foreclosure & bankruptcy 101 · foreclosure & bankruptcy 101 presentation to the real...

Foreclosure & Bankruptcy 101Presentation to the Real Estate Finance Association of

the Greater Boston Real Estate Board

John T. MorrierWalter Boldys

Mintz LevinOne Financial Center

Boston, MA 02111617-542-6000

January 29, 2008

Current Lending Climate

• U.S. Commercial property prices will probably fall 10% in 2008, after rising 60% from 2002.*

• Delinquencies of securitized commercial mortgages may quadruple - to 4%- in the next eighteen months.*

• Lending standards are becoming stricter, spreads are widening and the cheap money is gone.*

• Many borrowers will be unable to refinance when their loans mature.*• It is inevitable that lenders will foreclose and that borrowers will seek

bankruptcy protection.– Source: *Bloomberg, January 25, 2008, “Bernanke’s Easing Thwarted Surging

Commercial Mortgage Rates” by Bob Ivry

What is Foreclosure?

• The legal process whereby a lender realizes on collateral secured by a real estate mortgage and related security agreements.

• Each state has its own foreclosure process, unlike bankruptcy, which is national and a creature of Federal law.

• Foreclosure is either judicial or non-judicial– In a Judicial foreclosure state, the lender must prosecute a foreclosure

action in the courts. The lender obtains a foreclosure judgment, which is enforced by a court supervised sale of property.

– In a non-judicial foreclosure state, the lender itself has the power to sell the property at auction without having to go to court.

• Sale of the property wipes out the borrower’s ownership and all interests subordinate to the mortgage, including junior liens and leases entered into after the recording of the mortgage.

Alternatives to a Contested Foreclosure

• Work-out of the loan.– Modification.– Discounted pay-off.

• Deed in lieu of foreclosure.• Sale of the loan.• Friendly foreclosure.

Lenders’ Remedies Prior to the Foreclosure Sale

• Unless the lender acts, the borrower will remain in possession and control of the property until the foreclosure sale.

• Lender may:– Request a court to appoint a receiver to take control of the property.– Enter the property and become a mortgagee in possession.– Direct the tenants to pay all rents to the lender pursuant to the assignment of

leases and rents.– Seek injunctive relief against the borrower to enforce the loan documents.– Take possession of any cash collateral.– Cash letters of credit.– Sue to enforce any guaranties and indemnities.

Steps in a Typical Foreclosure

• Determine the nature of the default and whether it allows the lender to foreclose.– Monetary Defaults.

• Failure timely to pay principal and interest, including failure to pay the loan at maturity.

• Failure to pay or maintain taxes, insurance, reserves or escrows.

– Non-Monetary Defaults.• Change of ownership or control of the property without the consent of the lender.• Borrower’s incurring additional debt or liens without the consent of the lender.• Tenant issues.• Environmental problems.• Waste.


• Review the loan documents and determine whether there are guarantors, indemnitors or other lenders (such as mezzanine lenders and second mortgagees).

• Send notice of default as required by the loan documents.– Not a routine servicing letter; must be carefully drafted. If the notice of

default is defective, the lender will have to start over and send a corrected notice.

– Should describe all the defaults, monetary and non-monetary, known to the lender.

– Loan documents may give third parties the right to receive notice of default and an opportunity to cure.


• Determine what the collateral is. Collateral typically includes:– Real property.

• Lands and buildings.• Rents, issues and profits.

– Personal property.• Tangible personal property.• Cash, bank accounts, deposits, escrows.• Letters of credit.

• Determine the current market value of the collateral. This is the single most important fact in a foreclosure (and a bankruptcy).

• Compute the total debt. This is the second important fact in a foreclosure (and a bankruptcy).


• Review tenants leases and any SNDA agreements.• Review the original environmental report and order a new or updated

Phase I environmental report.• Identify the property manager and/or leasing and sales broker that the

lender will wish to use if it acquires the property at the foreclosure sale.• Hire a professional auctioneer to conduct the foreclosure sale.

– Auctioneer may advertise the sale.– Auctioneer may prepare a bidding package.


• Draft terms of the foreclosure sale.• Send notice of foreclosure sale to the borrower and to all parties entitled

to receive notice ( such as junior lienors and tenants with subordinate leases).

• In Massachusetts, send separate notice to parties liable for a deficiency following the foreclosure sale.

• Publish notice of the foreclosure sale as required by statute.

The Foreclosure Sale

• The sale is a public auction at which anyone may bid.– Terms of sale usually require bidders to qualify by bringing certified checks in

the amount of the required deposit.– The successful bidder is the highest qualified bidder.– Delivery of the foreclosure deed and payment of the balance of the bid price

typically occur 15 to 30 days after the sale.– Lender may offer financing to the successful bidder.


• Lender may credit bid up to the amount of the debt.

• Lender should not reveal its bidding strategy prior to the sale.– Lender has a duty to get the highest price at the sale.– Lender must not chill bidding or favor one bidder over another.


• The sale may result in a deficiency or a surplus.– Deficiency: successful bid is less than the amount of the debt.

