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Presenting a live 90-minute webinar with interactive Q&A

Rendering Structured Finance Opinions Of Counsel: Substantive Consolidation, Authority to File Bankruptcy and More

Navigating Assumptions, Qualifications, Limitations and Use of Letters; Reducing Risks for Opinion Givers Today’s faculty features:

1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific TUESDAY, JULY 11, 2017

Scott J. Gordon, Partner, Kirkland & Ellis, New York Michelle P . Quinn, Partner, Berger Harris, Wilmington, Del.

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Right to File Bankruptcy

• Pre-petition waivers of the right to file a bankruptcy petition, whether by

contract or in charter documents, have repeatedly been held to be void on the basis that they are against public policy.

• Recently, in In Re BAY CLUB PARTNERS–472, LLC, Debtor (No. 14-

30394, 2014 WL 1796688 (Bankr. D. Or. May 6, 2014)), the court characterized as “cleverly insidious” a restriction on filing that was placed in the debtor’s operating agreement at a lender’s request rather than being placed in the loan agreement. The court held the provision to be void.

5

Right to File Bankruptcy (Cont’d)

• In the circumstances underlying the 1997 case of In Re Kingston Square

Associates, 214 B.R. 713, the owner/manager of property owning SPEs solicited creditors to make involuntary bankruptcy filings in respect of the SPEs, thereby seeking to thwart the “bankruptcy-remote” provisions of the SPEs charters, which contained a requirement for the unanimous vote of directors, including an ID, for a voluntary filing. Lenders that had relied on the “bankruptcy- remote” provisions argued for dismissal on grounds of bad faith through collusion to file. The court found that the debtors had orchestrated the involuntary filings but that the filings did not further a wrongful purpose, which is a necessary element of collusion; also noting that the failure of the ID, who had been selected by one of the lenders, to participate in the governance of the SPEs eliminated the potential for proper consideration of a unanimous voluntary filing.

6

Right to File Bankruptcy (Cont’d)

• In 2009, General Growth Properties, Inc. replaced existing independent

directors (ID) with seasoned restructuring professionals that satisfied the ID requirements and the newly appointed IDs voted with the “inside” directors to place the SPEs, which were solvent and in varying states of financial health, into bankruptcy, supporting their votes as consistent with their fiduciary duty to creditors and shareholders as established by the LLC Agreements by reference to Delaware General Corporation Law (DGCL), which provides that the directors of a solvent corporation are required to consider the interests of shareholders in exercising their fiduciary duties. In re Gen. Growth Props., Inc., 409 B.R. 43 (Bankr. S.D.N.Y. 2009).

7

Right to File Bankruptcy (Cont’d)

• Delaware Limited Liability Company Act §18-1101(c):

To the extent that, at law or in equity, a member or manager or other person has duties (including fiduciary duties) to a limited liability company

• r to another member or manager or to another person that is a party to or

is otherwise bound by a limited liability company agreement, the member's

• r manager's or other person's duties may be expanded or restricted or

eliminated by provisions in the limited liability company agreement; provided, that the limited liability company agreement may not eliminate the implied contractual covenant of good faith and fair dealing.

• Fiduciary duties should be explicitly addressed in the LLC Agreement.

8

Delaware LLCs

The Delaware Limited Liability Company Act

• Increase of use of LLCs in the mid-1990s

As of March 29, 2013 from the Delaware Division of Corporations

9

Delaware LLCs - Easy Administrative Procedures

• Online Services
• Expedited and same day service
• Filing of UCC documents
• Payment of franchise taxes
• Access to relevant provisions of the Delaware Code
• Help with finding a registered agent
• Name reservations
• Status check for Delaware entities

10

Delaware LLCs - Expertise of Judiciary in Business Matters

• Delaware's Court of Chancery
• Limited jurisdiction
• High volume of corporate and LLC matters
• Corporations Section of the Delaware State Bar Association
• Generates legislation after careful study of case law and business

trends

• Easy access to elected and appointed officials due to the small size of the state

11

Delaware LLCs - Contract Flexibility

• Section 18-1101(b) of the DE LLC Act: “It is the policy of this chapter to give

the maximum effect to the principle of freedom of contract and to the enforceability of limited liability company agreements.”

• "Except as provided in a limited liability company agreement“ or similar

language is found in most provisions of the DE LLC Act.

• Delaware LLC Act is friendly to the SPV structure.

12

Delaware Opinions - the “Authority to File” Bankruptcy Opinion

• Reasoned opinion that addresses whether a federal bankruptcy court would

look to federal or state law to determine the parties with authority to file a bankruptcy petition on behalf of the LLC.

