Secured Lending and Debt Finance 2021

Michelle Boodhoo, McMillan LLP
Ken Bursey, Senior Counsel & Director, Capital Markets – Corporate Banking, Legal & Regulatory Compliance, BMO Financial Group

• The roles and objectives of the lender, borrower and counsel in a deal – who does what?
• Essential terms and requirements: binding and non-binding commitment letters, fees letter, term sheet, etc.
• Considerations when structuring the deal
• Key issues for borrowers and lenders
• Jurisdiction – the practical issues

David Ferris, Fasken Martineau DuMoulin LLP

• Checklist of critical items
• The objectives of due diligence in a financing transaction
• Getting started – addressing key areas of concern
• Use of diligence certificates
• How to best advise clients when issues arise

Eric Belli-Bivar, DLA Piper (Canada) LLP
Don Waters, McMillan LLP

In a hands-on fashion, your program co-chairs will walk you through the key clauses of a loan agreement and offer practical advice on negotiating and drafting the agreement.

• Establishing the facility – includes revolving versus term; swingline; fixed versus floating; Canadian prime, US base rate, LIBOR; banker’s acceptances; Letters of Credit subfacilities
• Conditions precedent
• Representations and warranties
• Covenants – positive and negative
• Events of default and grace periods, including cross-default
• Payout letters
• Agency and lending provisions – includes yank-a-bank provisions; market disruption, increased costs
•  Practice management tips
• Drafting techniques and interpretation of contract clauses
• Effective use of boilerplates in credit agreements
• Identifying and managing risks

NOTE: At 12:00 p.m. ET, a Lunch Break will be taken for 60 mins.

Darcy Ammerman, McMillan LLP
Noah Schein, Norton Rose Fulbright Canada LLP

• Key legal issues and concerns from both lenders’ and borrowers’ perspectives
• The importance of running searches
• Types of security and how they are perfected
  – “All Assets” Liens
  – Pledges of securities
  – Control agreements for uncertificated securities and the Ontario Securities Transfer Act, 2006
  – Real property security – an overview
• Other types of security-related issues
  – PPSA Acknowledgements
  – Implied subordination under the PPSA
  – Landlord agreements
  – Blocked Account Agreements
• Registration issues and pitfalls and enforcement issues

Chris Burr, Blake, Cassels & Graydon LLP
Pat Forgione, McMillan LLP

• Key differences between mezzanine, second lien and other forms of lending
• Recent developments in the Canadian market
• Understanding the contractual and statutory rights of the parties
• Enforceability of waivers
• Security issues and protecting priority
• Issues arising from financing cross-border entities
• Strategies to improve recovery prospects
• Purpose and goal of the agreements, including key structuring issues and critical negotiation points
• Enforcement actions and triggering events
• Payment blockage
• Sales of collateral

Ben Freeman, CPA, CA, CFA, Vice President,
Loan Syndications, TD Securities
Tim Murray, Managing Director, Corporate Banking, RBC Capital Markets
Mark Saraiva, Executive Director, Loan Syndications, Corporate Banking, CIBC Capital Markets

Get an essential overview of the structure and operations of the Canadian debt financing market, including:

• The impact of international lending concerns from the Canadian perspective
• Who are the key players and what are the differences in how they approach the market?
• Which types of products are currently being offered?
• Which elements of the deal are critical to lenders now?

Jason Arbuck, Cassels Brock & Blackwell LLP
Dan Flaro, CFA, President, Pivot Financial Inc.
Karen Patey, Managing Director – Asset Based Lending, North American Commercial Banking, BMO Financial Group

• Pros and cons of ABL versus traditional financing
• Survey of ABL structures in Canada
• Business issues relating to eligible collateral
• Documenting and taking security for an ABL deal
• Industry developments and their impact on transactions
• Cross-border issues you need to be aware of
• Recent legal developments impacting ABL

John Estey, President, Stonebridge Lease Financing Corporation
Jill Fraser, Aird & Berlis LLP

Companies often seek alternative finance options. The equipment finance industry provides such an alternative. This session will provide you with a business-focused understanding of the equipment finance industry to help with advising clients on equipment financing and on entering into leases generally, including:

• What are the key business factors that equipment financiers focus on and how do these find expression in the finance documentation?
• Drafting considerations in dovetailing the equipment finance into a firm’s overall debt strategy
• Understanding the common credit requirements and identifying new trends in the industry
• Negotiation strategies for borrowers
• Current PPSA requirements
• Problems posed by aircraft, motor vehicles and trucking fleets
• Conflicts of law arising where assets move between jurisdictions
• Where to perfect the relevant security interests

11:45 a.m. Lunch Break

Andrew Winter, Director, IBOR Transition Office, BMO Financial Group

• Key overview of the London Interbank Offered Rate (LIBOR) – what happened and what’s the plan?
• Ramifications of the scheduled phase-out of LIBOR
• Essential updates and next steps
• Potential alternatives to LIBOR, includes
• Secured Overnight Financing Rate (SOFR), Canadian benchmarks, and incorporating revised floating rate loans
• Practical considerations when drafting loan documents – the “amendment approach” vs. the “hardwired approach” and what to watch out for
• A distinctly Canadian concern: what’s happening with CDOR?

James Padwick, Wildeboer Dellelce LLP
Trevor Simpson, MBA, CPA, CMA, Associate Partner, FirePower Capital

• Overview of lending to start-ups and Fintechs
• How lending to Fintech and SaaS compares to traditional lending – all IP, nothing tangible to take security over
• Canadian vs. US practices and trends
• How you take security
• What banks are looking for
• Key issues and pitfalls to watch out for

Emily O’Donohue, Director and Associate General Counsel, Derivatives, Ontario Teachers’ Pension Plan (OTPP)
Candace Pallone, McCarthy Tétrault LLP

• Uses of Derivatives for Borrowers
• Architecture of the ISDA Master Agreement, Schedules, Confirmations and the Credit Support Annex
• ISDA’s relationship to the Credit Agreement
• Key provisions to be negotiated

Auriol Marasco, Blake, Cassels & Graydon LLP
Meaghan Obee Tower, Stikeman Elliott LLP

This practical and interactive session covers the essential function of opinions in commercial lending, including the most common types of opinions, the most-frequently negotiated points,and the following crucial topics:

• Key issues in multi-jurisdictional opinions
• Special issues involving PPSA opinions, including: investment property – perfection by control; cash collateral; special property (licenses, intellectual property, etc.); antiassignment clauses
• True sale and non-consolidation opinions
• Opinion issues in virtual closings
• Negotiating qualifications and assumptions: how much is too much?
• The process of negotiating and drafting opinions, includes tips and best practices

4:30 p.m. PROGRAM CONCLUDES