Feature
Feature By Shane G. Ramsey
Are Subordination Agreements Really Enforceable?
S
Shane G. Ramsey Kilpatrick Townsend & Stockton LLP Atlanta
Shane Ramsey is an associate in the Bankruptcy and Financial Restructuring Practice Group of Kilpatrick Townsend & Stockton LLP in Atlanta.
enior creditors often extract favorable agreements from debtors and junior creditors prepetition. However, the question then arises as to whether such agreements will ultimately be enforced when it matters most: after the debtor has filed for bankruptcy protection. A recent decision by the U.S. Bankruptcy Court for the District of Massachusetts dealt a blow to senior creditors attempting to enforce such favorable agreements. The bankruptcy court in In re SW Boston Hotel Venture LLC1 held that while pre-petition subordination agreements are generally enforceable in bankruptcy, the assignment of voting rights in such agreements are not enforceable in bankruptcy cases. This decision adds to the current unsettled state of the law on the issue of the enforceability of assignment of voting rights in subordination agreements. The facts of SW Boston Hotel Venture are simple. Pre-petition, the debtor’s senior secured creditor, Prudential Insurance Company of America, entered into an intercreditor and subordination agreement (the “subordination agreement”) with the city of Boston.2 Under the subordination agreement, the city of Boston assigned its right to vote on the debtor’s plan to Prudential. When it came time to vote on the debtor’s plan, two ballots were submitted for the claim held by the city of Boston: one by the city, accepting the debtor’s plan as the holder of the claim, and one by Prudential, rejecting the debtor’s plan based on the voting rights assigned to it by the city of Boston in the subordination agreement.3
The Bankruptcy Court’s Decision
The bankruptcy court in SW Boston Hotel Venture, while acknowledging that § 510(a) of the Bankruptcy Code provides for the enforceability of subordination agreements, held that a subordination agreement “cannot nullify provisions of the Bankruptcy Code.”4 The court relied on and adopted the rationale of decisions in Beatrice Foods Co. v. Hart Ski Mfg. Co. (In re Hart Ski Mfg. Co.)5 and Bank of America National Trust and Savings Ass’n v. N. LaSalle St. Limited P’ship (In re 203 N. LaSalle St. P’ship).6 1 2 3 4 5
460 B.R. 38 (Bankr. D. Mass. 2011). Id. at 47. Id. Id. at 52. 5 B.R. 734, 735 (Bankr. D. Minn. 1980) (finding subordination agreement to be effective, but not extinguishing junior creditor’s ability to assert claims or vote its claims). 6 246 B.R. 325, 331-32 (Bankr. N.D. Ill. 2000) (finding intercreditor agreement unenforceable when it granted senior lienholder the right to vote junior lienholder’s claim). SW Boston Hotel Venture LLC, 460 B.R. 38, 52 (Bankr. D. Mass. 2011).
52 April 2012
Was SW Boston Hotel Venture Correctly Decided?
Section 510(a) provides that “[a] subordination agreement is enforceable in a case under this title to the same extent that such agreement is enforceable under applicable nonbankruptcy law.”7 One could argue that the SW Boston Hotel Venture decision is contrary to the express language of § 510(a). Indeed, other bankruptcy courts have recognized that intercreditor/subordination agreements should be enforced because failure to do so would impair the contract rights of creditors and unfairly allow subordinate creditors a second opportunity to negotiate their rights.8 For instance, one court recently concluded that a second-lien lender, as a result of an intercreditor agreement, lacked standing to oppose a financing arrangement supported by the debtors’ first-lien lenders. In Aurelius Capital Master. Ltd. v. TOUSA Inc. (In re TOUSA Inc.),9 the U.S. District Court for the Southern District of Florida, before reaching the merits of the appeal, concluded that the second-lien agent’s appeal of the debtors’ cash collateral order was “non-justiciable for reasons of standing.”10 Specifically, the district court concluded that the agent for the second-lien lenders, who was a party to an intercreditor agreement that barred it from requesting any form of adequate protection or any other relief in connection with the use of the cash, “had bargained away its right to object by entering into the Intercreditor Agreement.”11 Thus, following the debtors’ agreement with the first-lien lenders concerning the consensual use of cash collateral, the second-lien agent had no standing to raise objections or otherwise make any request with respect to the financing arrangement. The TOUSA holding is another in a series of opinions where courts have enforced certain prebankruptcy agreements that limit or waive a junior lender’s statutory bankruptcy rights if the agreement is enforceable as a matter of applicable nonbank7 11 U.S.C. § 510(a). 8 See ION Media Network Inc. v. Cyrus Select Opportunities Master Fund Ltd. (In re ION Media Network Inc.), 419 B.R. 585, 595 (Bankr. S.D.N.Y. 2009) (finding that “plainly worded contracts establishing priorities and limiting obstructionist, destabilizing and wasteful behavior should be enforced and creditor expectations should be appropriately fulfilled”); In re Enron Creditors Recovery Corp., 370 B.R. 64,70-71 (Bankr. S.D.N.Y. 2007) (finding that failure to enforce subordination agreements according to their terms would cause lending institutions to discontinue or severely alter their subordinated lending practices “to the detriment of the entire business community”), overruled on other grounds, In re Enron Creditors Recovery Corp., 380 B.R. 307 (S.D.N.Y. 2008). 9 No. 08-61317-CIV-Gold, 2009 U.S. Dist. LEXIS 12735 (S.D. Fla. Feb. 5, 2009). 10 Id. at *26. 11 Id. at *30.