• Required because federal bankruptcy law does not specifically address LLCs.

13

Delaware Opinions – the LLC Opinion Letter

• The Company has been duly formed and is validly existing in good standing as a

limited liability company under the laws of the State of Delaware.

• In Delaware, this requires an LLC Agreement and a Certificate of
• Formation. Should not be based solely on a good standing certificate.
• The LLC Agreement constitutes a legal, valid and binding agreement of the

Member, and is enforceable against the Member, in accordance with its terms.

• Given with standard enforceability carve-outs, including bankruptcy
• Sometimes drafted to cover only the Special Member provisions

14

Delaware Opinions – the LLC Opinion Letter (Cont’d)

• If properly presented to a Delaware court, a Delaware court applying Delaware

law, would conclude that (i) [so long as any Obligation is outstanding,] in order for a Person to file a voluntary bankruptcy petition on behalf of the Company, the prior unanimous written consent of the Member and all Independent Managers, as provided for in Section ___ of the LLC Agreement, is required, and (ii) such provision, contained in Section ___ of the LLC Agreement, that requires, [so long as any Obligation is outstanding,] the prior unanimous written consent of the Member and all Independent Managers in order for a Person to file a voluntary bankruptcy petition on behalf of the Company, constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member, in accordance with its terms.

• Given with only an equitable principles carve-out. No bankruptcy

carve-out.

• Should track language of LLC Agreement.
• LLC Agreement should not prohibit a bankruptcy filing or require

lender consent for a bankruptcy filing

15

Delaware Opinions – the LLC Opinion Letter (Cont’d)

• While under the Delaware Limited Liability Company Act, 6 Del. C. § 18-101, et

seq.) (the "LLC Act"), on application to a court of competent jurisdiction, a judgment creditor of the Member may be able to charge the Member's share of any profits and losses of the Company and the Member's right to receive distributions of the Company's assets (the "Member's Interest"), to the extent so charged, the judgment creditor has only the right to receive any distribution or distributions to which the Member would otherwise have been entitled in respect of the Member's Interest. Under the LLC Act, no creditor of the Member shall have any right to obtain possession of, or otherwise exercise legal or equitable remedies with respect to, the property of the Company. Thus, under the LLC Act, a judgment creditor of the Member may not satisfy its claims against the Member by asserting a claim against the assets of the Company.

• Under the LLC Act (i) the Company is a separate legal entity, and (ii) the

existence of the Company as a separate legal entity shall continue until the cancellation of the LLC Certificate.

16

Delaware Opinions – the LLC Opinion Letter (Cont’d)

• Under the LLC Act and the LLC Agreement, the Bankruptcy or dissolution of the

Member will not, by itself, cause the Company to be dissolved or its affairs to be wound up.

• LLC Agreement should override LLC Act regarding bankruptcy of a

member

• Mandatory Events Dissolution
• 1. As specified in the limited liability company agreement
• 2. At such time as there are no remaining members
• 3. When ordered by the Court of Chancery

17

Delaware Opinions – the LLC Opinion Letter (Cont’d)

• Under the LLC Act and the LLC Agreement, the Company has all necessary

limited liability company power and authority to execute and deliver the Loan Documents to which it is a party, and to perform its obligations thereunder.

• Under the LLC Act and the LLC Agreement, the execution and delivery by the

Company of the Loan Documents to which it is a party, and the performance by the Company of its obligations thereunder, have been duly authorized by all necessary limited liability company action on the part of the Company.

18

Delaware Opinions – the LLC Opinion Letter (Cont’d)

• No authorization, consent, approval or order of any Delaware court or any

Delaware governmental or administrative body is required to be obtained by the Company solely as a result of the execution and delivery by the Company

• f the Loan Documents to which it is a party, or the performance by the

Company of its obligations thereunder.

• The execution, delivery and performance by the Company of the Loan

Documents to which it is a party do not violate (i) any Delaware law, rule or regulation, or (ii) the LLC Agreement or the LLC Certificate.

• For both opinions, assume no assets or activities in Delaware

19

Delaware Opinions - the UCC Opinion

• The Financing Statement is in an appropriate form for filing with the Division.
• Insofar as Article 9 of the Uniform Commercial Code as in effect in the State of

Delaware on the date hereof (the "Delaware UCC") is applicable (without regard to conflict of laws principles), upon the filing of the Financing Statement with the Division, the Lender will have a perfected security interest in the Company's rights in that portion of the Property described in the Financing Statement in which a security interest may be perfected by the filing

• f a UCC financing statement with the Division and the proceeds (as defined in

Section 9-102(a)(64) of the Delaware UCC) thereof.

