Loan Guaranty Enforcement: "Bad Boy," Upstream, Affiliated and Other Agreements

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Loan Guaranty Enforcement: "Bad Boy," Upstream, Affiliated and Other Agreements Best Practices for Lenders and Guarantors In and Outside of Bankruptcy TUESDAY, OCTOBER 29, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Aric T. Stienessen, Partner, Hinshaw & Culbertson, Minneapolis Anthony J. Jacob, Partner, Hinshaw & Culbertson, Chicago William Connelly, Partner, Hinshaw & Culbertson, Chicago The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

2 FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial and enter your PIN when prompted. Otherwise, please send us a chat or sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.

3 FOR LIVE EVENT ONLY For CLE purposes, please let us know how many people are listening at your location by completing each of the following steps: In the chat box, type (1) your company name and (2) the number of attendees at your location Click the SEND button beside the box If you have purchased Strafford CLE processing services, you must confirm your participation by completing and submitting an Official Record of Attendance (CLE Form). You may obtain your CLE form by going to the program page and selecting the appropriate form in the PROGRAM MATERIALS box at the top right corner. If you'd like to purchase CLE credit processing, it is available for a fee. For additional information about CLE credit processing, go to our website or call us at ext. 35.

4 FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to Conference Materials in the middle of the lefthand column on your screen. Click on the tab labeled Handouts that appears, and there you will see a PDF of the slides for today's program. Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon.

5 Loan Guaranty Enforcement: "Bad Boy, Upstream, Affiliated and Other Agreements Best Practices for Lenders and Guarantors In and Outside of Bankruptcy October 29, :00 PM 2:30 PM Eastern Standard Time

6 Presenters Aric T. Stienessen, Partner Hinshaw & Culbertson LLP, Minneapolis He represents lenders, investment banks and borrowers in commercial finance transactions. He also represents businesses and real property developers in sales and purchase transactions involving commercial real property, and handles transactions involving mergers, acquisitions, divestitures and corporate organization and governance. 6 6

7 Presenters Anthony J. Jacob, Partner Hinshaw & Culbertson, Chicago Mr. Jacob is engaged in general corporate practice, including various aspects of private merger, acquisition, divestiture and employee benefit matters. In addition, Mr. Jacob s practice includes secured and unsecured lending transactions, asset securitization and structured finance, ESOP loans, initial debt and equity offerings, primary and secondary debt offerings, corporate reorganizations and restructuring, joint ventures and syndicated commercial financing transactions. His clients include domestic and foreign corporations, limited liability companies and partnerships, and banks and other lending institutions. 7 7

8 Presenters William J. Connelly, Partner Hinshaw & Culbertson, Chicago Mr. Connelly has practiced for more than two decades in the areas of creditors rights, bankruptcy, corporate and commercial litigation. Since joining Hinshaw & Culbertson LLP in 1987, he has focused on creditors rights, bankruptcy, and litigation, prosecuting claims on behalf of, and defending claims against, corporations, banks, credit unions and other financial institutions. 8 8

9 Outline Overview of General Types of Guaranties General Legal Issues to Enforce and Defend Guaranties Bankruptcy Issues Questions and Answers 9 9

10 I. Overview of General Types of Guaranties The Guaranty Agreement A guaranty is an agreement made by a third party, whether a person, trust or a business entity, to pay and/or perform the obligations of a debtor for the satisfaction of a debt owed to a creditor upon the occurrence of an event, typically a default by the debtor under the original loan agreement. A guaranty, like any contract, requires mutual assent, adequate consideration, definiteness and a meeting of the minds. Under most states Statute of Frauds, a guaranty must be in writing, signed by the guarantor(s) and delivered to the creditor

11 I. Overview of General Types of Guaranties In the context of a loan transaction, a guaranty serves as a form of collateral to support the debt obligation between the debtor and the creditor. But, the guaranty and the loan agreement evidence separate obligations, and their independence is not affected by the fact that both agreements are written on the same paper or instrument or are contemporaneously executed. The guaranty cannot exist without a primary debt obligation. Thus, if the primary debt obligation has been fully satisfied, is void or is illegal, a guaranty of the debt obligation is also unenforceable

