The Intensive Short Course in Secured Lending and Debt Finance 2023

Ryan Mrozek
Director, Commercial Banking, TD Securities

Tim Murray
Managing Director, Corporate Banking, RBC Capital Markets

Tracey Vernelli
Managing Director & Head, Loan Syndications, BMO 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

10:10 a.m.
Health Break

Michelle Boodhoo
McMillan LLP

Noah Schein
Norton Rose Fulbright Canada LLP

• Roles and objectives of 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

11:20 a.m.
Health Break

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

12:30 p.m.
Lunch Break

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 and on constructing a closing checklist.

• Establishing the facility – revolving versus term; swingline; fixed versus floating; Canadian prime, US base rate, LIBOR/SOFR; banker’s acceptances; Letters of Credit subfacilities
• Conditions precedent
• Representations and warranties
• Covenants – positive and negative
• Events of default, grace periods, 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
• How to construct a closing checklist from the term sheet, commitment letter and loan agreement
• Review a ‘checklist’ of the closing agenda (the A – Z of a transaction)

NOTE: there will be a 15 minute break during this session.

Darcy Ammerman
McMillan 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

4:30 p.m.
DAY 1 CONCLUDES

Jason Arbuck
Cassels Brock & Blackwell LLP

Nick Bassi
Vice President, Underwriting and Portfolio Management, Frontwell Capital Partners

Robert Kizell
Managing Director and Head, Asset Based Lending, Corporate Client Group, Royal Bank of Canada

• 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

10:00 a.m.
Health Break

John Estey
President, Stonebridge Lease Financing Corporation

Jill Fraser
Aird & Berlis LLP

The equipment finance industry provides companies with alternative finance options. This session will provide you with a business‑focused understanding of the 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

11:10 a.m.
Health Break

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
• Issues arising from financing cross‑border entities
• Protecting priority
• Strategies to improve recovery prospects
• Purpose and goal of the agreements
• Key structuring issues and critical negotiation points
• Enforcement actions and triggering events
• Payment blockage
• Sales of collateral

12:15 p.m.
Lunch Break

Catherine Doyle
Blake, Cassels & Graydon LLP

• Recap of SOFR and LIBOR and overview of CARR language
• Summary of the Canadian Dollar Offered Rate (CDOR). What happened and what’s the plan? Ramifications of the scheduled phase‑out of CDOR
• Potential alternatives to CDOR, includes Canadian Overnight Repo Rate Average (CORRA), Canadian benchmarks, and incorporating revised floating rate loans, GBP Sonia, Euro‑rate
• Practical considerations when drafting loan documents – the “amendment approach” vs. the “hardwired approach” and what to watch out for

James Padwick
DLA Piper (Canada) LLP

Trevor Simpson
Partner, Private Debt, 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
• Changes in light of Silicon Valley Bank events
• Canadian vs. US practices and trends
• How you take security
• What banks are looking for
• Key issues and pitfalls to watch out for

2:30 p.m.
Health Break

Emily O’Donohue
Director and Associate General Counsel, Derivatives, Ontario Teachers’ Pension Plan

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

3:25 p.m.
Health Break

Andie Lipetz
Stikeman Elliott LLP

Auriol Marasco
Blake, Cassels & Graydon LLP

Get a practical overview of the essential function of opinions in commercial lending, including the most common types of opinions, the most‑frequently negotiated points and crucial topics including:

• 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.); anti‑assignment 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

Included with your registration, this online module features experienced litigators who will provide you with a practical overview of how to navigate the enforcement of security. We recommend viewing this Online Module after the program concludes.

What Corporate Commercial Lawyers Need to Know About Enforcing Security: A Litigators’ Perspective
(90 mins, on‑demand, recorded in 2020)

Chris Burr, Blake, Cassels & Graydon LLP

Leanne Williams, Thornton Grout Finnigan LLP

• Practical understanding of this ever‑evolving and complex area of law
• Troubleshooting techniques to identify key issues and assess strategic responses and tactics
• Walk‑through of key legal risks and concerns you have to be ready to manage
• Best practices when negotiating drafting forbearance agreements
• Strategies for identifying and responding to indicators of pending insolvency, restructuring, or troublesome indebtedness