20

Bankruptcy Estate

• Estate includes all legal and equitable rights of debtor
• Imposes automatic stay, which prohibits:
• judicial proceedings against debtor
• enforcement of pre-petition judgments
• actions to possess or control debtor’s property
• enforcement of liens against debtor’s property
• actions to collect pre-petition debts
• set-offs of pre-petition debts

21

Effects of Bankruptcy

• Debtor may use collateral, despite security interest, if secured creditor has

adequate protection – use may, for example be as security for debtor-in- possession financing

• Expectations of securitization investors may be materially

undermined even though bankruptcy court concludes that overall value to Issuer SPE has been maintained

• Debtor may substitute for collateral if new property is indubitable equivalent
• Debtor may give collateral to other parties if initial secured creditor is over-

secured

• Debtor may reject obligations under executory contracts and leases, leaving

counterparty with an unsecured damages claim

22

Bankruptcy Remote Structures – 3 Key Attributes of Isolation

• Structure purchaser as bankruptcy-remote
• minimize likelihood of purchaser independently filing for BK due to

unforeseen problems

• Effect true sale of assets by originator
• keep assets out of BK estate of originator
• Minimize risk of substantive consolidation
• avoid consolidation of purchaser’s assets and liabilities with those of
• riginator

23

Independent Manager/Director

• SPE charter documents contain requirements that there be at least one

“independent” person represented among those whose vote is required to approve the voluntary filing of a bankruptcy petition and that the authorizing vote be unanimous (the “Independent Director Requirement”).

• Often serves as the special member
• Lender limits on identity and replacement
• Designate as a “manager” within the meaning of the LLC Act.
• While the Independent Director Requirement has been respected and not found

to be an unreasonable restraint on the right to file a bankruptcy petition, courts have viewed the application of the Independent Director Requirement in a manner consistent with preservation of the right to file.

• Disinterested third party granted authority to vote on bankruptcy of the LLC

24

The Special Member

• A special member/springing member becomes a member of the LLC upon
• ccurrence of any event that would causes the last remaining equity member

to cease to be a member by operation of law or contract

• Provisions:
• May not resign or transfer its rights unless a successor Special Member has

been admitted

• Has no interest in the profits, losses and capital of the Company
• Has no right to receive any distributions of Company assets
• Is not required to make any capital contributions to the Company, 6
• Del. C. § 18-301(d)
• May not bind the Company except as required by any mandatory

provision of the LLC Act

• Has no right to vote on, approve or otherwise consent to any action

by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company

25

The Personal Representative

• “Unless otherwise provided in a limited liability company agreement, within 90

days or such other period as is provided for in the limited liability company agreement after the occurrence of the event that terminated the continued membership of the last remaining member, the personal representative of the last remaining member agrees in writing to continue the limited liability company and to the admission of the personal representative of such member or its nominee or designee to the limited liability company as a member, effective as of the occurrence of the event that terminated the continued membership of the last remaining member; provided, that a limited liability company agreement may provide that the personal representative of the last remaining member shall be obligated to agree in writing to continue the limited liability company and to the admission of the personal representative of such member or its nominee or designee to the limited liability company as a member, effective as of the occurrence of the event that terminated the continued membership of the last remaining member.” Section 18-801(a)(4) of the DE LLC Act

• Provision works with the Special Member provision to continue the LLC

in the event of a dissolution.

26

In re Lake Michigan Beach Pottawattamie Resort LLC, 547 B.R. 899 (Bankr. N.D. Ill. 2016)

Background In December 2014, BCL-Bridge Funding LLC (“BCL”) made a loan to Lake Michigan Pottawattamie Resort LLC (“Pottawattamie”). After defaulting on its loan payments to BCL, Pottawattamie and BCL entered into a forbearance agreement and amended Pottawattamie’s operating agreement to install BCL as a “Special Member” of Pottawattamie. Pottawattamie again defaulted on its loan from BCL and filed a petition for relief under Chapter 11 of the Bankruptcy Code. While all other members of Pottawattamie consented to the petition, BCL did not. BCL filed a motion to dismiss Pottawattamie’s petition, contending that Pottawattamie's bankruptcy filing was invalid because BCL did not consent.

