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Drafting & Negotiating Real Estate Finance Documentation

Learn How to Master the Drafting or Negotiation of REF Facility Agreements and Security Agreements

Client meeting with the broker to finalise the real estate deal

A one-day course

PART 1 

Property Due Diligence

  • Purpose
  • Scope – Materiality
  • Investigation of Title
  • Certificate of Title
  • Warranties, Indemnities & Disclosure
  • Due Diligence Questionnaire
  • Due Diligence Report

 Exercise 1- Risk Mitigation Techniques: Participants will learn how to apply the information gathered from the due diligence report into the drafting and negotiation of the real estate finance documentation.

Covenant of Title

  • Full Title Guarantees
  • Limited Title Guarantees
  • Subject to and actual knowledge

Key Parties Involved

  • Borrower entities
  • Syndicate of Lenders
  • Other Parties:
    • Investment Finance
    • Development Finance

Key Documents

  • Facility Agreement
  • Duty of Care Agreement
  • Property Documentation
  • Report on Title
  • Certificate of Title
  • Security Documents
  • Valuation Report
  • Insurance Report
  • Environment Report

Drafting or Negotiating a REF Facility Agreement

  • Conditions Precedent
    • For Investment Finance
      • Valuation & Survey
      • Insurance
      • Title
      • Security
      • Management
      • Tax
    • Additional CPs for Development Finance
      • Insurance – for additional parties
      • Development Documentation
      • Security

Exercise 2 – Change of control: Participants will learn the significance of the change of control clause and its definition

  • Prepayments & Cancellations
    • Mandatory Prepayments
    • Change of Control
    • Break costs
  • Interest Provisions
    • Interest Periods
    • Hedging
    • Calculation of Interest
    • Default Interest
  • Valuation Provisions
    • Definitions
    • Costs
    • Representations
  • Bank Account Provisions
    • Rent Account
    • Deposit Account
    • Disposal Account
    • VAT Account
    • General Account
    • Retention Account
PART 2
  • Representations & Warranties
    • For Investment Facilities
      • Title
      • Legislation
      • Security
      • Use & Condition
      • Reports
    • For Development Facilities
      • On the Development
      • On the Development Documentation
    • When made and by whom
    • Qualifications
    • Common Negotiating Points
      • For Lender
      • For Borrower
    • Covenants
      • Information Covenants
      • Financial Covenants
      • Property Covenants
      • Development Covenants
      • General Covenants
      • Common Negotiating Points
        • For Lender
        • For Borrower

Exercise 3 – Real Estate Finance specific events of default

  • Events of Default
    • Standard Events of Default
    • Compulsory Purchase
    • Major Damage
    • Headlease
    • Insolvency of Significant Tenant
    • Abandonment
    • Completion
    • Step-in Agreements
    • Common Negotiating Points
      • Material Adverse Effect
      • Thresholds – Cross Defaults etc.
      • Qualifications

Drafting or Negotiating the Security Documents

  • The Security Package
  • Covenants
  • Taking Security
    • Land
    • Shares
    • Bank Accounts
    • Fixed vs Floating Charge
    • Contractual Rights
    • Insurance Policies
    • Development contracts and collateral warranties
  • Perfection of Security
  • Enforcement
  • Cross Border Security

Intercreditor Arrangements

  • Key Provisions for Negotiation
  • Priority of Payments
  • Other Rights

Documenting Derivatives in Loan Transactions

  • ISDA Master Agreement and Schedule
  • Events of Defaults
  • Additional Termination Events
  • Specified Entities
  • Notional Reductions
  • Collateral

Legal Opinions

  • What legal opinions should cover
  • Foreign Legal Opinions

Loan Agreements and FATCA

Group Exercise (Live case study): Participants will work together to to discuss the required documentation, due diligence and structuring for a real estate finance transaction in order to prepare a feasibility proposal.

Our real estate finance documentation course trainer is an expert in structured finance specialising in securitisation, FATCA real estate finance, banking, capital markets, derivatives, structured products and financial regulation.

She is a consultant, keynote speaker, business adviser, author and trainer and has practised law for nearly 20 years in the banking & finance industry. She has spent her career advising some of the most prestigious global financial institutions such as Goldman Sachs, Morgan Stanley, Citigroup & Credit Suisse. Her primary role was to manage the legal risk globally across the various businesses within an investment bank. As a trainer, she now designs and leads training workshops for senior lawyers, law firm partners, accountants, bankers and various senior executives.

She has been actively involved in the creation of innovative structured transactions; structuring, drafting and negotiating complex financings including complex repo facilities, hybrid structured products with multiple embedded derivatives, repackagings, synthetic CLOs and regulatory-driven structured transactions; all types of securitisation transactions and restructuring them; supervision of large scale remediation project involving the mis-selling of interest rate swaps, financial regulatory projects and financial litigation.

She holds a Law LL.B (Hons) degree from University College London (UCL) and has worked in the Finance Know-how team at Clifford Chance. She trained at Sidley Austin Brown & Wood LLP and worked on many award-winning transactions involving repackaging, securitisations and US corporate securities. She practised as a solicitor at Linklaters LLP in Singapore and has also worked in New York and Hong Kong.

