In the Matter of: DENVER MERCHANDISE MART, INC., Debtor.BANK OF NEW YORK MELLON, as successor to Bank of New York Global Capital Access One, Inc., Commercial Mortgage Bonds, Series 3, care of Berkadia Commercial Mortgage L.L.C., Appellant, v. GC MERCHANDISE MART, L.L.C., DENVER MERCHANDISE MART, INC., and HAWTHORN LAKES ASSOCIATES, LTD., Appellees., 740 F.3d 1052

Summary

ISSUE: Whether or not the debtor became liable for the $1.8 prepayment consideration upon the pre-bankruptcy acceleration of the promissory note. HOLDINGS: [1]-There were several conditions that might have triggered the obligation to pay the prepayment consideration, but none required the debtor to pay the prepayment consideration absent an actual prepayment, which did not occur; [2]-The plain language of the contract did not require the payment of the prepayment consideration in the event of mere acceleration; [3]-The plain language of the contract plainly provided that no prepayment consideration was owed unless there was an actual prepayment, whether voluntary or involuntary; [4]-The debtor did not become became liable for the prepayment consideration upon the pre-bankruptcy acceleration of the promissory note.