27

In re Lake Michigan Beach Pottawattamie Resort LLC, 547 B.R. 899 (Bankr. N.D. Ill. 2016) (Cont’d)

The Court stated that the public policy prohibiting direct, absolute waivers of

• ne’s right to file for bankruptcy relief applies not only to individual persons, but

to corporations as well. The Court was careful to note, however, that bankruptcy law requires that corporate formalities and state corporate law also must be satisfied in commencing a bankruptcy case. The Court then explained that, generally speaking, a blocking director is permissible to the extent that such a director is subject to, and adheres to, its normal fiduciary duties to the debtor. Under those circumstances a blocking director does not serve as an absolute prohibition on petitioning for bankruptcy relief and is therefore permissible. In other words, a valid and enforceable blocking director provision must envision “at least theoretically, . . . situations where the blocking director will vote in favor of a bankruptcy filing, even if in so doing he or she acts contrary to purpose of the secured creditor for whom he or she serves.”

28

In re Lake Michigan Beach Pottawattamie Resort LLC, 547 B.R. 899 (Bankr. N.D. Ill. 2016) (Cont’d)

Unauthorized Filing The Court went on to explain that under Michigan corporate law, members of an LLC have a duty to consider the interests of the LLC, rather than only their individual interests. Therefore, the Court held that the Special Member provision in Pottawattamie’s amended operating agreement permitting BCL to disregard Pottawattamie’s interests “expressly eliminated the only redeeming factor that permits the blocking director/member construct.” As a result, the Court then held that the blocking director provision was void and unenforceable under both Michigan state corporate law and federal bankruptcy law, and that under Pottawattamie’s remaining corporate governance provision, Pottawattamie’s bankruptcy petition was valid.

29

In re Intervention Energy Holdings, LLC, 2016 WL 3185576 (Bankr. D. Del. June 3, 2016)

In In re Intervention Energy Holdings, LLC, 2016 WL 3185576 (Bankr. D. Del. June 3, 2016), the Bankruptcy Court for the District of Delaware denied a motion to dismiss in a bankruptcy case involving a secured lender holding a “golden share”

• f a bankruptcy-remote special purpose entity. Intervention Energy Holdings, LLC

(“IEH”) and Intervention Energy, LLC (“IE”; together the “Debtors”) are Delaware

• LLCs. IEH is owned approximately 85% by Intervention Energy Investment Holdings

(“IEIH”) and the remaining 15% is owned by various entities. On January 6, 2012, the Debtors entered into a $200 million Note Purchase Agreement with EIG Energy Fund XV-A, L.P . (“EIG”), their senior secured lender. Following a default, the Debtors and EIG entered into a forbearance agreement IEH's operating agreement was also amended to include EIG as a member and issued EIG a single “golden share” in return for a $1.00 capital contribution. Pursuant to the forbearance agreement, IEH needed to secure unanimous consent

• f “all Common Members” in order to validly petition for bankruptcy relief.

30

In re Intervention Energy Holdings, LLC, 2016 WL 3185576 (Bankr. D. Del. June 3, 2016) (Cont’d)

In In re Intervention Energy Holdings, LLC, 2016 WL 3185576 (Bankr. D. Del. June 3, 2016), the Bankruptcy Court for the District of Delaware denied a motion to dismiss in a bankruptcy case involving a secured lender holding a “golden share”

• f a bankruptcy-remote special purpose entity. Intervention Energy Holdings, LLC

(“IEH”) and Intervention Energy, LLC (“IE”; together with IEH, the “Debtors”) are Delaware LLCs. IEH is owned approximately 85% by Intervention Energy Investment Holdings (“IEIH”) and the remaining 15% is owned by various entities. On January 6, 2012, the Debtors entered into a $200 million Note Purchase Agreement with EIG Energy Fund XV-A, L.P . (“EIG”), their senior secured lender. Following a default, the Debtors and EIG entered into a forbearance agreement. IEH's operating agreement was also amended to include EIG as a member and IEH issued EIG a single “golden share” in return for a $1.00 capital contribution. Pursuant to the forbearance agreement, IEH needed to secure unanimous consent

• f “all Common Members” in order to validly petition for bankruptcy relief.

31

In re Intervention Energy Holdings, LLC, 2016 WL 3185576 (Bankr. D. Del. June 3, 2016) (Cont’d)

On May 20, 2016, each of the Debtors filed voluntary bankruptcy petitions in

• Delaware. In return, EIG filed a motion to dismiss the jointly administered

bankruptcy cases, asserting that IEH did not have authority to file a bankruptcy petition because it did not obtain EIG’s consent to do so. At the time of the petition IEH had 22,000,001 common units. IEIH owned 22,000,000. EIG owned 1. Though declining to consider the parties’ arguments regarding the extent to which Delaware LLCs may limit an LLC’s ability to file for bankruptcy (and also noting that these arguments may well be an issue of first impression of Delaware state law), the Court held that the unanimous consent provision in IEH’s forbearance agreement was unenforceable because it violated the well-established federal public policy that a debtor may not waive its right to seek bankruptcy relief, despite the clear intent of IEH and EIG to give EIG a veto right with respect to the filing of a voluntary bankruptcy case.

