Illinois Law: Use of Proceeds Clauses
This imaginary case serves as a great reminder that precise drafting and prompt enforcement of use‑of‑proceeds covenants can make—or break—a commercial real‑estate loan recovery. CASE FACTS AY Properties, LLC advanced a $2.5 million construction loan to DS Investments, Inc. for the development of a mixed‑use retail property in Chicago, Illinois. Under the loan agreement, disbursements were conditioned strictly […]
Enforcing Carve-Out or “Bad Boy” Guaranties
Enforcing carve-out or “bad boy” guaranties in real estate loan agreements—especially in Illinois and other jurisdictions that favor lender protections—requires a strategic blend of contract clarity, trigger precision, and procedural discipline. Here’s how to do it effectively: First, the guaranty must be clearly drafted, with carve-out events precisely defined. Courts have upheld full recourse liability […]
Drafting Carve-Out or “Bad Boy” Guaranties
Drafting effective carve-out or “bad boy” guaranties—especially in Illinois or similar jurisdictions—requires a careful balance between lender protection and guarantor fairness. Here are some nuanced tips to help you structure them strategically: Start with precise definitions. Avoid vague terms like “waste” or “bad acts” unless they’re clearly defined. Courts have interpreted ambiguous carve-outs as triggers […]
Knows Your PIK Part 2
PIK Borrowers PIK interest loans benefit borrowers when they have significant growth potential but temporary cash constraints, need to conserve cash in periods of underperformance, or face a lack of equity funding or uncertain liquidity options. These types of borrowers are not serviced by traditional banks or ABL lenders. Borrowers seeking PIK interest loans in […]
Knows Your PIK Part I
Paid-In-Kind (PIK) interest features allow borrowers to add interest to the principal of a loan versus making cash payments. This is different than traditional interest payments where borrowers pay interest in cash at regular monthly or quarterly intervals. A growing number of private market loans are being structured or amended to include PIK interest in […]
Intercreditor Agreements
Intercreditor agreements are key. This is particularly true for real estate investors.
Commercial Forbearance Agreements: Borrower Considerations
Forbearance is the act of temporarily refraining from taking action against someone or something. In the commercial lending context, forbearance means the lender is refraining from exercising its remedies because the borrower defaulted on its loan. Forbearance agreements can be simple and straightforward. They can also be complicated contracts with many moving parts, […]
The Fan Is Being Hit
The title says it all: Overdue Office Loans Are New Pain Point for Banks in FDIC Report (yahoo.com) This makes it even more important to review your loan documents to determine whether there is recourse. This previous blog post is a good place to start: When Good Non-Recourse Loans Go Bad – Seidman Law (seidmanlawgroup.com) […]