• Borrower or guarantors may be personally liable for the deficiency.

– Surplus: successful bid is larger than the amount of the debt.• Lender must distribute any surplus in cash to junior lienors and/or borrower.

– If lender bids the full amount of the debt, the debt is satisfied.

• If the lender is the successful bidder it must be prepared immediately to become the owner of the property.

Bankruptcy as a Defense to Foreclosure

• If a borrower wants to block a foreclosure sale, it usually files a bankruptcy action. Borrower may seek state court injunction.

Key Real Estate issues in Chapter 11

• Automatic Stay• Single Asset Real Estate• “Absolute Priority Rule”• Valuation• Adequate Protection• Lien Stripping/Cramdown

Goal Reorganization Plan

• “Forced Negotiation” Contract with Creditors

Automatic Stay

• Automatically Stays all actions which attempt to collect a debt• Stays foreclosure proceedings automatically• Exceptions: evictions post-judgment

Relief from Stay

• Where Debtor has no equity in the property • And property not necessary for reorganization

Single Asset Real Estate

• Single property or project• Generates substantially all of the Debtor’s income• No business other than that incidental to ownership• Relief from Stay if no plan proposed within 90 days

Absolute Priority Rule

• First: Secured Creditors (to extent of security interest)• Next: Priority Creditors

– Cost of running the case and the business during the case– Taxes, employee claims, other statutory priorities

• Next: Unsecured Creditors• Last: Equity Interests• No Junior class creditors may receive value unless prior class paid in full

or consents.• “Consent” means ½ in number and 2/3 in amount of claims in class

Valuation

• Market• Liquidation• Reorganization/Going Concern

Adequate Protection

• To Compensate for declining collateral value• Issue: Are “rents” separate collateral from “real property”• Post-petition interest may accrue if lender is over secured

Lien Stripping/Cramdown

• Debtor may try to reduce lien to “current” value of collateral • Balance of claim’s unsecured.

MIN

TZ,L

EV

IN,C

OH

N,F

ER

RIS,G

LO

VSK

Y A

ND

PO

PE

O,P

.C.

Boston | Washington | N

ew Y

ork | Stamford | Los A

ngeles | Palo Alto | San D

iego | London w

ww

.mintz.com

Joh

n T

. Mo

rrier

Of C

ounsel

Ban

kruptcy, R

estructu

ring

and C

om

mercial

(617) 3

48-3

051

JMorrier@

min

tz.com

Min

tz, Levin

, Co

hn

, Ferris,

Glo

vsk

y a

nd

Po

peo

, P.C

. O

ne Fin

ancial C

enter

Bosto

n, M

A 0

2111

T +

1 6

17-5

42-6

000

F +1 6

17-5

42-2

241

John Morrier is O

f Counsel in Mintz Levin’s Boston office and practices in the

Bankruptcy, Restructuring and Comm

ercial Law Section. John is also a m

ember

of the firm’s Insurance/Bankruptcy G

roup and Subprime practice group.

John’s practice is focused on all aspects of bankruptcy and comm

ercial law,

including litigation in federal and state courts and negotiating and documenting

comm

ercial loan transactions for lenders and borrowers.

He represents secured and unsecured creditors, debtors, executives, insurers,

landlords, estate professionals and other parties in bankruptcy proceedings and out of court restructurings, w

orkouts and other insolvency matters. H

e has particular experience advising clients in buying and selling assets in distress situations and advising directors and officers in their duties in solvency-challenged situations. In his practice, John w

orks with clients to develop and

execute business strategy in a broad array of industries, including companies in

the manufacturing, retail, finance, healthcare, biotechnology, real estate, and

professional services fields.

John is ranked among the top M

assachusetts bankruptcy lawyers by

Chambers USA

- America’s Leading Business Lawyers, is listed in Best Lawyers in

America,and is nam

ed a Massachusetts Super Lawyer by

Boston and Law & Politics

magazines.

John is admitted to practice in the state and federal courts of M

assachusetts and M

aine. He is a m

ember of the Boston Bar A

ssociation and serves on the BBA’s

Bankruptcy Section Steering Comm

ittee, and is also a mem

ber of the M

assachusetts Bar Association, the A

merican Bankruptcy Institute and the

Turnaround Managem

ent Association. John received his bachelor’s, Juris

Doctor and M

aster of Business Adm

inistration degrees from Boston College.

Publications and Speaking Engagem

ents: •

Panelist, Recharacterization of Debt to E

quity, Boston Bar Association, Bench

Meets Bar Conference, M

ay 2007. •

Author,Recharacterization of D

ebt to Equity: from ‘Kabuki outcomes’ to a G

estalt A

pproach,Association of Com

mercial Finance A

ttorneys Annual

Conference, May 2007.

