Presenting a live 90-minute webinar with interactive Q&A Structuring Opinions of Counsel in Real Estate Finance Transactions Navigating Assumptions, Qualifications, Limitations and Use of Letters, Reducing Risks for Opinion Givers THURS DAY, JANUARY 23, 2014 1pm East ern | 12pm Cent ral | 11am Mount ain | 10am Pacific Today’s faculty features: Michael J. Bordy, Founder, Michael J. Bordy, A.P .L.C. , Los Angeles Christine L. Hayes, Director, Senn Visciano Canges P .C. , Denver The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
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Structuring Opinions of Counsel in Real Estate Finance Transactions Navigating Assumptions, Qualifications, Limitations and Use of Letters, Reducing Risks for Opinion Givers Presented by: Michael Bordy
Michael J. Bordy Principal Michael J. Bordy, a Professional Law Corporation 10250 Constellation Boulevard, Suite 2900 Los Angeles, CA 90067 Telephone: (310) 881-6800 x 212 Facsimile: (310) 881-6801 E-mail: Michael@bordylaw.com 6
Preparing commercial real estate finance opinions A. Range of opinions B. Assumptions C. Qualifications D. Limitations D. Use of the opinion letter E. The Real Estate Finance Opinion Report of 2012 7
Range of Opinions Introduction 1. A lender in a secured real estate financing transaction will generally require an opinion of counsel from borrower’s counsel. 2. Borrower’s counsel provides an opinion of counsel letter in conjunction with its representation of the Borrower. 8
Real Estate Financing Documents 3. A secured real estate financing transaction includes: i. A promissory note demonstrating the sum of funds to be repaid; ii. A loan agreement describing the loan being made, the terms and conditions and detailing the agreements included in the loan package. iii. A mortgage or a deed of trust, indicating the amount of the loan and the describing the real property securing the loan 9
Loan Documents (continued) iv. An assignment of rents; v. An environmental indemnity agreement; vi. Guaranty; vii. Miscellaneous documents 1. UCC-1 Financing Statement 2. Closing Certificate 10
A. Range of Opinions 1. Borrower is a (type of business entity), duly organized and validly existing and in good standing under the laws of the State of (state where real property is located). 2. Each loan document has been properly authorized, executed, acknowledge and delivered by Borrower. 11
Range of Opinions (continued) 3. Each loan document constitutes the legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms. 4. The choice of law of the State of to govern the loan documents is legal, valid, binding and enforceable under the laws of such State. 12
Range of Opinions (continued) 5. The payment by the Borrower and receipt by the Lender of all principal and interest and other payments required to be paid pursuant to the terms of the Note and the other loan documents will not violate the usury laws of the State of or otherwise constitute unlawful interest. 6. Borrower has all the requisite power and authority to execute and deliver each of the loan documents. 13
Range of Opinions (continued) 7. Borrower has the legal power and authority to borrow money and to own and encumber its property and assets located in , . 8. No order, consent, approval, license or authorization of, or filing, recording or registration with, any governmental or public body or authority of the United States is required in connection with the execution and delivery of the loan documents. 14
Range of Opinions (continued) 9. The execution and delivery of the loan documents and the performance of the terms and conditions contained in the loan documents will not conflict with, or constitute a default with any laws, statutes or regulations. 15
B. Assumptions 1. The actual intent of the borrower and the lender is accurately set forth in the loan documents. 2. All terms and conditions of, or relating to the transactions contemplated by the loan documents are correctly and completely embodied in the loan documents. 16
Assumptions (continued) 3. The Mortgage (Deed of Trust) will be properly recorded in the office of the County Recorder of County, . 4. The consideration recited in the loan documents will be advanced pursuant to the terms of the loan documents. 5. All signatures not witnessed by us are genuine. 17
Assumptions (continued) 6. All documents submitted to us as originals are authentic. 7. All documents submitted to us as copies are accurate and complete copies of the originals thereof. 8. The loan documents and the transactions evidenced by the loan documents are valid, binding and enforceable with regard to lender. 18
C. Qualifications 1. The enforceability of the loan documents may be limited by statutory and case law pertaining to bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, equitable subordination, marshaling, lender’s fiduciary duty and lender’s bad faith. 2. The enforceability of the loan documents may be limited by general principles of equity. 19
Qualifications (continued) 3. The enforceability of certain rights and remedies provided in the loan documents are limited or may be unavailable by certain laws and judicial opinions and decisions. 4. The enforceability of certain rights and remedies provided in the loan documents may be limited by public policy. 20
D. Limitations 1. We have not made or undertaken to make any investigation of the state of title to the real property described in the loan documents. 2. We express no opinion with respect to title thereto or the priority or perfection of any liens on the real property to any security interests. 21
Limitations (continued) 3. We are licensed to practice law only in the State of . 4. We express no opinion with respect to the effect of any laws other than the laws of the State of and the laws of the United States of general application to transactions in the State of . 22
Limitations (continued) We undertake no obligation to advise you of facts or 5. changes in the law occurring after the date of this opinion letter which might affect the opinions expressed in this opinion letter. 23
E. Use of Opinion Letter 1. This opinion is being rendered for the benefit of lender and the benefit of lender’s successors and assigns under the loan documents. 2. This opinion may not be used or relied upon by, nor may copies be delivered to, any other person or entity without our prior written consent. 3. The opinions set forth in this opinion letter are limited to the matters expressly stated in this opinion letter and no opinion is implied or may be inferred beyond the matters expressly so stated. 24
Real Estate Finance Opinion Report of 2012 Chapter One: Introduction Chapter Two: Practitioner’s Guide Chapter Three: Illustrative Language of Opinion Letter 25
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