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Commercial Real Estate Financing 2015


Speaker(s): Andrew R. Berman, Barry G. Margolis, Carey Smith, Daniel B. Rubock, David L. Wanetik, Ellen M. Goodwin, Eric G. Menkes, Gregory P. Pressman, Marvin N. Bagwell, Michelle V. Kelban, Mindy H. Stern, Nicole Levin Mesard, Robert J. Hellman, Sandra Mayerson
Recorded on: Apr. 20, 2015
PLI Program #: 57611

Barry G. Margolis earned his law degree from Benjamin N. Cardozo School of Law, where he served as Senior Notes and Comments Editor of the ILSA Journal of International Law.  Mr. Margolis received his Bachelor of Arts degree from the State University of New York at Binghamton and graduated with outstanding academic honors.  Prior to forming Abrams Garfinkel Margolis Bergson, LLP, Mr. Margolis was a founding member of Margolis Bergson LLP, a Manhattan-based litigation boutique. He was also formerly counsel to Herrick, Feinstein LLP, associated with the national law firm of Shea & Gould and served as an Assistant District Attorney in the Office of the New York County District Attorney.  Mr. Margolis’ practice focuses primarily on representing clients in complex commercial litigation with an emphasis in real estate related litigation including commercial foreclosure and loan workout. Mr. Margolis also regularly represents boards of cooperatives, condominiums and homeowner associations as general counsel and in connection with a wide variety of litigation including shareholder/sponsor disputes, vendor claims, election controversies and all other aspects of community association living. Mr. Margolis’ practice also includes defense work in the areas of directors and officers (D&O) liability, professional liability (legal), miscellaneous/not-for-profit insurance lines and errors and omissions (E&O) matters.

Mr. Margolis lives with his wife and three children in Jericho, New York.


Carey Smith is a partner in Arnold & Porter LLP's real estate and tax, trusts, and estates practice groups. He negotiates and documents sophisticated joint venture, private equity, debt placement and similar arrangements for clients in various lines of business, primarily in the development, ownership and disposition of commercial real estate. Given his breadth of experience in the tax and real estate fields, he is able to represent a client in all aspects of a complex real estate development transaction (e.g., forming a venture with an equity partner and documenting that venture in a manner that is tax-efficient and complies with the federal income tax regulations governing partnerships, negotiating the acquisition of a property through a purchase and sale agreement, integrating local experience into the transaction for land use, licensing and zoning issues, and obtaining debt financing to complete the acquisition picture). He also has experience in the tax and transactional issues involved in debt restructuring, recapitalization, and other distressed asset situations.

Mr. Smith has a particular focus in the hospitality sector, representing primarily owners and developers of hotel properties. He has handled several matters for sponsors of real estate funds, including tax and structure planning, fund formation, debt financing, and joint ventures with co-investors who may or may not be investors in the fund. He taps into the firm's broad and deep private equity practice, securities regulation experience, Employee Retirement Income Security Act (ERISA) lawyers and others as needed to provide a seamless experience to serve clients in this area.

Mr. Smith's tax practice focuses primarily on transactional tax planning in the United States federal income taxation of partnerships, corporations and limited liability companies. He has handled tax issues on behalf of acquiring companies and targets in many taxable and tax-free corporate mergers and acquisitions. He has worked on numerous transactions that were motivated and structured with an eye towards the tax consequences, such as contributions of individual properties or portfolios to real estate investment trusts and forward and reverse Section 1031 like-kind exchanges.

Due to the proliferation of incentive arrangements that use partnership interests or similar equity plans (also known as “profits interests” or “carried interests”), Mr. Smith has developed a wide range of experience in executive compensation matters.

The surge in public/private partnerships for economic development projects creates an intersection of real estate, finance and tax issues. Mr. Smith is a member of Arnold & Porter's District of Columbia Public Policy practice. He has focused on the technical and public policy aspects of the District's tax increment financing and revenue bond programs and worked with District officials and advisors to help implement exciting projects such as the International Spy Museum, which has been hailed as a model public/private partnership in the city, and several more recent projects that have used the pathbreaking financing structure designed in that transaction.