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ruptcy law.12 In re Erickson Retirement Communities LLC13 is one such example. In that case, a group of subordinated creditors moved for appointment of an examiner. The senior creditor objected, arguing that the express terms of the prepetition subordination agreement prohibited the junior creditors from bringing the motion. The applicable language in the subordination agreement prohibited the junior creditors from “exercis[ing] any rights or remedies or tak[ing] any action or proceeding to collect or enforce any of the Subordination Obligations.”14 The junior creditors argued that, as parties in interest, they had standing to bring the examiner motion pursuant to § 1104(c) of the Code and that enforcement of the subordination agreement was against public policy to the extent it interfered with the exercise of rights afforded the creditors under the Code.15 The court disagreed, noting that the junior creditors “are sophisticated commercial entities who knowingly waived all legal and statutory rights that would be in conflict with their obligation to ‘standstill’ until [the senior lender’s] indebtedness is paid in full.”16 According to the court, it was “bound to pay deference to this waiver, pursuant to Section 510(a).”17 Although the court reached this conclusion based on the language of the subordination agreement, the underlying motivations of the junior creditors in bringing the examiner motion were clearly considered by the court. Indeed, the court noted that the examiner motion was “unmistakably aimed at slowing down the confirmation process and gaining leverage to enhance or create recoveries for the [junior creditors],” the “very type of obstructionist behavior that the [subordination] agreements are intended to suppress.”18 By contrast, the bankruptcy court in In re Boston Generating LLC19 held that a provision in a subordination agreement similar to the provision in Erickson Retirement Communities could not prevent a junior creditor from objecting to a § 363 sale. However, the court reached its conclusion based on the fact that a waiver of a creditor’s rights under the Bankruptcy Code “must be clear beyond peradventure” and that the subordination agreement in question was “poorly drafted.”20 As a result, the court held that the junior creditor had standing to object to the § 363 sale.21 In addition, the court noted that while not dispositive, its ruling was also guided by “the fact that the issue here is a 363 sale of substantially all of the Debtor’s assets outside of a plan of reorganization, which, if approved, will effectively deprive the Second-Lien Lenders of the opportunity to vote, in an economically meaningful way, on a plan of reorganization.”22 12 See, e.g., In re Erickson Ret. Cmtys. LLC, 425 B.R. 309, 314-15 (Bankr. N.D. Tex. 2010) (holding that junior creditor did not have standing to bring motion for appointment of examiner pursuant to provisions of intercreditor/subordination agreement executed pre-petition); ION Media, 419 B.R. at 595 (finding intercreditor agreement enforceable under § 510(a)); Blue Ridge Investors, II LP v. Wachovia Bank NA (In re Aerosol Packaging LLC), 362 B.R. 43 (Bankr. N.D. Ga. 2006) (upholding senior creditor’s right to vote junior creditor’s claim pursuant to pre-petition subordination agreement); In re Curtis Ctr. Ltd. P’ship, 192 B.R. 648, 660 (Bankr. E.D. Pa. 1996) (upholding bankruptcy-related waiver in intercreditor agreement related to voting restrictions, noting that “[t]he language of the subordination agreement is plain and unambiguous. The terms of this pre-petition agreement are fully enforceable in this Bankruptcy case pursuant to 11 U.S.C. § 510(a)”). 13 425 B.R. 309 (Bankr. N.D. Tex. 2010). 14 Id. at 313 (emphasis omitted). 15 Id. 16 Id. at 316. 17 Id. 18 Id. at 315. 19 440 B.R. 302 (Bankr. S.D.N.Y. 2010). 20 Id. at 319-20. 21 Id. 22 Id.
