Structuring Forbearance Agreements and Strengthening Lender Collateral Position

Drafting Waivers of Existing Default, Borrower Reps and Warranties, Confirmation of Liens, Ratification of Obligations

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


Conducted on Thursday, August 10, 2017
Recorded event now available


This CLE webinar will prepare counsel to craft effective forbearance agreements that protect lender interests and minimize lender liability and risks in the event of the borrower’s bankruptcy. The program will also address steps lenders can take during the workout process to correct deficiencies in existing terms, documentation or collateral.

Description

Well-structured forbearance agreements or waivers are essential to protecting a lender’s position. Counsel representing lenders must anticipate and successfully navigate obstacles during the negotiation process and avoid pitfalls that can result in lender liability challenges by borrowers.

As forbearance agreements may then be followed by the borrower’s bankruptcy, counsel must also be mindful of the bankruptcy considerations when drafting forbearance agreements. Waivers of the automatic stay and stipulations supporting relief in a bankruptcy filing can be critical.

A loan workout provides a lender the chance to strengthen its position and minimize risk due to the borrower’s bankruptcy or a foreclosure sale. Waiver and forbearance agreements give the lender an opportunity to correct deficiencies in existing terms, documentation or collateral.

Listen as our authoritative panel of attorneys discusses best practices for crafting forbearance and waiver agreements that minimize lender risks and liabilities. The panel will also address steps lenders can take during the workout process to correct deficiencies in existing terms, documentation or collateral.

Outline

  1. Correcting loan documentation deficiencies and strengthening collateral
    1. Updated UCC searches
    2. Special collateral perfection examination
    3. Tax and judgment lien search
    4. Additional collateral
    5. Guarantees
  2. Drafting the forbearance or waiver agreement
    1. Waiver of existing defaults
    2. Borrower representations and warranties
    3. Strict compliance with loan documents
    4. Expiration date and early termination
    5. Fees
    6. Ratification of obligations
    7. Confirmation of liens and security interests
    8. Release of claims

Benefits

The panel will review these and other key issues:

  • What is the difference between forbearance and waiver—and which option is best for the lender?
  • What critical provisions must be contained in the forbearance or waiver agreement?
  • What unique risks does the borrower’s bankruptcy pose and how can counsel minimize these risks in crafting the forbearance agreement?
  • What steps can the lender take during a loan workout to strengthen its position and minimize its risks in bankruptcy or foreclosure sale?

Faculty

Peter C. Blain, Partner
Reinhart Boerner Van Deuren, Milwaukee

Mr. Blain is Chair of the firm's Business Reorganization Practice. He represents financial institutions, creditors, debtors, creditors' committees, trustees and others in bankruptcy proceedings, receiverships and workouts. Mr. Blain is a noted author and speaker on bankruptcy topics.

Allen J. Dickey, Shareholder
Polsinelli, Dallas

Mr. Dickey practices in all aspects of real estate finance, securitization, acquisition, leasing and development. He also has experience in equity financing, mortgage backed securitization, mortgage, and mezzanine and subordinate loan origination. He has published several articles regarding real estate, structured finance, commercial lending, and loan enforcement, and often lectures to attorney and industry groups regarding real estate, lending and loan enforcement topics. Mr. Dickey’s experience includes working with lenders, developers, investors and business owners on all aspects of real estate transactions, including mortgage and mezzanine loan origination and enforcement, CMBS lending, mortgage backed securitization, construction finance, development finance andn loan workouts, modifications and extensions.


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Customer Reviews

I felt the program topic was well presented within the short time limit.

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McGuireWoods

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Bankruptcy Law Advisory Board

Mark N. Berman

Adjunct Professor

Northeastern University

Michael E. Foreman

Partner

ForemanLaw

Matthew Gensburg

Shareholder

Greenberg Traurig

Brian E. Greer

Partner

Dechert

Douglas Lipke

Shareholder

Vedder Price

Victor Milione

Partner

Nixon Peabody

Steven B. Smith

Senior Consultant

JND Corporate Restructuring

Michael Solow

Partner

Kaye Scholer

Robert A. Weber

Counsel

Skadden Arps Slate Meagher & Flom

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