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Borrowers and lenders must both be aware of the risks relating to uncertainty regarding make-whole premiums in bankruptcy. The enforceability of “make-whole” premiums in bankruptcy has become a hotly contested issue in...more
On May 23, the Texas Supreme Court issued an opinion holding that in determining whether a commercial loan is usurious under Texas state law, the “actuarial method” must be employed. This requires the applicable amount of...more
On May 23, the Supreme Court of Texas ruled that the maximum permissible interest on a loan must be calculated using the declining principal balance rather than the initial total principal amount. This decision was in...more
The California Financing Law provides that “[n]o person shall engage in the business of a finance lender or broker without obtaining a license from the commissioner.” Cal. Fin. Code § 22100(a). The CFL further provides...more
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has unanimously held that the debt exchange undertaken by Serta Simmons Bedding did not qualify as an "open market purchase" under the terms of Serta's...more
The commercial real estate industry is facing an impending tsunami of $2 trillion in debt maturities, with an estimated $929 billion coming due this year. If you will be caught in this net because the loan secured by your CRE...more
The fact that commercial transactions can very easily become complex is not a novel statement. When financial institutions lend money to commercial entities, the basic documentation required to evidence the loan, promise to...more
The financing of hotels and resorts requires balancing the borrower’s need for flexibility to successfully operate the hotel against the lender’s desire to prevent cash leakage should conditions related to the borrower’s...more
News of the failure of Silicon Valley Bank in the United States has dominated headlines over the last few days. Late yesterday, Friday, 10 March 2023, the Bank of England made an announcement about the status of Silicon...more
For those of us that practice in the world of commercial real estate financing transactions, the fact pattern is a tale as old as time: the Bank is making a term loan secured by real estate largely based on leases on the...more
A recent U.S. District Court for the District of Delaware opinion, In re TPC Grp. Inc., provided another instance of an uptiering transaction withstanding legal scrutiny and provides further support for the view that courts...more
While some commercial real estate loans are fully funded at loan closing, others are funded in whole or in part through future advances. Some loans provide for future advances to fund tenant improvement work and leasing...more
In Adar Bays, LLC v. GeneSYS ID, Inc., the New York Court of Appeals (the “Court”) held that the conversion price in a convertible option could be classified as interest thereby potentially falling under the territory of New...more
It is an article of faith that each commercial real estate downturn is different in some way, invariably prompting a unique response from the private and public sectors....more
Uncertainty over the scope and spread of the COVID-19 outbreak continues to negatively impact the domestic and worldwide economy. Disruptions to business as a result of stay-at-home or shelter-in-place orders, restrictions on...more
Material adverse change provisions in credit agreements are under much heightened scrutiny in the current circumstances. In the current environment, both corporates and their lenders are trying to assess a fast-moving...more
COVID-19 and the related disruption have resulted in enormous pressure on society and businesses. Material adverse change (“MAC”) clauses in loan agreements present important issues that borrowers and lenders alike need to...more
COVID-19 is causing a rapidly evolving public health crisis, and businesses face uncertainty about their commercial relationships. That uncertainty is raising questions about performance under contractual agreements that were...more
With the continuing spread of the Coronavirus Disease 2019 (“COVID-19” or “coronavirus”), hospitality service providers are facing a number of issues that have already exacted a heavy financial toll. With consumers staying...more
Many commercial real estate loans are “non-recourse,” which means in general terms that foreclosing on the real estate securing the loan is the lender’s sole remedy for a borrower’s failure to repay the loan. The lender is...more
A group of small businesses and their individual owners have filed a putative class action lawsuit in a New York federal district court against online lender Kabbage, Inc. that alleges Kabbage engaged in a “rent-a-charter”...more
The word "looming" seems to have become very popular during the past several years within the context of describing potential commercial credit maturities and defaults and, more recently, a potential recession. "Looming" may...more
Manufacturers encounter financing statements in many contexts – as a borrower, as a supplier of goods sold on credit, as a seller in a leveraged acquisition, as a seller of equipment where financing is provided to the buyer...more
Banks are in the business of making loans. Lenders, underwriters and credit committees do their best to weed out the potentially problematic credits. The approval of a strong credit however is only the beginning. ...more
• In the legal battle of competing maritime lien claims against vessels whose charterers contracted with O.W. Bunker & Trading A/S or its affiliates in October-November 2014, an important decision was issued this week by the...more