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Additionally, as discussed above and as noted by the bankruptcy court in SW Boston Hotel Venture, other courts have refrained from enforcing a creditor’s waiver of bankruptcy rights in a prebankruptcy subordination agreement on public policy grounds. For instance, in Beatrice Foods Co. v. Hart Ski Mfg. Co. (In re Hart Ski Mfg. Co.),23 the junior creditor sought adequate protection and/or stay relief, and the senior creditor objected on the basis of the subordination agreement. In allowing the junior creditor to assert its claim, the bankruptcy court said: The Bankruptcy Code guarantees each secured creditor certain rights, regardless of subordination. These rights include the right to assert and prove its claim, the right to seek Court-ordered protection for its security, the right to have a stay lifted under proper circumstances, the right to participate in the voting for confirmation or rejection of any plan of reorganization, the right to object to confirmation, and the right to file a plan where applicable. The above rights and others not related to contract priority of distribution pursuant to Section 510(a) cannot be affected by the actions of the parties prior to the commencement of a bankruptcy case when such rights did not even exist. To hold that, as a result of a subordination agreement, the “subordinor” gives up all its rights to the “subordinee” would be totally inequitable.24 Similarly, the court in Bank of America, National Ass’n v. North LaSalle Street Limited Partnership (In re 203 North LaSalle Street Partnership) refused to enforce a pre-petition subordination agreement that purported to transfer the junior creditors’ voting rights to the senior creditor. In so doing, the court noted that “[s]ubordination affects only the priority of payment, not the right to payment.... This result assures that the holder of a subordinated claim has a potential role in the negotiation and confirmation of a plan, a role that would be eliminated by enforcing contractual transfers of Chapter 11 voting rights.”25 In a more recent case not cited by the SW Boston Hotel Venture court, the court in In re Croatan Surf Club LLC26 reached the same result. In that case, the senior creditor filed a motion for a determination of its right to vote the claim of the junior creditor pursuant to the terms of a pre-petition subordination agreement. The court held that “§ 510(a) was not intended to give parties carte blanche to override other provisions of the Bankruptcy Code. This is evident in the language of § 1129(b), which allows a court to confirm a plan if it ‘does not discriminate unfairly, and is fair and equitable,’ ‘notwithstanding section 510(a) of this title.’”27 The court further opined: Section 510(a) similarly does not override § 1126(a), which provides that the “holder of a claim” may vote to accept or reject a plan under chapter 11. The language of the Bankruptcy Code dictates who may vote on a plan. Subordination does not change the 23 5 B.R. 734 (Bankr. D. Minn. 1980). 24 Id. at 736. 25 246 B.R. 325, 332 (Bankr. N.D. Ill. 2000). 26 No. 11-00194-8-SWH, 2011 WL 5909199 (Bankr. E.D.N.C. Oct. 25, 2011). 27 Id. at *2 (quoting 11 U.S.C. § 1129(b)).
continued on page 55
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Are Subordination Agreements Really Enforceable? from page 53
existence of the debt or claim or its holder; it merely provides for a different order of payment.28 Accordingly, the answer to the question of whether SW Boston Hotel Venture was correctly decided will depend on to whom such question is posed. As is evident from the foregoing, there are strong arguments on each side, and the courts are decidedly split on the issue. 28 Id.
Conclusion
The issue of whether and to what extent waivers of bankruptcy rights in subordination agreements are enforceable remains an open question subject to continued uncertainty, as demonstrated by these cases. Indeed, unless the circuit courts of appeals address this issue, practitioners and bankruptcy judges alike will be left to resolve these issues based on a series of conflicting and nonbinding judicial precedents. abi
Copyright 2012 American Bankruptcy Institute. Please contact ABI at (703) 739-0800 for reprint permission. ABI Journal
April 2012 55
Are Subordination Agreements Really Enforceable?