12 II. Enforcement and Defense of Guaranties Consideration A guaranty is a contract and, as such, it must be supported by consideration. A guaranty without consideration is merely an unenforceable gratuitous promise. While some guaranties are founded on separate consideration than the original credit transaction, the guarantor need not receive a direct benefit for consideration to exist. The consideration usually consists of a benefit to the debtor or a detriment to the creditor

13 II. Enforcement and Defense of Guaranties Courts have deemed consideration to be sufficient in the following cases: Guaranty is made contemporaneously with loan agreement. See, In re Kraft, LLC, 429 B.R. 637, 659 (Bankr.N.D.Ind. 2010); Jackson v. Luellen Farms, Inc., 877 N.E.2d 848 (Ind. Ct. App. 2007). Guaranty is made as part of the loan transaction, even if the two documents are not executed on the same date. See, Michelin Management Co., Inc. v. Mayaud, 307 A.D.2d 280, 762 N.Y.S.2d 108 (2d Dep't 2003). Amendment to the loan agreement, note or other loan document that is acknowledged and approved by the guarantor. See, First Commerce Bank v. Palmer, 226 S.W.3d 396 (Tex. 2007); Caves v. Columbus Bank & Trust Co., 589 S.E.2d 670, 676 (Ga.App. 2003); Brown v. Lawrenceville Properties, LLC, 710 S.E.2d 682, 685 (Ga.App. 2011)

14 II. Enforcement and Defense of Guaranties Resolution and/or settlement of claims against debtor; the creditor's compromise of a claim against the debtor. See, Cincinnati Ins. Co. v. American Hardware Mfrs. Ass'n, 898 N.E.2d 216, 230 (Ill.App. 1st Dist. 2008); Tag to Print 3Tower Investors, LLC v. 111 East Chestnut Consultants, Inc., 864 N.E.2d 927, 937 (Ill.App. 1st Dist. 2007). Continuance and/or expansion of debtor s business with creditor or other vendors or service providers; the creditor's agreement to continue doing business with the primary debtor. See, Material Partnerships, Inc. v. Ventura, 102 S.W.3d 252 (Tex. App. 14th Dist. 2003). Creditor s agreement to conduct business with guarantor or to provide guarantor with a benefit outside of the guaranty agreement; a bank's retention of the guarantor's friend in his position as president of the bank. See, Performance Elec., Inc. v. CIB Bank, 864 N.E.2d 779, 784 (Ill.App. 1 Dist. 2007)

15 II. Enforcement and Defense of Guaranties Joint and Several Liability Typically, with multiple guarantors of the same debt obligation, the creditor can proceed against less than all of the coguarantors for recovery of the entire guaranteed obligations. See Wachovia Bank, Nat. Ass'n v. Horizon Wholesale Foods, LLC, 2009 WL (S.D.Ala. 2009); Finagin v. Arkansas Dev. Fin. Auth., 139 S.W.3d 797, 803 (Ark. 2003); Century Business Credit Corp. v. Gargiulo Foods, L.L.C., 2003 WL (S.D.N.Y.,2003)

16 II. Enforcement and Defense of Guaranties Death of Guarantor Unless expressly provided in the guaranty, a guarantor's death does not terminate a guaranty. See, In re Steagall's Estate, 444 N.E.2d 838 (4th Dist. 1983); In re Klink's Estate, 35 N.E.2d 684 (1st Dist. 1941). The death of the guarantor of a continuing guaranty may limit the guarantor s liability as it relates to future transactions but does not affect the credit transaction that was originally guaranteed. However, the estate of the deceased continues to guaranty a credit transaction by providing for renewals, as the consideration for the additional obligation that was extended before the guarantor's death

17 II. Enforcement and Defense of Guaranties Release of Co- Guarantors The discharge of one co-guarantor's direct liability to the creditor does not relieve him or her from liability to contribute to the other coguarantors. In addition, the fact that a creditor sues only some of the co-guarantors, or recovers a judgment against fewer than all of them, does not excuse those not sued or not included in the judgment from paying their part of the joint debt. Accordingly, as a general rule, one or more of the co-guarantors against whom the judgment is recovered may, upon paying the creditor, compel contribution from all other coguarantors. A creditor s release of one guarantor does not necessarily release the co-guarantors. See Lestorti v. DeLeo et al., 4 A3d 269 (Conn.Sup.Ct. 2010)

