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The Zen of Using Deal-Making Documents

Benefits of Using Deal-Making Documents
Risks in Using Deal-Making Documents


Project Equity Participation by Employees of a Developer

3-1 Employee Equity Participation. Employment and Project Equity Participation Agreement for an Individual Forming and Managing a Local Development Division for a Major Out-of-State Developer.

3-2 Termination of Employment and Project Equity Participation. Letter of Resignation Confirming Agreement Terminating Employment and Settling Developer and Employee-Partner’s Accrued Project/Partnership Rights.


Purchasing an Unimproved Shopping Center Site

Creating a Standard Long-Form Offer

4-1 Standard Long-Form Purchase Offer. Comprehensive Letter Proposal to Purchase Shopping Center Site; Periodic Release of Funds to Seller during the Escrow Period.

Abbreviated Proposals, Purchase Money Notes and Partial Releases

4-2 Short Offer to Option Site. Proposal to Option Shopping Center Site in Approved Master-Planned Community from Residential Land Developer Inexperienced in Shopping Center Development; Exhibit: “Preliminary Development Schedule.”

4-3 Brief Letter of Intent to Option Site. Simple Letter of Intent to Enter into Site Purchase Option Agreement.

4-4 Purchase Money Note and Release Clause. Seller’s Purchase Money Note Secured by Site; Partial Release Clause Illustrating Economic Effect.


Ground Leasing an Unimproved Shopping Center Site

Altering the Standard Fee Purchase Offer to Provide for Ground Leasing the Site

5-1 Amendments to Long-Form Purchase Offer to Make Ground Lease Proposal. Selected Amendments to Standard Long-Form Purchase Offer to Create a Letter of Intent to Enter into Site Ground Lease; Extensive Exhibit: “Summary of Ground Lease Terms.”

Purchasing the Ground Lessee’s Position under an Existing Ground Lease

5-2 Ground Lessee Buyout. Selected Amendments to Standard Long-Form Purchase Offer to Provide for Buyout of a Ground Lessee’s Rights Under an Existing Ground Lease.

Case Studies in Creative Uses of the Ground Lease: A Powerful Marketing Tool Used to Meet the Landowner’s Needs

Example 1: Although the School District Offered to Sell, It Really Needed to Ground Lease

5-3 Converting an Unaccepted Purchase Offer to a Ground Lease Proposal to Improve Likelihood of Acceptance. Revision of Unaccepted Purchase Offer to Provide for Ground Lease of Site; Site Owner’s Right to Purchase Developer’s Improvements at Fair Market Value.

Example 2: The “Full-Blown” Proposal to a Trust Where Intense Competition Is Expected from Other Developers and Negotiating with Individual Trust Beneficiaries Is Not Possible

5-4 Persuasive Financial Analysis of Developer’s Proposed Subtenant Income Stream to Favorably Distinguish Developer’s Proposal from Competing Proposals. Site Ground Lease Proposal to Landowner with Developer Disclosing Proposed Financial Partner and Major Tenants; Landowner Granted Participation in Subtenant Rental Increases and Option to Purchase Developer’s Improvements (Exhibit Compares Financial Attributes of Developer’s Key Major Tenant Relative to Competition to Improve Likelihood of Landowner’s Selection of Developer over Potential Competing Developers).


Example 3: Controlling an Entire Site Too Large for Comprehensive Immediate Development: Ground Leasing or Purchasing a Portion and Optioning the Balance by Providing Landowner with an Attractive Tax-Advantaged Income Stream and a Land Loan to Finance Landowner’s Fee

5-5 Combining Elements of Fee Purchase, Ground Lease, Option, and Land Loan to Meet the Landowner’s Needs. Proposal to Enter into Option to Purchase or Ground Lease Major Site: A Defined Portion is Developed Now and Balance of Property Is Optioned for Future Development (Developer’s Financial Partner Makes Land Loan Pending Entitlement and Closing to Accommodate Landowner).


Acquiring All or a Portion of a Project Still under Development

Pre-Construction Purchase of Land or Escrow Rights

6-1 Acquiring Home Builder’s Retail Site(s). Letter to Major Home Builder Proposing Continuing Venture Relationship and/or Sale of Home Builder’s Shopping Center Project Currently under Development.

6-2 Purchasing Another Developer’s Site Purchase Escrow Rights. Letter Agreement, Escrow Assignment and Promissory Note Confirming Short-Term Option to Purchase Another Developer’s Purchase Escrow for a Shopping Center Site Still under Development.

6-3 Purchasing All but Anchor Tenant Parcels. Short-Form Offer to Purchase the Shops and Pads Portion of an Entitled, Supermarket-Anchored Neighborhood Center before Groundbreaking.

Purchasing a Residual Undeveloped Land Area within a Completed Center

6-4 Purchasing Undeveloped Portion of Partially Completed Center. Proposal to an Anchor Retailer That Has Constructed an Initial “Free-Standing” Store and Limited Shops on a Portion of a Land Parcel Owned by the Retailer. Developer Proposes to Purchase the Entire Parcel, Less the Land Area Attributable to the Anchor’s Retail Operations, Subject to Developer’s Ability to (i) Add a Second Anchor Tenant and (ii) Build Additional Shops and Pads, Consistent with Specified Amendments to an Existing, Approved Site Plan.