Returning to London, she spent around 5 years at Allen & Overy LLP. She advised on a wide range of issues including swaps, insolvencies, disclosure matters under the Prospectus Directive, US 144A SEC-registered deals, real estate finance, master trust, CMBS and RMBS securitisations and Opco/Propco structures for loan securitisations. She was seconded to Credit Suisse to work on the Real Estate Finance trading desk where she worked on loan origination, leverage finance and acquisition finance deals. Later she was seconded to Citibank where she advised on LMA loans, highly structured real estate finance transactions, risk mitigation and syndication.

In 2007 she moved to Credit Suisse as in-house legal counsel advising on structured capital markets, derivatives and structured products including fund-linked products, a range of exotic trades, collateralized debt obligations (CDOs), collateralized loan obligations (CLOs), repos and other highly structured financing transactions conducted during and post credit crunch. She structured and documented trades that achieved the required regulatory capital and balance sheet treatment using a combination of techniques such as credit default swaps, call options or unfunded loan participations.

She started working as a specialist consultant in 2009 advising her clients on complex projects involving legal, operational, regulatory and compliance matters on derivatives and structured products.

This trainer also teaches Derivatives and ISDA Documentation and Negotiating the ISDA Master Agreement.

  • Learn how to identify the appropriate risk mitigation technique for a range of commonly encountered issues in the property due diligence report.
  • Get an overview of the key parties and key documents involved in a typical real estate finance transaction.
  • Get checklists of the common negotiating points when acting for the seller and the borrower along with a detailed review of all the clauses of the LMA Real Estate Finance Facility Agreement.
  • Review in detail the drafting and negotiating of the Security Documents along with issues related to taking security.
  • Explore the main legal and commercial issues around Intercreditor Arrangements.
  • Be appraised of the various aspects of documenting derivatives in Loan Transactions.
  • Provides an outline of the points that legal opinions should cover including any foreign legal opinions.
  • Understand the FATCA issues involved in drafting a Real Estate Finance Facility Agreement.
  • Sharpen up your drafting and negotiating abilities through participation in the group case allowing you to apply in practice the concepts/theory covered in this training.

  • This is the only course on the market that covers the most detailed content on the suite of real estate finance documentation including the drafting and negotiating points for each section, all in one 2-part training.
  • Covers the technical legal, commercial and practical aspects to be considered when reviewing, drafting and negotiating real estate finance documents. This covers due diligence aspects, ISDA agreements in loans and FATCA considerations including a case study on preparing a feasibility proposal for a real estate finance transaction.
  • The trainer has a rare combination of experience that enables her to cover the legal, commercial, regulatory and structuring aspects of this subject matter hence participants will benefit a great deal from her hands-on experience, particularly during the discussions.
  • The trainer is a lawyer with a background from the magic circle law firms, the bulge bracket investment banks as well as an accountancy practice, hence she comes with a wide array of experience ranging from working on complex innovative transactions to the more straightforward real estate finance transactions.

Our Real Estate Documentation course is a ‘must know’ for:

  • In-house legal counsels at any level.
  • Private practice lawyers at any level from paralegals, trainees and junior and senior associates to partners and heads of departments involved in, or likely to be involved in, structuring, documenting, reviewing and negotiating real estate finance transactions.
  • Bankers and Structurers at all levels (Analysts, Associates, Vice Presidents, Directors and Managing Directors) who typically act as Originators, Lenders, Facility Agents and/or Trustees in real estate finance transactions.
  • Transaction management/execution personnel at any level involved with real estate finance documentation and/or term sheets.
  • Any professional at all levels involved in real estate finance including property asset management firms, borrowers, etc.

Our Real Estate Documentation course is also a ‘nice to know’ for:

  • Investors who are involved in real estate finance.
  • Developers who are involved in real estate finance.
  • Accountants advising their clients on real estate finance transactions.
  • Any professional at any level who wants to understand the ins and outs of real estate finance documentation

Our 2-part course provides full coverage of the important aspects of drafting and negotiating real estate finance documentation. It covers topics from drafting or negotiating the REF Facility Agreement, the Security Documents, and the Hedging Documents, to a discussion around the issues related to Intercreditor Arrangements and Legal Opinions.

It is relevant for in-house lawyers and private practice lawyers alike and bankers involved in complex structuring involving real estate finance and real estate finance documentation, lending/banking documentation teams, structurers, commercial real estate origination teams including originators, the sales team, commercial real estate investors, developers and borrowers as well as accountants who advise clients on real estate finance transactions.

Initially, we set the scene by going through the property-related issues around due diligence and covenant of title. We then go through the key parties and documents involved in a typical real estate finance transaction. We then cover the drafting and negotiating points involving the REF Facility Agreement, including the drawdown mechanics, conditions precedent, representations and warranties, covenants and events of default.

We then cover the Security Documents and discuss the issues around taking security, perfection and enforcement of security and cross-border security. The Intercreditor Arrangements are discussed including the key provisions for negotiation, cure rights etc. followed by the coverage of the ISDA Master Agreement provisions to be aware of when drafting and negotiating real estate finance documentation.  

Additionally, we will cover legal opinions and discuss what banking lawyers should consider for specific FATCA drafting.

There will be group exercises at various intervals throughout this 2-part training on pertinent topics to allow the participants to practically apply the knowledge they learn.

  • The trainer was very experienced so information and tips that were shared were really useful.
  • I like that the training look at the matter from different perspectives; lender, buyer and seller.
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