The issue of liquidated damages often confronts lenders seeking to recover for their losses when a borrower defaults or chooses to exit a facility prior to its contracted maturity date.  Liquidated damages provisions are enforceable, but only at an amount that is reasonable in light of the anticipated or actual loss caused by the breach and the difficulties of proof of loss in such circumstances.

Courts have considered the reasonableness and applicability of these provisions in various contexts and in all kinds of courts.  A very recent decision from the Bankruptcy Court for the Southern District of New York is one of interest to readers of this publication.  The case involves the lease of several aircraft to a commercial airline.

Lessor purchased seven aircraft that were then leased to a commercial airline.  Shortly after the airline filed its Chapter 11 it rejected the seven aircraft leases and surrendered them back to the Lessor.  The Lessor filed a proof of claim for its rejection damages which proof of claim included liquidated damages as provided for in the leases.  The debtor airline filed objections to the proof of claim and, on February 14, 2019 (Valentine’s Day), the Court issued its decision on the motion for summary judgment deciding the issues.

Because this involved a leasing transaction Article 2A of the UCC came into play.  Even so, the controlling section of Article 2A is consistent with general law on the topic of liquidated damages.  Section 504 of Article 2A provides:

Damages payable by either party for default, or any other act or omission, including indemnity for loss or diminution of anticipated tax benefits or loss or damage to lessor’s residual interest, may be liquidated in the lease agreement but only at an amount or by a formula that is reasonable in light of the then anticipated harm caused by the default or other act or omission.

The Court characterized the liquidated damages provision as follows:

The Lessee then has the choice of liquidated damages as measured in three different ways which make reference to various calculations of rent and stipulated loss value:

(i) Stipulated loss value minus present value of the fair market rental value for the remainder of the Amended Lease term;

(ii) Stipulated loss value minus the fair market sales value of the Aircraft; or

(iii) Difference between present value of rent reserved for the remainder of the Amended Lease term and the fair market rental value for the remainder of the term

The UCC, however, does not define reasonableness and as you would expect, the parties disagreed leaving it to the Court to decide.

Prior to Article 2A’s enactment, liquidated damages clauses in leases were governed by the common law. The common law provided that to be enforceable a liquidated damages clause must specify a liquidated amount which is reasonable in light of the anticipated probable harm, and that actual damages must be difficult to ascertain as of the time the parties entered into the contract.

Courts have upheld liquidated damage provisions so long as the amount liquidated bears a reasonable proportion to the probable loss and the amount of the actual loss is incapable or difficult of precise estimation.  If, however, the amount liquidated is plainly disproportionate to the probable loss, the provision will be deemed an unenforceable penalty

Under the Common Law a three part test was applied to consider reasonableness:

  1. Reasonableness must be judged at the time of contract formation;
  2. Due consideration must be given to the nature of the contract and the attendant circumstances; and
  3. The liquidated damages clause cannot be a penalty.

It is interesting to note that the Official Comments to Article 2A discuss eliminating the second and third prongs to this test.  Notwithstanding, the court turned to the common law for guidance as well as how other courts in similar situations treated liquidated damages since the enactment of Article 2A.

Courts have identified certain formulations as inherently unreasonable. For example, static liquidation values (“SLVs”) (i.e., where the SLV does not decline over the course of the lease term and thus fails to recognize depreciation and the payment of rent over time) have been repeatedly rejected.

The Court was clearly concerned with the propriety of the liquidated damages provision, saying:

At the center of the parties’ dispute is the fact that the liquidated damages provisions here allow for the unconditional transfer of residual value risk, or market risk, only upon default, without a cognizable connection to any anticipated harm caused by the default itself. …the question is “whether the parties in a true finance lease transaction can allocate risk so that the financing is treated as a debt obligation until the end date of the Leases, and then at the end of the term the Lessor Parties becoming the true economic owners.” …. Applying the applicable legal principles above to the SLVs in the Amended Leases, the Court concludes that the parties may not allocate risk where—as here—doing so violates the reasonableness requirement of Article 2A, Section 504.

The Court found that this approach transferred all market risk, or residual value, including any risk of idiosyncratic depreciation or damage to a particular aircraft. This provision granted Lessor the ability to retake possession of the aircraft and recover not just a dollar value equal to scheduled rental payments, but also any deficit in the value of the aircraft that fell short of Lessor’s desired total gross return. The SLVs were calculated to achieve a four percent margin above the original purchase price regardless of where default may have left the parties.  The Court noted:

The unreasonableness of the liquidated damages clauses here per Article 2A is confirmed by a comparison of the SLVs with the dollar value of the Debtors’ remaining rent obligations. Using the rent obligations set forth in the [o]riginal [l]eases, the numbers show a stark difference between the rent obligations that remain unpaid here—near the end of the lease term—as compared with the corresponding SLVs.

