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Course Details

Course Information
  • smart_display Format

    On-Demand

  • signal_cellular_alt Difficulty Level

    Intermediate

  • work Practice Area

    Real Property - Finance

Date & Time
  • event Date

    Tuesday, September 17, 2024

  • schedule Time

    1:00 p.m. ET./10:00 a.m. PT

  • timer Program Length

    90 minutes

Credit Information

  • This 90-minute webinar is eligible in most states for 1.5 CLE credits.

$347.00
CLE
ALL

This CLE course will provide practitioners with practical advice regarding the use of non-consolidation legal opinions in commercial real estate financings. The panel will review the key elements of these opinion letters, highlight the attendant risks and potential liabilities, discuss the rights, obligations, and expectations of opinion givers and lenders, and outline best practices to reduce risks and avoid common pitfalls.

Faculty

Jason W. Harbour
Partner
Hunton Andrews Kurth LLP

Mr. Harbour regularly represents all major constituencies in formal bankruptcy proceedings and in out-of-court restructurings. His experience includes representing corporate debtors, secured and unsecured creditors, parties to safe harbored financial contracts, indenture and securitization trustees, lessors, and other parties in interest in Chapter 7, Chapter 11 and Chapter 15 bankruptcies, and in workouts. Mr. Harbour’s practice also focuses on providing insolvency-related structuring advice and legal opinions in connection with complex transactions for asset based-lending, asset securitizations, safe harbored financial contracts, conduits, derivatives and other financial hedges, project finance, REITS, REMICS, real estate finance and other capital markets transactions.

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Kathryn M. Borgeson
Partner
Cadwalader Wickersham & Taft LLP, London

Ms. Borgeson’s practice is concentrated in the areas of bankruptcy and structured finance. She provides advice to lenders in connection with the origination and securitization of complex bankruptcy-remote commercial mortgage loans. She also advises financial institutions on the safe harbor provisions for financial contracts under multiple insolvency regimes. In addition to her transactional work, Ms. Borgeson has significant bankruptcy litigation experience, having represented creditors, lenders and debtors in bankruptcy proceedings in the financial, automotive and energy industries.

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Description

Commercial real estate lenders usually require that the owner/borrower of commercial real estate is a special purpose entity (SPE) adequately insulated from related parties' insolvency or bankruptcy. The goal is for the SPE entity to be "bankruptcy remote."

In larger structured commercial real estate financings (principal balance of $20 million or more), lenders and rating agencies will typically require the borrower to provide a non-consolidation opinion at closing. A non-consolidation opinion issued by counsel for the borrower provides assurance that the borrower's assets and the collateral offered to secure the mortgage will not be subject to substantive consolidation with certain affiliated parties in the event of a bankruptcy filing.

When issuing a non-consolidation opinion, counsel must review all relevant transaction and organization documents of the borrower. Counsel for both borrowers and lenders must be aware of the potential issues and limitations relating to non-consolidation opinions to adequately advise their clients.

Listen as our expert panel discusses the role of non-consolidation opinions in commercial real estate finance, the critical elements of these opinions, and best practices for reviewing and issuing non-consolidation opinions.

Outline

  1. Background: law governing substantive consolidation in bankruptcy
  2. The role of non-consolidation opinion letters in commercial real estate finance
  3. How non-consolidation opinions differ from other customary legal opinions in real estate finance
  4. Benefits of non-consolidation opinion letters
  5. Key elements of a non-consolidation opinion
  6. Potential issues when issuing non-consolidation opinions in commercial real estate financings
  7. Best practices and tips for issuing a non-consolidation legal opinion and mitigating risks to the preparer

Benefits

The panel will review these and other key considerations:

  • What is the bankruptcy concept of substantive consolidation and how does this equitable remedy relate to commercial real estate financings?
  • When are non-consolidation opinion letters typically required in the commercial real estate finance context?
  • What are the critical elements of non-consolidation opinions?
  • What are the potential issues when drafting non-consolidation opinions and how can these issues be avoided?