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  • 1.

    Typical transaction structures - public companies
    What is the typical structure of a business combination involving a publicly traded real estate-owning entity?

  • 2.

    Typical transaction structures - private companies
    Are there any significant differences if the transaction involves a privately held real estate-owning entity?

  • 3.

    Typical transaction process
    Describe the process by which public and private real estate business combinations are typically initiated, negotiated and completed.

  • 4.

    Legislative and regulatory framework
    What are some of the primary laws and regulations governing or implicated in real estate business combinations? Are there any specific regulations or laws governing transfers of real estate that would be material in a typical transaction?

  • 5.

    Cross-border combinations and foreign investment
    Are there any specific material regulations or structuring considerations relating to cross-border real estate business combinations or foreign investors acquiring an interest in a real estate business entity?

  • 6.

    Choice of law and jurisdiction
    What territory’s law typically governs the definitive agreements in the context of real estate business combinations? Which courts typically have subject-matter jurisdiction over a real estate business combination?

  • 7.

    Public disclosure
    What information must be publicly disclosed in a public-company real estate business combination?

  • 8.

    Duties towards shareholders
    Give an overview of the material duties, if any, of the directors and officers of a public company towards shareholders in connection with a real estate business combination. Do controlling shareholders have any similar duties?

  • 9.

    Shareholders’ rights
    What rights do shareholders have in a public-company real estate business combination? Can parties structure around shareholder dissent or rejection of a real estate business combination, and what structures are available?

  • 10.

    Termination fees
    Are termination fees typical in a real estate business combination, and what is their typical size?

  • 11.

    Takeover defences
    Are there any methods that targets in a real estate business combination can employ to protect against an unsolicited acquisition? Are there any limitations on these methods?

  • 12.

    Notifying shareholders
    How much advance notice must a public target give its shareholders in connection with approving a real estate business combination, and what factors inform this analysis? How is shareholder approval typically sought in this context?

  • 13.

    Typical tax issues and structuring
    What are some of the typical tax issues involved in real estate business combinations and to what extent do these typically drive structuring considerations? Are there certain considerations that stem from the tax status of a target?

  • 14.

    Mitigating tax risk
    What measures are normally taken to mitigate typical tax risks in a real estate business combination?

  • 15.

    Types of acquisition vehicle
    What form of acquisition vehicle is typically used in connection with a real estate business combination, and does the form vary depending on structuring alternatives or structure of the target company?

  • 16.

    Board considerations in take-private transactions
    What issues typically face boards of real estate public companies considering a take-private transaction? Do these considerations vary according to the structure of the target?

  • 17.

    Time frame for take-private transactions
    How long do take-private transactions typically take in the context of a public real estate business? What are the major milestones in this process? What factors could expedite or extend the process?

  • 18.

    Non-binding agreements
    Are non-binding preliminary agreements before the execution of a definitive agreement typical in real estate business combinations, and does this depend on the ownership structure of the target? Can such non-binding agreements be judicially enforced?

  • 19.

    Typical provisions
    Describe some of the provisions contained in a purchase agreement that are specific to real estate business combinations. Describe any standard provisions that are contained in such agreements.

  • 20.

    Stakebuilding
    Are there any limitations on a buyer’s ability to gradually acquire an interest in a public company in the context of a real estate business combination? Are these limitations typically built into organisational documents or inherent in applicable state or regulatory related regimes?

  • 21.

    Certainty of closing
    Describe some of the key issues that typically arise between a seller and a buyer when negotiating the purchase agreement for a real estate business combination, with an emphasis on building in certainty of closing. How are these issues typically resolved?

  • 22.

    Environmental liability
    Who typically bears responsibility for environmental remediation following the closing of a real estate business combination? What contractual provisions regarding environmental liability do parties usually agree?

  • 23.

    Other typical liability issues
    What other liability issues are typically major points of negotiation in the context of a real estate business combination?

  • 24.

    Sellers’ representations regarding leases
    In the context of a real estate business combination, what are the typical representations and covenants made by a seller regarding existing and new leases?

  • 25.

    Legal due diligence
    Describe the legal due diligence required in the context of a real estate business combination and any due diligence specific to a real estate business combination. What specialists are typically involved and at what point in the transaction are the various teams typically brought in?

  • 26.

    Searches
    How are title, lien, bankruptcy, litigation and tax searches typically conducted? On what levels are these searches typically run? What protection from bad title is available to buyers, and does this depend on the nature of the underlying asset?

  • 27.

    Representation and warranty insurance
    Do sellers of non-public real estate businesses typically purchase representation and warranty insurance to cover post-closing liability?

  • 28.

    Review of business contracts
    What are some of the primary agreements that the legal teams customarily review in the context of a real estate business combination, and does the scope vary with the structure of the transaction?

  • 29.

    Remedies for breach of contract
    What are the typical remedies for breach of a contract in the context of a real estate business combination, and do they vary with the ownership of target or the structure of the transaction?

  • 30.

    Market overview
    How does a buyer typically finance real estate business combinations?

  • 31.

    Seller’s obligations
    What are the typical obligations of the seller in the financing?

  • 32.

    Repayment guarantees
    What repayment guarantees do lenders typically require in the context of a property-level financing of a real estate business combination? For what purposes are reserves usually required in the context of property-level indebtedness?

  • 33.

    Borrower covenants
    What covenants do lenders usually insist on in the context of a property-level financing of a real estate business combination?

  • 34.

    Typical equity financing provisions
    What equity financing provisions are common in a transaction involving a real estate business that is being taken private? Does it depend on the structure of the buyer?

  • 35.

    REITs
    Are real estate investment trusts (REITs) that have tax-saving advantages available? Are there particular legal considerations that shape the formation and activities of REITs?

  • 36.

    Private equity funds
    Are there particular legal considerations that shape the formation and activities of real estate-focused private equity funds? Does this vary depending on the target assets or investors?

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TMI Associates was established in 1990 with the specific aim to provide professional legal services meeting the increasingly complex and international demands of the legal marketplace.  Since the

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