The Court itemized damage calculations that appeared to be out of line with the actual loss incurred by the Lessor.  One example showed an SLV of $ 6,358,502.68 on March 23, 2019, the last month of the lease term, when only $ 115,626.08 remained in basic rent obligations.

The Court concluded that the liquidated damages clauses operated as a penalty contrary to the spirit of a traditional liquidated damages provision and dismissed the Lessor’s claims.

Bank and ABL early termination provisions typically provide for a declining percentage of the maximum loan amount.  Those provisions consistently are upheld as being reasonable.  The takeaway from this decision, however, is be cautious in your liquidated damages provisions so as to assure that you obtain the benefit of your bargain and not imposing a penalty.

In Re: Republic Airways Holdings Inc.,  2019 WL 630336, (Bankr. NY 2019)


A New Year’s Eve (yes, December 31) decision came down from the Court of Appeals of Texas that is worthy of your consideration and a few minutes of your time.  The case concerns whether the secured creditor waived its priority rights to collateral by failing to declare a default or take an affirmative action to foreclose on collateral prior to the judgment-lien-creditor foreclosing on the same collateral through garnishment.

In October, 2011, Legacy Bank entered into a secured revolving line of credit facility with Canyon Drilling Company. In December, 2012, two trade creditors obtained judgments against Canyon and soon thereafter filed a writ of garnishment. Upon learning of the garnishment, Legacy appeared and intervened asserting that it held a properly perfected security interest in the garnishees’ accounts due and owing to Canyon and that its interests were superior to those of the judgment creditors.

Legacy subsequently provided a formal notice of default to Canyon on July 19, 2013. Despite Canyon’s default, Legacy continued to advance funds to Canyon hoping for a successful turnaround. However, Legacy ultimately exercised its foreclosure rights against Canyon after the note became due in April, 2014.

At trial the judgment creditors argued that Legacy waived its security interest by (1) allowing Canyon to remain in default for several years without making demand, accelerating the debt, liquidating collateral, or otherwise enforcing its security interest; (2) not demanding payment until a year after the judgment creditors obtained their judgment and more than six months after Canyon filed the writ of garnishment; and (3) making a “nominal, halfhearted demand on Canyon solely to save face” before loaning Canyon more than $2 million in additional funds. In advancing this argument the judgment creditors asserted that they are not bound by the terms of the contracts executed by Legacy and Canyon to define the terms by which Legacy could waive its security interest. Instead they asserted that they were entitled to establish a waiver under equitable principles.

The jury agreed and awarded judgment in favor of the judgment creditors.  Legacy appealed.

This was a case of first impression in Texas and accordingly, the Texas Court of Appeals turned to a recent decision from Oregon in a similar situation.  The Oregon Court, also lacking precedent in its state, turned to a group of decisions from the Northern District of Illinois.

The Texas Court stated:

The Oregon court determined that, taken together, the cases from the Northern District of Illinois impose three preconditions on a secured creditor attempting to enforce its interest in garnished collateral funds under the waiver theory: (1) a default has to occur; (2) the secured party must declare a default; and (3) the secured party must take an “affirmative step” to exercise its rights (such as acceleration). **** If any of the preconditions remain unsatisfied as of the time the lien creditor garnishes funds, “the secured party is deemed to have constructively waived its priority vis-à-vis the lien creditor, and, thus, cannot trace and recapture its collateral from the garnishor.” ****. [This] waiver theory has been characterized as a “use-it-or-lose-it” approach. *** [T]his characterization of the waiver approach is accurate.

Conversely, under the trace and recapture approach, “before and until a secured party declares default and acts on its right to collateral, a garnishor is entitled to take the collateral; however, in doing so, the garnishor takes traceable collateral subject to the secured party’s interest.” ***. “Thus, unlike the waiver approach, the secured party maintains its security interest, despite a period of inaction after default and before a judgment creditor takes the funds.” *** In other words, a security interest under the trace and recapture approach is not lost if it is not used.

The Court also looked to the UCC for guidance noting that the official comments to Section 9-610 expressly support the trace and recapture approach.  Comment No. 5 to Section 9-610 provides that “the disposition by a junior [creditor does] not cut off a senior’s security interest.” Rather, “[t]he holder of a senior security interest is entitled, by virtue of its priority, to take possession of collateral from the junior secured party and conduct its own disposition.”

