Mitch Kolkin is a transactional business lawyer focusing on structured finance and other complex commercial financing. These matters include derivatives, project finance, senior bank credit facilities, joint ventures, receivables sale financing, equipment lease financing, secured lending, cross-border financing, and warehouse lines of credit. He has worked extensively with swaps, repurchase agreements, forwards, options, basket transactions, and other derivatives contracts, as well as standby letters of credit, loan sales and loan participations. Mitch also represents many of the firm’s large public and non-public companies as borrowers in syndicated, senior bank credit facilities.
Mitch has long handled conventional secured and unsecured bank loans. For example, he represented the commercial bank that provided term and revolving credit facilities for the local investor group that purchased the Baltimore Orioles baseball team. Mitch has also focused on equipment lease financing, including leveraged leasing, and other tax-advantaged structures for financing the acquisition of big-ticket items of equipment. These assets have included a pair of nuclear power plants, commercial aircraft, a waste-to-energy incinerator, a recovery boiler, locomotives and other rolling stock. Mitch worked on the first securitization of commercial aircraft leases for one of the major U.S. passenger carriers. He handled the leveraged leasing program of a major U.S. freight railroad upgrading and expanding its inventory of rolling stock. This particular type of work frequently requires coordination with other practice groups within Venable, notably tax.
With changes to the federal tax laws, Mitch’s practice has expanded to include project finance, notably the development of the IBM corporate complex in Southbury, Connecticut and mixed use hospitality projects in the U.S., the Caribbean and Eastern Europe. He utilizes joint ventures, cross-border affiliate arrangements, export support programs, and other financing devices for this work. In addition, he draws upon his equipment leasing and project finance background to utilize bankruptcy-remote financing structures, such as special-purpose funds, statutory trusts and single-member LLCs, that comply with rating agency criteria, qualify for true sale accounting treatment and serve as the basis for rendering substantive non-consolidation legal opinion letters in financing transactions. If there is a single, common characteristic shared by these various structures and devices, it has been the isolation of tangible and financial assets, along with the revenue streams that they generate, in order to enhance efficient debt financing and mitigate exposure to credit risk.
Upheavals in the financial markets have presented Mitch with a new round of opportunities to expand his practice by working with other practice groups within the firm – notably, bankruptcy and litigation. Following the 2001 Enron bankruptcy, Mitch was a member of the Venable team engaged on behalf of the creditors committee. His Enron work focused initially on the so-called recharacterization complaints, which involved derivative transactions that were ultimately shown to have been improperly accounted for and, as a result, brought back onto the balance sheet. He and other team members then turned their focus to a dispute relating to Enron’s very large commercial paper program. In the CP litigation, Mitch identified what proved to be the team’s principal theory of recovery for the benefit of Enron creditors.
The 2008 bankruptcy of Lehman generated substantial work for Mitch. Venable was retained by a major European bank to assess, then work through, its very large counterparty position under Lehman’s whole loan repo program. For this representation Mitch drew on resources from every major Venable office – New York, Washington, DC, Baltimore, Los Angeles and Tysons Corner – and relied heavily on lawyers in several key practice groups, including real estate, creditors’ rights, litigation, tax, consumer protection and construction law. Led by Mitch, the Venable team tackled several novel legal issues and engaged in vigorous workout negotiations with the Lehman bankruptcy estate, with borrowers under the loans inherited from Lehman, and with co-lenders and other parties holding interests in the loans. The client ultimately achieved one of the highest rates of recovery among large, third-party creditors worldwide.
Mitch was also a member of the Venable team that represented the U.S. Treasury Department in connection with its 2009 auto supplier receivables program. He was responsible for structuring the liquidity facility, addressing true sale and related legal isolation considerations with counsel for program participants and, ultimately, implementing the program.
In 2010, Mitch and a bankruptcy partner resident in Venable’s New York office were retained by the former Swiss affiliate of Lehman (by then, subject to Swiss liquidation proceedings and no longer affiliated), through which Lehman had booked many of its most complex, “bespoke” over-the-counter equity derivative transactions. Venable has been working closely with co-counsel at several overseas law firms to close out these positions, recover financial assets, and reach settlements on behalf of the Swiss liquidators.
The Enron and Lehman bankruptcies resulted in significant changes to the regulatory and accounting rules applicable to banks and other financial institutions. Working with lawyers in Venable’s bank regulatory group, Mitch handles a range of third-party and affiliate transactions, including inter-bank lending and custodial arrangements, for several U.S. banks as well as for overseas banks with financial assets, transactions, customers or other business in the U.S. This work recently involved some high-profile litigation for one overseas bank involving a very large pool of restrained financial assets held in a U.S. custody account.
Since 2012 Mitch has devoted a significant amount of time to representing Ginnie Mae and Fannie Mae in connection with their mortgage-backed securities (MBS) programs. For Ginnie Mae he has been lead outside counsel in responding to issuer requests for acknowledgment agreements (AAs), whereby lenders and other liquidity providers seek protection for liens on an issuer's mortgage servicing rights (MSRs). In this capacity he has been responsible for updating the AA template, negotiating the terms of individual transactions and advising Ginnie Mae when assessing proposals for new and innovative credit products secured by MSRs. More recently, Mitch has been working with Fannie Mae on its CLASS project, which has entailed rewriting in "plain English" the Guide and contract documents for Fannie Mae's multifamily MBS program.
Mitch is highly analytic, conceptual, creative and intellectually aggressive. His strengths consist of analyzing complex transactions, translating them for the client and paying attention to the needs of the other side during negotiations. He prides himself on providing superb client service, working efficiently and drawing on the resources of different practice areas and different offices within Venable.