Since the enactment of the Coronavirus Aid, Relief, and Economic Security Act (the “CARES Act”) on March 27, 2020, millions of businesses have applied for and received a Paycheck Protection Program (the “PPP”) loan from the U.S. Small Business Administration (the “SBA”) (for the current terms, laws and rules governing the PPP see our client alert:  Paycheck Protection Program – Where Are We Now?).  Recipients of PPP loans (“PPP Recipient”) that are the subject of a subsequent Sale Transaction[1] will likely be at risk of heightened scrutiny by the SBA and other relevant government agencies, the public, and the press, which may impact eligibility for loan forgiveness and/or result in increased audit risk and potential criminal and/or civil liability and penalty.  Critical components of PPP loan forgiveness remain subject to continuing SBA rule revisions and proposed Congressional legislative “fixes,” including as to the forgiveness “covered period,” forgivable use parameters, and determination of the forgiveness amount.  This uncertainty underscores the importance of addressing the issues around and allocating the risks and benefits of PPP loan forgiveness to the parties of the Sale Transaction, especially as it relates to the determination of the amount to be forgiven (whether at the execution of or following the consummation of a Sale Transaction).  This alert provides an overview of the issues to consider when allocating such risks and benefits between the PPP Recipient, seller and acquirer, in connection with a Sale Transaction.

I. PPP Specific Risks

1. Affiliation and Loan Eligibility The SBA’s affiliation rules impact whether a PPP applicant (or, retrospectively, PPP Recipient) satisfy certain size criteria for loan eligibility by requiring that foreign and domestic affiliates of the applicant or borrower be included in assessing size (e.g., tabulating total employees).  Under the affiliation rules applicable to PPP loans, the SBA considers “agreements to merge (including agreements in principle) to have present effect on the power to control a concern [e., PPP applicant or PPP Recipient].”[2]  Therefore, a PPP Recipient may be deemed to be affiliated with an acquirer (or prospective acquirer) prior to the closing of a strategic transaction if the PPP Recipient: (i) applied for and received the PPP loan during the executory period following the execution of definitive transaction documents in respect of a Sale Transaction, or (ii) was in negotiations with an acquirer with respect to a Sale Transaction when applying for and receiving the PPP loan.  A determination of whether the acquirer is an affiliate of the PPP Recipient under such circumstances is fact specific and will focus on whether there was an “agreement in principle” for the sale of the PPP Recipient.

a. The existence of an executed definitive transaction document or finding an “agreement in principle” would mean that the seller (as parent of the PPP Recipient) and the acquirer, collectively with their respective affiliates, will need to be (or should be) taken into account when assessing whether the PPP Recipient meets the requisite size standards (e.g., employee headcount limitations) for PPP eligibility. This is an important consideration for potential borrowers who are considering applying for a PPP loan while also negotiating or being involved in a Sale Transaction, and for PPP Recipients who may be retrospectively reviewing their eligibility at the time of an application for a PPP loan (to determine whether PPP loans should be returned).

b. Relatedly, there is a maximum cap of $20 million on the total amount of PPP loans that a “single corporate group” can receive.  Businesses are part of a single corporate group if they are majority owned, directly or indirectly, by a common parent.  The inclusion of a PPP Recipient with a PPP loan in the “single-corporate group” of an acquirer may impact the eligibility of the PPP Recipient and acquirer, together with its other affiliates that have received a PPP loan.

c. Where there is a Sale Transaction, PPP Recipient and acquirer should re-confirm (as should any PPP loan borrowers within their affiliated groups) compliance with both (i) size-based eligibility requirements, including the impact of affiliation under the SBA rules, and (ii) the impact of the $20 million cap for a “single corporate group.”

