bankruptcy( normally state) law.11 Some.
states, notably New York, however, remain to utilizethe Rule of.
Explicitness as a matter of agreement interpretation,12 while others do not.13 Appropriately, not only should the. parties be clear about their intentions
in the subordination. arrangement, however they must also
think about carefully the option of a. choice of governing state law. Another bankruptcy-specific about which there has been much.
comment and some litigation involves the right of the subordinated. lender to get and maintain notes or stock or other so-called. reorganization securities under a chapter 11 plan. State,. for example, that, under a plan, the restructured debtor concerns. notes to both the senior lenders and the junior creditors, however. the notes issued to the junior creditors are plainly
made. secondary to the notes to the senior lenders. Or suppose that a. strategy offers to pay the senior creditors in full gradually however the. subordinated credited creditors are to receive stock in the. rearranged debtor in satisfaction of their claims. Do the. turnover and relevant arrangements of a subordination. agreement require the junior creditors to deliver the.
reorganization securities(the subordinated notes in.
the first scenario or the stock in the 2nd )to the senior. lenders if the seniors
have not been paid in fullcompletely? To deal with these concerns, lots of
indentures and intercreditor. contracts include exactly what has been called an X-clause,. which is an arrangement that enables the subordinated note holder. to maintain its securities just if the securities providedoffered to the senior. note holder have higher concern to future distributions and. dividends(as much as the complete quantity of the senior.
notes).14 Although the X-clause is typically.
viewedconsidereded a carve-out or exception to subordination.
that permits subordinated creditors to keep a reorganization. security where the chapter 11 plan offersoffers the senior.
lenders to be paid in completecompletely, albeit in time, drafting an.
X-clause that in fact achieves that outcome has in some cases.
proved to be an evasive objective for subordinated creditors.
15 Accordingly, the cases including analysis of an X-clause,. like
those involving the Rule of Explicitness, show a. concept that uses to the enforcement of subordination.
agreements in basic and fairly particularly to the enforcement of.
subordination agreements in bankruptcy: it never injures for the.
contract to spell out clearly precisely what the celebrations. planned. Footnotes 1 Koback v. National City Bank(In re Koback), 280 BR 164
.(Bankr. SD Ohio
2002). 2 The Sumitomo Trust and Banking Co., Ltd. v. Holly # 39; s,. Inc., 160 BR 643,
667-668(Bankr. WD Mich. 1992). 3 Id. at 668.
4 Calligar, Subordination Agreements, 70 Yale.
LJ 376, 400(1961). 5 Quinn
, Subrogation, Restitution and.
Indemnity, 74 Tex.
L. Rev. 1361, 1388-90 (1996). 6 See, generally, Report of the Model
First. Lien/Second Lien Intercreditor Contract
Job Force, 65 Bus. Law 809(2010). 7 See, eg In re Erickson Retirement Communities LLC,
425. BR 309, 316( Bankr. ND Tex. 2010)( subordinated creditors
had. no standing to move for consultation of a receiver because they were. sophisticated industrial entities who intentionally waived all. legal and statutory rights that would be in problem with their. obligation to # 39; standstill # 39; under subordination.
agreement). 8 See, eg, In re Boston Generating LLC, 440 BR 302
( Bankr. SDNY 2010 )(subordinated lenders permitted to object. to sale of all bankruptcy estate possessions due to the fact that subordination.
contract was badly drafted and unclear beyond. peradventure relating to waiver of rights). 9 See, eg, Beatrice Foods Co. v. Hart Ski Mfg. Co.( In re. Hart Ski Mfg. Co., 5 BR 734(
Bankr. D. Minn. 1989) rights and. remedies that do not deal strictly with contractual concern. of payment do not have actuallyneed to imposed, even if they are embodied. in a subordination contract ).
10 In re Kingsboro Home loan Corp., 514 F. 2d 400( 2d Cir.
1975 ); In re Ionosphere Clubs, Inc., 134 Br. 528 (Bankr. SDNY. 1991 ). 11 Chemical Bank v. First Trust of New york city, NA(In re. Southeast Banking Corp.),
179 F. 3d 1307 (11 th Cir. 1999 ). 12 In re Boston Generating, LLC, 400 BR 302 (Bankr. SDNY 2010). 13 See, eg, In re Erickson RetirementCommunities, LLC,. 425 BR 309 (Bankr.
ND Tex. 2010)
. 14 Deutsche Bank, AG v. Metromedia Fiber Network, Inc. (In. re Metromedia Fiber Network
, Inc.), 416 F. 3d 136(2d Cir. 2005 ). 15 Id
. See, also, In re Envirodyne Industries, Inc.,. 29 F. 3d 301 (7th
1994); In re PWS Holding Corp., 228. F. 3d 224 (3d Cir. 2000); Durak v. Dura Automotive Systems, Inc. (In. re Dura Automotive Systems, Inc. ), 379 BR 257( Bankr. D.Del. 2007). The material of this article
is planned to supply a general. guide to the topic.
Professional guidance must be sought. about your certain conditions.