TSL Feature Articles

Joseph Nemia looks back at 2019 and discusses what the secured finance industry can expect to see in 2020.

A Demica senior director explains how trade receivable securitization programs can be used as a valuable alternative to other funding solutions, especially in cross-border or challenging credit environments.

At 33 years old, Shauna was diagnosed with breast cancer - a head-spinning diagnosis for anyone, but especially a new mother at 33 who considered herself fairly healthy. Then came the draining, life-sapping chemo that would save her life, but leave her feeling weak and malnourished

The time and cost of liquidating collateral can often be prohibitive and is always a nuisance. Of course, this problem is exacerbated when the asset value is less than the balance owed to the secured creditor(s), leaving no value for unsecured creditors. Lenders often step up and carve out an amount to be distributed to unsecured creditors to enable a Chapter 11 to proceed to effect a sale of the debtor’s assets free and clear of liens. Some consider this to be a price to be paid by secured creditors for the privilege of utilizing the bankruptcy court to sell their collateral. Thus, the cost of a bankruptcy can be very expensive not only to the debtor, but also to the secured lender. As a result, small and middle-market companies and their lenders have grown receptive to non-bankruptcy vehicles for the disposition of assets.

The transformation of retail is creating new and significant challenges for traditional retailers. Antony Karabus, CEO of HRC Advisory, explores those obstacles and offers solutions to help retailers survive – and even thrive — during these tumultuous times.

Michael D. Sharkey is the president of Fifth Third Business Capital. He oversees a nationwide market with regional offices across the United States and Canada. Sharkey is past president and chairman of Secured Finance Network.  He is also past president of the American Brain Tumor Association. Sharkey is a graduate of Rutgers University and J. L. Kellogg Graduate School of Management at Northwestern University. Here he discusses his long career, the outlook for the industry and Fifth Third’s acquisition of MB.

As with any industry, lending to the business aviation sector comes with its own set of risks. Shelley Svoren of First Republic Bank gives readers the insider’s tips on this industry.

Tim Anderson of Hilco Valuation Services discusses Omnichannel appraisals, which are now more common than traditional brick-and-mortar appraisals.  

Capital One executives discuss how innovation in the food & beverage sector are making it an industry lenders don’t want to ignore.

A Conway MacKenzie executive provides an overview of the construction industry, including its unique cycles. Lending into the construction sector can prove to be a lucrative decision if extensive due diligence is conducted deep into a company’s financials. There are a wide range of factors and potential pitfalls to consider, understand and navigate properly.

Money-laundering statutes, restrictive banking regulations and the stigma surrounding the cannabis industry have caused established banks and well-known independent secured lenders to stay clear, but the possibility of new regulations may ease their fears.

The Consolidated Appropriations Act, 2021, an omnibus stimulus and budget act that includes the Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (Economic Aid Act), was enacted on December 27, 2020.  The Economic Aid Act amends, extends and expands several key stimulus programs as summarized below.

Retail has taken a huge hit from COVID-19. What sectors are expected to survive, even thrive? What areas are likely to be hardest hit as the pandemic continues?

Much has been written about the significant impact of the COVID-19 pandemic on the retail sector, as policymakers encourage consumers to wear masks and remain vigilant when leaving home, e-commerce sales have soared, and supply chain concerns persist. Retailers have been challenged to maintain operations and attract current “homebody” consumers, more than 68 percent of whom planned to continue their at home habits after restrictions were lifted, according to a study by management consulting firm McKinsey & Company.¹

The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act was signed into law. While the implementing regulations are not required to be issued by the SBA until January 6, 2021, the Act does provide insight into the new and revised programs.

The purpose of this article is to provide an overview of the Act to allow borrowers and lenders to take advantage of potential liquidity enhancements. 

Last night the House and Senate approved a $900B next round of economic stimulus. The full text of the bill can be found here as well as a detailed summary. SFNet’s Advocacy Committee is reviewing the language and will hold an informative webinar as soon as practical in January. In the meantime, you may wish to consult your advisers. In addition to other broad reaching measures, the statute provides for:

• PPP extended through March 31, 2021
• CECL and TDR provisions potentially deferred until January 2022
• Additional allocations for EIDL Grants
• ERTC extended and expanded
• Rescission of emergency lending facilities, including MSLP, in their current form

This year’s YoPro Leadership Summit, held virtually August 26-27, 2020 brought together the young professionals of the secured finance industry for opportunities to hear from industry leaders, connect with peers, and to discover together how to find success in the post-COVID environment. This year's theme was "Succeeding in the New Environment."

A trend towards superpriority debt exchanges that has begun appearing in out-of-court restructurings will continue to cause worry amongst minority debt holders and will likely result in continued litigation regarding the propriety of such exchanges. Examples of such troublesome exchanges began with an exchange conducted by Serta Simmons Bedding, LLC (“Serta”) and has continued with structurally similar transactions conducted by other companies, including Boardriders, Inc. (“Boardriders”) and TMK Hawk Parent, Corp. (“TriMark”).  

Tyler Layne and Lee Sands, attorneys at Waller Law cover three recent out-of-court debt transactions that have introduced a novel way for majority lenders and borrowers to improve their position at the detriment of the non-participating/minority lenders.

The Q3 2020 Asset-Based Lending Index reflects improving confidence for lenders, fears of a double-dip downturn subsiding, and exhibits the continuing impact of PPP funds distributed in April. The U.S. economy rebounded during Q3 as lockdowns subsided, leading to a GDP surge of 33%. This growth had a clear impact on portfolio health with non-accruals, special mention, and write-offs reducing quarter over quarter.

While sentiment from both bank and non-bank lenders was more positive from Q2, the overarching theme of Q3 can be told by the continued decline in utilization for both bank and non-bank lenders alike. Bank groups set their lowest level in the five years since these figures were collected by SFNet, with 75% of banks reporting decreases. Non-bank usage reduced slightly over the previous quarter but are back to levels not seen since the first and second quarter of 2017. 

When a creditor, whose debtor filed for bankruptcy relief, sought adequate protection payments as a secured creditor, his status as a secured creditor was challenged by an Official Committee of Unsecured Creditors. Based upon filing errors he had committed, he was declared an unsecured creditor of the estate.  Official Committee of Unsecured Creditors of Rancher’s Legacy Meat Co. v. Ratliff, 616 B.R. 532 (Bankr. D. Minn. March 23, 2020).

This case points out the critical importance of familiarity with subsequent events that can make a UCC filing seriously misleading, what to do to avoid its characterization as seriously misleading, and within what time period, so as to prevent later continuation statements to be ineffective and cause the supposed secured creditor to be deemed unsecured.

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