2. Necessity Certification.

a. The PPP Recipient will have certified in its PPP loan application that the “[c]urrent economic uncertainty makes this loan request necessary to support the ongoing operations of the Applicant.” The SBA has further reinforced that, in so doing, borrowers must consider other sources of liquidity (the use of which would not be “significantly detrimental” to the borrower).  Questions may arise as to (i) whether the PPP loan request was truly necessary to support the ongoing business operations of the PPP Recipient when an impending Sale Transaction may otherwise buoy the PPP Recipient and/or (ii) whether the PPP loan directly or indirectly served an alternate purpose of facilitating a Sale Transaction (which of course is not a permitted use of PPP loan proceeds).

b. There is likely to be increased risk where the PPP Recipient either (i) executed definitive transaction documents, or (ii) was in negotiations with a potential acquirer, in each case, with respect to a Sale Transaction, and subsequently or simultaneously made the necessity certification, applied for and received the PPP loan. In the scenario described in clause (ii), the risk will in part depend on how far along the parties were in negotiations and the certainty of executing definitive transaction documents and consummating the Sale Transaction.  There will also be risk where the PPP Recipient began negotiations with a potential acquirer after applying for and receiving a PPP loan.

c. The PPP Recipient should carefully and thoroughly document its decision-making process for applying for the PPP loan and use of the PPP loan proceeds to support its certification that the PPP loan was necessary to support its ongoing business operations and address any potential claims of false certifications under the False Claims Act or criminal claims of fraud by the SBA, Treasury or the various federal, state and local authorities that will be scrutinizing PPP loan borrowing.[3] Loan forgiveness applications by borrowers that, together with their affiliates, have borrowed $2 million or more will be audited by the SBA, which will provide an immediate basis for such scrutiny.[4]

3. Use of PPP Loan Proceeds.

a. In general, 75% of the PPP loan proceeds must be used for payroll costs, and the remainder may be used for: (i) payments of interest on any mortgage; (ii) rent; (iii) utilities; and (iv) interest on any other debt obligations incurred before February 15, 2020.[5]

b. Through the use of audits, the government may analyze whether the loan proceeds made available to a PPP Recipient were used for legitimate purposes, particularly in the context of an application for loan forgiveness. The PPP Recipient should properly document its use of the PPP loan proceeds to address any potential questions around making false certification and/or supporting the PPP Recipient’s request for loan forgiveness, and avoid or address any claims that the loans were not necessary to support the ongoing business or that the PPP loans were used to facilitate a sale of the PPP Recipient’s business.

c. In considering a Sale Transaction in respect of a PPP Recipient, the acquirer should carefully diligence with its advisors such PPP Recipient’s application for the PPP loan, and the use of the PPP loan proceeds by such PPP Recipient.

4. Discrepancies between the PPP Loan Application and the Definitive Transaction Documents.

a. As part of the PPP loan application, the PPP Recipient will need to provide financial statements, payroll and tax records, corporate organization structure charts, and other information.

b. In an audit, the government may request copies of information made available to the acquirer to determine whether there are any discrepancies or inconsistences between what was relied on by the acquirer and certified by the PPP Recipient in its PPP loan application.

c. The PPP Recipient should properly document its use of the PPP loan proceeds and be prepared to explain any discrepancies or inconsistencies to address any claims of making a false certification. Clearly, a financial projection provided to the acquirer that shows the PPP Recipient doing (or expected to do) well could be problematic if at or close to such time the PPP Recipient is claiming it has a need for funds to support its business.

5. Audit Risks. The government has indicated that any PPP Recipient, together with its affiliates, that received more than $2 million will be audited.  The government will also audit other PPP Recipients “as appropriate.”  This is especially true for a PPP Recipient that applies for loan forgiveness.  We believe that there is an increased likelihood that a PPP Recipient that is the subject of a Sale Transaction following its receipt of PPP loan proceeds will be scrutinized and audited by the government with respect to its application for and use of the PPP loan proceeds.  An audit will require the PPP Recipient and other parties to the Sale Transaction to expend resources to address the audit, including time, and costs and expenses of lawyers and accountants, and may also result in criminal and/or civil liability and penalties in addition to the repayment in full of the PPP loan, plus interest.  Further, due to the affiliation relationship created by a definitive transaction document (discussed above), affiliates of both seller and acquirer may be pushed above the $2 million threshold and become subject to SBA audit when they might have otherwise avoided that process.

