As a secured lender, you should know well in advance the necessary details if a borrower files bankruptcy. Let us presume therefore that, from consultations with your borrower, it is clear that the borrower is in distress:
You have two choices in this scenario.
When a borrower goes into bankruptcy, a lender must choose its battles. It is generally less wise to take on the debtor in the first days of a case when a bankruptcy court is highly focused on giving the company a chance to succeed. Did I mention that if you refuse to cooperate, the borrower’s bankruptcy filing will halt or bar your foreclosure efforts unless you convince the bankruptcy court to lift the automatic stay that prevents such actions?
Further, the borrower (after assuming its bankruptcy identity as a “debtor”) can try to win the right to use cash collateral over your objection on the grounds that the borrower gives you “adequate protection.” (More on that below.) At least the court cannot compel you to extend new financing to a debtor.
Every case is unique, and nothing I say here can be uniformly applied to all cases. As my posing of the choices suggests, in most cases the most advantageous course is to cooperate, and to use your cooperation to gain cash and control. In exchange for providing DIP funding or permission to use cash collateral, you can gain lender’s fees or adequate protection payments. You may bargain for protections against being sued or having your liens challenged. Also, you can gain additional means to keep close tabs on the borrower’s performance, and clear authority to pull the plug if your position deteriorates.
Whether or not you permit a debtor’s use of your cash or other collateral, you are absolutely entitled to adequate protection. In plain English, adequate protection is any reasonable means to ensure that the value of your collateral does not diminish from the value it had as of the date of the bankruptcy filing. If you oppose the use of cash collateral, the debtor will be denied use unless it can persuade the court that it affords you adequate protection.
Adequate protection may take many different forms. Sometimes, to protect the value of cash collateral, the debtor must pay you cash, in what are often called “adequate protection payments,” such as continued periodic interest payments on the loan principal. In addition, you are granted liens (often called “replacement liens”) on post-bankruptcy receivables and collections. If the debtor has any unpledged assets, it may also grant you liens on such assets to the extent that the value of the collateral at the beginning of the case diminishes from the debtor’s use.
By requiring rigorous budgeting and monitoring of the debtor’s use of cash and other collateral, you can determine whether value has diminished and take prompt action to protect yourself.
Your cooperation may amplify the debtor’s chances of success. Because of the automatic stay on all creditor collections established at the outset of the bankruptcy, the borrower will be able to conduct ordinary course business without fighting foreclosure or other creditor actions. The borrower’s focus on cash use and operational efficiency—enforced by the arrangements for DIP financing or the use of cash collateral—should improve the borrower’s cash flow. The desired result is that the borrower will thus improve its chances for a successful restructuring or sale. For you, that means a better borrower (under a restructuring) or a return to lender (from sale) superior to the likely net result of a foreclosure and sale.
All that said, it remains a matter of choosing battles, which hardly does away with uncertainty. Even cooperative bankruptcy cases sometimes go awry despite a lender’s best efforts and strategy.
©All Rights Reserved. June, 2021. DailyDACTM, LLC
Robert D. Leavitt, J.D., LL.M., is Of Counsel to Dykema where he focuses his practice on general commercial, corporate and financial transactions, banking, commercial lending, and real estate. Mr. Leavitt has been practicing law for over twenty-five years, much of it in senior law department roles in major companies, including as General Counsel. Mr. Leavitt…
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