The Court reversed the trial court concluding:

Legacy’s security interest in the collateral could not be waived under equitable principles or by operation of law by not being enforced prior to the garnishment. Instead, the UCC affords Legacy the opportunity to trace and recapture its prior perfected security interest in the garnished funds even though it did not exercise those rights prior to the garnishment. That is not to say that it was impossible for Legacy to waive its security interest because, under Texas law, waiver is a valid defense to an action to enforce a security interest

OK.  So do we think that this is a win for the good guys or did they just dodge the bullet?

The concern I have with this case arises out of Legacy’s continued advances – some $2 million over a period of several years – following the judgment creditors obtaining their judgments and having commenced enforcement proceedings.  Although this conduct may now be sanctioned in Texas, we cannot suggest that secured lenders be cavalier in their secured position when confronted with the execution of a judgment against their borrowers-debtors.

Legacy Bank, v. Fab Tech Drilling Equipment, Inc. and Impulse Electric, Ltd., 2018 WL 6928971 (Texas, 2018)

Factoring: Recovering on Accounts Not Purchased

When I first started representing factors, the Client sold all of its accounts to the Factor although all accounts were not eligible for advances.  Back then, factoring was on a maturity basis and although advances were made at the time the account was assigned, the advance was made as a loan which was repaid when the purchase price was paid on the average maturity date.  Factors received a factoring commission (discount) plus interest on the advances made through the maturity date when the Factor paid the purchase price.

Also, the Factor purchased all of the Client’s accounts – even those that were not credit approved.  The Factor might have even made advances against non-credit approved accounts.  The denial of credit approval might have had nothing to do with the credit worthiness of the account debtor -it could have been because the Factor had already taken on the maximum risk it was willing to take for that account debtor.  Or, the Factor might not have been willing to take any risk for that account debtor.  In those situations, the Factor would likely not even advance against the non-credit approved account unless it felt the Client was strong enough to absorb the loss.

In modern factoring, the Factor often purchases accounts and pays for them immediately, maintaining a reserve for potential losses, which reserves might be released from time to time, especially after receipt of payment on the accounts purchased.  Often, in modern factoring, factors do not purchase all of the Client’s accounts.  In those situations, factors typically take a security interest in other assets including the accounts not purchased.  This is to protect the factor from losses when it purchases accounts with recourse.

A recent case from the Superior Court of Connecticut needs to be considered as it may cause concern to the factoring industry.

Factor King entered into a factoring agreement with AEG of New England, LLC and send notification letters to account debtors including the Housing Authority for the City of Meriden, CT (the “Housing Authority”).

The factoring agreement also granted Factor King a “first priority security interest in the Collateral.” Collateral was defined as “all [AEG]’s now owned and hereafter acquired Accounts, Chattel Paper, Inventory, Equipment, Instruments, Investment Property, Documents, Letter of Credit Rights, Commercial Tort claims, and General Intangibles.”

Thereafter, the Housing Authority made a payment in the amount of $2,217,750 to AEG (not Factor King) for work performed for the Housing Authority.  As you can imagine, Factor King demanded payment from the Housing Authority and eventually brought an action to recover the wrongful payment.

Factor King argued that when an account debtor receives notice that an amount due on an account has been assigned and that payment is to be made to the assignee, it cannot pay the assignor to discharge the debt and that if the account debtor does pay the assignor, it remains liable to the assignee for the same amount . See UCC § 9-406(a).  Factor King further asserted that it had a claim for an account stated because there was a fixed amount owed by the Housing Authority to AEG, AEG had assigned all of its accounts to Factor King, and the Housing Authority received notice of this assignment.

The Court, however, noted that the flaw in Factor King’s argument was that it had provided no evidence that the amount the Housing Authority paid to AEG was on invoices that Factor King had actually purchased from AEG pursuant to the factoring agreement.

The Court noted:

The factoring agreement demonstrates that [Factor King] did not purchase any accounts receivable simply by entering into the agreement. Pursuant to the agreement, AEG would offer to sell certain accounts to [Factor King], accounts that would be listed on a schedule, and [Factor King] could decide which accounts to purchase. Indeed, the factoring agreement provides that [Factor King] may decline to purchase an account, and appears to contemplate the purchase of only “Eligible Accounts,” defined as “an Account that is acceptable for purchase as determined by [Factor King] in the exercise of its reasonable sole credit or business judgment.”

The Court also noted that

Without exercising its option to purchase an invoice offered for sale by AEG, there would be no transfer of the legal right to receive payment on those invoices.

[Factor King] has submitted no evidence that it was assigned a specific legal right to recover on the specific invoices related to the alleged misdirected payment. *** Accordingly, [Factor King] is not entitled to summary judgment on its account stated claim.