18 II. Enforcement and Defense of Guaranties Impracticability/Frustration of Purpose Twin Holdings of Delaware LLC v. CW Capital, LLC, 2010 WL (N.Y.Sup.,2010); a guarantor claimed that the decline in the real estate market, a factor outside their control, made it more difficult to lease out space in their building. The guarantor also alleged that the financial crisis in the real estate market made it more difficult for the debtor and guarantor to refinance the loan. Flathead-Michigan I, LLC v. Penninsula Development, L.L.C., 2011 WL (E.D.Mich. 2011); a guarantor claimed that the economic fallout in 2008 frustrated the terms of the guaranteed obligations

19 II. Enforcement and Defense of Guaranties Misrepresentation Courts do not look favorable upon a guarantor s claim of misrepresentation, especially when the guaranty agreement is absolute and unconditional. See, 627 Acquisition Company, LLC v. 627 Greenwich, LLC et al., 85 A.D.3d 645 (N.Y.Sup.Ct. 2011); Alerus Financial, N.A. v. Marcil Group Inc., 2011 WL (N.D. Oct. 18, 2011); Outsource Services Management, LLC v. Ginsgurg, 2010 WL (D.Minn 2010)

20 II. Enforcement and Defense of Guaranties Lack of Notice In certain instances, a creditor must provide the guarantor with notice of a default or triggering event under the primary debt obligation before seeking to enforce a guaranty agreement. However, the language of the guaranty is controlling in determining whether the creditor is under a duty to notify the guarantor of a default, and notice need not be given when the terms of the guaranty expressly dispense with the need for the notice. Comerica Bank v. Cohen, 291 Mich.App. 40 (Oct. 21, 2010) Vision Bank v. 145, LLC et al., 2011 WL (S.D.Ala Nov. 4, 2011) 20 20

21 II. Enforcement and Defense of Guaranties Types of Guaranties Absolute An absolute guaranty provides that the guarantor promises to pay or perform the obligations of the debtor upon the occurrence of a default event (typically debtor s default). If a guaranty does not contain words of limitation or conditions, it is typically construed as an absolute guaranty. Conditional A conditional guaranty requires the happening of some contingent event (other than the default of the debtor) or the performance of some act on the part of the creditor before the guarantor will be liable

22 II. Enforcement and Defense of Guaranties Payment A payment guaranty obligates the guarantor to pay the debt at maturity (which may arise due to an event of default). Upon the occurrence of a debtor's default, the guarantor s obligation becomes fixed and the creditor does not need to make a demand on the debtor. Collection A guaranty of collection is a guarantor s promise that if the creditor cannot collect the claim with due diligence, usually after suit (and exhaustion of remedies) against the debtor, the guarantor will pay the creditor. Performance A performance guaranty obligates the guarantor to perform some obligation on behalf of the debtor for the benefit of the creditor

23 II. Enforcement and Defense of Guaranties Continuing A guaranty is continuing when it is not limited to a single transaction but contemplates a future course of dealing which may encompass a series of transactions, may be for an indefinite period and/or may be intended to secure payment or performance of an overall debt of the debtor. As such, a continuing guaranty may include subsequent indebtedness without new consideration. Restricted A guaranty is a restricted guaranty when it is limited to a single or limited number of transactions, to a certain part of the debt obligation and/or to a certain period of time

24 II. Enforcement and Defense of Guaranties Downstream A downstream guaranty is a guaranty by a parent corporation for the obligations of its subsidiary. In this scenario, a lender will look to the parent corporation to back up the debt of a subsidiary corporation due to the parent corporation s superior assets and financial condition. Upstream An upstream guaranty is a guaranty by a subsidiary corporation for the obligations of its parent corporation. Typically, a creditor will require an upstream guaranty when debtor s, i.e. the parent corporation s, only assets are the stock of a subsidiary, and the subsidiary owns assets used as collateral to secure the credit obligations. Cross-stream A cross-stream guaranty is a guaranty among affiliated corporations, whose stock are both owned by the same parent

