Commercial Office Building Acquisition


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Describes the process of acquiring a commercial real estate property from letter of intent to closing, including negotiating a purchase agreement, conducting due diligence, and assuming or paying off a loan.

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Commercial Office Building Acquisition

  1. 1. Commercial Office Building Acquisition December 22, 2008 Prepared By Stephen I. Berkman San Francisco, CA
  2. 2. Purchase and Sale Agreement Negotiation
  3. 3. Letter of Intent <ul><li>Typically the first stage in documenting a purchase and sale transaction is the negotiation and drafting of a letter of intent. The letter of intent is a non-binding document which sets forth the key business terms regarding the transaction including: </li></ul><ul><ul><li>Price </li></ul></ul><ul><ul><li>Amount of Deposit(s) </li></ul></ul><ul><ul><li>Length of the Due Diligence Period </li></ul></ul><ul><ul><li>Closing Date </li></ul></ul><ul><ul><li>Allocation of Closing Costs </li></ul></ul><ul><ul><li>Treatment of Existing Financing (e.g. sale free and clear of loan, assumption of loan, etc.) </li></ul></ul><ul><ul><li>Other material terms </li></ul></ul>
  4. 4. The Purchase and Sale Agreement <ul><li>Once the parties have executed a letter of intent, the attorneys representing the Seller will typically prepare an initial draft of the purchase agreement. The Purchase Agreement will set forth all terms and conditions related to the purchase and sale of the property, typically including, the following: </li></ul><ul><ul><li>A legal description of the land and improvements to be purchased and a description of the leases, contracts, personal property and intangible property to be acquired in connection with the sale </li></ul></ul><ul><ul><li>Purchase price, earnest money deposit(s), due diligence period and closing date </li></ul></ul><ul><ul><li>Terms and conditions upon which the Buyer may access the property to perform its due diligence investigations </li></ul></ul><ul><ul><li>Representations and warranties given by the Seller concerning the property </li></ul></ul><ul><ul><li>Covenants of the Seller to maintain the property in its existing condition pending closing </li></ul></ul><ul><ul><li>Conditions precedent to closing (e.g. receipt of tenant estoppel certificates, lender consent to loan assumption, etc.) </li></ul></ul><ul><ul><li>Documents to be delivered by the parties at closing, the allocation of closing costs and the proration of taxes, rents and other operating expenses </li></ul></ul>
  5. 5. Formation of “Buyer” Entity <ul><li>In order to shield the parent company from liability and to facilitate either the assumption of the existing loan or future financings of the property, a new &quot;bankruptcy remote,&quot; single-purpose entity (an &quot;SPE&quot;) will be formed to take title to the real property. </li></ul><ul><li>The SPE will be a wholly-owned subsidiary of Buyer. For tax purposes, typically the SPE will be a newly formed Delaware limited liability company qualified to do business in California. </li></ul><ul><li>This can occur prior to or after execution of the Purchase Agreement, so long as the Purchase Agreement allows for assignment to affiliates. </li></ul>
  6. 6. The Earnest Money Deposit <ul><li>Upon execution of the Purchase Agreement, the Buyer will typically make a deposit into an escrow account held by a title company. </li></ul><ul><li>The deposit will be held in an interest bearing account and will be fully refundable if Buyer terminates the Purchase Agreement prior to the expiration of the due diligence period. </li></ul><ul><li>The deposit will be applied toward the purchase price at closing. </li></ul><ul><li>If the transaction fails to close due to the Buyer's default after the expiration of the due diligence period, then the deposit will be paid to the Seller as liquidated damages. </li></ul>
  7. 7. The Due Diligence Phase
  8. 8. Due Diligence Generally <ul><li>The Buyer will typically be granted a period ranging from 30-90 days in which to conduct all investigations related to the condition of the property, including: </li></ul><ul><ul><li>financial condition of the tenants and confirmation of all assumptions related to the valuation of the property </li></ul></ul><ul><ul><li>review of lease documents and estoppel certificates received from tenants </li></ul></ul><ul><ul><li>the structural condition of the building </li></ul></ul><ul><ul><li>the environmental condition of the property </li></ul></ul><ul><ul><li>review of zoning, entitlements and other governmental approvals applicable to the property </li></ul></ul><ul><ul><li>review of title documents and a survey of the property </li></ul></ul><ul><ul><li>review of loan documents </li></ul></ul><ul><ul><li>review of service contracts (if any) to be assumed at closing and any other documents related to the property </li></ul></ul><ul><ul><li>receipt of any required internal or external approvals and consents </li></ul></ul>
