THE AMERICAN LAW INSTITUTE Continuing Legal Education Modern Real Estate Transactions July 18-20, 2012 San Francisco, California

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1 THE AMERICAN LAW INSTITUTE Continuing Legal Education Modern Real Estate Transactions July 18-20, 2012 San Francisco, California PROGRAM FACULTY PARTICIPANTS STUDY MATERIALS TABLE OF CONTENTS Page xi xiii VOLUME 1 ACQUISITIONS 1. Real Estate Acquisition, Development and Disposition from the Developer's Perspective 2. Letter of Intent for the Purchase and Sale of Property By Catherine T. Goldberg Some Letter of Intent Cases and Sample Letter of Interest Provisions Regarding Legal 77 Effect Some Letter of Intent Cases 79 Letter of Interest Provision Regarding Legal Effect Sample Purchase and Sale Agreement 5. Purchase and Sale Agreement for Real Property 111 By Peter Aitelli Table of Contents 114 Study Material 117 Escrow Condition 153 Exhibit A: Legal Description of the Land 154 Exhibit B: List of Personal Property 155 Exhibit C: Due Diligence Document 156 Exhibit D: ALTA Survey Requirements, 2005 Form 159 Exhibit E: Tenant Estoppel Certificate 164 Exhibit F: Seller Estoppel Certificate 168 Exhibit G: Statutory Warranty Deed 172 Exhibit H: Bill of Sale 173 Exhibit I: Assignment and Assumption of Leases 174 Exhibit J: Assignment and Assumption of Assumed Agreements 176 Exhibit K: Assignment of Permits, Intangible Property, and Warranties 178 Exhibit L: Seller s Closing Certification 179 Exhibit M: FIRPTA Affidavit: Certificate of Transfer Other than an Individual 180 Exhibit N: Tennant Notice Letter 182 Exhibit O: Purchaser s Closing Certification

2 Exhibit P: Indemnification Agreement 184 Exhibit Q: Rent Roll 187 Exhibit R: List of Service Contracts 188 Exhibit S: Post-Closing Guaranty Agreement for Purchase and Sale of Equity Interests in Real Property 191 By Peter Aitelli Table of Contents 194 Study Material Easements and Other Servitudes By John G. Cameron, Jr. 8. Shopping Center Acquisition Checklist 9. Insurance in the Commercial Loan and Transactional Contexts DRAFTING 10. Drafting Table of Contents 310 Study Material Some Thoughts on Drafting 335 Table of Contents 336 Study Material 337 MANAGEMENT AND CONSTRUCTION 12. Property Management and Leasing Agreement 13. Asset Management Agreement Form of Limited Liability Company Agreement 385 Table of Contents 388 List of Defined Terms 391 Study Material The Wonderful World of Construction By John G. Cameron, Jr. 16. Agreement between Owner and Design Professional for Construction Manager Projects 463 Utilizing Phased Construction By John G. Cameron, Jr. Agreement 465 Addendum to Standard Form of Agreement between Owenr and Contrator (Form A ) 506 Addendum to General Conditions of the Contract for Construction

3 17. Like-Kind Exchanges 523 By Stefan F. Tucker Table of Contens 524 Study Material The Like Kind Exchange: A Current Review 583 By Stefan F. Tucker and Tammara F. Langlieb Table of Contents 584 Study Material The Best of Times and The Worst of Times: Tax Planning for Real Estate Transactions 657 in the Current Economy By Stefan F. Tucker and Tammara F. Langlieb Table of Contents 658 Study Material Real Estate Preserving Capital Gains, Dealer Issues 749 By Stefan F. Tucker, Brian S. Masterson, and Tammara F. Langlieb Table of Contents 751 Study Material Series LLCs 777 Table of Contents 778 Study Material 779 ECONOMICS 22. Understanding Real Estate Economics 809 By Thomas F. Kaufman Table of Contents 810 Study Material 811 Exhibit 1: Computations and Examples 828 Exhibit 2: Select Asset Class Performance 830 Exhibit 3: National Council of Real Estate Investment Fiduciaries National Property Index 831 Exhibit 4: NPI Returns and Graph 832 Exhibit 5: Power Point Examples 833 Presentation Slides: Real Estate Economics 840 Presentation Slides: Real Estate Lease Accounting 848 LOANS 23. Exploding and Springing Guarantees By John C. Murray Fundamentals of Construction Lending 863 Study Outline 865 Closing Memo/Checklist Subordinate and Mezzanine Real Estate Financing By Thomas R. Fileti 877