Mr. Smith graduated from Yale Law School in 1995 and joined Arnold & Porter in 1996 after a year-long stint as law clerk to The Honorable Peter J. Messitte of the United States District Court for the District of Maryland in Greenbelt, Maryland. He has served since 1999 as a member of the firm's Ethics and Practice Committee.

Representative Matters

  • The John Akridge Companies: various acquisition, development, financing, joint venture and tax matters; bringing final institutional investor into real estate fund.
  • Vornado Realty Trust: acquisition of indirect equity interests in large real estate portfolio; joint venture for office development project with land owner and future tenant; offering to acquire limited partnership interests in entities with overlapping ownership that owned a real estate portfolio; construction loan financings.
  • Penzance Companies: various acquisition, financing, joint venture and tax structure matters for real estate development, investment and management company.
  • Representation of a private European hotel fund in its US acquisitions, financing and cross-border tax and structure planning.
  • Representation of fund sponsor in formation of real estate fund.
  • Representation of a public company in a variety of executive compensation matters.
  • The Malrite Companies:  various finance and tax matters including tax increment financing and EZ bond financing for International Spy Museum.

Rankings

  • Washington Business Journal's, "Top Washington Lawyers," 2005 named a "Young Gun"

Articles

  • Carey W. Smith "Q&A With Arnold & Porter's Carey Smith" Real Estate Law360 Dec. 2011

Presentations

  • Carey W. Smith "Venturing Forth: Trends in the Structuring of Real Estate Ventures" American College of Real Estate Lawyers, 2013 Annual Meeting Plenary Session, October 26, 2013
  • Carey W. Smith "Legal Perspectives on Small Business Entities" DC Bar Pro Bono Program, Small Business Training for Attorneys, September 21, 2012 and September 25, 2013
  • Carey W. Smith "Real Estate Partnership and Joint Venture Agreements: Tax Challenges" Strafford Publications Webinar, August 29, 2012
  • Carey W. Smith "Real Estate Joint Ventures: Opportunities and Legal Risks" Strafford Publications Webinar, October 20, 2010
  • Carey W. Smith "Tax Traps of Unwinding Ventures and Workouts" Real Estate Joint Ventures and Funds: The New Reality, Law Seminars International, Washington, DC, September 20-21, 2010
  • Carey W. Smith "When Partners Collide: The Impact of the Market Meltdown on Real Estate Joint Ventures" The Distressed Assets, Workouts and Restructurings Group of the DC Building Industry Association, Washington, DC, September 30, 2009
  • Carey W. Smith "Real Estate Joint Ventures: An Alternative Strategy for Raising Capital--Negotiating and Structuring the JV Agreement" Strafford Publications Teleconference, April 2, 2009
  • Carey W. Smith "Introduction to Legal Entities (Part 2 - Tax Considerations)" November 6, 2008

Advisories

  • "Carried Interest Tax Law Changes Could Become Effective Within Days" May 2010
  • "FDIC's Structured Loan Portfolio Sales from Failed Institutions on the Rise" Oct. 2009
  • "Purchasing Real Estate and Loan Assets from the FDIC" Oct. 2008

Practice Areas

Real Estate Tax, Trusts, and Estates Corporate and Securities

Education

JD, Yale Law School, 1995
AB, Amherst College, 1992

Admissions

District of Columbia
Maryland


David L. Wanetik serves as the Chief Operating Officer for the UCC Division of the First American Title Insurance Company. He is a graduate of Syracuse University and St. John’s University School of Law. He has been a practicing attorney for over 25 years.

Prior to joining First American, Mr. Wanetik was Vice President of the UCC Insurance Division for the LandAmerica underwriters. He has been actively involved in the Revision of Article 9 of the Uniform Commercial Code for over 17 years and has written and lectured extensively on this subject including seminars sponsored by the New York State Bar Association.  During most of the 1990’s Mr. Wanetik served as CEO and General Counsel of Intercounty Clearance Corporation .