  9. 9. Due Diligence Generally (continued) <ul><li>If the Buyer is unsatisfied with any aspect of the property discovered during the due diligence period, then the Buyer may terminate the purchase agreement in its sole and absolute discretion and receive the return of its deposit. </li></ul><ul><li>If the Buyer discovers adverse conditions which affect the Buyer's initial valuation of the property (e.g. unexpected capital repairs, unexpected environmental remediation, unpaid tenant improvement allowances, etc.), then the Buyer may also negotiate a purchase price reduction to address those issues. </li></ul>
  10. 10. Financial Analysis <ul><li>The brokers representing the Seller will typically have prepared an offering memorandum which is a glossy brochure containing information essential to the valuation of the property. </li></ul><ul><li>During the due diligence phase, the Buyer will evaluate the factual accuracy of the offering memorandum and other assumptions used to initially determine the purchase price set forth in the Purchase Agreement. </li></ul><ul><li>The Buyer may also commission a third party to perform an appraisal of the property to confirm valuation. </li></ul>
  11. 11. Lease Review and Estoppel Certificates <ul><li>The Buyer's attorneys will review and prepare abstracts or summaries of the leases. </li></ul><ul><li>Lease review will confirm the core financial terms of the leases (e.g. rent, escalations, term, extension rights, expansion rights, etc.) used to determine cash flows and the valuation of the property. </li></ul><ul><li>Lease review will also identify any tenant concessions which may affect expected cash flows (e.g. free rent, unpaid tenant improvement allowances, termination rights, etc.). </li></ul><ul><li>After the closing, the lease abstracts also provide a handy summary for quick reference purposes regarding the terms of the leases. </li></ul>
  12. 12. Lease Review and Estoppel Certificates (continued) <ul><li>The Seller will also solicit estoppel certificates from the tenants which will confirm: </li></ul><ul><ul><li>The Buyer has been provided a complete copy of the lease </li></ul></ul><ul><ul><li>There are no known defaults under the lease </li></ul></ul><ul><ul><li>The tenant's understanding of other key business terms of the lease </li></ul></ul><ul><ul><li>Negotiation point in the Purchase Agreement as to whether all estoppels must be received as a closing condition </li></ul></ul><ul><li>In this case careful attention will be paid to lease expirations and renewal rights and expansion rights of existing tenants. </li></ul>
  13. 13. Title and Survey <ul><li>A title company will prepare a preliminary title report confirming that the Seller is the owner of the property and setting forth all matters of record relating the property. </li></ul><ul><li>The Buyer will engage the services of a licensed surveyor to prepare an ALTA/ACSM survey of the property which will confirm, among other things, boundary lines, acreage, building footprint, building height, zoning and flood classifications, the location of all improvements located on the property and the location of all easements affecting the property. </li></ul><ul><li>Attorneys for the Buyer will review the preliminary title report together with the survey to ensure that the property has adequate access, there are no encroachments, there are no restrictions which would adversely affect the use of the property and there are no unknown monetary liens. </li></ul><ul><li>Attorneys for the Buyer will also negotiate with the title company the form of the title policy and any endorsements thereto. Among other things, the title policy will insure that the Buyer is the owner of the property and that there are no unknown items of record affecting the property. </li></ul>