II. Allocation of Risks and Benefits

Given the potential benefits of loan forgiveness and the lag in timing with respect to the use of loan proceeds, an application for forgiveness and a forgiveness determination, [6] the possibility that a loan is not forgiven (or is only partially forgiven), and other risks associated with borrowing a PPP loan (e.g., SBA review of forgiveness application), seller and the acquirer will need to properly allocate these benefits and risks.  This may impact certain sections of the applicable Sale Transaction definitive transaction documents, including the following:

1. Purchase Price Adjustment. Depending on how the purchase price is determined, an acquirer may consider negotiating for an adjustment to the purchase price for any loan amount not forgiven, including interest.  In a cash free, debt free transaction with a purchase price adjustment mechanism, the PPP loan may need to be a separate component for adjustment (and not a line item under “Indebtedness”) taking into account the potential prolonged period that may be required to determine whether the PPP loan will be forgiven.  The acquirer should also consider requesting a separate escrow in respect of the PPP loan.

2. Indemnification. If an adjustment for any unforgiven PPP loan amount is not included in the purchase price adjustment section, an acquirer may consider including a specific indemnity to that effect.  Even if the parties agree to an adjustment to the purchase price in respect of the loan amount, plus interest, using the purchase price mechanics, an acquirer may consider requesting a specific indemnity in respect of costs and expenses of an audit and/or litigation, and any criminal and/or civil liabilities and penalties that may result.

In the event the acquirer purchases a buy-side representation and warranty insurance policy, the acquirer should consider whether the PPP loan falls within any COVID-19 related exclusions from such policy.  In the event that breaches of PPP-related representations and warranties are not covered by a representation and warranty insurance policy, an acquirer may seek a specific indemnity (which may give rise to typical negotiations regarding the application of baskets and/or caps to such specific indemnities).

3. Covenants.

a. Use of Loan Proceeds:

i. If any PPP loan proceeds remain unused at the time of signing (but pre-closing), the acquirer may consider negotiating interim operating covenants for the PPP Recipient to use the PPP loan proceeds for forgiveness-eligible purposes to maximize the prospects of loan forgiveness and minimize potential liabilities related to ineligible uses of such funds.

ii. Similarly, a seller may consider negotiating post-closing covenants that the PPP loan proceeds be used following the consummation of the Sale Transaction by the acquirer for forgiveness-eligible purposes.

b. Other Actions Affecting Scrutiny/Forgiveness:

i. The acquirer may consider negotiating interim operating covenants for the PPP Recipient not to take any actions or make any communications, or fail to take any necessary action or make any necessary communications, that will increase the likelihood of increased scrutiny or liability with respect to the PPP loan or may adversely affect the likelihood of forgiveness.

ii. Similarly, a seller may consider negotiating post-closing covenants for the PPP Recipient not to take any actions or make any communications, or fail to take any necessary action or make any necessary communication, that will increase the liability of the seller under the definitive transaction documents or may adversely affect the likelihood of forgiveness.

c. Party Controlling the Submission of Loan Forgiveness Application. The seller may consider negotiating a covenant allowing the seller to control the PPP loan forgiveness application process, especially if it is entitled to benefit from any loan forgiveness or has any related post-closing liabilities under the definitive transaction documents.  If acquirer agrees, it should consider requesting a consent requirement, or at a minimum consultation rights, prior to the submission of the loan forgiveness application.  Conversely, if acquirer controls the loan forgiveness application, seller should ask for review/consent rights, especially if it affects the purchase price adjustment or it bears the risks of any resulting liability under the applicable definitive transaction document

Given the inherent complexity of the situation, acquirer and seller may negotiate to share in the benefits and the risks of any PPP loan forgiveness to align their interests.