Pleading a goods sold and delivered or services rendered complaint is not a difficult task but certain things must be kept in mind in order to better assure recovery.  Other courts have recently held that a secured party does not have an independent cause of action to recover on collateral pledged.  Thus, the drafter needs to assure that the complaint demonstrates the secured party’s right to recover and how that right was derived.

It is unclear from the published decision whether Factor King asserted its rights as a secured party (as opposed to a purchase) or whether the Court just got it wrong.

TAKE AWAY:  The “old” method of purchasing all accounts but only advancing against eligible accounts should be considered in your factoring agreements.  Also, when taking a security interest in all assets and placing account debtors on notice of the factor’s rights to the accounts and their proceeds, the factor is acting as a secured party and not as an owner of the accounts and needs to enforce its security interest in order to collect those accounts as a secured party.

 Factor King, LLC v. Housing Authority for the City of Meriden et al.


Forum Shopping. An Important Tactic.

George Orwell wrote in Animal Farm, “All animals are equal, but some animals are more equal than others.”  W.C. Fields created a film (using one of his favorite statements) “Never Give a Sucker an Even Break.”  Each of these is an important lesson in contemporary bankruptcy and litigation practice.

Although judges are subject to great scrutiny before being accepted for their positions, not all judges are created equal, nor are all courts created equal.  There are trends and local precedential rulings that may make some courts more favorable than others.  Similarly, there are some benches that may be more or less desirable for a particular matter.

Some judges are quick in making decisions while others delay.  Some are busy yet remain sensitive to the exigencies of the matters before them, while others (as in any other trade) are more concerned with their Friday morning golf game than the emergency motion filed late on Thursday.

Some have an incredible insight to the issues before them while others, despite superior academic credentials, just can’t see the forest from the trees.

The fact is that your legal matter is important and the last thing you want is to be stuck with a judge that has a preconceived prejudice against you or your client or your legal issue.

Nearly thirty years ago, when Eastern Air Lines was preparing to file its Chapter 11 proceedings it wanted to file in New York, a favorable bankruptcy court for the issues that Eastern envisioned would be confronted.  In order to qualify to file in New York, Eastern needed an affiliated debtor that could file in the Southern District of New York.  Ionosphere Clubs, Inc., the airline’s first class lounge was located in New York and became the lead debtor in a complex case, which enabled Eastern to file in New York where it felt it would be treated better that it might be treated elsewhere.

Things have not changed since the Eastern Airlines case.

The recent Chapter 11 filings by Sears are an excellent example of the importance of forum shopping.  Sears, headquartered in Illinois, along with some 50 affiliates organized under the laws of Delaware, Michigan, Florida, Illinois, Washington, Texas, Pennsylvania and New York selected the Southern District of New York to file its cases.  And not only did they file in the SDNY, where there are three sub-jurisdictions (Manhattan, Westchester and Poughkeepsie) they filed in Westchester County, where there is only one bankruptcy judge, thus assuring the particular judge that will preside over their cases.

Whether you are a lender about to provide accommodations to a soon to be debtor-in-possession or any other party about to commence a lawsuit, it is important to know and understand the court to which you are about to subject yourself.  Should the action be commenced in state or federal court?  Should it be brought in another available jurisdiction?  Is arbitration an available method to resolve the dispute?  Each available option should be considered.

While recently researching for an article I was asked to write on merchant cash advance litigations.  I noticed that MCAs are doing better in some courts than in others. So of course, they are bringing their actions in the courts where they are treated better.

While this blog is traditionally devoted to cases in being, this posting is more generic and intended to advise lenders to be careful before committing to an unknown jurisdiction where your worst nightmares may be experienced.

Litigation remains a chess game where the strategy must be carefully considered before obligating yourself to a forum.

The Guaranty: The Document of Last Resort

Once upon a time (before the time of computer-based loan documents) asset-based lenders utilized a pre-printed 4-page Security Agreement (Accounts Receivable) and similar documents to immortalize their agreements with their borrowers.  These agreements were printed on a single 11×17 piece of paper with a cover page (titled Security Agreement (Accounts Receivable) and identification of the parties), 2 pages of terms and conditions (in 20 or so paragraphs) and page 4 – the critical last page after the fold, the Guaranty.

These pre-word processing agreements were rarely negotiated except for a rare change typed in the margin by iteration with an asterisk to note the place of the change.

Life was simple and, unlike today, lawyers were not making a living negotiating ABL loan agreements.

Page 4 remained the critical document, conveniently hidden on the last page and containing critical waivers that protected the lender should the borrower or its principal do the wrong thing.