Recycling Major Tenant Store Space: Purchasing Outmoded Space from Retailers

7-1 Proposal to Purchase Retailer’s Outmoded Stores. Developer Proposal to Major Food Retailer to Form Relationship Whereby Developer Will Acquire and Recycle Retailer’s Outmoded Stores.


The Project Marketing Brokerage Contract

Project Marketing Agreement

8-1 Project Marketing Letter Agreement. Marketing Letter Agreement between Developer and Exclusive Leasing/Marketing Broker Providing Leasing and Parcel Sale Services for a Strip Shopping Center.

Brokers: Be Mindful of “Dual Agency” Risks


Major Tenant Leases

9-1 Build-to-Suit Lease with Landlord Doing All Construction. Basic Major Tenant [Supermarket] Build-to-Suit Lease Letter of Intent; Landlord Constructs Tenant’s Building and On- and Off-Site Improvements.

9-2 Build-to-Suit Lease with Shared Construction Responsibilities. Major Tenant [Supermarket] Build-to-Suit Lease Letter of Intent; Tenant Builds Tenant’s Building; Landlord Constructs On- and Off-Site Improvements and Purchases Building after Tenant’s Completion.


Parcel Sales to Major Tenants

10-1 Parcel Sale of Unimproved Site to Major Tenant. Letter of Intent with Major [Supermarket] Tenant for Parcel Purchase within Proposed Center; Tenant to Pay Prorata On- and Off-Site Expense and Construct Tenant’s Building on Tenant’s Parcel.

10-2 Site “Marketing” Letter to Major Tenant. Comprehensive “Marketing” Letter to Major [Supermarket] Chain to Initiate Parcel Purchase by Chain.

10-3 Tenant Right to Cancel under Certain Circumstances. Letter Agreement Granting Major Tenant Right to Cancel Major Tenant Parcel Purchase Escrow If Developer Is Unable to Record Parcel Map or Commence Grading within Specified Time Periods; Developer May Cancel If On- and Off-Site Costs Exceed an Agreed Sum.


Satellite Tenant or Shop Leases

11-1 Satellite or Shop Tenant Letter of Intent. General Letter of Intent to Enter into Space Lease in Shopping Center.


Pad or Outparcel Sales to a Proposed Tenant

12-1 Sale of Unimproved Building Pad to Typical Retailer. Letter of Intent to Sell Proposed Outparcel to Fast-Food Chain for Chain’s Construction of Free-Standing Fast-Food Restaurant and Drive-Through.

12-2 Sale of Unimproved Building Pad to Desirable “Non-Retailer.” Letter of Intent to Create and Sell 1.5 Acre “Office” Site for Service Tenant Building and Parking behind Retail Core of Shopping Center; Development Approvals and Construction to Occur Concurrent with Shopping Center.


Pad or Outparcel Build-to-Suit Leases

13-1 Build-to-Suit Proposal for Free-Standing Building. Key Provisions Contained in a Typical Build-to-Suit Lease Proposal for a Free-Standing Restaurant in a Neighborhood Shopping Center.

13-2 Build-to-Suit Letter of Intent Where Certain Terms Are Subject to Future Negotiation. Letter of Intent with Major Theater Operator for Build-to-Suit Lease of Free-Standing Multiplex Theater; Minimum Annual Rent Conditioned upon Negotiating (i) Acceptable Revisions to Community Shopping Center Site Plan and (ii) Land Area/Value Attributable to Tenant’s Use.


Pad or Outparcel Ground Leases

14-1 Developer’s Detailed Ground Lease Proposal. Developer Letter of Intent to Major Oil Company for Ground Lease of Corner Service Station Pad to Be Developed Concurrent with Shopping Center; Includes (i) Allocation of On- and Off-Site Costs and Development Fees and (ii) REA Restrictions.

14-2 Tenant’s Generic Ground Lease Proposal with Developer-Oriented Comments. Letter of Intent from Bank to Ground Lease Free-Standing Bank Pad in Neighborhood Center with Selected Developer-Oriented Comments Addressing How Refinements Could Be Made to Cooperatively Expedite the Transaction.


Joint Venturing with a Financial Partner

15-1 Preliminary Venture Agreement between Developer and Proposed Financial Partner. Letter of Intent to Enter into Joint Venture to Develop a Shopping Center.


Joint Venturing with a Financial Partner

16-1 Stock Purchase of Company Owning Real Estate. Letter of Intent to Enter into Stock Purchase Agreement for 100% of Stock of Privately Held Operating Business; Cash Base Price at Closing Plus Incentive Price Payable in Installments Based upon Earnout Formula.


Optional and Alternative Clauses for Purchase and Sale Proposals

Repurchase Right

17-1 Repurchase Right Due to Tenant Actions. Developer’s Right to Purchase Tenant’s Premises If Tenant Goes Dark or Elects to Sell or Lease.

