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The Enforceability of Prepayment Premium Provisions
Lessors and lenders need to be aware of a recently issued U.S. District Court decision addressing the enforceability of a prepayment premium in a mortgage loan context. The decision in River East Plaza, LLC v. The Variable Annuity Life Company (Slip Copy, 2006 WL 2787483 (N. D. Ill.)) was rendered on Sept. 22, 2006, by the U.S. District Court for the Northern District of Illinois (Eastern Division), construing Illinois law.
In its decision, the court found that the particular prepayment premium required to be paid in connection with prepayment of a mortgage loan was an unenforceable penalty. The type of prepayment provision at issue in the case is generally referred to as a 'yield maintenance clause,' which compensates the lender for possible lost interest by making the lender whole on a similar investment. The borrower is required to pay the interest spread between the actual loan to be prepaid and a hypothetical alternative investment. In this particular transaction, the yield maintenance provision required discounting the outstanding principal and in-terest which would be due over the term of the original transaction to present value at the reinvestment rate, and the reinvestment rate used was the yield to maturity on a U.S. Treasury bond or note having a similar maturity as the unexpired term of the mortgage loan.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Compliance Officers: Recent Regulatory Guidance and Enforcement Actions and Mitigating the Risk of Personal Liability
This article explores legal developments over the past year that may impact compliance officer personal liability.