  14. 14. Environmental Review <ul><li>The Buyer will engage the services of a licensed environmental consultant to prepare a Phase I environmental report for the property. </li></ul><ul><li>The Phase I report will evaluate prior ownership and historical use of the property, the listing of the property on databases regarding environmental compliance and other documents related to environmental matters. Surface level soil samples may also be collected. </li></ul><ul><li>If any issues of concern are raised by the Phase I report, the consultant may recommend performing a Phase II report which typically requires test drilling and collection of ground water to determine if there are any adverse environmental issues. </li></ul>
  15. 15. Building Physical Evaluation / Zoning Entitlements <ul><li>A third party consultant will perform a thorough inspection of the structural portions of the building and all building systems (e.g. HVAC) to evaluate the physical condition of the building. </li></ul><ul><li>The consultant will identify items in need of repair and other capital improvements necessary to keep the building in good condition and repair. </li></ul><ul><li>The Buyer may also order a letter from the City in which the property is located confirming the zoning for the property and that no code violations are on file with the City. </li></ul><ul><li>The Buyer may also engage a consultant or architect to prepare a &quot;zoning report&quot; which will independently confirm the property's compliance with zoning code requirements. </li></ul>
  16. 16. Approvals and Consents <ul><li>Board of Directors Approval – Depending upon Buyer’s internal approval process, Board of Director approval will need to be obtained either prior to execution of the Purchase Agreement or prior to expiration of the due diligence period. </li></ul><ul><li>Lender Consents – If the existing loan will be assumed, then the consent of the lender will be required. </li></ul><ul><li>Governmental Entity Consents – Most permits, licenses and other governmental approvals relating to the property (e.g. elevator license, certificate of occupancy, etc.) are freely assignable. If any consents to assignment are required to assign these items, then they will be identified and obtained. </li></ul><ul><li>Service Contracts – Buyer will need to determine whether it intends to assume service contracts related to the property (e.g. elevator maintenance, security/fire alarm monitoring, landscaping, janitorial) or have the Seller terminate those contracts at closing. If any consents to assignment are required to assign these contracts, then they will be identified and obtained. </li></ul>
  17. 17. Property Management and Leasing Agreement <ul><li>In order to ensure a seamless transition of the property, prior to closing, the Buyer will need to negotiate a property management and leasing agreement with a professional third party property management company. </li></ul><ul><li>Upon closing, the property management company will handle the day-to-day management of the property (e.g. preparation of budgets, collection of rent, building maintenance, etc.). </li></ul><ul><li>If the existing loan will be assumed by the Buyer, the lender may require the execution and collateral assignment of the property management agreement prior to closing. </li></ul>
  18. 18. The Existing Financing
  19. 19. Options for Addressing the Existing Financing <ul><li>There are several options regarding how the Buyer and Seller may address the existing financing for the property, including: </li></ul><ul><ul><li>Prepayment – If permitted by the loan documents (or agreed to by the lender), the Seller may prepay the loan in its entirety. A penalty may be owed in order to prepay. The loan is typically paid at closing out of the sale proceeds. </li></ul></ul><ul><ul><li>Defeasance – The loan documents may permit the deed of trust recorded against the property and securing the loan to be removed in a so-called &quot;defeasance&quot; transaction. In a defeasance transaction, government backed securities (e.g. bonds and treasuries) are substituted for real property as security for repayment of the loan. Given current interest rates, this loan can be quite expensive to the Seller. </li></ul></ul><ul><ul><li>Loan Assumption – The Buyer may assume the loan, in which case, upon closing, the Buyer will become responsible for repayment of the loan and all of the other obligations of the Seller under the loan documents. </li></ul></ul>
