Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Strategies and Drafting Techniques for Loan Workouts and Enforcement In 2022

By Richard S. Fries
February 01, 2022

This article describes a series of strategies and drafting techniques relevant to commercial real estate loan workouts and enforcement. The following is not a "how-to" primer on loan enforcement or restructuring the distressed loan. Instead this article identifies some of the current solutions and insights that have been observed, implemented and proposed during this pandemic-impacted workout cycle. These are "Real Estate Loan Enforcement Hot Tips for 2022."

Pre-Workout Agreement

Consider the article (also by this author) in the New York Law Journal (The 'Pre-Workout' Agreement in Loan Workout Negotiations (Sept. 17, 2019)) for a summary of the terms and provisions of the fairly market-standard or accepted pre-negotiation (or pre-workout) agreement. In short, by preserving in writing the status quo among the parties, that agreement is designed to: 1) protect the lender against post-default lender liability defenses and claims that purportedly arise during the course of discussions; and 2) pave the way for a risk-free negotiation, exchange of ideas, proposals and concessions and enhancements — none of which would be binding until a written agreement is approved and executed by all. (For a rather fulsome discussion of the exchange of concessions for enhancements in the distressed loan workout, see the article by this author, Exchange of Enhancements for Concessions — Insights into the Modern Loan Workout, appearing in the New York Law Journal on June 19, 2020.)

The pre-workout agreement is the borrower's "ticket for admission" to workout discussions with its counterparties. So, here's the "Hot Tip":

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Strategy vs. Tactics: Two Sides of a Difficult Coin Image

With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.

Major Differences In UK, U.S. Copyright Laws Image

This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.

The Article 8 Opt In Image

The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.

Role and Responsibilities of Practice Group Leaders Image

Ideally, the objective of defining the role and responsibilities of Practice Group Leaders should be to establish just enough structure and accountability within their respective practice group to maximize the economic potential of the firm, while institutionalizing the principles of leadership and teamwork.

Removing Restrictive Covenants In New York Image

In Rockwell v. Despart, the New York Supreme Court, Third Department, recently revisited a recurring question: When may a landowner seek judicial removal of a covenant restricting use of her land?