Sutherland has represented domestic and foreign commercial banks, commercial finance companies, factors, insurance companies and other institutional lenders in a broad range of financing transactions for more than 20 years. We have closed transactions with borrowers located throughout the United States, as well as in a number of U.S. territories and foreign countries. Our lawyers are experienced not only in dealing with the legal issues that arise, but also the efficient and cost-effective management of these transactions, from the simplest to the most complex. We are sensitive to the need to balance adequate staffing against cost-effective case administration and are careful to avoid the problems associated with both understaffing and overstaffing. To assure our ability to serve our clients, we have developed a comprehensive system of document forms and conduct an extensive in-house training of our lawyers on a continuing basis.
Our financing lawyers have available within the firm the experience to deal with all facets of financing transactions, including secured and unsecured lending, equipment leasing, project finance, interest rate and currency swaps, corporation and partnership law, bankruptcy, securitization, grantor trusts, federal and state taxes, ERISA, environmental law, real estate law, investment company law, intellectual property law, public finance and securities law, as well as ready access to colleagues who practice before all significant federal and state agencies, such as the FTC, FCC, IRS, FERC and state PSC's. In addition, financing lawyers regularly consult with our corporate lawyers and from time to time are responsible for representations of the firm's clients as borrowers. Names of representative clients and examples of specific, nonconfidential transactions can be provided upon request.
Commercial Finance/Asset-Based Lending
We represent commercial finance companies and commercial finance and special lending units of major commercial banks in structuring, negotiating and documenting all types of secured loan transactions. These range from simple accounts receivable and inventory revolving credit lines and equipment and real estate term loans to complex credit facilities involving multiple lenders and borrowers, intricate borrowing formulae, multiple rate options, combined revolving and term loan features, letter of credit and bankers' acceptance facilities, cross-collateralization, detailed financial and performance covenants and equity participation features. We have closed secured loans to borrowers engaged in a broad range of businesses throughout the United States and internationally and have dealt with virtually every type of real and personal property collateral. In addition to more traditional corporate financings, we handle innovative secured transaction structures that require us to work closely with the lender and the borrower to create and document complex and unique financing designs.
Examples of specific types of transactions include:
- Representing a syndicate of commercial lenders in designing, documenting and closing the purchase from an insurance company of insurance agent commission advance receivables in order to qualify these assets for regulatory capital purposes.
- Advising in connection with a combined $750,000,000 financing to a special purpose limited partnership created for the purpose of paying commissions and making commission advances to a large insurance agency organization.
- Representing the sponsor and the issuer, as well as serving as bond counsel, in connection with one of the first publicly offered pools of municipal leases.
- Representing the lender in the financing of a satellite.
- Representing the debt and equity interests in leveraged tax equipment leases.
Leveraged Buyouts/Acquisition Finance/ Recapitalizations
In recent years we have represented lenders in more than 50 leveraged buyout and recapitalization transactions. The structures have ranged from relatively simple asset acquisitions to complex stock acquisitions, redemptions and exchanges involving multi-tiered public and private debt and equity structures. We are experienced in analyzing and advising lenders on the ramifications of acquisition agreement provisions, negotiating indemnification and subordination provisions with sellers and subordination agreements with third party lenders, and otherwise advising lenders within the complex environment of acquisition finance transactions. We have considerable knowledge and experience in structuring LBO and recapitalization financings so as to minimize bankruptcy, insolvency and other risks inherent in these arrangements, such as those posed by state and federal fraudulent conveyance, preferential transfer and bulk transfer laws and principles of equitable subordination and lender liability. We have negotiated the provisions of convertible debt issues, real and phantom stock warrants and capital appreciation rights and have extensive experience in drafting and negotiating complex intercreditor arrangements.
Examples of LBO and recapitalization financing transactions include representing the lender (or agent for the lenders) in:
- A series of five separate leveraged buyout loans and six subsequent refinancings which led to the creation of a now highly successful, publicly held textile manufacturer;
- Financing the purchase by a limited partnership of a fast food franchise chain, including the franchisor and 110 franchisor-owned restaurants in 6 states;
- Financing a leveraged buyout of a large group of convenience stores from the franchisor;
Financing the simultaneous leveraged buyout of the U.S. and U.K. divisions of a major publicly held company;
- Financing the acquisition of an aircraft tire retreader;
- Financing the recapitalization of a major manufacturer of civilian aircraft;
- Financing the acquisition of a seafood processor and distributor;
- Financing a series of acquisitions made by the same investor of the manufacturers of carbide tools and blanks and related businesses;
- Financing the acquisition of an automotive chemical manufacturer;
- Financing the acquisition of the food distribution division of a major international restaurant chain;
- Financing the acquisition of a major synthetic carpet backing manufacturer;
- Financing the recapitalization of a multi-state hospital system;
- Financing the acquisition of a company providing physician office management systems;
- Financing the acquisition of an administrative services organization for self-insured workers compensation funds;
- Financing the recapitalization of an air entangled yarn manufacturer;
- Financing the recapitalization of a multinational manufacturer of industrial flooring products;
- Financing the recapitalization of a manufacturer of scientific glass products and instruments; and
- Financing the recapitalization of affiliated plumbing and wire harness manufacturers.
Real Estate Finance
We represent lenders (including major banks and insurance companies), investors, owners and developers in the financing of real estate projects of all types, including office buildings, apartment projects, shopping centers and hotels. The transactions in which we have been involved run the full range of construction financing, permanent and mini-permanent mortgage lending, multistate mortgage lending, subordinate and wrap-around financing, leasehold mortgage lending and sale/leaseback financing. We have also assisted such clients in joint venture investments and related mortgage lending and are experienced in bond financing, including credit enhanced financing.
We have represented lenders, underwriters and borrowers in the structuring of single project financing transactions, involving, among others, utility systems, solid waste disposal facilities, health care facilities, and co-generation facilities. In addition to our secured lending advice, we have provided the tax advice and the administrative and regulatory representation, advice and drafting which are frequently required in these transactions.
In addition to our secured lending practice, we have extensive experience in representing commercial banks, insurance companies and other institutional lenders in a broad range of unsecured loan transactions, involving single and multiple borrower and lender structures, single and multiple interest rate options, currency options and requiring documentation of intricate performance criteria and restrictions.
Syndicated Loan Transactions
We have represented both the agent and participating lenders in large secured and unsecured syndicated credit facilities and we are experienced in negotiating provisions to protect both constituencies, such as agency provisions, inter lender settlement provisions, letter of credit participation mechanisms, and the like.
We have represented factors of accounts receivable and are experienced in dealing with the issues that arise in such arrangements.
Letters of Credit
We are thoroughly familiar with the law of letters of credit and in the use of documentary letters of credit in trade transactions, as well as the employment of standby letters of credit as credit enhancements to public and private debt issues and in other circumstances. We have represented both banks and beneficiaries of letters of credit in a broad range of transactions, including, publicly offered, tax-exempt and taxable securities backed by letters of credit.
We are experienced in negotiating and documenting complex intercreditor relationships between holders of senior and subordinated debt, as well as those providing for collateral sharing and priorities and similar arrangements.
Workouts/Pre-bankruptcy Planning/ Enforcement of Remedies
In addition to those lawyers in the firm who concentrate in bankruptcy, our financing practice includes advice and documentation as to all lender "exit-strategies." We are experienced in the issues involved in managing troubled credits, both those internal to an institutional lender and those arising in dealing with the borrower. We are also experienced in real and personal property foreclosures and the enforcement of creditors' rights and remedies in and outside of bankruptcy.
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