Mr. Wanetik has previously served as a charter member of the New York State Corporate Advisory Task Force as established by the Secretary of State of New York. He is also the author of the following articles which were published in the New York Law Journal: Legislative Recognition of Co-ops Has a Downside, Authorization Nunc Pro Tunc in UCC Proposed Amendments and Lost Certificated Interest in Real Estate Mezzanine Transactions.


Ellen Goodwin is a partner in Alston & Bird’s 60-lawyer Real Estate Finance & Investment Group, the former co-chair of the Group and resident in the New York office. Ms. Goodwin concentrates her practice on commercial real estate finance and has represented investment banks, commercial banks, funds and insurance companies on a variety of loan transactions for both securitizations and portfolios, including construction loan financings, loan syndications and participations, co-lending and senior/subordinate arrangements and mezzanine finance. She acts as form and program counsel for a number of active CMBS, balance sheet and bridge lenders. Ms. Goodwin’s expertise additionally extends to the work-out, restructuring and foreclosure of both securitized and portfolio mortgage loans, and she has extensive experience working with special servicers. She represents both sellers and purchasers of whole loans, subordinate debt and mezzanine loans.

Ellen is a member of the American College of Real Estate Lawyers (ACREL), American Bar Association, and New York State Bar Association and is a frequent lecturer on various topics concerning real estate finance and work-outs and restructurings of mortgage and mezzanine loans. She speaks regularly for the Practising Law Institute, the New York State Bar Association, the New York City Bar Association, ACREL and the International Council of Shopping Centers.

Ellen has been listed in The Best Lawyers in America© in the Real Estate – New York category – for the last seven years and in The Best Lawyers® Business Edition 2017 – Women in the Law 2017.


Gregory P. Pressman focuses his practice at Schulte Roth & Zabel on real estate acquisition and development, real estate lending and finance, including securitized financing, joint ventures, real estate taxation, debt restructures and workouts, cooperative and condominium development and conversion, and commercial leasing.

Greg is a member of the New York State Bar Association. He serves on the Executive Committee of the State Bar Association’s Real Property Law Section and is a longstanding member of the Section’s Committee on Condominiums and Cooperatives. He also currently co-chairs the Section’s Legal Opinion Committee. In 2002, Greg was elected to the American College of Real Estate Lawyers. A prolific author and frequent public speaker, Greg has written numerous articles on real estate law for the New York Law Journal and has lectured on such real estate-related topics as real estate bankruptcies, loan workouts (including the impact of securitization on a restructuring), the closing process, and drafting commercial real estate loan documents. After receiving his undergraduate degree, cum laude, from Harvard College, Greg went on to earn an LL.B. from the University of Pennsylvania Law School and an LL.M. in Taxation from New York University School of Law.


Marvin N. Bagwell is the Vice-President and Chief New York State Counsel for Old Republic National Title Insurance Company and is based in Westbury, New York. 

Marvin is a frequent lecturer on real estate and title insurance matters and has published over 70 articles on the subjects, many of which appeared in the New York Law Journal.   Currently, Marvin is an editor of the N.Y. Real Property Law Journal and sits on the Board of Editors of the New York State Bar Association Journal. He edited the most edition of the Title Insurance section of the treatise, Warren’s Weed New York Real Property.   Marvin is a member of the Executive Committee of the Real Property Section of the New York State Bar and also sits on the Forms Committee of the American Land Title Association.  Marvin has served as the President of   both the New York State Land Title Association (“NYSLTA”) and  of the Title Insurance Rate Service Association (“TIRSA”).  Marvin is a graduate of Harvard College and Harvard Law School.  He is licensed to practice law in New York State and is an Associate member of the Commonwealth of Virginia Bar Association  He was elected a Fellow of ACREL in 2008.


