Structuring Special Purpose Entities in Real Estate Finance Transactions: Latest Developments
Achieving Separateness, Bankruptcy Remoteness, and True Sales
Recording of a 90-minute CLE webinar with Q&A
This CLE webinar will prepare real estate counsel to structure special purpose entities (SPEs) for real estate finance transactions to achieve bankruptcy remoteness and avoid substantive consolidation. The panel will discuss lessons from recent bankruptcy cases involving SPE entities.
- Structural features of SPEs
- Restrictions on activities
- Restrictions on ability to voluntarily file bankruptcy
- Judicial treatment of bankruptcy waivers
- Substantive consolidation
- True sale vs. pledge
- Issues arising from SPE’s bankruptcy filing
- Authority to file
- Involuntary bankruptcies
- Dismissal for bad faith filing
- Fiduciary obligations
- Springing or “bad boy” guaranties
The panel will review these and other key issues:
- What factors are relevant in determining whether the transfer of assets to the SPE will be considered a true sale?
- How should the SPE be structured to maximize bankruptcy remoteness?
- What will courts consider in deciding whether substantive consolidation of the SPE and the transferor is warranted in a subsequent bankruptcy of the transferor?
Samuel A. Newman
Gibson Dunn & Crutcher
Mr. Newman is a member of the firm’s Business Restructuring and Reorganization Group and the Corporate... | Read More
Mr. Newman is a member of the firm’s Business Restructuring and Reorganization Group and the Corporate Department. His practice involves representing creditors, debtors and other parties-in-interest in Chapter 11 cases. He also advises buyers, sellers, lenders and borrowers in transactions involving distressed assets. Mr. Newman is a frequent author and lecturer on bankruptcy issues.Close
Ms. Raftery has substantial experience in a wide range of complex structured finance and real estate finance... | Read More
Ms. Raftery has substantial experience in a wide range of complex structured finance and real estate finance capital markets transactions. She has particular expertise representing commercial and investment banks, financial institutions and GSE’s in connection with structuring both bankruptcy-remote commercial mortgage loan originations and in mezzanine loan financings related to real property. Her transactional experience includes acquisition finance, syndicated corporate loans, real estate finance, and corporate restructuring.Close
Steven B. Smith
Mr. Smith focuses his practice on complex corporate restructuring and creditors' rights, including in court Chapter... | Read More
Mr. Smith focuses his practice on complex corporate restructuring and creditors' rights, including in court Chapter 11 cases and out-of-court workouts. He represents official and ad-hoc creditor committees, secured lenders, administrative agents, and other parties-in-interest in restructuring matters. He is experienced in analysis of true sale, non-consolidation and bankruptcy remoteness principles.Close