32

True Sale Opinion

• Supports key structured finance principle of isolation of assets in SPE
• Is one of two “creditor’s rights” opinions (along with the Non-Consolidation

Opinion) key to supporting the legal isolation of the SPE’s assets from creditors

• f the SPE’s affiliates
• Although speaks to outcome in Bankruptcy, is based on state law principles
• Property interests are created and defined by state law, including in

bankruptcy, unless federal interest requires otherwise Butner v. United States, 440 U.S. 48, 55 (1979)

33

True Sale Opinion

• Based upon the facts and representations set forth above which we have

assumed, with the addressee’s permission and without independent investigation or verification, to be true, and subject to the assumptions, qualifications and limitations contained herein, we are of the opinion that, in a properly briefed and presented case under the Bankruptcy Code in which the Seller is the debtor, the bankruptcy court with jurisdiction over such case, exercising reasonable judgment after fully considering all relevant factors, would characterize the transfer of the receivables from the Seller to the Buyer as a sale rather than as a loan or a pledge to secure a loan, and therefore would not compel the turnover of the receivables by the Buyer to the bankruptcy trustee under section 542 of the Bankruptcy Code based on a determination that the receivables are property of the Seller’s bankruptcy estate under section 541 of the Bankruptcy Code.

34

True Sale Opinion

• May be relied upon by accountants for accounting sale treatment
• Accountants require “legal isolation” for sale treatment
• FAS 140 replaced by FAS 166
• While accounting requirement of legal isolation has not materially

changed, AICPA has proposed to expand coverage of opinion letters as support for legal isolation:

• to cover all applicable bankruptcy, insolvency,

conservatorship, receivership or other similar proceedings which may generally affect the rights of creditors, or

• therwise by proceedings in law or equity
• to state that no subsequent purchaser from the Seller would
• btain rights in the relevant assets

35

True Sale Opinion

• Broadened scope implicates:
• Fraudulent transfer and preferential transfer
• Perfection under UCC Article 9
• Holder in due course and protected purchaser issues under UCC

Articles 3 and 8

• Contrast with standard carve-outs:
• Seller’s ownership of receivables prior to covered transfer
• Perfection or priority of any ownership interest or security interest in

the receivables

• Delays in possession and use of collections in debtor’s control
• Whether any transfer or obligation may be avoided as a preference or

fraudulent transfer

36

What Constitutes True Sale

• Keys to “True Sale” are
• Risk transfer / recourse
• Intent
• Securitization Statutes
• Delaware (Asset-Backed Securities Facilitation Act (2002)), Texas

(amendment to Article 9 focuses solely on expressed intent of parties), Ohio

• Attempt (largely ineffective) to create true sale safe harbor
• Concern that equitable principles of bankruptcy would constitute

federal interests that would cause a bankruptcy court to look beyond the conclusory nature of the state statutes

• Most transfers under securitizations continue to be governed by New

York law

37

True Sale – Indicia of Sale

• Purchase price = fmv
• Buyer keeps all collections
• Buyer services receivables
• Obligors notified of sale
• Seller makes representations regarding nature of receivables
• Buyer takes interest rate risk
• Buyer takes obligor credit risk

38

True Sale – Indicia of Secured Loan

• Overcollateralization of loan
• Lender receives P + I only
• Debtor services receivables
• Obligors not notified of sale
• Seller makes reps re nature of receivables
• Debtor retains interest rate risk
• Debtor retains obligor credit risk

39

True Sale – Recourse

• “[T]here may be a true sale of accounts or chattel paper although recourse

exists.” UCC section 9-502, comment 4

• “Castle required Major’s to retain all conceivable risks of uncollectibility of

these accounts. . . Guaranties of quality alone, or even guarantees of collectibility alone, might be consistent with a true sale, but Castle attempted to shift all risks to Major’s, and incur none of the risks or obligations of

• wnership.” Castle’s Furniture Mart, 602 F

.2d At 545

40

True Sale – Recourse – How Much is OK?

• Loss-based
• e.g., Equal to historical losses
• Percentage-based
• X% of pool size
• Dodd-Frank Act risk retention requirements
• Ratings-based
• e.g., Seller retains only investment grade risk

41

Two-Step Transfer

42

True Sale Cases – Intent

• One line of cases relies substantially upon the intent of the parties. Provided

that the characterization of the transaction by the parties is supported by the facts, where commercially sophisticated parties have characterized a transaction as a sale and have acted consistently with that characterization, courts have been unwilling to recharacterize the transaction even though it may also bear certain attributes of a secured loan. Kassuba v. Realty Income Trust (In re Kassuba), 562 F .2d 511, 514 (7th Cir. 1977) ("If the parties actually intended to effect an absolute transfer of ownership, a court of equity will not ignore that intent and make another contract for them").