Michelle Kelban focuses her practice on all aspects of commercial real estate law, with a particular concentration on real estate finance. She represents capital providers in a range of real estate transactional structures and is a “skilled and extremely competent” lawyer who is "very knowledgeable and service oriented" according to The Legal 500 US. Representative types of transactions include the below:

  • Single asset and multiple property portfolio real estate financings for a range of property types and performing and non-performing loan assets
  • Mezzanine financings, preferred equity structures, equity investments, sale and leaseback transactions
  • Joint ventures, development, acquisitions and dispositions
  • Representation of foreign investors with respect to all types of in-bound U.S. acquisitions, joint ventures and financings

Ms. Kelban has significant experience with a range of property types such as:

  • Hotels and resorts
  • Casinos
  • Shopping centers
  • Assisted living facilities
  • Office buildings

Ms. Kelban’s experience includes advising:

  • An institutional lender in multiple, highly structured loans secured by non-performing loans, performing loans and portfolios of fee assets
  • A Middle Eastern investor in acquiring the Intercontinental Barclay New York Hotel through a joint venture structure together with acquisition financing and construction financing and structuring for a major hotel renovation
  • An institutional lender in connection with a mortgage loan with a future advance component secured by 36 commercial real estate assets and a mezzanine loan secured by the equity interest in mortgage borrowers
  • A Middle Eastern investor in the purchase of the retail and hotel condominium components of a to be constructed trophy property in downtown Manhattan
  • Representation of a foreign investor in connection with the complex development joint venture, acquisition and construction financing of One Wall Street, a landmarked office building located in downtown New York City
  • A foreign investor in the financing and ultimately the acquisition of the Plaza Hotel in New York City


Nicole Levin Mesard is Deputy Chair of the firm’s Corporate Department, a member of the firm’s Real Estate Group and Chair of the firm’s Hiring Committee. She is experienced in all aspects of real estate law, including acquisitions and sales of retail and commercial properties, sophisticated financings, joint ventures, infrastructure transactions and restructurings of commercial real estate loans, including in bankruptcy. Her clients include Westfield Corporation, Tishman Speyer, Carmel Partners and Teachers Insurance and Annuity Association of America.

Ms. Mesard is a Fellow of the American College of Real Estate Lawyers and a Lecturer-in-Law at Columbia Law School, where she co-teaches a course on real estate debt and equity fundamentals. She is ranked as a leading lawyer by Chambers USA, which describes her as “incredibly hard-working and a tough negotiator,” who “understands the commercial issues and finds solutions to get deals done,” and clients have praised her as “a very good technical player but also practical in terms of understanding and giving advice on the commercial and business side of matters.” The Legal 500 also lauds her as “conscientious and outstanding.”

Ms. Mesard joined Debevoise in 2001 and became a partner in 2008. She received her B.A. from the State University of New York at Albany magna cum laude in 1994, and her J.D. from Tulane University magna cum laude in 1997.


Sandra E. Mayerson is a member of the New York Bar and principal of The Law Offices of Sandra Mayerson, specializing in insolvency and commercial transactions and litigation. She has 30+ years’ experience at AmLaw 100 firms.  Mayerson has experience in both debtor and creditor matters, and has represented creditor and bondholder committees, debtors,  boards of directors, banks and other secured creditors, unsecured creditors, investors in distressed situations and claims traders. Sandra’s background spans  both bankruptcy and securities law and is informed by years of private  practice, as well as public policy formation.  She is often cited in legal opinions for her work in the area of fraudulent conveyances. Sandra served as examiner in Interco’s chapter 11 about which she wrote a landmark report on fraudulent conveyance law. She also did groundbreaking work in the field of customer claims in securities firm insolvencies in the Refco matter. She has filed close to 200 real estate related chapter 11’s.