•Panelist, Confirmation Standards under the new BA

PCPA, Boston Bar

Association M

arch 2006 •

Author, Client A

dvisory: President Signs Major Bankruptcy Reform

into Law

, April, 2005

•Panelist, Sales of Businesses in Chapter 11 and Issues in Professional RetentionA

ssociation of Comm

ercial Finance Attorneys annual conference, M

ay, 2004

•Panelist, Sales of Businesses in Chapter 11, A

merican Bankruptcy Institute

Northeast Bankruptcy Conference July 2003

•Panelist, Bankruptcy Bench M

eets Bar, Massachusetts Continuing Legal

Education, M

ay 2003 Contributing A

uthor, Crocker’s Notes on Common Forms, M

CLE, 2001 ed.

MIN

TZ,L

EV

IN,C

OH

N,F

ER

RIS,G

LO

VSK

Y A

ND

PO

PE

O,P

.C.


ew Y



iego | London w

ww

.mintz.com

Walte

r Bo

ldys

Asso

ciate Real E

state

(617) 3

48-1

803

WBold

ys@m

intz.com

Min

tz, Levin

, Co

hn

, Ferris,

Glo

vsk

y a

nd

Po

peo

, P.C

. O

ne Fin

ancial C

enter

Bosto

n, M

A 0

2111

T +

1 6

17-5

42-6

000

F +1 6

17-5

42-2

241

Walter is an associate in the Real E

state Section, practicing in the Boston office.

Prior to joining Mintz Levin in O

ctober 2006, Walter w

as of counsel w

ith another Massachusetts law

firm. For tw

enty-one years he was a

mem

ber of the law departm

ent of John Hancock Financial Services,

where his w

ork involved all aspects of the company's real estate

investments. H

e was responsible for closing hundreds of com

mercial

mortgage loans for the general account and the conduit lending program

. H

is experience includes the negotiation and structuring of mortgage

loans for all property types, including multi-fam

ily, co-ops, office, retail, hotels, industrial, m

obile homes, dorm

itories, parking garages and non-profit uses. H

e also advised John Hancock's m

ortgage banking subsidiary and w

as an integral part of the securitization program.

Walter handled all bankruptcies, w

ork-outs and foreclosures arising from

John Hancock's $7 billion m

ortgage portfolio. He negotiated and closed

numerous loan m

odifications, including a $153 million hotel loan in

Washington, a $60 m

illion industrial loan in Los Angeles and a $70

million office loan in Chicago. H

e is an expert in creditors' rights and served as the Chairm

an of the Am

erican Council of Life Insurance's Com

mittee on Bankruptcy Legislation. H

e has lobbied Congress for reform

s to the Bankruptcy Code on behalf of the life insurance industry and the M

ortgage Bankers Association.

Walter also handled the redevelopm

ent and disposition of numerous

foreclosed and equity properties. He oversaw

the complete renovation

and sale of an office building in Boston's Back Bay and the conversion of a shopping center in Tam

pa, Florida to a state of the art call center. He

has negotiated and drafted leases with m

ajor tenants, handled construction disputes and title litigation, and dealt extensively w

ith property m

anagers and brokers. He w

as counsel to John Hancock's

development subsidiary in the construction and sale of a luxury

condominium

in Manchester, N

ew H

ampshire.

Walter w

as also co-counsel to John Hancock's low

income housing tax

credit program. H

is responsibilities included construction and environm

ental matters, partnership defaults and restructurings, risk

managem

ent and project financing.

Walter graduated from

Rutgers College with high honors and w

as elected to Phi Beta K

appa. He received his J. D

. from Boston U

niversity School of Law

and was adm

itted to the bar in Massachusetts in 1977. H

e is a m

ember of the M

assachusetts and Boston Bar Associations, the Real

Estate Bar A

ssociation and the Real Estate Finance A

ssociation.

MIN

TZ,L

EV

IN,C

OH

N,F

ER

RIS,G

LO

VSK

Y A

ND

PO

PE

O,P

.C.


ew Y

ork |Stamford |Los A


iego | London w

ww

.mintz.com

OVE

RVIE

W O

F TH

E F

IRM

MIN

TZ,L

EVIN

,CO

HN

,FE

RR

IS,GLO

VSKY AND

PO

PEO,P.C. is a full-service, m

ultidisciplinary law firm

of nearly 500 attorneys and senior professionals, w

ith offices in Boston, Washington, Stam

ford, New

York, Los

Angeles, Palo A

lto, San Diego and London, and a diverse international clientele. The firm

has extensive expertise in innovative, as w

ell as traditional, industries and practice areas, including industry practice groups that specialize in the retail, high technology, com

munications, life sciences, financial services, insurance,

healthcare and medical device industries. O

ur primary practice areas include intellectual property, corporate,

litigation, labor and employm

ent, real estate, public finance, environmental, bankruptcy, and im

migration. W

e serve clients of all sizes and at all stages of grow

th, from individuals to start-up and later-stage venture-backed

companies to global corporations. M

intz Levin’s success is built on a deep comm

itment both to its clients’

best interests and to excellence in every aspect of its practice.

