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Bankruptcy Commercial Law Landlord Tenant Law

A Prepackaged Bankruptcy Could Be the Answer to a Mortgage Default

This article discusses the value of prepackaged bankruptcy as an alternative route for addressing commercial mortgage defaults in high tax jurisdictions.

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Chapter 11 bankruptcy has long been thought of as anathema to commercial real estate (CRE) lenders. This is due to the debtor-friendly bankruptcy forum, particularly with respect to (i) the up to 18 month exclusivity period during which only the debtor could propose a plan of reorganization and (ii) threats of a “cram-down” plan used to lever concessions from lenders. These provisions can be, and often were, abused by debtors with no real rehabilitative intent using bankruptcy only as a leverage tool. These abuses led to changes in the bankruptcy code (for example, reducing modifying deadlines in single-asset real estate bankruptcies) and also to widespread use of non-recourse carve-out guaranties that would make the sponsor guarantor fully liable for the loan if any party acting on behalf of the special purpose borrower entity files or acquiesces to a bankruptcy proceeding. These events also established a principle in CRE lending that is seldom questioned almost 30 years later: bankruptcy is to be avoided.

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