Sandra is recognized as a Top Rated Lawyer in the “Women Lawyers in the Law” section of the January 2013 issue of The American Law magazine. Sandra has been honored by The National Law Journal as one of the Top Fifty Women Litigators in the US, and hailed by Working Woman magazine as one of the five Best in Bankruptcy in the country.  Sandra is rated AV-Preeminent by Martindale-Hubbell, and has frequent been selected for inclusion in New York Super Lawyers.  Her work with US clients in Latin America was noted in the 2010-2012 editions of LatinLawyer 250.  She has been recognized in The Best Lawyers in America since 2012, as well as in Chambers and Who’s Who.

Sandra has completed the mediation training course in the Southern District of New York.  She has served as both an arbitrator and a mediator.

Sandra has written and lectured throughout the US and internationally on bankruptcy topics, particularly on fraudulent conveyance law, trading claims, prepackaged bankruptcies and cross border insolvencies.  In 2012, she was on a panelist for the National Conference of Bankruptcy Judges in a program dealing with CMB mortgage defaults, entitled “We Can’t Pay the Mortgage”.   Mayerson was  a regular columnist for the National Law Journal for several years, as well as a guest commentator for bankruptcy issues for CNN, NBC and Fox News. She is frequently quoted in publications on bankruptcy and reorganization matters, including the New York Times, Wall Street Jounal and Fortune.  

Sandra received her B.A. from Yale, and her J.D. from Northwestern.


Andrew R. Berman has over 25 years of experience in all aspects of commercial real estate, including retail and office leasing for both owners and tenants, complex acquisitions and dispositions of office buildings, hotels and other assets, real estate financings, construction and development projects. He also advises on workouts, foreclosures and other distressed debt transactions.  Andrew Berman is currently in private practice where he continues to focus on real estate transactions.  Previously, he was a real estate partner at Orrick, Herrington; Akerman LLP and Sidley Austin.  Andrew was also a full-time Professor at New York Law School (NYLS) for over 12 years, where he was the founding director of the Center for Real Estate Studies.   Andrew remains affiliated with NYLS, and is a Distinguished Adjunct Professor of Law.   Mr. Berman speaks regularly at conferences and publishes articles.  In 2017, Andrew authored the sixth edition of the treatise, Friedman on Leases.  He is a Fellow of the American College of Real Estate Lawyers and the American College of Mortgage Attorneys.  Mr. Berman earned his B.A. degree from Princeton University and his J.D. from New York University School of Law (cum laude, Order of the Coif).


Eric Menkes is a partner at Duval & Stachenfeld LLP.  His primary area of expertise is commercial leasing, and he heads the firm’s 10-lawyer Leasing Practice Group.

On the landlord side, Mr. Menkes’s clients include Jamestown Properties, Extell Realty, Angelo, Gordon & Co., Young Woo Associates and Olmstead Properties.  Among other significant projects, he is handling the leasing for Pier 57, a 275,000 sf new retail development located on the Hudson River in Manhattan; Industry City, a 6,000,000 sf development in Sunset Park Brooklyn catering primarily to technology tenants; three major New York City office buildings; a 1,500,000 sf “trophy” tower in downtown Chicago; and the Showcase Mall Shopping Center in Las Vegas, Nevada.  Further, he represented Lehman Brothers in the leasing of its New York City headquarters building prior to its bankruptcy filing. 

On behalf of tenants, Mr. Menkes represents a number of luxury retailers.  He has represented the Italian apparel company Prada in virtually every one of its store leases in the US and Canada.  He also represents Church’s Shoes and Polo Ralph Lauren, and has handled matters for Gucci Group’s brands, as well as for Nike/Converse, H&M, Circuit City and Kmart. 

In addition to Mr. Menkes’s leasing expertise, he has also had considerable experience handling sales, acquisitions and financings, including the acquisitions of a $560 million New York City office building (and the corresponding $350 million CMBS financing); a 600,000-square-foot Atlanta office tower; office buildings in San Diego and suburban Washington, D.C.; a Dallas shopping center; a major Atlanta hotel; numerous multifamily housing developments; and a controlling interest in a Minneapolis condominium office building. 