AC

OM

MIT

ME

NT

TO

SER

VICE

Mintz Levin is driven by an entrepreneurial spirit that translates into the creative, energetic representation of

clients. We pride ourselves on the quality of our strategic thinking and our ability to think like clients —

to understand the goals, critical issues and opportunities that drive them

. We think the grow

th of our practice is evidence that our clients share and appreciate this entrepreneurial spirit. Responsive, aggressive problem

-solving and the com

mitm

ent to client service have been Mintz Levin tradem

arks since the firm w

as founded in 1933. A

s a result of the firm’s continuous grow

th, we have even m

ore resources available to assist us in achieving our clients’ goals.

TH

EC

LIEN

T’SUN

IQU

E R

EQ

UIR

EM

EN

TS

Our ability to deliver professional legal services in traditional areas such as litigation, em

ployment law

, corporate, real estate, public finance, com

mercial law

, tax, and financial planning is the foundation of Mintz

Levin’s successful practice. The firm has alw

ays distinguished itself by insisting upon the highest standards of professional service from

all of its attorneys in these practice areas, and has further distinguished itself in the last several years through the developm

ent of highly-skilled legal practice groups in a number of evolving,

cutting-edge, specialized areas of practice. We offer clients the greatest possible depth of experience and

knowledge in diverse and com

plex legal areas, including sophisticated finance, venture capital, intellectual property, com

munications, environm

ental law, health care and fraud and abuse, im

migration, insurance, and

employee benefits and executive com

pensation.

In all of its work for clients, M

intz Levin is guided by a key question: how can w

e ensure that our work

addresses all of the imm

ediate needs of the client while delivering long-term

benefits to the organization and its business as a w

hole? Our goal is alw

ays to accomplish this in the m

anner most appropriate to each

individual client.

We believe that our clients are served best w

hen their needs are first anticipated by their counsel and then resolved through the efficient cooperation of attorneys w

ho have established themselves as leaders in their

respective practice areas. Our attorneys draw

upon extensive legal backgrounds and, in many cases, years of

experience in business and the public sector. Attorneys in each of M

intz Levin’s practice areas provide cross-disciplinary expertise and team

work as dictated by a client’s needs and circum

stances.

GLO

BALP

RACT

ICE

Building on the strength of our domestic practice and recognizing the globalization of the business

marketplace, M

intz Levin plays an important role in helping clients advance their interests around the w

orld.

MIN

TZ,L

EVIN

,CO

HN

,FE

RR

IS,GLO

VSKY AND

PO

PEO,P.C.

Overview

of the Firm

Page 2

Through the expertise of our attorneys and senior professionals in the U.S. and London, E

ngland, the firm

offers experienced representation for international business activities, drawing on all of its practice areas.

Our attorneys regularly represent clients on a w

ide range of international matters including financings,

mergers and acquisitions, distribution and license agreem

ents, and opening branches in new m

arkets, as well

as litigation and arbitration. We also offer our clients im

portant strategic and legal advice on international regulatory and com

pliance matters. O

ur international practice is an important and grow

ing part of our total activity.

OU

RC

ON

SULT

ING

AFFILIAT

ES

Mintz Levin has established several consulting affiliates to address its clients’ business and personal needs:

ML Strategies, LLC is a specialized consulting firm

which helps clients to m

anage complexity by providing

interrelated professional services that support corporate growth and success. The firm

provides services and expertise in the strategic areas of governm

ent affairs and representation; project development; public relations

and crisis comm

unications; environmental health and safety; health care strategy; and international business.

Mintz Levin Financial A

dvisors, LLC provides high net worth individuals and fam

ilies with com

plete wealth

managem

ent services.

TE

CHN

OLO

GY

Mintz Levin is com

mitted to providing the best possible w

orking environment for its attorneys and clients,

and continues to invest substantial resources in information technology that allow

s the most effective and

cost-efficient work. W

e are fully networked to exchange critical inform

ation and comm

unicate within the firm

and w

ith our clients quickly and accurately, controlling legal costs for our clients. In some cases our

technology is linked directly with our clients’ system

s to assure maxim

um accessibility to our attorneys and to

facilitate the free flow of docum

ents and messages. The firm

has a state-of-the-art video conferencing facility and uses on-line capabilities w

henever client benefit can be realized — these include on-line inform

ation services, the W

orld Wide W

eb and e-mail.

PR

ICING

Mintz Levin recognizes that aggressive m

anagement and control of legal fees and expenses are of critical

importance to its clients. W

e are comm

itted to working w

ith our clients to define — up front, in w

riting and w

ith as much precision as possible —

the scope of each engagement and the agreed-upon budget for

performance of the w

ork. It is our job to manage staffing and m

onitor the rendering of services consistent w

ith the budget.

With a view

to enhancing the cost effectiveness of our practice, we continually analyze w

hat it costs us to conduct litigation or m

anage transactions. Each of our practice sections designs quality m

anagement plans to

improve our legal form

s, strengthen our delivery systems, develop and utilize legal databases and generally

improve our practice efficiency. W

e also conduct training sessions for our attorneys on effective cost estim

ation and budgeting techniques, and on the managem

ent of cases and transactions within those budgets.

