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Conflict Between Delaware LLC Act and Bankruptcy Code Affects Creditor Toolbox

As you know from our prior alerts, creditors of borrowers formed as Delaware LLCs (as opposed to corporations) lack standing under Delaware law to sue directors for breaching fiduciary duties even when, to the surprise of...more

Private Credit Trends: Executive Compensation Considerations in Out-of-Court Restructurings - Insights

Retaining key management at a distressed company in the midst of an out-of-court restructuring can be necessary for the success of the restructuring. To realign incentives, private credit lenders need to consider reloading...more

Private Credit Restructuring Trends: No AAL, No Problem?

Bankruptcy Considerations for Unitranche Transactions with Super-Priority Revolvers without an AAL - Unitranche debt is not new to the private credit market. It has, however, evolved over time. In the earlier years of the...more

Private Credit Restructuring Trends: New Delaware Law Aids Secured Creditors in Getting Deals Done Out of Court

In our prior alert over the summer, we highlighted the Delaware Supreme Court’s decision in Stream TV Networks, Inc. v. SeeCubic, Inc., 279 A.3d 323, 329 (Del. 2022) (“Stream TV”), which held an insolvent corporation could...more

Del. Ruling Shows Tension Between 363 Sale And Labor Law

Navigating the Bankruptcy Code can present many traps for unsuspecting debtors, creditors or asset buyers. The U.S. District Court for the District of Delaware recently reminded bankruptcy participants of an often overlooked...more

“Free and Clear” Collides with “Perfectly Clear”: Delaware District Court Imposes Successor Liability on Buyer in 363 Sale

Navigating the Bankruptcy Code can present many traps for unsuspecting debtors, creditors, or asset buyers. The Delaware District Court recently reminded bankruptcy participants of an often overlooked pitfall involving the...more

Special Alert: Fifth Circuit Targets Make-Whole Claims in Bankruptcy - Insights

In an important decision to private credit lenders, the Fifth Circuit Court of Appeals held that a make-whole premium for an unsecured creditor tied to future interest payments is the “functional equivalent of unmatured...more

Del. Bankruptcy Rulings Instruct on Creditors' Rights to Sue

Creditors of distressed businesses are often frustrated by shareholder- controlled boards when directors pursue strategies that appear to be designed to benefit shareholders at the creditors' expense. In these...more

Suing Directors of a Troubled Business: When Form Trumps Substance

Creditors of distressed businesses are often frustrated by shareholder-controlled boards when directors pursue strategies that appear to be designed to benefit shareholders at the creditors’ expense. In these circumstances,...more

Sunny With Clear Skies, But a Chance of Turbulence on the Horizon: Private Credit Restructuring Year in Review

This past year was marked by extraordinary deal activity. Record breaking M&A activity drove record breaking private credit activity. Private equity M&A activity was at a substantial high, with over 8,500 deals worth $2.1...more

[Ongoing Program] Private Credit Summit 2021 - March 18th, 9:30 am ET

From February 23 – March 18th Proskauer will host its second annual Private Credit Summit. This interactive virtual event will bring together leaders in the Private Credit industry, including lenders, private equity firms,...more

Growth in Third Party Preferred Equity Financing — Flexibility Leads the Way

The trend of direct lenders providing preferred equity financing to support sponsors and operating companies has only accelerated in the two years since we first wrote on the topic. Preferred equity instruments in general...more

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