When commercial landlords and their tenants come to the table to negotiate a leniency contract, both parties must keep practical and financial issues in mind when moving towards an uncertain future. Construction of bankruptcy protection – a borrower`s ace/tenant in the hole is a bankruptcy proceeding. Anticipate what could happen in the event of bankruptcy and try to minimize the delay or cost of bankruptcy by language in the indulgence agreement. Although it is not always enforceable, you have set the borrower a reasonable amount for the payment of coverage or a period before a tenancy agreement must be accepted or refused. As another deterrent to a bankruptcy application, a specific recognition and a waiver on the part of the guarantors that, in the event that the principal debtor seeks bankruptcy protection, the guarantors nevertheless accept that compliance with their guarantee obligations can be done without opposition or reference to the status of the bankruptcy proceedings. The leniency allows the borrower to have time to pay off the mortgage amounts due. This is advantageous for the borrower in difficulty, but the leniency offer also benefits the credit holder, such as a bank that often loses money in the event of foreclosure after paying the process-related fees. However, credit service providers who collect payments but do not own the loans may be less willing to work with borrowers to obtain relief because they do not bear as much financial risk. The leniency agreement should provide that if the tenant is late at some point after Demener`s contract, all deferred rents are automatically accelerated and payable immediately and interest-free (note that in this case the late interest rate is reasonable).
This acceleration of rent deferrals allows the landlord, among other things, to obtain the greatest right in damages, especially when the tenant has declared bankruptcy. In such a case, a lessor may be limited to the claim for damages on the basis of the loss of rent for a specified period of time. The determination of acceleration gives the landlord at least the argument that the deferred rent should be included in this calculation (although there is no guarantee that a bankruptcy court would agree). A landlord must carefully check their credit documents to determine whether a rent reduction or deferral (or a rent change in general) requires the consent of its lender or JV partner. In particular, the owner must be careful not to accidentally trigger a non-recourse scheme in the event of non-recourse, which applies to a personal guarantee of a loan.