d. Party Controlling and Assuming the Defense of an Audit. Similarly, parties should consider including covenants concerning the control of any audit process.  The non-controlling party should request customary rights in respect of audits and other actions assumed by the controlling party, including the right to separate counsel and participation and restrictions on settlement. 

e. Taxes. PPP loans may also have a tax impact on the PPP Recipient that the parties to a Sale Transaction should consider, including (i) who benefits from the Employee Retention Credit if a PPP loan is returned and the (post-closing) PPP Recipient becomes eligible to utilize such tax credit[7] and (ii) who benefits from the deductibility of expenses for which PPP loans are used should the IRS reverse course on its recent guidance prohibiting deductions for such expenses (in light of public and Congressional pressure)[8].

f. Financing. If the Sale Transaction has a financing component, the financing provisions of the definitive transaction document and the commitment papers and definitive debt documents should be drafted in a way that accommodates the PPP loan and the forgiveness or, if necessary, servicing and repayment of the PPP loan

4. Representations and Warranties. An acquirer may consider negotiating representations and warranties in respect of the PPP loan application, and representations and warranties that align with the certifications made in the PPP loan application, including with respect to the PPP Recipient’s eligibility for the PPP loan, need for the loan, and appropriate use of the loan proceeds pursuant to the laws in effect at the time of its use.  Separately, a seller may consider negotiating a ring-fencing provision whereby the acquirer acknowledges the certifications made in the PPP loan application and agrees that such certifications will not be construed to amount to a breach of any other representation and warranty in the applicable definitive transaction document (particularly those that speak to the financial health of the PPP Recipient).  In conjunction with drafting its representations and warranties (and fulfilling related disclosure requirements), a seller should consider whether its application for and receipt of a PPP loan violated any covenants or obligations under its existing debt facilities and how best to communicate such issues to the acquirer.

As the laws, rules, regulations, and guidance around the PPP and CARES Act continue to evolve and federal and state governments contemplate further legislation to address the impact of COVID-19 on businesses (as evidenced by H.R. 6800 (the HEROES Act), which passed the House of Representatives this past week[9]), parties should be thoughtful about drafting interim operating covenants and post-closing covenants, particularly as it relates to PPP loan forgiveness.  Parties should be cognizant of and include mechanics in the definitive transaction documents that anticipate shifts in the legal landscape around the PPP.  These changes will likely impact both loan forgiveness and risk allocation, and having the foresight to plan ahead will enable parties to nimbly respond to and work within the bounds of any future laws, rules, regulations, and guidance.

While Section II discusses the impact of a PPP Recipient’s PPP loan on a number of provisions in the definitive transaction documents, there may be other provisions that are affected taking into account the specific facts surrounding the PPP Recipient’s application, receipt and use of the PPP loan proceeds.  All of the issues discussed above become much more complex if the PPP Recipient is merged with or combined with another existing business of the acquirer following the consummation of a Sale Transaction.

On a final note, notwithstanding the allocation of risks identified in this alert, if the parties are interested in consummating a Sale Transaction, it is important that all parties involved understand and realize that it is in the best interest of each of the parties involved to resolve any potential issues that may arise out of a PPP Recipient’s application for any PPP loan, including its receipt and use of such proceeds.  The interests of all parties should be aligned to avoid a process involving civil and/or criminal allegations and causes of action, which will require such parties to allocate resources to defend against such allegations and/or causes of action, and may undoubtedly impact the parties’ reputations.

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Proskauer’s cross-disciplinary, cross-jurisdictional Coronavirus Response Team is focused on supporting and addressing client concerns.  We will continue to evaluate the CARES Act, related rules and regulations and any subsequent legislation to provide our clients guidance in real time.  Please visit our Coronavirus Resource Center for guidance on risk management measures, practical steps businesses can take and resources to help manage ongoing operations.