We have put in place a program

to gather client feedback on a regular basis, to assess our performance and

consider how w

e might w

ork together to do better.

S ER

VICE T

O T

HE

CO

MM

UN

ITY

Mintz Levin has a long tradition of charitable support and civic involvem

ent, and many of our attorneys have

been recognized for their pro bono and comm

unity service activities. The firm played a critical role in

MIN

TZ,L

EVIN

,CO

HN

,FE

RR

IS,GLO

VSKY AND

PO

PEO,P.C.

Overview

of the Firm

Page 3

establishing and provides ongoing support to Jane Doe Inc., M

assachusetts Coalition Against Sexual A

ssault and D

omestic V

iolence, for example. W

e have also donated substantial time and effort to a variety of

comm

unity organizations including youth and education programs.

Many of the firm

’s attorneys are actively involved in the Boston, Massachusetts, D

istrict of Columbia, N

ew

York, Connecticut, California, London, A

merican and International Bar A

ssociations. We are particularly

proud of our leadership in the Boston Bar Association’s judicial reform

efforts.

TH

EF

IRM

CU

LTU

RE

AND

DIVE

RSE

CLIE

NT

ELE

Mintz Levin is guided by an abiding respect for its founders’ values of professional excellence and collegiality

while sim

ultaneously developing as an innovative and progressive law firm

. As a result of the w

ide range of services offered by M

intz Levin, the firm’s client base is as diverse as the skill of its attorneys. W

e represent a variety of com

mercial, financial and industrial enterprises, both publicly and privately ow

ned, ranging from

individuals and small corporations to Fortune 500 com

panies and governmental entities, agencies and

authorities. Mintz Levin serves as counsel to national and international com

panies in high technology, biotechnology, inform

ation technology, including Internet companies, com

munications, franchising,

insurance, real estate development and energy, as w

ell as major banking and securities firm

s. We believe that

in many w

ays our clients represent us.

We are com

mitted to the essential task of gaining thorough know

ledge of our clients’ businesses and the m

arkets in which they m

ust compete. This know

ledge, along with the professional skills of attorneys w

ho are leaders in their fields and our orientation to practical and responsive service, allow

s us to address our clients’ basic legal needs w

hile helping them solve specialized legal and business problem

s in a creative and cost efficient m

anner.

PR

ACTICE

AR

EAS

BankingBankruptcy and W

orkout BiotechnologyCorporateCom

munications

Education

Em

ployee Benefits and Executive Com

pensation E

mploym

ent, Labor and Benefits E

nergy and Clean Technology E

nvironmental Law

Federal Relations H

ealth Law

Hom

eland Security Im

migration

Intellectual Property International Practice LitigationPrivate Client Section Public Finance Real E

state TaxTechnology Law

MIN

TZ,L

EV

IN,C

OH

N,F

ER

RIS,G

LO

VSK

Y A

ND

PO

PE

O,P

.C.


ew Y



iego | London w

ww

.mintz.com

OU

RB

ANKR

UPT

CY,RE

STR

UCT

UR

ING

AND

CO

MM

ER

CIALL

AWP

RACT

ICE

Mintz Levin offers a nationally recognized bankruptcy practice, w

hich is supported by a full service firm of

approximately m

ore than 450 attorneys including specialists in virtually all areas of law. U

nlike many

bankruptcy practices, Mintz Levin has represented all parties and interests involved in a debtor/creditor relationship

including debtors, creditors’ comm

ittees, examiners, trustees, lenders and borrowers, landlords, equipm

ent lessors, acquirers, bondholders and indenture trustees. O

ur bankruptcy practice extends to cases and transactions involving national and regional retailers, m

anufacturing companies involved in all business industries, high-technology and

biotechnology companies, electronic com

ponent manufacturers and consum

er electronics chains, chains of convenience stores, com

munications com

panies, textile manufacturers, food service com

panies, insurance com

panies and other financial services companies, entities holding large com

mercial real estate portfolios, m

arine cargo facilities, hospitals, nursing hom

es, airlines, public authorities, restaurants, entertainment facilities, and hotels.

We have represented num

erous companies in out-of-court w

orkouts and Chapter 11 proceedings. We are the

largest bankruptcy department in N

ew E

ngland and our depth allows us to provide clients unparalleled

attention and skill on a daily basis. We em

phasize helping clients find creative and cost-efficient solutions to their problem

s. Our knowledge and understanding of creditors’ rem

edies and issues important to other

constituencies in workouts and bankruptcy proceedings significantly increase our ability to represent our debtor clients m

ore effectively and efficiently. One of our m

ost important roles is to put people together in sound

“win-w

in” relationships.

One of our strongest assets is the ability of our attorneys to draw

upon the wide variety of excellent resources

available within the firm

. This is of particular value in bankruptcy cases. Non-bankruptcy issues can often

become the focus of significant disputes of crucial im

portance to a Chapter 11 proceeding. We frequently

address the interplay of bankruptcy law and employee benefits, lender liability law, labor law, pension law, landlord-

tenant law, tax law, public and private bond finance, health care law, and environmental law. W

orking together with all areas of the firm

’s practice, our attorneys are particularly qualified to provide comprehensive, creative, and cost-

effective representation in the most com

plex insolvency and reorganization proceedings.

