Mark N. Berman
Partner

Practice Areas

Experience

Over his more-than-33-year career, Mark Berman has represented virtually every kind of interest that might be involved with a financially troubled business or individual.

Recent representative engagements include:

Financial Restructuring & Bankruptcy

• Cynergy Data LLC (debtors’ counsel)
• Lyondell Chemical Company (member of senior secured loan syndicate and member of ad hoc group of senior secured lenders)
• Lehman Brothers Holdings, Inc. (counterparties to financial contracts)
• New Century Financial Corp. (trustee of securitization trusts)
• Dura Automotive Systems, Inc. (collateral trustee for second lien lenders)
• Out-of-court restructuring of an agricultural product business on behalf of agent for secured bank syndicate
• Out-of-court workout and sale of a publishing company on behalf of secured lender
• The Colad Group, Inc. (trustee for industrial revenue bond financing)
• Divine, Inc. (significant creditor, landlord and equity holder)

Leveraged Finance

• Negotiation of intercreditor agreements and subordination agreements in second lien and mezzanine financings

Public Finance

• Financing of new Yankee Stadium (New York Yankees)
• Financing of Citi Field (New York Mets)
• Refinancing of Gillette Stadium (New England Patriots)
• Financing of military housing developments
• Financing of New Meadowlands Stadium (New York Jets and New York Giants)
• Financing of regional mall expansion
• Financing of Target Field (Minnesota Twins)
• Acquisition financing for Chicago Cubs and Wrigley Field
• Financing of Brooklyn Arena (New Jersey Nets)
• Jefferson County, AL (one of three bond insurers for defaulted sewer warrants)

Structured Finance

• True sale opinions in sale of various assets including accounts receivable, government contract payments, mortgage loans and accounts, alternative energy investments
• Non-consolidation opinions in various financings

Publications

• “Handbook on Second Lien Loans & Intercreditor Agreements,” American Bankruptcy Institute, 2009 (coauthor).
• “Bankruptcy Sales Prior to Plan Confirmation Do Not Qualify for Tax Exemption,” Bloomberg Law Reports, Vol. 2, No. 26, June 30, 2008.
• “The Dura Decision: Junior Creditors Again Strike Out Interpreting the Elusive X-Clause,” American Bankruptcy Institute Journal, March 2008 (coauthor).
• “District Court Provides Further Clarification That Equitable Subordination and Disallowance Risk Will Not Pass to Buyer Who Acquires Claims in a Good Faith Open Market Purchase,” Bloomberg Law Reports on Bankruptcy Law, Vol 1, No 21, October 15, 2007.
• “District Court Decides that Equitable Subordination Runs with Claimant Not with Claim,” Bloomberg Law Reports on Bankruptcy Law, Vol 1, No 17, September 17, 2007, republished in Vol. 1, No. 32, December 31, 2007.
• “Hedge Funds Meet the Bankruptcy Process,” Pratt’s Journal of Bankruptcy Law, Vol 2, Number 3, July/August 2007.
• “The Tale of Northwest Airlines: Will the Sunlight of Disclosure Chill Hedge Funds?” American Bankruptcy Institute Journal, May 2007.
• “Hedge Funds: Lessons Learned from the Radnor Decision,” American Bankruptcy Institute Journal, February 2007.
• “Second-Lien Financing: Part V: Who Gets What?” American Bankruptcy Institute Journal, July/August 2006.
• “Second-Lien Financings: Part IV: Good, Bad and Ugly,” American Bankruptcy Institute Journal, June 2006.
• “Second-Lien Financings Part III: Anecdotes—the Good, the Bad and the Ugly: Atkins—the Good,” American Bankruptcy Institute Journal, May 2006.
• “Second-Lien Financings, Part II: Anecdotes and Speculation—the Good, the Bad and the Ugly,” American Bankruptcy Institute Journal, March 2006.
• “Second-Lien Financings: Part I: Enforcement of Intercreditor Agreements in Bankruptcy— More Questions than Answers,” American Bankruptcy Institute Journal, February 2006.
• “Second Lien Financings and the Intercreditor Agreement,” Credit Investment News, September 2005.
• “Protecting a Lessee’s Section 365(h) Right to Possession after Rejection From a Sale of the Underlying Real Estate Free and Clear of Interests,” ABI World, June 2005.
• “Not So Fast! Delaware Court Reigns in Creditor Suits Against Ds & Os,” American Bankruptcy Institute Journal, May 2005.
• “Buying and Selling a Distressed Business,” chapter in Buying and Selling a Privately Owned Business, Massachusetts Continuing Legal Education, 2005.
• “Plain Meaning and the Assumption (or Not) of a License of Copyrighted Software,” ABI World, May 2004.
• “Top Ten Things to Know If You Are an Investor in or Director of a Failing Business,” February 2004.
• “LLC Member Interest and Bankruptcy: Courts Begin to Sort Things Out,” ABI World, November 2003.

Admissions

Mark is admitted to practice in the Commonwealth of Massachusetts, the State of New York, the United States District Court for the District of Massachusetts, the Southern District and Eastern districts of New York, the United States Court of Appeals for the First Circuit, and the Supreme Court for the United States of America.

Education

Boston College Law School, J.D.
Northwestern University, B.A.

Affiliations

Mark is an active member of the Boston Bar Association, where he served as chairman of the Business Law Section from 1995 to 1997; chairman of the Bankruptcy Law Committee from 1990-1992; and a member of the Legislation Committee from 1999 to 2000; and where he is currently a member of the Bankruptcy Law Section’s Steering Committee. Mark is also a member of the American Bar Association, the Loan Syndication & Trading Association, and the Turnaround Management Association. He is a Fellow of the American Bar Foundation and the Massachusetts Bar Foundation, and is active in the American Bankruptcy Institute, where he is a member of the ABI World Editorial Board and was co-chair of the 2003, 2004, and 2005 Northeast Bankruptcy Conferences. He has published recent articles in the American Bankruptcy Institute Journal, and made presentations at the American Bankruptcy Institute’s Winter Leadership Conference in 2005 and 2006 on the subject of intercreditor agreements used in second lien financings. He is currently a Joshua P. Guberman Fellow and Lecturer at Brandies University in Waltham, MA.

Mark was appointed by the Supreme Judicial Court of the Commonwealth of Massachusetts to serve a five-year term as a member of the Client Security Board from 1997 to 2002, where he also served as vice chairman, secretary, and treasurer.

Mark has taught courses on buliness Law and credit law for the New England Chapter of the National Credit Institute (an affiliate of the National Association of Credit Management) and currently teaches an online course in those subjects for the National Association of Credit Management. He regularly writes about and speaks on bankruptcy and commercial law subjects in various parts of the country.

Awards

Mark is a fellow of the American College of Bankruptcy and a member of its First Circuit Council. For the nineteenth year, Mark was selected by his peers for inclusion in The Best Lawyers in America 2009 (copyright 2009 by Woodward/White, Inc., of Aiken, SC). Inclusion in Best Lawyers is based on a peer-review survey. He is also listed in Who’s Who in American Law; Who’s Who in America; Who’s Who in the World (Marquis Who’s Who), and Who’s Who Legal USA: Insolvency & Restructuring 2008, and is recognized for exceptional standing in the legal community in Chambers USA: America’s Leading Lawyers for Business 2010 for bankruptcy and restructuring work. Mark has been recognized in Chambers USA in previous years. Mark is also listed by Boston Magazine as a Massachusetts “Super-Lawyer” and as a New England “Super-Lawyer.” Mark is recognized by Corporate Counsel as one of the “Top Lawyers” in 2009.