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[1] For the purposes of this alert, a “Sale Transaction” includes (i) a merger or consolidation with respect to the PPP Recipient, (ii) a sale or issuance of equity interests that results in the acquirer purchasing from the seller or the PPP Recipient, as applicable, a significant interest in the PPP Recipient, (iii) a sale, lease, transfer, exclusive license or other disposition of all or substantially all of the assets of the PPP Recipient, and (iv) investments, including growth-equity or similar minority stake investments in the PPP Recipient.

[2] 13 C.F.R. §121.301(f)(2) (2019).  Note that, in contrast, “[a]greements to open or continue negotiations toward the possibility of a merger or a sale of stock at some later date are not considered ‘agreements in principle’ and [] are not given present effect.”  Discussions about the possibility of a future merger or buy-out, by themselves, are not sufficient to find affiliation.  See U.S. Small Bus. Admin., Small Business Compliance Guide: Size and Affiliation (June 2018), available at https://www.sba.gov/document/support–affiliation-guide-size-standards.

[3] See 18 U.S.C. §§ 1001 (1996) & 3571; 15 U.S.C. § 645(a) (2013); and 18 U.S.C. § 1014 (1996).

[4] See the SBA’s FAQ for Lenders and Borrowers Questions 37 and 46.

[5] See Interim final Rule published on April 15, 2020.

[6] Notably, responding to pressure from the business community, pending legislation in the U.S. House of Representatives (H.R. 6886 (Paycheck Protection Program Flexibility Act of 2020)) proposes to extend the forgiveness “covered period” to 24 weeks, which would further extend the timeframe for use of PPP loan proceeds and application for and approval of forgiveness.

[7] Treasury and the SBA clarified in their Frequently Asked Questions published regarding the PPP (Question 45) that borrowers that repay their PPP loan during a recent safe harbor period (which expired May 18th) become eligible for the Employee Retention Credit under the CARES Act.  While it is unclear whether the SBA will extend that construct to PPP loans repaid going forward, a seller will certainly want to benefit from the post-closing company’s utilization of such credit if available.

[8] On May 6, 2020, a bi-partisan group of Senators introduced S. 3612 (Small Business Expense Protection Act of 2020) which would clarify that PPP Recipients can deduct eligible expenses that were paid for by PPP loans from their taxes.

[9] As of the date of this alert, neither the HEROES Act nor any other next stage COVID-19 recovery/stimulus legislation has been taken up in the Senate.

Photo of Yuval Tal Yuval Tal

Yuval Tal is a partner in our Corporate Department where he co-heads our internationally recognized Hospitality, Gaming & Leisure Group. He also heads our Hong Kong and Beijing offices. He is a general corporate and securities lawyer with diverse experience in cross-border mergers…

Yuval Tal is a partner in our Corporate Department where he co-heads our internationally recognized Hospitality, Gaming & Leisure Group. He also heads our Hong Kong and Beijing offices. He is a general corporate and securities lawyer with diverse experience in cross-border mergers & acquisitions (public and private, debt and equity), long-term joint ventures, private equity real estate and corporate and real estate finance. He advises clients on the full range of their activities including any form of financing, operational matters and commercial transactions. He advises sponsors and funds on the structuring, execution, entering into, restructuring and exiting of investments.

Yuval has decades of experience representing clients on complex, first in kind transactions.  Yuval’s strength is providing original, workable and practical solutions that get the deal done. Qualified in New York, Hong Kong and Israel, Yuval has negotiated transactions in six continents and has particular experience representing Asian clients and clients based outside of Asia in inbound and outbound transactions. Yuval has worked in various industries including real estate, hospitality, entertainment, sports, financial services, technology and life sciences.

As an international M&A lawyer, Yuval has many years of experience dealing with complicated, non-customary transactions involving parties from different countries, cultures and legal systems.  He has represented private equity, family offices, corporations and individuals in structuring, restructuring, managing and disposing of investments in Asia, Europe and the United States.  He is typically called upon to strategize and structure complex transactions that do not follow a prescribed form or pattern. Yuval’s experience enables him to forsee future issues and clients have commented on his “ability to think seven moves ahead of the competition”. Yuval is also well known for his ability to broker deals between opposing parties in order to get the deal done, irrespective of the legal, business or practical obstacles. His efforts have earned him recognition by Legal 500Chambers Asia Pacific and IFLR1000, where clients have referred to his “ability to play the honest broker to all parties involved, and to bridge the different cultures, legal systems and language barriers and to continually solve the unsolvable, is what allowed us to get this difficult deal done” and another stated “he was completely invested in the deal in a way lawyers seldom are, and his creativity and efforts allowed us to bridge considerable gaps between the parties and find common ground”.