Depending upon the client’s direction, w

e are equally capable of pursuing an aggressive legal approach, involving experienced com

mercial litigators w

ho can enforce a client’s rights in any court in the nation or internationally, and negotiating a consensual com

promise, involving transactional attorneys w

ho have experience in the m

ost sophisticated, cutting-edge deals and documentation. O

ur overlapping expertise in litigation and transactional m

atters allows us to provide added value to our clients, w

ho benefit from dealing

with counsel w

ho know the nuts and bolts of deal docum

ents as well as how

to attack or defend them.

Throughout this process, we are alw

ays cognizant of the cost and expense that must be shouldered by the

client, and the fact that, in the end, the client’s needs and desires are paramount.

MIN

TZ,L

EV

IN,C

OH

N,F

ER

RIS,G

LO

VSK

Y A

ND

PO

PE

O,P

.C.


ew Y



iego | London w

ww

.mintz.com

OU

RR

EAL

EST

ATE

PR

ACTICE

Mintz Levin has been representing clients in sophisticated, large-scale real estate developm

ent and financial transactions throughout the U

nited States for over twenty-five years. Com

bining professional skills and resources w

ith practical judgment and political acum

en to advance its clients’ real estate interests, the Real E

state Section takes a multidisciplinary approach that involves attorneys and resources from

other practice sections w

ithin the firm as necessary, including environm

ental law, telecom

munications, health care, business

and finance, corporate securities law, and tax law

. Mintz Levin’s extensive experience includes analyzing and

structuring complex deals, coordinating projects of significant scope and com

plexity and providing strong negotiation throughout the developm

ent process as well as the range of other real estate m

atters and transactions.

Mintz Levin’s Real E

state Section, comprising approxim

ately 35 attorneys and senior professionals and five paralegals, is engaged in a sophisticated developm

ent and finance practice involving real property and transactions throughout the U

nited States. The practice involves representation of developers, lenders, tenants and landlords, as w

ell as investors in and users of comm

ercial and residential properties, including office buildings, shopping centers and other retail projects, industrial and R&

D facilities, hotels, residential rental

and condominium

properties, hospitals, nursing homes and other health care facilities, congregate, assisted-

living and continuing care retirement com

munities, and recreational com

munities. O

ur clients also include public agencies, developers, syndicators, and financial institutions involved in the developm

ent, financing, and ow

nership of multi-fam

ily housing. We represent entities developing m

ajor urban mixed-use projects,

developers of large regional shopping malls and retail “pow

er” centers, public and private corporations with

facilities around the world. In addition, w

e represent telecomm

unications service providers and building ow

ners in leasing, licensing and related transactions.

Mintz Levin also has a consulting affiliate, M

L Strategies, LLC, available to provide strategic planning and related professional services in governm

ent, comm

unity and media relations and on environm

ental issues. Collaborative team

s of attorneys and the professionals of ML Strategies afford clients a breadth of integrated

experience not traditionally available from a single firm

. Mintz Levin also has a specialized financial advisory

group, ML Capital, LLC, w

hich helps real estate owners and developers raise private capital to fund corporate

growth and ongoing investm

ent programs.

RE

ALE

STAT

E P

RACT

ICE A

RE

AS

The following pages describe the principal areas in which Mintz Levin provides real estate representation. It should be noted,

however, that we work on a variety of matters beyond the scope of these summaries. More specific descriptions of our experience in

real estate matters are available upon request.

Project Developm

ent M

intz Levin’s real estate attorneys combine professional skills, practical judgm

ent, and political acumen to

advance our clients’ real estate interests. One of our key strengths is the ability to analyze, structure, and

coordinate projects involving significant complexity. W

e provide advice on land acquisitions and dispositions, ground leases, cross-easem

ents and other discrete realty interests, regulatory compliance and perm

itting, construction phasing, financing, and the utilization, leasing, and m

anagement of the developm

ent. In undertaking such projects, our real estate attorneys assist clients in structuring and negotiating property acquisitions; obtaining zoning planning, subdivision, environm

ental, and other land use approvals for both new

construction and rehabilitation of existing facilities; drafting and negotiating architectural design and construction contracts; securing and negotiating construction and perm

anent debt financing and refinancing; structuring equity participations and syndications; leasing residential, industrial, office, and retail properties; and the ultim

ate disposition of completed projects.

MIN

TZ,LEVIN,C

OH

N,FERRIS,G

LOVSKY AN

D P

OPEO,P.C.

Our Real E

state Practice Page 2

Regulatory Com

pliance O

ur real estate attorneys are known for their experience in guiding clients through the m

aze of often contradictory regulatory requirem

ents and helping clients to foresee and address issues before they become

costly problems. Since the early 1970s, the scope and volum

e of regulations affecting real estate development

and operations have burgeoned to a point where there is alm

ost no area left unaffected.

