2012 should be the year when online sales broadly impacts "how" retailers view and use their "physical" stores.  This will impact both the owners AND the lenders.

Record online sales point to the need (RIGHT NOW) to take a different approach in reviewing and approving retail leases – which for lenders with shopping center and

Recently, Professor Joshua P. Fershee posted a very interesting observation on the Business Law Prof Blog.  

Professor Fershee comments on a legal concept called the "single enterprise" theory, and on references to this concept by the US Supreme Court in a decision published by it this past summer (Goodyear Dunlop Tires Operations, S.A.

Earlier, I offered up some advice that in a workout, you really can’t take it personally.

If that didn’t work for you, then here’s another approach that should resonate (I can’t get it out of my head):

  •  if you’re in a loan with other lenders, the co-lender structure probably has some real, real, real dysfunctional aspects to it 

So, to prepare you for the next lender group conference call, FIRST watch a few episodes of the immensely popular TV show "Modern Family"


 . . . and THEN apply lessons learned to these aspects of the co-lender family tree:

  • Prenuptial Agreements . . . sorry, I mean the Intercreditor Agreement.  Unfortunately, this agreement might not have contemplated the exact situation that you’re now dealing with; or perhaps the voting provisions really don’t work; or it was quickly signed up by the lenders without legal advice (because if it wasn’t signed "as is" and immediately upon receipt, another lender would have snapped up the lovely deal [we now wish]; and your shop would have lost the deal [but no . . .  we still "feel the love" for this deal]). 
  • Different Legacy Family Issues . . . sorry, I mean differing balance sheets, corporate structures and on and on. Understanding the co-lender structure is critical (part one; part two) – and painful.
  • Children Complicate Things . . . sorry, I mean affiliate companies.  Subsidiaries can dictate the behavior of a lender.  For example, a deal might turn into a note sale because, in part, the lead lender has a sub that earns a commission on note sales.  I’m kidding, of course.
  • Meddling Parents & Siblings . . . sorry, I mean meddling parent and sibling companies can be just as disruptive as subsidiaries.  You get the deal to head in one direction, and then you realize that the other lender is really a puppet for the holding company or operating company affiliate (that’s sitting behind the curtain or on the other side of the globe).
  • Keeping Up With the Jones . . . . I mean pressures to maintain stock prices.  If you’re the lender that is privately held, or a life company that is owned by the policy holders, then you could have a very, very different workout strategy than the lead lender, which is a public company or has a different regulator than your company.
  • Awkward Moments . . . . I mean awkward phone calls. (Enough said.)
  • Everybody Has a Role . . . . I mean every lender has a role.  And this is a very common characteristic of a messy co-lender workout – one or more lender becomes the agitator, or speaks in a foreign tongue, or makes choices that make no sense to the other lenders. 
  • Change Channels . . . . yes, if all else fails.  Put the file down and work on something else.  The deal will be rerun on late-night soon enough.

Please add your Modern (Finance) Family lessons by commenting below.

Continue Reading

We know commercial real estate is all about the rents – and the credit of the tenant, which some times is enhanced by the tenant giving the landlord a letter of credit.

David Staas and Michael Thomas recently clued me in on several lessons learned by commercial mortgage lenders, on the topic of letters of