As co-head of our Hospitality, Gaming & Leisure Group, Yuval has worked on virtually any kind of transaction, including mixed-use development and construction, acquisition and sale, restructuring and public offerings of real estate, hotel and casino companies. He has completed numerous high profile transactions involving the buying, selling and combining Asian and Western based hotel operating companies, including AccorHotels’ [EPA:AC]  US$2.9 billion acquisition of Fairmont, Raffles and Swissôtel brands, its acquisition of Tribe, Australia’s first integrated modular hotel brand, Accor’s long-term alliance with Huazhu Hotels Group (also known as China Lodging Group [Nasdaq: HTHT]) and its strategic partnership with Singapore-based Banyan Tree Holdings [SGX:B58]. He also advised Formosa International Hotels’ sale and resulting joint venture with Intercontinental Hotels Group with respect to the Regent brand.  His real estate and hospitality work has included transactions for properties from China to India to the United States to Australia. He also has many years of experience with hotel licensing, franchising and management.

Yuval’s broader Private Equity Real Estate experience includes working on The Recording Academy’s (The Grammys) deal to develop Grammy Museums in China, a public/private deal to finance an office building in Delhi, India; the acquisition of hotels in Bangkok by a large Japanese institutional investor and a joint venture between a Hong Kong developer and an Asian based private equity fund for the acquisition and redevelopment of a property in Kowloon into a mixed use property including co-living and co-working properties.

Yuval is a member of the Steering Committee of the Asian Hospitality Development Council of the Urban Land Institute (ULI) and has recently been appointed to the Law 360 2020 Hospitality Editorial Board. He is a regular speaker at real estate and hospitality related conferences such as the Hotel Investment Conference Asia-Pacific in Hong Kong.

Prior to rejoining Proskauer in 1999, Yuval practiced law in Israel, representing Israeli clients in transactions in Europe and the United States and European and U.S.-based clients in transactions in Israel. He handled transactions for major publicly traded Israeli companies such as Clal (Israel) Ltd., LifeWatch, Kitan Consolidated Ltd., Orckit Communications Ltd., ECI Telecom Ltd., Scitex Corporation Ltd. and Tecnomatix Technologies Ltd. Since joining Proskauer, Yuval has continued to represent Israeli clients on a wide range of corporate and securities matters.

Photo of Jeffrey A. Horwitz Jeffrey A. Horwitz

Jeffrey A. Horwitz is a partner in Proskauer’s Corporate Department where he co-heads our Private Equity Real Estate practice and runs our internationally recognized Hospitality, Gaming & Leisure Group. He also has served as co-head of Mergers & Acquisitions and as a member

Jeffrey A. Horwitz is a partner in Proskauer’s Corporate Department where he co-heads our Private Equity Real Estate practice and runs our internationally recognized Hospitality, Gaming & Leisure Group. He also has served as co-head of Mergers & Acquisitions and as a member of our Executive Committee. Jeff is a general corporate and securities lawyer with broad-based experience in mergers and acquisitions, cross-border transactions, and long-term joint ventures. He is regularly engaged to advise boards, management teams and investors on strategic matters, from litigation to personnel to transactions. Jeff is also the head of the Firm’s cross-disciplinary, cross-jurisdictional Coronavirus Taskforce helping to shape the guidance and next steps for clients impacted by the pandemic.