S
Shane G. Ramsey Kilpatrick Townsend & Stockton LLP Atlanta
Shane Ramsey is an associate in the Bankruptcy and Financial Restructuring Practice Group of Kilpatrick Townsend & Stockton LLP in Atlanta.
enior creditors often extract favorable agreements from debtors and junior creditors prepetition. However, the question then arises as to whether such agreements will ultimately be enforced when it matters most: after the debtor has filed for bankruptcy protection. A recent decision by the U.S. Bankruptcy Court for the District of Massachusetts dealt a blow to senior creditors attempting to enforce such favorable agreements. The bankruptcy court in In re SW Boston Hotel Venture LLC1 held that while pre-petition subordination agreements are generally enforceable in bankruptcy, the assignment of voting rights in such agreements are not enforceable in bankruptcy cases. This decision adds to the current unsettled state of the law on the issue of the enforceability of assignment of voting rights in subordination agreements. The facts of SW Boston Hotel Venture are simple. Pre-petition, the debtor’s senior secured creditor, Prudential Insurance Company of America, entered into an intercreditor and subordination agreement (the “subordination agreement”) with the city of Boston.2 Under the subordination agreement, the city of Boston assigned its right to vote on the debtor’s plan to Prudential. When it came time to vote on the debtor’s plan, two ballots were submitted for the claim held by the city of Boston: one by the city, accepting the debtor’s plan as the holder of the claim, and one by Prudential, rejecting the debtor’s plan based on the voting rights assigned to it by the city of Boston in the subordination agreement.3
The Bankruptcy Court’s Decision
The bankruptcy court in SW Boston Hotel Venture, while acknowledging that § 510(a) of the Bankruptcy Code provides for the enforceability of subordination agreements, held that a subordination agreement “cannot nullify provisions of the Bankruptcy Code.”4 The court relied on and adopted the rationale of decisions in Beatrice Foods Co. v. Hart Ski Mfg. Co. (In re Hart Ski Mfg. Co.)5 and Bank of America National Trust and Savings Ass’n v. N. LaSalle St. Limited P’ship (In re 203 N. LaSalle St. P’ship).6 1 2 3 4 5
460 B.R. 38 (Bankr. D. Mass. 2011). Id. at 47. Id. Id. at 52. 5 B.R. 734, 735 (Bankr. D. Minn. 1980) (finding subordination agreement to be effective, but not extinguishing junior creditor’s ability to assert claims or vote its claims). 6 246 B.R. 325, 331-32 (Bankr. N.D. Ill. 2000) (finding intercreditor agreement unenforceable when it granted senior lienholder the right to vote junior lienholder’s claim). SW Boston Hotel Venture LLC, 460 B.R. 38, 52 (Bankr. D. Mass. 2011).
52 April 2012
Was SW Boston Hotel Venture Correctly Decided?
Section 510(a) provides that “[a] subordination agreement is enforceable in a case under this title to the same extent that such agreement is enforceable under applicable nonbankruptcy law.”7 One could argue that the SW Boston Hotel Venture decision is contrary to the express language of § 510(a). Indeed, other bankruptcy courts have recognized that intercreditor/subordination agreements should be enforced because failure to do so would impair the contract rights of creditors and unfairly allow subordinate creditors a second opportunity to negotiate their rights.8 For instance, one court recently concluded that a second-lien lender, as a result of an intercreditor agreement, lacked standing to oppose a financing arrangement supported by the debtors’ first-lien lenders. In Aurelius Capital Master. Ltd. v. TOUSA Inc. (In re TOUSA Inc.),9 the U.S. District Court for the Southern District of Florida, before reaching the merits of the appeal, concluded that the second-lien agent’s appeal of the debtors’ cash collateral order was “non-justiciable for reasons of standing.”10 Specifically, the district court concluded that the agent for the second-lien lenders, who was a party to an intercreditor agreement that barred it from requesting any form of adequate protection or any other relief in connection with the use of the cash, “had bargained away its right to object by entering into the Intercreditor Agreement.”11 Thus, following the debtors’ agreement with the first-lien lenders concerning the consensual use of cash collateral, the second-lien agent had no standing to raise objections or otherwise make any request with respect to the financing arrangement. The TOUSA holding is another in a series of opinions where courts have enforced certain prebankruptcy agreements that limit or waive a junior lender’s statutory bankruptcy rights if the agreement is enforceable as a matter of applicable nonbank7 11 U.S.C. § 510(a). 8 See ION Media Network Inc. v. Cyrus Select Opportunities Master Fund Ltd. (In re ION Media Network Inc.), 419 B.R. 585, 595 (Bankr. S.D.N.Y. 2009) (finding that “plainly worded contracts establishing priorities and limiting obstructionist, destabilizing and wasteful behavior should be enforced and creditor expectations should be appropriately fulfilled”); In re Enron Creditors Recovery Corp., 370 B.R. 64,70-71 (Bankr. S.D.N.Y. 2007) (finding that failure to enforce subordination agreements according to their terms would cause lending institutions to discontinue or severely alter their subordinated lending practices “to the detriment of the entire business community”), overruled on other grounds, In re Enron Creditors Recovery Corp., 380 B.R. 307 (S.D.N.Y. 2008). 9 No. 08-61317-CIV-Gold, 2009 U.S. Dist. LEXIS 12735 (S.D. Fla. Feb. 5, 2009). 10 Id. at *26. 11 Id. at *30.