Zoning is a prim

ary regulatory tool. Zoning regulations can vary m

arkedly among m

unicipalities, and most

provide mechanism

s for attaining greater value by enhancing density. In urban areas, layers of additional regulations have been enacted w

ith more sophisticated constraints such as interim

overlay planning districts and density bonuses for am

enities. Mintz Levin is know

n both for designing solutions to the density issue and for challenging invalid density lim

its.

In addition, our attorneys in Boston and New

York have a great deal of experience representing

comm

unications clients in connection with zoning and planning for telecom

munications infrastructure.

A num

ber of regulatory tools also are grouped under the rubric of environmental law

s. The impact of the

regulation of real estate development has been felt perhaps now

here more than in the environm

ental arena. O

ur Real Estate Section w

orks closely with our E

nvironmental Law

Section to identify and obtain all permits

and approvals necessary to construct and operate a development, ranging from

facility siting laws to M

EPA

review

, subdivision laws, com

pliance with the A

mericans w

ith Disabilities A

ct, permits to discharge

wastew

ater and permits to discharge pollutants to the air. From

ensuring that applications are complete and

consistent with applicable law

s and regulations as well as less form

al agency policies and requirements, to

advising clients on potential comm

unity relations issues, to seeing that public hearings are conducted in a m

anner that will reflect positively on a project, w

e have guided many com

plex developments to com

pletion. W

e also can call upon our Governm

ent and Public Affairs G

roup for assistance on matters concerning

legislative or executive decision-making at the local, state, and federal levels, including new

legislation and regulations w

hen needed to effectuate a client’s proposal.

Senior LivingM

intz Levin provides legal advice to senior living sponsors, developers, health care providers, lenders and investors in the senior living area. W

e have extensive experience in the financing, development and

sponsorship of senior housing, continuing care retirement com

munities, and assisted-living residences. W

hen appropriate, w

e involve mem

bers of the firm’s H

ealth Care Section in matters concerning the delivery of

health care services.

Affordable Housing

Mintz Levin is w

ell known for its experience and skills in the area of affordable housing. W

e provide financial and developm

ent expertise to owners, sponsors, and public agencies involved in the developm

ent, financing, and ow

nership of affordable housing. Clients in this field receive financing through agencies such as HU

D,

FNM

A, G

NM

A, FH

A, state housing finance agencies, and the Federal H

ome Loan Bank for fam

ily, elderly, and assisted-living developm

ents. We also represent banks in structuring and im

plementing responses to

comm

unity housing needs. Since 1980, Mintz Levin has represented its clients on several hundred affordable

housing projects, acting as developer’s counsel, bond and underwriter’s counsel, syndication/tax counsel, and

owner’s counsel.

MIN

TZ,LEVIN,C

OH

N,FERRIS,G

LOVSKY AN

D P

OPEO,P.C.

Our Real E


Sale/leasebacksM

intz Levin real estate attorneys supervise a national program of site acquisition, perm

itting and development

for a major retailer that operates in excess of 4,000 stores nationw

ide. We supervise the retailer’s regional fee-

for-service developers to assure consistency of site control and environmental, title and survey com

pliance. W

e provide regular electronic updates by a comprehensive charting system

which notes the status of each

closing requirement and due diligence item

to the retailer and its developers, keeping everyone on track. Several tim

es a year, we also represent the retailer in a sale/leaseback financing transaction that generally

involves approximately 100 retail locations in 15-20 states. The acquisition debt is generally sold by private

placement or by a 144a offering. M

intz Levin attorneys worked successfully w

ith our client to structure the sale/leaseback transactions to occur prior to com

pletion of construction of the stores, accelerating the benefits to our client considerably.

Securitization/RE

ITs

Working w

ith Mintz Levin’s securities and tax attorneys, our real estate attorneys assist clients in the review

, structuring, acquisition, and disposition of real estate debt and equity asset portfolios in connection w

ith the organization and operation of RE

ITs and other securitization vehicles. We also advise com

mercial real estate

developers and operators considering conversion from a traditional founder-dom

inated, asset-oriented organization to a m

ore corporate-oriented structure as a means to provide access to public and private capital

markets. O

ur attorneys bring to these tasks significant experience and knowledge in providing im

portant help to clients as they determ

ine which of the m

any and ever-changing investment/disposition strategies offered

by the capital markets m

ake sense for them.

Institutional Lending and Workouts

Our Real E

state Section represents institutional lenders throughout the country and around the world in

structuring and negotiating sophisticated construction and permanent financing arrangem

ents on projects of all types and sizes. In addition to conventional m

ortgage loans, we w

ork closely with attorneys in our Business

and Finance Section to assist clients in all aspects of taxable and tax-exempt bond financings.

Our experience as counsel to both lenders and borrow

ers in financing transactions enables us to anticipate and address issues in a practical and businesslike m

anner that is most likely to ensure the successful and

economical com

pletion of the loan.