Jeff counsels clients on the full range of their activities, from seed capital to public offerings, acquisitions and operational matters, often acting as outside general counsel. He represents major financial institutions, sovereign wealth funds, private equity and family offices in sophisticated financial and other transactions. He represented Merrill Lynch Global Private Equity in connection with its equity participation in the $33 billion acquisition of HCA in what was then the largest LBO ever. He has handled deals aggregating nearly $200 billion in value, including tender offers, “going-private” transactions, IPOs, restructuring and structured finance transactions, and mergers and acquisitions in industries as diverse as biotechnology and aerospace, retail and cable television, and education and scrap metal. He regularly handles transactions outside the U.S., including Europe, the Middle East, Asia, Latin America, Australia, South Africa and India.

Leading our Private Equity Real Estate group, he works with a team of 75 lawyers from across the firm advising on complex transactions and disputes relating to real estate, and particularly hotels. Jeff has handled virtually every type of matter, and has worked with virtually every major player in these industries, including transactions for nearly 3,500 hotels comprising more than 275,000 rooms and involving more than $12 billion. His experience, both in and outside the U.S., extends to hotel and casino development and construction; portfolio and single-property acquisitions; sales and restructurings; financings; management; marketing; reservations systems; litigation counseling and strategic planning; and ancillary services. This breadth of work is key to executing complex and sophisticated transactions, such as the $2.9 billion acquisition of Fairmont Raffles by AccorHotels and its investments in Huazhu, Banyan Tree Hotels & Resorts, Brazil Hotel Group, sbe Entertainment and 21c Museum hotels, among others.

As a senior member of our Entertainment Group, Jeff represents The Broadway League (the national trade association for Broadway theatre), the Tony Awards®, and various other joint venture events and producers. In the media industry, Jeff has advised on the acquisition and sale of television, radio, newspaper and magazine properties, and the acquisition and sale of advertising, promotion and marketing agencies, and related joint ventures. He also advises rights holders, including our long-time clients The Leonard Bernstein Office and The Balanchine Trust. He leads our team representing TSG Entertainment in film-slate financing deals.

Jeff also frequently represents start-up and development-stage companies, as well as established “traditional” businesses, in online, Internet-related or technology businesses. He has handled organizational and structuring matters, venture capital and other equity placements, restructurings (from “down” rounds to recapitalizations to M&A solutions). He has both company-side and investor experience.

As a frequent speaker at real estate and hospitality events, Jeff regularly presents about hotel management agreements at The Hotel School at Cornell’s SC Johnson College of Business, NYU’s Jonathan M. Tisch Center of Hospitality, and on M&A and investment matters at lodging investment conferences around the world, including the NYU Hospitality Industry Investment Conference in New York, Americas Lodging Investment Summit in Los Angeles, the International Hotel Investment Forum in Berlin and the Hotel Investment Conference Asia-Pacific in Hong Kong.

Jeff is a member of the American Hotel & Lodging Association (AHLA) Hospitality Investment Roundtable, ULI (and its Hotel Development Council) and the Advisory Board of the Cornell Center for Real Estate and Finance and has served as a member of the Editorial Board of the Cornell Hotel and Restaurant Administration Quarterly and a member of the Advisory Board of the Cornell Center for Hospitality Research. He is a director of The New York Hospitality Council, Inc., a not-for-profit forum for hospitality industry leaders, and is a member of the Real Estate Capital Policy Advisory Committee of The Real Estate Roundtable. He also has served as a director of the America-Israel Chamber of Commerce, and as a member of the French-American Chamber of Commerce in the U.S. and the American Society of Corporate Secretaries. He was the Chairman of the Board of Labyrinth Theater Company and a director of The Jewish Community Center in Manhattan for more than 15 years, a member of the Executive Committee of the Lawyers’ Division of UJA-Federation for more than five years and an officer of the Henry Kaufmann Foundation for more than a dozen years. He currently serves as Chairman of the Board of The American Playwriting Foundation and Building for the Arts and is a member of the Board of Directors of StreetSquash and The George Balanchine Foundation. He also served as a Vice Chair of the Associates’ Campaign for The Legal Aid Society.

