TOP CORPORATE AT TORNEYS
JACKIE PRESTER
CORPORATE ATTORNEYS
EB5 INVESTORS MAGAZINE
J
ackie Prester is a shareholder in
the Memphis office of Baker
Donelson Bearman Caldwell &
Berkowitz, P.C., with 25 years of
experience in the corporate and
securities practice areas. Prester is
the practice group chair of the firm's Financial Services
Transactions practice group. She has particular experience
advising clients on securities issues relating to the EB-5
immigrant investor program. This experience includes helping
clients draft private placement memorandums, negotiating
agreements with broker-dealers and other securities
professionals, and advising on securities compliance issues.
WHAT TRENDS ARE YOU SEEING IN
THE EB-5 INDUSTRY?
connection with negotiating the terms of intercreditor
agreements between the senior lenders and EB-5 lenders.
Senior lenders are often not aware of some of the restrictions
with EB-5 loans or are not receptive to allowing provisions that
are important from an EB-5 perspective.
HOW ARE YOU HANDLING THE ISSUE
OF REDEPLOYMENT?
In 2020, USCIS clarified important parameters for redeployment.
This new guidance has led to changes in how we disclose
redeployment risks in offering memorandums and operating
agreements for the NCE. Since the guidance effectively applies
retroactively, we are also busy advising our clients how best to
navigate through this new guidance as it is applied to current
and past redeployment decisions.
We've seen a number of projects undergo timing delays or
difficulties due to COVID-19. With these delays and difficulties,
the managers of EB-5 entities are sometimes placed in difficult
situations in deciding whether to fund projects with EB-5 funds
or in agreeing to deferrals in repayment terms. There are also
challenges when project owners refinance senior debt in
BRUCE ROSETTO
B
ruce C. Rosetto represents
private and public companies,
private equity funds and investment
banks.
Rosetto
has
broad
experience in public company
securities work, private placement
financings, corporate governance and alternate assets. His
practice focuses on entrepreneurs and small-to-middle market
public companies throughout the U.S. in a variety of industries,
including life sciences, biotech, banking, real estate,
environmental, manufacturing, technology, entertainment and
many others. He also forms private equity funds and family
offices and represents affiliated portfolio companies. In
addition, he also advises clients on raising capital for and
establishing regional centers and projects that qualify for the
EB-5 program.
WHAT TRENDS ARE YOU SEEING IN
THE EB-5 INDUSTRY?
EB-5 has lost significant momentum in recent years, mostly due
to retrogression and the inability of legislation from Congress
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EB5 INVESTORS MAGAZINE
CORPORATE ATTORNEYS
EB5 INVESTORS MAGAZINE
addressing some of the critical issues that have resulted in
obstacles of having this program work as effectively as possible.
The supply of investors throughout the world that desire to utilize
the EB-5 program remains very strong. I have recently seen a
very large demand of from developers re-evaluating EB-5
investment as part of their capital stack in hopes that Congress
will act before the June 2021 deadline of the program. If they are
right, EB-5 will be back stronger than ever.
HOW ARE YOU HANDLING THE ISSUE
OF REDEPLOYMENT?
Redeployment remains a critical component of EB-5 offerings.
In that regard, I typically include provisions in my offering
documents that permit redeployment, subject of course to
compliance with all USCIS regulations, to allow the borrower to
use the proceeds of a sale, disposition or refinancing of its
project for a new project; provided that (i) the new project is of
the same quality and caliber (and no more risky) than the exiting
project; (ii) the collateral to the lender is of equal or better quality
than the existing collateral; and (iii) otherwise acceptable to
lender in its commercially reasonable discretion.