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Opinions in Structured Finance and Securitized Lending Transactions: Bankruptcy Remoteness, Legal Separateness

Assumptions, Qualifications, Limitations, and Use of Letters; Reducing Risks for Opinion Givers

Recording of a 90-minute premium CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, September 1, 2022

Recorded event now available

or call 1-800-926-7926

This CLE course will provide a review of the use of opinion letters in structured finance transactions, explain various elements of the opinions, and outline the types of assumptions and qualifications the opinion giver should utilize to minimize risks.


The fundamental concept for structured finance is the isolation of assets in a "bankruptcy remote" special purpose entity (SPE) and the separateness of the SPE from its affiliates, which reduces the risk of bankruptcy and helps shield an SPE's assets against an affiliate's creditors. These transactions frequently use LLCs and statutory trusts formed in Delaware.

Two structuring techniques help achieve legal separation and bankruptcy remoteness in SPEs: the inclusion of bankruptcy remoteness and separateness provisions and strict limitations on the business purpose of an SPE in its organizational documents. Lenders, rating agencies, trustees, issuers, and servicers generally require specialized opinions of counsel in structured finance transactions. Those opinions address the legal separateness of the SPE from affiliated entities, the legal isolation of the SPE's assets from the creditors of affiliated entities, and the likelihood that such provisions will be respected by a bankruptcy court and enforced by state courts in the SPE's jurisdiction of formation.

A non-consolidation opinion addresses whether the SPE has been appropriately structured and meets established case law and other criteria for the enforcement of bankruptcy remoteness and separateness provisions. This opinion gives the recipient assurance that the risk of bankruptcy and substantive consolidation have been minimized to the greatest extent possible, and the companion state law opinions evaluate the enforceability of those protections.

Listen as our authoritative panel of practitioners discusses drafting opinions of counsel in structured finance transactions with particular emphasis on rendering non-consolidation opinions, and best practices for the opinion giver to minimize risks.



  1. Delaware corporate and SPE opinions
  2. Authority to file for bankruptcy
  3. Bankruptcy remoteness
  4. Drafting considerations in rendering substantive consolidation opinions


The panel will review these and other critical issues:

  • How should the opinion giver address the issue of bankruptcy remoteness: What are the limitations, assumptions, and qualifications that the opinion giver should consider? What should you be looking for in the SPE's organizational documents?
  • What issues should the opinion-giver address in a non-consolidation opinion?
  • What are the bankruptcy risks that parties providing financing to a structured finance SPE can minimize?
  • What should state law opinions address?


Flores, Francisco
Francisco Flores

Partner, Co-Chair Structured Finance Practice
Winston & Strawn

Mr. Flores focuses his practice on negotiating, structuring and documenting corporate transactions and related...  |  Read More

Harbour, Jason
Jason W. Harbour

Hunton Andrews Kurth

Mr. Harbour regularly represents all major constituencies in formal bankruptcy proceedings and in out-of-court...  |  Read More

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