43

True Sale Cases – True Nature of Transfer

• The other line of cases looks beyond the stated intent of the parties and seeks

to ascertain the "true nature" of a transaction, regarding the parties' intent as

• nly one factor in analyzing a transaction, and weighing those characteristics
• f a transaction indicative of a true sale against those indicative of a secured

loan to determine whether the transaction most resembles one or the other. In Major's Furniture Mart, Inc. v. Castle Credit Corp., Inc., 602 F .2d 538, 544 (3rd Cir. 1979) the court asked "whether the nature of the recourse, and the true nature of the transaction, are such that the legal rights and economic consequences of the agreement bear a greater similarity to a financing transaction or to a sale."

44

True Sale Cases – Conduct Matters

• In a series of decisions between 2007 and 2013, the Bankruptcy Court for the

Northern District of Illinois, the District Court for the Northern District of Illinois and the Seventh Circuit Court of Appeals considered matters relating to the purported sale of a hospital’s accounts receivable to an affiliate of the hospital that was structured to be an SPE.

• While ultimately, on remand, the Bankruptcy Court found that a “true-sale”

existed, the Seventh Circuit noted that the SPE “lacked the usual attributes of a bankruptcy-remote vehicle” and that “the [Bankruptcy] Code allows the [bankruptcy] trustee to look out for the interests of these other creditors, who may not appreciate that they should have charged extra to offset the effects

• f a bankruptcy-remote vehicle that was hidden in the weeds.”

45

Substantive Consolidation – Derivation/Foundation

• The power of a bankruptcy court to consolidate the assets and liabilities of

separate, but related, entities

• Judicially created doctrine; not codified; based on equitable jurisdiction
• Derives from the U.S. Supreme Court’s decision in Sampsell v. Imperial Paper &

Color Corp. , 313 U.S. 215 (1941)

• Remedial action
• Extraordinary remedy
• Determination made on case-by-case basis
• Distinct from procedural consolidation

46

Substantive Consolidation – Dead or Deadly

• “Grupo Mexicano and the Death of Substantive Consolidation” was as article

that appeared in the American Bankruptcy Institute Law Review in 2000 (8Am.

• Bankr. Inst. L. Rev. 427 (2000)). The Grupo Mexicano decision suggested that

federal courts look to 18th Century English legal practice to determine whether the equitable remedy of substantive consolidation may be granted

• Six years later, the American Bankruptcy Institute Law Review published an

article titled “Substantive Consolidation – A Post-Modern Trend” in which the author, Timothy E. Graulich, argued that “[n]otwithstanding the appellate courts' repeated admonitions that substantive consolidation should be used

• nly "sparingly," other decisions – mostly bankruptcy court cases citing to

unreported bankruptcy court decisions—have announced a "liberal" or "modern" trend that would make substantive consolidation the rule, rather than the sparingly used exception described by the appellate decisions.”

47

Substantive Consolidation – Dead or Deadly (Cont’d)

• In their article titled “The Sum and Substance of Substantive Consolidation”

published in the Annual Survey of Bankruptcy Law in 2005, Kirkland bankruptcy practitioners James H.M. Sprayregen, Jonathan P . Friedland, and Jeffrey W. Gettleman began, “Substantive consolidation jurisprudence, perhaps more than many other areas of bankruptcy law, is highly unpredictable.”

48

Substantive Consolidation – Framework

• Courts consider:
• The corporate structure and conduct of the entities proposed to be

consolidated and their relationship with their creditors and other third parties

• The impact upon creditors and whether they would be unfairly

prejudiced or treated more fairly by substantive consolidation

49

Substantive Consolidation – Framework (Cont’d)

• Consideration of many factors; none dispositive:
• In In re Vecco Construction Industries, Inc., 4 B.R. 407, 409 (Bankr.