Letters of Credit as Escrow Deposit

17-2 Developer’s Use of Letters of Credit as Escrow Deposits. Buyer’s Initial Cash Escrow Deposit Replaced by Successively Larger Letters of Credit upon Satisfaction of Escrow Contingencies and Other Event(s).

Hazardous Materials Investigation and Remediation

17-3 Expanded Hazardous Material Provisions. Hazardous Materials: Example of Expanded Site Purchase Offer Provisions for Use in Acquiring a Site Where Significant Investigation and Cleanup Is Expected.

Allocation of Specific Transaction Costs

17-4 Cost Allocation. Allocation of Specific Purchase and Sale Transaction Costs.

Right of Entry to Inspect and Investigate the Site

17-5 Pre-Closing Site Entry. Provision for Entry upon the Site and Indemnification.

Representations and Warranties

17-6 Developer Oriented Representations and Warranties. Selected Seller Representations and Warranties for a Developer’s Site Purchase Agreement.

Binding Agreement (For Use Only With Advice of Legal Counsel)

17-7 Binding Agreement. Letter Is to Be a Binding, Conclusive Agreement.


Optional and Alternative Clauses for Lease Proposals   

Controversial Business Provisions


Tenant Improvements or Construction Allowances

18-1 Special Improvements or Construction Allowance. Landlord to Provide Non-Standard Improvement(s) or Construction/Improvement Allowance to Tenant.


Tenant Recapture of Tenant’s Construction and Fixturization Costs or Construction Interest Expense from Percentage Rent

18-2 Tenant Recapture of Improvement Costs. Tenant’s Recapture of Construction and Fixturing Costs or Construction Interest Expense from Percentage Rent.

Tenant Recapture of Real Property Taxes, Insurance, and CAM Charges from Percentage Rent

18-3 Tenant Recapture of Operating Costs. Tenant’s Recapture of Certain Operating Costs from Percentage Rent.


Real Property Taxes Payable by Tenant Based upon Tenant’s Impact Area

18-4 Separately Parcelizing Tenant’s Site for Property Tax Purposes. Real Property Taxes Payable by Tenant Assume Tenant’s Site Is Separately Parcelized.


Continuous Operating Covenants

18-5 Continuous Operations. Tenant’s Obligation to Continuously Operate.


Co-Tenancy Clauses

18-6 Co-tenancy. Initial (Not Ongoing) Co-Tenancy Clause.


Exclusive Rights.

18-7 Tenant Exclusive. Tenant’s Limited Exclusive Merchandising Right.


Radius Restrictions

18-8 Radius Restriction (Favors Landlord). Radius Restriction.

Reverse Radius Restrictions

18-9 “Reverse” Radius Restriction (Favors Tenant). “Reverse” Radius Restriction.

Assignment and Subletting

18-10 Various Alternative Assignment and Subletting Provisions. Selected Assignment and Subletting Clauses.

Kickout or Cancellation Clauses

18-11 Right to Terminate If Inadequate Sales. Landlord’s and/or Tenant’s Right to Terminate Lease If Gross Sales Target Not Met.

Tenant Right of First Offer and Right of First Refusal to Lease Additional Space.

18-12 Right of First Offer. Tenant Right of First Offer.

18-13 Right of First Refusal. Tenant Right of First Refusal.

Tenant Option to Extend Lease Term

18-14 Option to Extend. Tenant Option to Extend Lease Term.

Tenant Option to Purchase

18-15 Purchase Option. Tenant Option to Purchase Premises.

Technical and Special-Purpose Provisions


Detailed Construction Coordination Provision for Proposed Build-to-Suit Lease

18-16 Build-to-Suit Construction Coordination. Detailed Construction Responsibilities and Coordination between Landlord and Tenant.

Restaurant Plumbing and Cleanliness Standards

18-17 Restaurant Cleanliness. Restaurant Pest and Sanitation Control.

Hazardous Materials Investigation and Remediation

18-18 Hazardous Materials. Sample Ground Lease Letter of Intent Hazardous Materials Provision Where Significant Investigation and Remedial Work Is Contemplated.

Allocation of Specific Transaction Costs

18-19 Allocation of Specific Lease Costs. Allocation of Specific [Ground] Lease Transaction Costs.

Representations and Warranties

18-20 Landlord-Oriented Representations and Warranties. Selected Representations and Warranties for Lease Transactions.


How to Create and Maintain a Deal-Making Document Form File System


Appendix A: Inserts for Describing Title Insurance Coverage

A-1 Inserts for Description of Title Insurance Coverage.

A-2 Seller to Provide Survey and ALTA Title Commitment.


Appendix B: Long-Form Letter of Intent to Enter into Site Ground Lease

B-1 Long-Form Letter of Intent to Enter into Site Ground Lease.


Appendix C: Approaches To Rent


Appendix D: Project File Index

D-1 Project File Index for File Cabinet Organization.


Index [34 pages, exceptionally useful]


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