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ruptcy law.12 In re Erickson Retirement Communities LLC13 is one such example. In that case, a group of subordinated creditors moved for appointment of an examiner. The senior creditor objected, arguing that the express terms of the prepetition subordination agreement prohibited the junior creditors from bringing the motion. The applicable language in the subordination agreement prohibited the junior creditors from “exercis[ing] any rights or remedies or tak[ing] any action or proceeding to collect or enforce any of the Subordination Obligations.”14 The junior creditors argued that, as parties in interest, they had standing to bring the examiner motion pursuant to § 1104(c) of the Code and that enforcement of the subordination agreement was against public policy to the extent it interfered with the exercise of rights afforded the creditors under the Code.15 The court disagreed, noting that the junior creditors “are sophisticated commercial entities who knowingly waived all legal and statutory rights that would be in conflict with their obligation to ‘standstill’ until [the senior lender’s] indebtedness is paid in full.”16 According to the court, it was “bound to pay deference to this waiver, pursuant to Section 510(a).”17 Although the court reached this conclusion based on the language of the subordination agreement, the underlying motivations of the junior creditors in bringing the examiner motion were clearly considered by the court. Indeed, the court noted that the examiner motion was “unmistakably aimed at slowing down the confirmation process and gaining leverage to enhance or create recoveries for the [junior creditors],” the “very type of obstructionist behavior that the [subordination] agreements are intended to suppress.”18 By contrast, the bankruptcy court in In re Boston Generating LLC19 held that a provision in a subordination agreement similar to the provision in Erickson Retirement Communities could not prevent a junior creditor from objecting to a § 363 sale. However, the court reached its conclusion based on the fact that a waiver of a creditor’s rights under the Bankruptcy Code “must be clear beyond peradventure” and that the subordination agreement in question was “poorly drafted.”20 As a result, the court held that the junior creditor had standing to object to the § 363 sale.21 In addition, the court noted that while not dispositive, its ruling was also guided by “the fact that the issue here is a 363 sale of substantially all of the Debtor’s assets outside of a plan of reorganization, which, if approved, will effectively deprive the Second-Lien Lenders of the opportunity to vote, in an economically meaningful way, on a plan of reorganization.”22 12 See, e.g., In re Erickson Ret. Cmtys. LLC, 425 B.R. 309, 314-15 (Bankr. N.D. Tex. 2010) (holding that junior creditor did not have standing to bring motion for appointment of examiner pursuant to provisions of intercreditor/subordination agreement executed pre-petition); ION Media, 419 B.R. at 595 (finding intercreditor agreement enforceable under § 510(a)); Blue Ridge Investors, II LP v. Wachovia Bank NA (In re Aerosol Packaging LLC), 362 B.R. 43 (Bankr. N.D. Ga. 2006) (upholding senior creditor’s right to vote junior creditor’s claim pursuant to pre-petition subordination agreement); In re Curtis Ctr. Ltd. P’ship, 192 B.R. 648, 660 (Bankr. E.D. Pa. 1996) (upholding bankruptcy-related waiver in intercreditor agreement related to voting restrictions, noting that “[t]he language of the subordination agreement is plain and unambiguous. The terms of this pre-petition agreement are fully enforceable in this Bankruptcy case pursuant to 11 U.S.C. § 510(a)”). 13 425 B.R. 309 (Bankr. N.D. Tex. 2010). 14 Id. at 313 (emphasis omitted). 15 Id. 16 Id. at 316. 17 Id. 18 Id. at 315. 19 440 B.R. 302 (Bankr. S.D.N.Y. 2010). 20 Id. at 319-20. 21 Id. 22 Id.