Jeff has been with the firm for his entire career and lives in Manhattan and Connecticut.

Photo of Andrew Bettwy Andrew Bettwy

Andrew Bettwy is a partner in the Corporate Department and co-head of the Finance Group. His principal focus is the representation of financial institutions, private equity sponsors, and public and privately held companies in leveraged finance and other financing transactions. Andrew represents both…

Andrew Bettwy is a partner in the Corporate Department and co-head of the Finance Group. His principal focus is the representation of financial institutions, private equity sponsors, and public and privately held companies in leveraged finance and other financing transactions. Andrew represents both lenders and borrowers in a wide range of transactions involving multiple industries and diverse debt capital structures, including acquisition financings, recapitalizations, multiple lien and subordinated debt financings, debtor-in-possession and exit financings, and private placements.

Andrew has represented several leading financial institutions while at Proskauer, including Bank of America, Citibank, CoBank, Credit Suisse, Imperial Capital, Jefferies Finance and Lazard Capital Markets.

Photo of Jae Woo Park Jae Woo Park

Jae Woo Park is a partner in the Corporate Department and a member of our Private Equity and Mergers & Acquisitions Groups. Jae Woo advises and counsels public companies, financial sponsors, including private equity funds, sovereign wealth funds and their respective portfolio companies…

Jae Woo Park is a partner in the Corporate Department and a member of our Private Equity and Mergers & Acquisitions Groups. Jae Woo advises and counsels public companies, financial sponsors, including private equity funds, sovereign wealth funds and their respective portfolio companies on a wide variety of U.S. and cross border transactions, including leveraged buyouts, mergers, equity purchases, asset acquisitions, strategic investments, joint ventures and dispositions. He represents clients in a broad range of industries, including healthcare, industrial, technology, financial services and aerospace and defense.

In addition, Jae Woo advises the board of directors and senior executives of companies on general corporate governance, management and operational related matters.  Prior to joining Proskauer, Jae Woo served as an assistant general counsel at UTC Aerospace Systems, a subsidiary of United Technologies Corporation.

Photo of Grant R. Darwin Grant R. Darwin

Grant Darwin is an associate in the Corporate Department and a member of the Private Equity and Mergers & Acquisitions Group.  Grant counsels clients in connection with a variety of domestic and cross-border buyouts, mergers, acquisitions, divestitures, joint ventures, and recapitalizations, as well…

Grant Darwin is an associate in the Corporate Department and a member of the Private Equity and Mergers & Acquisitions Group.  Grant counsels clients in connection with a variety of domestic and cross-border buyouts, mergers, acquisitions, divestitures, joint ventures, and recapitalizations, as well as growth and venture-stage investments and general corporate governance matters.  Grant’s experience involves transactions in an array of industries, including manufacturing, gaming, retail and consumer products, technology and healthcare.

In addition to his corporate practice, Grant engages in a variety of pro bono efforts, including matters related to cash bail and prison reform, use of excessive force against minors and advising not-for-profit organizations on formation, corporate governance and related matters.  Grant has also spearheaded voter registration drives and joined in election protection initiatives.

Prior to Proskauer, Grant was an associate with Kirkland & Ellis LLP, where he was awarded the 2016 Kirkland & Ellis Pro Bono Leadership Award.

Photo of Seok Whee (Jason) Nam Seok Whee (Jason) Nam

Seok Whee (Jason) Nam is an associate in the Corporate Department. He graduated cum laude with B.A. from New York University and earned his J.D. from University of Pennsylvania Law School. While in law school, Jason received Certificate in Management from Wharton School…

Seok Whee (Jason) Nam is an associate in the Corporate Department. He graduated cum laude with B.A. from New York University and earned his J.D. from University of Pennsylvania Law School. While in law school, Jason received Certificate in Management from Wharton School and was the Recruiting Director of Student Discipline Advocacy Service.  Prior to law school, Jason served in the Korean Army and was the Head Instructor of a college preparatory institution.