  20. 20. Loan Assumption <ul><li>If the loan is to be assumed at closing, then attorneys for the Buyer will undertake a detailed review of the loan documents to confirm the financial terms (e.g. interest rate, maturity date, operating covenants, etc.) and other obligations set forth in the loan documents. </li></ul><ul><li>If the loan will be assumed, then the lender will require detailed financial information regarding Buyer in order to evaluate the company's financial condition and ability to perform under the loan documents. </li></ul><ul><li>The lender may also require a parent guaranty of certain non-recourse carve-outs under the loan documents. </li></ul><ul><li>The Buyer's attorneys will negotiate the documents regarding the assumption of the loan and otherwise coordinate with the lender's attorneys to cause the loan to be assumed. </li></ul>
  21. 21. The Closing Process
  22. 22. Escrow <ul><li>Closings in California are accomplished through an escrow agent, which is typically the title insurance company. </li></ul><ul><li>Documents required for closing (e.g. deed, assignment of lease, bill of sale) are executed by the parties and delivered to the escrow agent. </li></ul><ul><li>If the loan is not assumed by the Buyer, then the escrow agent also coordinates with the lender to obtain the necessary documents to cause the deed of trust to be removed as a lien against the property. </li></ul><ul><li>The Buyer wires funds to the escrow agent on or before closing to close the transaction. </li></ul><ul><li>Attorneys for the Buyer and Seller coordinate all aspects of the closing with the escrow agent on behalf of their respective clients. </li></ul>
  23. 23. Closing Process <ul><li>Prior to closing the escrow agent will prepare a detailed closing statement setting forth the purchase price, deposits, credits, prorations and allocation of closing costs. The closing statement will set forth the precise amount the Buyer will need to wire into escrow in order to close the transaction. </li></ul><ul><li>Upon receipt of all funds and documents, the escrow agent will cause the deed to be recorded, the title policy to be issued to the Buyer, originals of the closing documents to be delivered to the parties, the loan to be paid off (if applicable) and funds to be wired to the Seller. </li></ul><ul><li>Upon closing, written notice will be delivered to the tenants of the building regarding the sale and instructing them to pay rent to the Buyer. </li></ul>
  24. 24. Our Global Real Estate Group
  25. 25. Real Estate Group Overview <ul><li>Paul Hastings has one of the largest and most sophisticated real estate practices of any international law firm—founded on the collective strength of 200 lawyers who advise clients on the purchase, sale, leasing, financing, developing, regulatory considerations and securitization of real property. Our leadership in real estate has been acknowledged by the market and our peers. </li></ul><ul><li>Real estate law has been a mainstay of our firm since we opened for business more than 50 years ago. Backed by 1,300 professionals in 18 offices worldwide, our lawyers adopt a multidisciplinary approach to advising clients on the full range of real estate-related transactions in every market where they conduct business. </li></ul><ul><li>Our firm has long been recognized for our ability to adapt to the many different business cultures in the countries in which we operate. In each office, local and international lawyers provide clients with in-depth regional advice as well as unparalleled insight into the larger implications of conducting real estate transactions in the global economy. We were one of the first U.S. firms to expand into Asia, and today we have one of the largest and most experienced real estate practices in the Asia Pacific Region, working on landmark transactions like representing the first Japanese real estate investment trust fund (J-REIT) on the Jasdaq securities exchange. In Europe, our offices in Brussels, Frankfurt, London, Paris and Milan are staffed by lawyers who are qualified in North America, the U.K., Italy, France and Germany. </li></ul><ul><li>Across the globe, clients return to us not only for our knowledge of particular real estate markets, but for our knowledge of their business. Over the years, we have built strong, long-term relationships with our clients, who include many of the world’s top developers, investors, financial institutions and corporations. We partner with clients in every major sector of the industry, including residential, office, retail and industrial real estate, to understand how their business objectives are best served by their real estate needs. Our collaborative, interdisciplinary approach allows us to develop sophisticated structures and innovative solutions for some of the most complex multi-jurisdictional real estate deals in the world. </li></ul><ul><li>We take the long view of the real estate cycle, staying attuned to where the market is and monitoring trends to help our clients anticipate change. Extensive transaction experience on both sides of the table gives us an unrivalled perspective on the opportunities and risks involved in complex deals. We negotiate on behalf of our clients to make sure that risks are allocated appropriately and the maximum rewards are realized. Our services extend beyond negotiating and documenting individual deals to advising clients on how their real estate strategy can support their business objectives. </li></ul>