Where developm

ents do not proceed as expected and additional lender protection is required, we w

ork extensively w

ith our clients in restructuring loan transactions, obtaining additional collateral, negotiating extended paym

ent schedules, and, if necessary, instituting foreclosure or other appropriate enforcement

remedies. Several real estate attorneys in the firm

’s Bond Workout G

roup concentrate on representing bondholders and trustees in restructuring real estate-backed bond financings. The Real E

state Section works

with both our Com

mercial Law

(Bankruptcy) Section and our Litigation Section on these matters.

Biotechnology Facilities M

intz Levin is proud to have one of the region’s leading biotechnology practices, representing many

companies involved in the rapidly evolving biotechnology industry. A

s part of our service to these clients, our real estate, business and finance, and health care attorneys have form

ed the Health and Biotechnology

Facilities Group. This group brings a m

ultidisciplinary approach to developing, leasing and financing health care and biotechnology facilities. D

eveloper and user services include preparation and negotiation of specialized architectural and construction contracts and leases, and assisting clients in the analysis of and com

pliance with local regulations on specialized uses such as outpatient clinics, drug rehabilitation centers,

MIN

TZ,LEVIN,C

OH

N,FERRIS,G

LOVSKY AN

D P

OPEO,P.C.

Our Real E


nuclear medicine, and biotechnology research and m

anufacturing facilities, many of w

hich are not anticipated uses in current m

unicipal zoning by-laws. O

n the financing side, we offer insight into the special issues

affecting these types of facilities, particularly where traditional lenders’ rem

edies are not available. In appropriate m

atters, our Business and Finance Section assists in all aspects of taxable and tax-exempt bond

financing.

SyndicationO

ur Real Estate Section represents developers and syndicators in the private placem

ent of real estate partnership interests. M

intz Levin’s attorneys have extensive experience in structuring, negotiating, and drafting syndication offering m

aterials, general and limited partnership agreem

ents, and joint venture agreem

ents. The experience of the firm’s securities practice helps guide clients through the com

plexities of federal and state securities law

s and regulations and applicable broker/dealer regulations.

Leasing and Project Operation

Mintz Levin has served as lead counsel in connection w

ith many of the largest lease transactions in N

ew

England and N

ew Y

ork. A significant portion of our representation of real estate clients involves the day-to-

day aspects of owning and operating com

mercial real estate, such as leasing, m

anagement and brokerage. W

e are actively involved on behalf of clients in the leasing of office, m

anufacturing, research and development,

medical and retail facilities. The firm

has devoted significant resources to automating those aspects of lease

transactions that are repetitive in nature, thus saving valuable resources for the more im

portant negotiation phase, w

here sophisticated legal advice can be critical. Autom

ated lease preparation software developed in-

house at Mintz Levin allow

s us to prepare and deliver customized leases in an extrem

ely short time fram

e at m

odest cost to our clients. This capability has proven invaluable to landlord clients in today’s competitive

environment. In addition, w

e bring the experience we have gained in representing lessors and lenders to our

representation of comm

ercial tenants in their lease negotiations, particularly as it pertains to comm

unications-related transactions, such as leasing and licensing of rooftop locations.

Tax Appeals

With assistance from

the firm’s consulting affiliate, M

L Strategies, LLC, Real Estate Section attorneys guide

both developer/owner clients and institutional lenders through the tim

e-sensitive real estate and personal property tax abatem

ent processes, and classification and restriction alternatives leading to abatements, in

order to enhance net operating income and cash flow

by minim

izing taxes. We are actively involved w

ith clients in prosecuting tax appeals w

hen necessary at the conclusion of the tax abatement process. Such

abatements and appeals can add significant value to a developm

ent, particularly in times of rapidly escalating

values.

Comm

unications Industry Expertise

Mintz Levin’s real estate and com

munications attorneys have the largest specialized expertise in the U

nited States serving the real estate related needs of both real estate and com

munications clients, including property

owners, service providers and tenants, in a w

ide range of matters. Included in the com

prehensive experience of these eighteen attorneys are hundreds of transactions involving the leasing and licensing of rooftop locations on office, residential and retail buildings; w

iring of office, residential and retail properties for com

munications services; leasing of and co-location on freestanding antenna tow

ers for wireless and other

comm

unications uses; and leasing of comm

unications switch facility or carrier hotel leases and co-location

facilities for both property owners and tenants. These attorneys also have been actively involved in zoning

and planning for telecomm

unications infrastructure. In addition, they have experience in transactional work

involving the sale, leasing, acquisition and development of radio and television tow

er sites and co-location of space on tow

ers for multiple telecom

munications users.

Adding to this capability is M

intz Levin’s nationally recognized com

munications law

practice, with its breadth and depth w

orking in the regulatory and legislative

MIN

TZ,LEVIN,C

OH

N,FERRIS,G

LOVSKY AN

D P

OPEO,P.C.

Our Real E


environments. The firm

’s capability in the nexus between real estate and com

munications m

akes Mintz Levin

more effective on behalf of clients w

ho are traditional owners of real estate, as w

ell as clients who are cutting-

edge comm

unications companies.

foreclosure & bankruptcy 101 · foreclosure & bankruptcy 101 presentation to the real...

Documents