Mr. Menkes regularly speaks at the International Council of Shopping Centers law conference; he is a contributor to The Practical Real Estate Lawyer; and he has spoken before the Real Property Law Section of the New York State Bar Association.  He is former counsel and Chairman of the Board and Counsel for Miracle House of New York, a not-for-profit housing agency.


Mr. Hellman has 35 years of experience in commercial real estate industries and is Pembrook’s chief operating officer and responsible for Asset Management, as well as a member of Pembrook’s investment and valuation committees, and is the Chief Compliance Officer.   Mr. Hellman previously led the real estate practice for DLA, LLC, where among his engagements Mr. Hellman was retained as head of asset management for a real estate investor owning a $2.5 billion diversified portfolio in the US.   Mr. Hellman began his real estate career at Lehman Brothers where, during his 16 year tenure, he focused on originating and marketing alternative investments, served as president, CEO and/or CFO for several public real estate funds investing in retail, multifamily and commercial assets and was part of the firm’s real estate restructuring efforts.   He has also held senior positions at Ackman-Ziff Real Estate Group, Newmark Capital Group and was managing principal for Riverstreet Realty Advisors.   His affiliations include: Urban Land Institute (full member); advisory board member of the Cornell Baker Program in Real Estate; the University Council of Cornell University; former board member of the New York chapter of the Turnaround Management Association; and New Jersey Bar.   He is a Visiting Lecturer at Cornell University and has taught Real Estate Capital Markets as an adjunct professor at NYU’s Schack Real Estate Institute and New York Law School.   Mr. Hellman earned a B.A. in Government from Cornell University, an M.S. in International Business from Columbia University and a J.D. from Fordham University.


Dan Rubock is Senior Vice President and senior counsel with the Commercial Real Estate Finance Group at Moody’s Investors Service, helping Moody’s develop its policy for structural and legal issues in CMBS.

Prior to joining Moody’s in 1999, Dan practiced law with Cadwalader Wickersham & Taft, Dechert Price & Rhoads and White & Case, concentrating in commercial real estate law and real estate litigation.

Dan is a graduate of Yale College and Columbia Law School. He was elected a Fellow of the American College of Real Estate Lawyers in 2007, is a Certified Mortgage Banker, and is a member of the editorial board of CRE Finance World.


Mindy H. Stern is a partner with the New York City law firm Schoeman Updike Kaufman & Stern LLP, where she specializes in representing entities and individuals in the areas of real estate law and trusts and estates law. She is experienced in the areas of leasing, acquisition and lending, as well as providing personal services to individuals in the areas of real estate and trusts and estates.  Ms. Stern served as Clerk to the Honorable Mitchell H. Cohen in the United States District Court, District of New Jersey. Prior to joining the Schoeman firm, Ms. Stern was an Associate with Hughes Hubbard & Reed LLP.  She has been recognized as a “New York Super Lawyer” since 2008 and in the Real Estate Weekly’s 100 Women Real Estate Leaders for the 21st Century.  Ms. Stern is a member of the American College of Real Estate Lawyers, NAMWOLF and the National Association of Women Lawyers.  She is Second Vice-Chair of the Real Property Law Section of the New York State Bar Association, where she also serves as a Member of that Section’s Executive Committee, Chair of its Lorraine Power Tharp Scholarship Fund Committee, and a Member of its Professionalism Award Committee and its Task Force on Diversity in the Profession. She also is a member of the State Bar’s Trusts and Estates Law Section.  Ms. Stern is a member of the New York City Bar Association’s Delegation to the New York State Bar Association House of Delegates and is a former chair of the City Bar Association’s Committee on Real Property Law and a former Secretary of its Committee on Cooperatives and Condominiums.  She is a member of the American Bar Association Real Property, Probate and Trust Law Section.  Ms. Stern was an Adjunct Professor at the Benjamin N. Cardozo School of Law where from 2007 to 2014 she taught a course on Real Estate Contract Drafting.  She is admitted to practice in New York and New Jersey.