E.D. Va. 1980) the court considered the following seven factors:

• (1) degree of difficulty in segregating assets and liabilities;

(2) presence of consolidated financial statements; (3) increased profitability due to consolidation at a single physical location; (4) commingling of assets and business functions; (5) unity of interests and ownership; (6) existence

• f intercorporate guaranties or loans; and (7) transfer of

assets without observance of corporate formalities

50

Substantive Consolidation – Framework (Cont’d)

• Other courts have added additional factors:
• (1) the parent owning the majority of the subsidiary’s stock; (2) the

entities having common officers or directors; (3) the subsidiary being grossly undercapitalized; (4) the subsidiary transacting business solely with the parent; and (5) both entities disregarding the legal requirements of the subsidiary as a separate organization

• Subsequently, courts have created tests from the foregoing factors

51

Substantive Consolidation – Auto Train

• In Drabkin v. Midland-Ross Corp. (In re Auto Train Corp.), 810 F

.2d 270 (D.C.Cir. 1987), the court laid out a winding path of analysis that started with applying factors, as set forth in Vecco, to determine whether “substantial identity existed,” which, if it did exist, would require the proponent of substantive consolidation to establish a prima facie case, which if established would shift the burden to opponents of substantive consolidation to demonstrate harm, which, if established would shift the burden back to the proponent to demonstrate that the benefits of substantive consolidation “heavily” outweigh the harm.

52

Substantive Consolidation – Augie/Restivo

• In Union Savings Bank v. Augie/Restivo Baking Co. (In re Augie Restivo Baking

Co., Inc.), 860 F .2d 515, 518 (2d Cir. 1988), the court stated that the factual predicates used by courts (such as the Vecco variables) to determine whether to order substantive consolidation of entities are “merely variants of two critical factors: (i) whether creditors dealt with the entities as a single economic unit and did not rely on their separate identity in extending credit (citations omitted) or (ii) whether the affairs of the debtors are so entangled that consolidation will benefit all creditors.”

53

Substantive Consolidation – Augie/Restivo (cont’d)

• Augie/Restivo Emphasizes whether creditors have been harmed based on their

expectations and reliance in extending credit

• Augie/Restivo concluded that the course of dealing and the expectations of

the parties did not justify consolidation

• Coupled with the court’s general reluctance to grant substantive consolidation

except where estates are “hopelessly” entangled, Augie/Restivo represents a conservative approach to substantive consolidation

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Substantive Consolidation – Eastgroup

• In Eastgroup Properties v. Southern Motel Assoc., Ltd. 935 F

.2d 245, 250 (11th

• Cir. 1991), the court stated that the essential analysis is whether “the

economic prejudice of continued debtor separateness” outweighs “the economic prejudice of consolidation”

• The Eastgroup court upheld the lower courts’ substantive consolidation orders
• Both the lower courts and the 11th Circuit Court considered the relative

recoveries of the proponent and objecting creditors

• Eastgroup styled itself as the “liberal” approach to substantive consolidation

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Substantive Consolidation – Owens Corning

• In In re Owens Corning, 419 F

.3d 195 (3d Cir. 2005), 419 F .3d 195, cert. denied sub nom. McMonagle v. Credit Suisse First Boston, 126 S. Ct. 1910 (2006), the court stated, “What must be proven (absent consent) concerning the entities whom substantive consolidation is sought is that (i) prepetition they disregarded separateness so significantly their creditors relied on the breakdown of entity borders and treated them as one legal entity, or (ii) postpetition their assets and liabilities are so scrambled that separating them is prohibitive and hurts all creditors.”

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Substantive Consolidation – Owens Corning (Cont’d)

• The Owens Corning court:
• criticized the mere recitation of factors as omitting analysis and

failing to separate the important from the unimportant

• discounted the mere presence of a parent guarantee of a subsidiary

SPE’s obligations as evidence of lack of separateness

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Substantive Consolidation – Opinion

• In a properly presented and argued proceeding under Title 11 of the United

States Code in which the transferor of receivables that is an affiliate of the SPE and an eligible debtor under the bankruptcy code (the “Code Debtor”) is the debtor, the bankruptcy court with jurisdiction over the case would not, under applicable federal bankruptcy law, apply the doctrine of substantive consolidation to consolidate the assets and liabilities of the SPE with the assets and liabilities of the Code Debtor.

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Creditors’ Rights Opinions – Reasoned Opinions

• True Sale and Non-Consolidation Opinions are reasoned opinions
• Reasoning:
• Sets forth:
• legal precedent, including facts, holdings and principles

derived therefrom

• facts of transaction and parties covered by the opinion
• Conveys lack of certainty based on absence of
• precedent with identical facts
• codified legal principles
• The conclusion, and the reasoning upon which the conclusion is based, link the

facts at hand to precedent cases that have established tests, albeit in the context of different facts

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Creditors’ Rights Opinions – Diligence

• As with all legal opinions, reasoned opinions require diligence
• Review all relevant contracts
• Assure that transactions contemplated
• maintain arms-length relationship between the SPE and its

affiliates

• contain covenants of reliance by the SPEs counterparties

and creditors on the separateness of the SPE

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Creditors’ Rights Opinions – Diligence (Cont’d)