25 II. Enforcement and Defense of Guaranties Bad Boy Guaranty Many non-recourse guaranties will include provisions that carve-out instances where the guarantor may be personally liable upon the occurrence of certain enumerated bad acts. This type of guaranty is referred to as a bad boy guaranty. The types of bad acts commonly include matters such as fraud, misappropriation, waste, and other acts that show some bad act on the part of the guarantor. Since the guarantor s personal liability arises only upon the occurrence of a bad act, the guaranty s liability is sometimes referred to as a springing liability

26 III. Guarantor as Eligible Contract Participant Statutory Basis Section 723(a)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act amended Section 2(e) of the Commodity Exchange Act Added: "(e) Limitation on participation It shall be unlawful for any person, other than an eligible contract participant, to enter into a swap unless the swap is entered into on, or subject to the rules of, a board of trade designated as a contract market under section 7 of this title." 7 U.S.C.A. 2(e) 26 26

27 III. Guarantor as Eligible Contract Participant ECP defined under Dodd-Frank/CEA 7 USC Sec. 1(a)(18) ECP under CFTC Regulations 17 CFR Sec. 1.3(m) ECP similar definitions Eligible Swap Participant 17 CFR Sec. 35.1(b)(2) Eligible Participant 17 CFR Sec. 36.1(c)(2) Appropriate Person 17 USC Sec. 6(c) 27 27

28 IV. Guarantors and Swaps Swap under Dodd Frank/CEA 7 USC Sec. 1(a)(47) Swap under CFTC Regulations 17 CFR Section 1.3(xxx) Swap under Bankruptcy Code Bankruptcy Code defines swap agreement," but provides that the term "is applicable for purposes of this title only, and shall not be construed or applied so as to challenge or affect the characterization, definition, or treatment of any swap agreement under any other statute, regulation, or rule, including the Gramm-Leach-Bliley Act, the Legal Certainty for Bank Products Act of 2000, the securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934) and the Commodity Exchange Act." (11 USC 101(53B)) 28 28

29 V. "Bad Boy Guaranties and Bankruptcy Are such springing recourse guarantees void as against public policy in a Bankruptcy context? Can third parties (non-guarantors) take actions which trigger the guaranty? Can the guarantor shed their liabilities under the guaranty by filing Bankruptcy? Do the unintended consequences of the bad boy guarantees outweigh the benefits? 29 29

30 Bankruptcy and Public Policy Hayhoe v. Cole (In re Cole), 226 B.R. 647, 651 n.6 (9th Cir. B.A.P. 1998) In re Detrano, 222 B.R. 685, 688 (Bankr. E.D.N.Y. 1998); In re Minor, 115 B.R. 690, (D. Colo. 1990); In re Ethridge, 80 B.R. 581, 586 (Bankr. M.D. Ga. 1987); In re Halpern, 50 B.R. 260, 262 (Bankr. N.D. Ga. 1985), aff d, 810 F.2d 1061 (11th Cir. 1987); and In re Bisbach, 36 B.R. 350, 352 (Bankr. W.D. Wis. 1984); 30 30

31 Bankruptcy and Public Policy In re 203 North LaSalle Street Partnership, the Court said, since bankruptcy is designed to produce a system of reorganization and distribution different from what would obtain under nonbankruptcy law, it would defeat the purpose of the Code to allow parties to provide by contract that the provisions of the Code should not apply." 246 B.R. 325 (Bankr. N.D. Ill. 2000)

32 Can Third Parties Trigger the Guaranty? Yes! The efficacy of a bad boy provision as a hindrance to the commencement of a Bankruptcy has been destroyed when the person with their hand on the button may not be harmed if the button is pushed. A lender or other who succeeds to the guarantor's position of power can file a Bankruptcy with impunity. Unless an inter-creditor or some other agreement addresses the issue

33 Guarantor's Bankruptcy Eliminates Liabilities? Maybe. To be treated as any other similar debt. Can be objected to as any other similar debt Fraudulent Conveyance? Over-reaching? 33 33

34 Unintended Consequences? Be Careful What You Ask For. Too Much of A good Thing Can Hurt. Practicality Often Trumps Strict Adherence 34 34

35 Questions and Answers Aric T. Stienessen Hinshaw & Culbertson, Minneapolis Anthony J. Jacob Hinshaw & Culbertson, Chicago William Connelly Hinshaw & Culbertson, Chicago 35 35