Uncertain Treatment of Make-Whole Premiums Upon Bankruptcy-Induced Acceleration and Redemption of Indentures
Make-whole premiums are essentially prepayment penalties imposed on borrowers when loans are paid off in advance of their maturity dates. These premiums remove the borrowers' incentives to refinance whenever interest rates drop, and provide stability and predictability to the world of secured lending.
Part Two of a Two-Part Article
As discussed last month, in Lansaw v. Zokaites, the tenants (and bankruptcy petitioners) complained of certain harassment that occurred prior to the filing of their bankruptcy petition. Let us turn now to the court's analysis of the landlord's post–bankruptcy-petition behavior.
Construction industry executives are particularly optimistic regarding the prospects of local, nonresidential construction activity this year, according to a recent Wells Fargo Equipment Finance survey of industry contractors and equipment distributors.
This article focuses on the impact of section 552 of the Bankruptcy Code, which addresses the effect of a bankruptcy filing on property acquired by the debtor after the filing of the bankruptcy case (referred to as "after-acquired property") and proceeds of pre-bankruptcy collateral.
Any bankruptcy practitioner, upon first contact with a municipal bankruptcy case, may be shocked by the lack of substantive law to be found in Chapter 9. The dearth of detail has long caused bankruptcy lawyers and courts to turn to the far more substantive provisions of Chapter 11 for practical guidance.
Debra P. Goldberg has joined the law firm of Cullen and Dykman LLP as a partner in the firm's Banking Practice Group. Practicing from the firm's Garden…
Part Two of a Two-Part Article
Landlords and tenants enter into agreements, known as "Work Letters," delineating their respective rights and obligations with regard to tenant and landlord improvements. As with any other portion of the lease, complications can develop, so addressing potential Work Letter issues within the contract can pay dividends down the road.
Secured creditors and debtor-in-possession (DIP) lenders that rely on standard carve-out provisions to limit the impact of bankruptcy professional fees on their collateral would be well-advised to take notice of a U.S. Bankruptcy Court decision from earlier this year.
The reasonable and typical middle ground in the struggle between the parties regarding the scope of the "exclusive" is to protect only a tenant's "core" or "primary" business. Using such an approach, if properly drafted, will allow the tenant to avoid the two-coffee-shop situation, but will still permit the landlord to lease to multiple tenants with overlapping but not fundamentally competing uses.
In the aftermath of the financial crisis, government regulatory agencies, such as the SEC, have aggressively pursued civil enforcement actions to combat financial fraud. However, their efforts to extend their ability to seek monetary penalties and fines outside of relevant limitations periods have been recently rebuffed by the courts.
