Make-Whole Mayhem
April 02, 2017
<b><i>Uncertain Treatment of Make-Whole Premiums Upon Bankruptcy-Induced Acceleration and Redemption of Indentures</b></i><p>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.
Landlord Harassment of Commercial Tenants
April 02, 2017
<i><b>Part Two of a Two-Part Article</i></b><p>As discussed last month, in <i>Lansaw v. Zokaites</i>, 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.
High Expectations for Commercial Construction Activity
April 02, 2017
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.
Navigating the Bankruptcy Court's Power to Modify A Secured Creditor's Lien
April 02, 2017
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.
In the Marketplace
April 02, 2017
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…
Work Letter 'What Ifs'
April 02, 2017
<b><i>Part Two of a Two-Part Article</b></i><p>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.
<b><i>Yellowstone</i></b> Injunctions When Prompt Cure Is Impossible
April 01, 2017
Most real estate practitioners are well acquainted with the <b><I>Yellowstone</I></b> injunction and its importance in preserving the status quo while allegations that a commercial tenant has breached its lease are litigated. But the third Yellowstone prong — timeliness of the motion — is especially important.
Challenges in Drafting a Restaurant Exclusive Use Clause
April 01, 2017
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.