• Review certified copies of formation documents of the SPE
• Assure presence of requirements for SPE to, among other things:
• establish and maintain its separate identity and present

itself to creditors accordingly

• pay its own bills from its own funds
• not incur indebtedness other than as contemplated in the

transaction documents or become liable for the debt of

• thers
• not act as agent for its members or affiliates or permit them

to act as agent for it

• not commingle its assets with those of any other person
• Appoint and at all times maintain at least one Independent

Director (or manager) whose consent is required to file Bankruptcy and take other “Material Actions” that could jeopardize the entity’s status as an SPE

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Creditors’ Rights Opinions – Diligence (Cont’d)

• Identify any guarantees of the SPEs obligations by any affiliate
• Receive Officer’s Certificates certifying as to the intended operation of the SPE

in a manner consistent with the separateness and solvency of the SPE, and, to the extent the SPE is not a newly-formed entity, addressing the conduct of the SPE from the time of its formation through the date of the opinion

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Creditors’ Rights Opinions – Other Considerations

• Purpose of opinion
• Doesn’t assure outcome
• Hopefully assures thorough consideration of relevant factors in

forming SPE structuring/documenting transactions to which SPE is a party

• Opinion shopping
• Appropriate pairings for Non-Consolidation opinions
• Appropriate assumptions for counsel reliance

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FDIC Safe–Harbor

• Federal Deposit Insurance Act (“FDIA”) governs insolvencies of banks and other

insured depository institutions (“IDIs”)

• stay for up to 90 days following FDIC’s appointment and up to 6 mos

to decide claims against estate

• FDIC can “repudiate” obligations under burdensome executory

contracts and challenge “true sales” and separateness of IDI subsidiaries

• 2000 Safe-Harbor based on legal isolation or GAAP sale
• FAS 166/167 made GAAP sale very difficult

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FDIC Safe–Harbor (Cont’d)

• 2010 Safe-Harbor
• Conditions include:
• Conformity with payment and capital structure requirements
• Disclosure obligations to all potential investors
• Documentary provisions regarding rights and obligations of the

parties

• Risk retention (to conform to Dodd-Frank)

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FDIC Safe–Harbor (Cont’d)

• If GAAP sale and all key conditions satisfied:
• FDIC will not seek to recover or re-characterize the transferred

financial assets as property of the IDI

• If not a GAAP sale and all key conditions satisfied:
• Trustee can take possession of the financial assets 10 business days

after monetary default with notice to FDIC

• If FDIC repudiates IDI’s obligations, FDIC must, within 10 business

days, pay principal and interest owing on asset-back securities at date of repudiation or let trustee take possession of the financial assets

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FDIC Safe–Harbor Opinion

• You have requested our opinion whether, if the FDIC were to be appointed as a

conservator or receiver for [the IDI] pursuant to Section 11(c) of the FDIA, a court of applicable jurisdiction, exercising reasonable judgment after fully considering all relevant factors, would hold that paragraphs (d)(4) and (e) of the FDIC regulation entitled “Treatment of financial assets transferred in connection with a securitization or participation,” 12 CFR § 360.6 (as amended through the date of this opinion letter) (the “Rule”) would apply to the [transactions covered by this opinion].

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FDIC Safe–Harbor Opinion (Cont’d)

• Certain key assumptions contained in the opinion letter:
• Receivables convert into cash within a finite period of time
• Investors are relying on collections on the financial assets and not on

external credit support, other than as permitted by the Rule

• transfers do not qualify for GAAP sale treatment

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FDIC Safe–Harbor Opinion (Cont’d)

• Certain key conclusions supported by reasoning set forth in the opinion letter:
• The transactions constitute a “securitization” as defined in the Rule:

The issuance by an issuing entity of obligations for which the investors are relying on the cash flow or market value characteristics and the credit quality of the transferred financial assets (together with any external credit support permitted by [the Rule] to repay the

• bligations.
• Receivables constitute “financial assets” under the Rule
• The notes being issued constitute “obligations” as defined in

the Rule

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Series LLCs

• Provide for isolated assets in separate series within one LLC
• Require only one filing with the DE Secretary of State and one annual tax
• Series are not separate legal entities under DE law
• Cannot provide standard structured finance opinions on a series
• Not recognized in every state or under federal bankruptcy law
• Concern over whether a series can hold title to real estate in other

jurisdictions

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Thank You

Scott J. Gordon Kirkland & Ellis LLP scott.gordon@kirkland.com Michelle P . Quinn Berger Harris LLP mquinn@bergerharris.com

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