4 26. Perfection of Security Interests in the Ownership Interests of Borrowers Under a Mezzanine Loan; Article 9 vs. Article CMSA Suggested Form Mezzanine Intercreditor Agreement 28. Mezzanine Loan Intercreditor Agreement (Sample) 29. Mezzanine Loan Intercreditor Agreements: Suggestions for Future Market Realities 30. Complex Cash Management Agreement between Borrower, Senior Lender, and Junior Lender 31. Real Estate Workouts 32. Conveyances in Lieu of Foreclosure VOLUME 2 LEASES 33. Landlord-Tenant Relationships By Stefan F. Tucker 34. Lease Review Checklist 35. Office Lease 36. Negotiated Build-to-Suit Industrial and Warehouse Lease Agreement By Peter Aitelli 37. Tenant Improvements and Work Letters By Jay A. Epstien 38. Work Letter Agreement Samples By Alan Wayte 39. Construction of Base Building and Tenant Improvements By Richard A. Fineman and Richard R. Goldberg 40. Rent, Pass-Throughs, and Escalations An Overview By Morton P. Fisher, Jr. and Richard R. Goldberg 41. Retail Lease Agreement 42. Big Box Leasing Questions and Answers 43. Big Box Agreement of Lease

5 44. Sample Ground Lease 45. Financeable Ground Leases: An Overview By Nancy R. Little 46. Assignment and Subleases: Have I Got the Right Form? 47. Tenant Options and Rights of First Offer/Refusal - Sample Provisions and Comments By Linda A. Striefsky 48. Primer of Remedies for Landlord Defaults By John W. Daniels, Jr Lease Termination Agreements 1623 Study Outline 1625 Schedule A: Lease Termination Agreement 1633 Schedule B: Sublease Recognition Agreement 1649 BANKRUPTCY 50. Commencement of a Business Bankruptcy Case 1661 By Richard F. Broude Table of Contents 1662 Study Material Disclosure Statements: Confirmation and Cramdown of Chapter 11 Plans 1681 By Barbara J. Houser, Douglas Wade Carvell, and Holly D. F. Meister Table of Contents 1683 Table of Cases 1685 Study Material Adequate Protection, the Automatic Stay and Use of Cash Collateral 53. Classification of Claims and Interests 1761 By Barbara J. Houser, Thomas S. Henderson, Richard M. Rosenberg, Shari A. Wilkins, Jenny J. Hyun, and Douglas E. Deutsch Table of Contents 1763 Table of Cases 1764 Study Material Confirmation of Chapter 11 Plans Consensual Plans 55. Chapter 11 Plan Confirmation is Governed by 11 U.S.C. Sections 1121 Through 1146 of the Bankruptcy Code By Kimberly W. Osenbaugh and David C. Neu 56. Cash Collateral Use and Use, Sale, and Lease of Property in Bankruptcy 57. Preferences and Fraudulent Transfers

6 58. Executory Contracts and Unexpired Leases in Bankruptcy 1841 By Richard F. Broude Table of Contents 1843 Study Material Section 363 Sales after Clear Channel 60. Postpetition Attorneys' Fees to Unsecured Creditors 61. Restructing Debt on Distressed Real Estate By Stefan F. Tucker ETHICS 62. Sample Engagement Letter 63. Advance Waivers of Conflicts 64. Hypotheticals Ethics 65. Sample Consent to Conflict Letter 66. New York Court Dismisses Lawsuit against Law Firm that Rendered Opinion Letter in Fraudulent Transaction By Edward J. Levin Submitted by Kathrny Cochrane Murphy 67. Selected Model Rules of Professional Conduct Submitted by Kathryn Cochrane Murphy APPENDIX 68. Attorneys' Liability for Opinion Letter 69. Cases of Recent Interest 70. Writing Good, Legal Sense and More or Less 71. The Future of Real Estate Financing Table of Contents 2027