Opinions of Counsel in Lending Transactions: Scope and Assumptions, Substantive Opinions, and Qualifications

Structuring Third-Party Opinion Letters to Lenders Which Minimize Risks to the Preparer

A live 90-minute CLE webinar with interactive Q&A


Thursday, April 25, 2019

1:00pm-2:30pm EDT, 10:00am-11:30am PDT

Early Registration Discount Deadline, Friday, March 29, 2019

or call 1-800-926-7926

This CLE webinar will provide legal practitioners with practical advice about developing a process for preparation of opinion letters and the typical language included in standard opinions requested in commercial finance transactions. The panel will review the common elements of an opinion letter, highlight the attendant risks and potential liabilities, discuss the rights, obligations and expectations of opinion givers and lenders, and outline best practices to reduce risk.

Description

In a typical commercial finance transaction, the lender requires the legal opinion of borrower’s counsel. The lender requires this opinion letter as part of its underwriting to provide support for the legal premises underlying the transaction. Although particular transactions sometimes require specialized opinions, all opinion letters in loan transactions include opinions that the borrower and other loan parties that are entities have been duly formed and are validly existing and have the requisite power and authority to perform their obligations under the transaction documents. These legal opinions also typically include opinions as to the enforceability of the loan documents.

To serve the needs of the borrower and lender, while protecting the attorney against potential liability, a well written opinion letter describes the scope and limitations on the opinions rendered, and the factual (and sometimes legal) assumptions on which the opinions are based and qualifications. The content of an opinion letter depends in significant part on the legal and factual investigations performed by the opinion giver, guided by the requirements of the parties and customary practice by attorneys in the practice area.

Listen as our authoritative panel of finance attorneys discusses how to prepare and provide opinion letters in commercial finance transactions. The panel will review the risks and potential liabilities for the opinion giver, frequent points of negotiation, and best practices to reduce risk.

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Outline

  1. Scope of the opinion
  2. Assumptions
  3. Substantive opinions
    1. Formation and valid existence
    2. Entity power
    3. Authorization, execution and delivery
    4. No required consents, authorizations or approvals
    5. Enforceabilty
    6. No conflict
    7. No litigation
  4. Qualifications and assumptions
    1. State practice
    2. Enforceability exceptions
    3. Legal and factual assumptions
    4. General exceptions
  5. Sources for opinion practice and customary practice
  6. Special issues and opinion topics

Benefits

The panel will review these and other key issues:

  • The basic opinions typically required in commercial finance transactions
  • The due diligence necessary to give certain opinions
  • The importance of customary practice, assumptions and qualifications in opinion letters
  • Opinions that are inappropriate subjects to be covered by opining counsel or which may be rendered subject to appropriate legal and factual diligence, and scope limitations and qualifications
  • An overview of opinions sometimes requested, tailored to specific types of borrowers, transaction terms or industries, including a sampling of opinion requests and responses tailored to specific state or federal law issues

Faculty

Brighton, Robert
Robert C. Brighton, Jr.

Shareholder
Becker & Poliakoff

Mr. Brighton represents U.S. and international issuers and investors, as well as underwriters and placement agents...  |  Read More

Grossman, Jerome
Jerome A. Grossman

Senior Counsel
Gresham Savage Nolan & Tilden

Mr. Grossman’s practice focuses on UCC secured transactions, real estate secured transactions and other financing...  |  Read More

Hepler, Erik
Erik W. Hepler

Partner
Kirkland & Ellis

Mr. Hepler concentrates his practice on secured debt financings. He represents borrowers and lenders in connection...  |  Read More

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