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Additionally, as discussed above and as noted by the bankruptcy court in SW Boston Hotel Venture, other courts have refrained from enforcing a creditor’s waiver of bankruptcy rights in a prebankruptcy subordination agreement on public policy grounds. For instance, in Beatrice Foods Co. v. Hart Ski Mfg. Co. (In re Hart Ski Mfg. Co.),23 the junior creditor sought adequate protection and/or stay relief, and the senior creditor objected on the basis of the subordination agreement. In allowing the junior creditor to assert its claim, the bankruptcy court said: The Bankruptcy Code guarantees each secured creditor certain rights, regardless of subordination. These rights include the right to assert and prove its claim, the right to seek Court-ordered protection for its security, the right to have a stay lifted under proper circumstances, the right to participate in the voting for confirmation or rejection of any plan of reorganization, the right to object to confirmation, and the right to file a plan where applicable. The above rights and others not related to contract priority of distribution pursuant to Section 510(a) cannot be affected by the actions of the parties prior to the commencement of a bankruptcy case when such rights did not even exist. To hold that, as a result of a subordination agreement, the “subordinor” gives up all its rights to the “subordinee” would be totally inequitable.24 Similarly, the court in Bank of America, National Ass’n v. North LaSalle Street Limited Partnership (In re 203 North LaSalle Street Partnership) refused to enforce a pre-petition subordination agreement that purported to transfer the junior creditors’ voting rights to the senior creditor. In so doing, the court noted that “[s]ubordination affects only the priority of payment, not the right to payment.... This result assures that the holder of a subordinated claim has a potential role in the negotiation and confirmation of a plan, a role that would be eliminated by enforcing contractual transfers of Chapter 11 voting rights.”25 In a more recent case not cited by the SW Boston Hotel Venture court, the court in In re Croatan Surf Club LLC26 reached the same result. In that case, the senior creditor filed a motion for a determination of its right to vote the claim of the junior creditor pursuant to the terms of a pre-petition subordination agreement. The court held that “§ 510(a) was not intended to give parties carte blanche to override other provisions of the Bankruptcy Code. This is evident in the language of § 1129(b), which allows a court to confirm a plan if it ‘does not discriminate unfairly, and is fair and equitable,’ ‘notwithstanding section 510(a) of this title.’”27 The court further opined: Section 510(a) similarly does not override § 1126(a), which provides that the “holder of a claim” may vote to accept or reject a plan under chapter 11. The language of the Bankruptcy Code dictates who may vote on a plan. Subordination does not change the 23 5 B.R. 734 (Bankr. D. Minn. 1980). 24 Id. at 736. 25 246 B.R. 325, 332 (Bankr. N.D. Ill. 2000). 26 No. 11-00194-8-SWH, 2011 WL 5909199 (Bankr. E.D.N.C. Oct. 25, 2011). 27 Id. at *2 (quoting 11 U.S.C. § 1129(b)).
continued on page 55
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Are Subordination Agreements Really Enforceable? from page 53
existence of the debt or claim or its holder; it merely provides for a different order of payment.28 Accordingly, the answer to the question of whether SW Boston Hotel Venture was correctly decided will depend on to whom such question is posed. As is evident from the foregoing, there are strong arguments on each side, and the courts are decidedly split on the issue. 28 Id.
Conclusion
The issue of whether and to what extent waivers of bankruptcy rights in subordination agreements are enforceable remains an open question subject to continued uncertainty, as demonstrated by these cases. Indeed, unless the circuit courts of appeals address this issue, practitioners and bankruptcy judges alike will be left to resolve these issues based on a series of conflicting and nonbinding judicial precedents. abi
Copyright 2012 American Bankruptcy Institute. Please contact ABI at (703) 739-0800 for reprint permission. ABI Journal
April 2012 55