  26. 26. Real Estate Awards Joel Rothstein (Beijing) – 1 David Blumenfeld (Shanghai) – 2 1 2 2 3 China Real Estate: Foreign Investment Funds: Real Estate Japan Real Estate: Foreign Hong Kong Real Estate Chambers Asia 2008 Hergen Haas (Frankfurt) – 3 Mark Eagan (London) – 6 4 4 Europe-wide Real Estate Germany Real Estate: Finance Chambers Europe 2008 Deborah Schmall (San Francisco) – 2 Peter Weiner (San Francisco) – 2 David Freeman (New York) – 3 Gordon Hart (San Francisco) – 4 3 California Environmental Chambers USA 2008 Marty Edelman (New York) – 1 Philip Feder (Los Angeles) – 1 Rick Kirkbride (Los Angeles) – 1 Charles Sharbaugh (Atlanta) – 2 Daniel Perlman (Chicago) – 3  Charles Thornton (San Francisco) – 3  Bob Wertheimer (New York) – 3 Stephen Berkman (San Francisco) – 4 Eric Landau (New York) – 4 Stuart Mass (New York) – 4 Mark Schonberger (New York) – 4 Robert Grados (New York) – Up & Coming 1 1 1 3 4 California Real Estate  National Leisure & Hospitality  New York Real Estate: Mainly Dirt Georgia Real Estate National REITs Chambers USA 2008 N/A 2 3 Japan Real Estate: Foreign Investment Funds: REITS Chambers Global 2008 Individuals/Rank Rank Practice Group Directory
  27. 27. Real Estate Practice Focus <ul><li>Acquisitions and Dispositions </li></ul><ul><li>Advising clients in the purchase and sale of real property is the core of our practice. We represent clients in deals in every major sector of the industry, including residential, office, retail and industrial real estate. We negotiate and draft contracts, conduct due diligence, resolve issues and structure deals to reduce the tax burden. Our clients include buyers and sellers of property used for a variety of purposes, and we regularly represent companies whose business is the acquisition, development and disposition of real estate, particularly opportunity funds, public real estate funds, equity funds and developers. </li></ul><ul><li>  </li></ul><ul><li>Development and Construction </li></ul><ul><li>We represent clients in every type of traditional development and construction project and are recognized leaders in advising on projects that are innovative in their size, scope or impact on a community. We have deep experience with the range of development and construction projects our clients undertake, including mixed-use projects, large-scale infrastructure projects, recreational and retail properties. We represent property owners and developers of all sizes, financial institutions, investors and end users around the world. Furthermore, the lawyers in our Military Base Redevelopment and Privatization practice group represent clients involved in redevelopment and privatization projects. </li></ul><ul><li>Equity Investments and Joint Ventures </li></ul><ul><li>Clients turn to us as their trusted advisers on the profusion of cross-border and multi-jurisdictional investment structures available for real estate investment. Our real estate investment and joint venture services cover friendly and unsolicited acquisitions, mergers, private equity and mezzanine investments, recapitalizations and joint ventures. Our clients include investee companies, strategic and financial investors, international and local financial institutions, major real estate investment groups and hotel and resort groups. We help clients customize investment vehicles to satisfy the needs of every type of sponsor, including limited partnerships, trusts, limited liability companies and offshore entities. </li></ul><ul><li>  </li></ul><ul><li>Environmental </li></ul><ul><li>Paul Hastings’ team of environmental lawyers focuses its practice on the compliance, transactional and litigation matters that concern environmental issues. With our knowledge of federal, state and local regulatory systems—and how they interact and affect one another—we meet the steady demand for responsive and cost-effective results for clients facing an environmental