As a practitioner in the twenty-first century I enjoy making a living when borrowers attempt to negotiate the most mundane terms of a Loan and Security Agreement.  I am skilled at finding a middle ground protecting my lending clients while accommodating a language issue raised by borrower’s counsel who is demonstrating his worth to his borrower client.

But when it comes to negotiating terms of a Guaranty, I am reminded of my mentor when I was cutting my teeth as an ABL lawyer, who said to a borrower trying to negotiate a guaranty: “Do you want to borrow my money? Are you going to pay it back? Then just sign the agreement.”

A recent decision out of the Superior Court of Pennsylvania, is indicative of the power of the personal guaranty.

Borrower obtained a loan from Lender, which was secured by a note giving Lender a lien and security interest in Borrower’s asset (i.e., the collateral for the loan). In pertinent part, the Lender’s note provided that Borrower would pay the outstanding balance and interest by a certain date or a default would occur under the note.

The Borrower’s principal gave a guaranty, which provided (in part):

For good and valuable consideration, Guarantor absolutely and unconditionally guarantees full and punctual payment and satisfaction of Guarantor’s Share of the Indebtedness of Borrower to Lender, and the performance and discharge of all Borrower’s obligations under the Note and the Related Documents. This is a guaranty of payment and performance and not of collection, so Lender can enforce this Guaranty against Guarantor even when Lender has not exhausted Lenders remedies against anyone else obligated to pay the Indebtedness or against any collateral securing the Indebtedness, this Guaranty or any other guaranty of the Indebtedness. Guarantor will make any payments to Lender or its order, on demand, in legal tender of the United States of America, in same-day funds, without set-off or deduction or counterclaim, and will otherwise perform Borrowers obligations under the Note and Related Documents.

The guaranty also specifically stated that the:

 Guarantor also waives any and all rights or defenses based on suretyship or impairment of collateral…. [and the guarantor also] waives and agrees not to assert or claim at any time any deductions to the amount guaranteed under this Guaranty for any claim of setoff, counterclaim, counter demand, recoupment or similar right, whether such claim, demand or right may be asserted by the Borrower, the Guarantor, or both

These very standard guaranty provisions should never be overlooked or negotiated away.

We will save you the gory details of this case other than to point out that the guarantors claimed that the guaranty and the related agreements were against public policy.  The Court ruled:

Public policy is more than a vague goal which may be used to circumvent the plain meaning of a statute. …

Public policy is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interest. As the term “public policy” is vague, there must be found definite indications in the law of the sovereignty to justify the invalidation of a contract as contrary to that policy. Only dominant public policy would justify such action. In the absence of a plain indication of that policy through long governmental practice or statutory enactments, or of violations of obvious ethical or moral standards, the Court should not assume to declare contracts contrary to public policy. The courts must be content to await legislative action.

It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in so declaring. There must be a positive, well-defined, universal public sentiment, deeply integrated in the customs and beliefs of the people and in their conviction of what is just and right and in the interests of the public weal. Only in the clearest cases, therefore, may a court make an alleged public policy the basis of judicial decision.

The court declined to follow the guarantors’ suggestion recognizing that UCC section 3-605 explicitly permits a separate agreement of a party to waive the defense of impairment of collateral.

Appellants signed separate agreements—the guaranties—explicitly waiving “any and all rights or defenses based on suretyship or impairment of collateral….. [Guarantors] have not argued they are not parties. Accordingly, after construing the plain language of the statute, as we must, …because [Guarantors] signed separate agreements providing for waiver, section 3605 does not permit [Guarantors] recourse. [citing UCC -3605(i)(2)].

[Guarantors] however, argue that their waiver—notwithstanding the language of section 3605—violates the … UCC’s anti-waiver provisions. ….[Guarantors], however, have not presented any argument addressing the present version of Article 9 and any pertinent anti-waiver provisions. Absent any such argument, it would be inappropriate for us to adopt the[ir] reasoning …

Bottom line is that the guaranties were upheld and the Lender was entitled to recovery.

Always keep in mind the value of a personal guaranty.  Whenever a borrower protests the terms of a guaranty I am reminded of the wisdom of my client-mentors when I was cutting my teeth as an ABL lawyer, “Do you want to borrow my money? Are you going to pay it back? Then just sign the agreement.”

In these times of extraordinary competition and the need to employ funds are you willing to ignore that sound advice?



  1. Michael Hartley and S. Kent Hartley v. Stephen J. Hynes, Douglas J. Hynes, Leslie A. Hynes and Midlantic Erectors, Inc. (October 19, 2018) 2018 WL 5093975