law hurdle. Our attorneys and regulatory specialists know how air pollution, water and hazardous waste, among other substances, are regulated throughout the United States, and they draw on the complementary strengths of our full-service firm to supplement their litigation, transactional, tax and other services pertaining to environmental issues. Our environmental attorneys are recognized leaders in assisting clients with the redevelopment of “brownfields” properties—those abandoned, idled or underutilized industrial and commercial facilities where expansion or redevelopment is complicated by real or perceived environmental contamination. </li></ul><ul><li>  </li></ul><ul><li>  </li></ul><ul><li>  </li></ul>
  28. 28. Real Estate Practice Focus <ul><li>Hotels and Resorts </li></ul><ul><li>Paul Hastings’ Resort, Restaurant & Recreation (RR&R) practice group focuses on the legal and business needs of real estate development companies, institutional lenders, investment banks, capital providers, owners and operators. With more than 75 attorneys serving RR&R clients around the world, the RR&R practice encompasses the development, acquisition and sale, finance, leasing, operation, management, licensing, branding, repositioning, roll-up, foreclosure, workout and restructuring of hospitality, recreational and real estate-based entertainment properties and businesses in North America, Latin America, the Caribbean, Europe and Asia. </li></ul><ul><li>  </li></ul><ul><li>Land Use </li></ul><ul><li>Our land use lawyers help clients at every stage of real estate and land use projects, from planning and permitting to financing and litigation. Our knowledge of law, planning, architecture and environmental issues, combined with our global presence, is unmatched by other international law firms. We have pioneered innovative and successful techniques for public and private clients in development, land use systems and litigation, and have experience litigating matters at the state and federal levels, including before the U.S. Supreme Court. We have developed particular experience with California’s especially complex land use and environmental protection laws. </li></ul><ul><li>Leasing </li></ul><ul><li>Our real estate lawyers who focus their practice on commercial leasing deals have built a reputation for excellence through many years of successful representation of large, sophisticated landlords and major corporate tenants in high-profile deals. Our ability to move deals to completion swiftly and with the most favorable terms for our clients is unrivalled. We operate in all of the major real estate markets, and are particularly strong in structuring investment-grade sales-leaseback, commercial and synthetic leasing arrangements for clients. We advise clients on the full range of business issues that can affect a lease, raising issues that might otherwise go unnoticed and that could have repercussions long after the ink has dried. </li></ul><ul><li>   </li></ul><ul><li>Real Estate Finance </li></ul><ul><li>Our real estate finance lawyers represent both lenders and borrowers in financings ranging from conventional commercial loans to sophisticated capital market and securitized transactions. We handle financings of portfolios of distressed debt in U.S. and foreign markets, real estate portfolio securitizations and fund formation for investment in real estate debt and equity vehicles. We are highly experienced in real property lending, whether first mortgage or mezzanine, secured by a wide variety of real estate. Whether real estate occupies a large or small percentage of a client’s total investment portfolio, we have the finance experience and industry knowledge to ensure the financing structure supports our client’s business goals. </li></ul><ul><li>  </li></ul><ul><li>Real Estate Securities and Capital Markets (REITs) </li></ul><ul><li>Paul Hastings’ leading securities practice represents clients in complex real estate capital formation and other related transactions. Lawyers from our corporate, real estate and tax practices work together in interdisciplinary teams to address the accounting, legal and regulatory issues associated with intricate securities transactions. Our attorneys help structure and execute public and private offerings by REITs, limited partnerships, limited liability companies and other programs that invest in equity and mortgages. We also serve as outside general counsel to several REITs. </li></ul><ul><li>  </li></ul><ul><li>  </li></ul>
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