Commercial Real Estate Closings – A Paralegal Primer Presenters: Shannon L. Hogan of Goodwin LLP Brenda L. Bickham of Saul Ewing Arnstein & Lehr LLP Giselle Ciano of Pierce Atwood LLP

PRELIMINARY MATTERS Pre-Closing – BUYER REPRESENTATION I.   Pre-Closing – BUYER REPRESENTATION I. DUE DILIGENCE – lead time items a. Obtain executed Purchase and Sale Agreement (PSA) and any amendments Exhibit A – sample PSA attached b. Prepare Checklist and calendar Critical Dates Exhibit B – Checklist with Critical Dates c. Order Due Diligence items: Title and Survey Zoning Report (a/k/a “PZR”) Phase I Environmental Site Assessment Property Condition Report (a/k/a “PCR”) UCC, Tax Lien Judgment and Bankruptcy Searches Note: Items 3 and 4 are often handled directly by the client. d. Order jurisdiction specific items (i.e. MA = MLC’s) e. Entity Formation 1. create organization chart 2. create SPE entity and file with appropriate SOS office (usually a Limited Liability Company “LLC”) 3. order good standing certificates (within 30 days of closing) 4. Operating Agreement(s) – either draft or obtain executed copy of final agreement Begin after expiration of DD period. Exhibit C– Organizational Chart

TENANT DOCUMENTS II TENANT DOCUMENTS: Seller sends out SNDA’s and Estoppels, which should be sent out as soon as possible, as they take time to negotiate and are often late being returned by tenants. Buyer to review before being sent to tenants. a. Obtain tenant leases (and all amendments) Exhibit D – SNDA and Estoppel tracking chart b. Review leases and prepare lease abstracts c. Rent Roll (obtain from Seller)   d. Estoppels Form often attached to PSA or provided by Lender e. Subordination, Non-Disturbance and Attornment Agreements (SNDA’s) Form provided by Lender f. Letters of Credit to be transferred to new owner (if any) Seller to deliver executed transfer forms into escrow at closing.

DUE DILIGENCE REVIEW III. DUE DILIGENCE REVIEW: a.   a. Review of Title commitment and Exception Documents -negotiate pro-forma policy and endorsements Exhibit E – sample title commitment b. Review of Survey Exhibit F – sample survey Exhibit G - Survey requirements incl. Table A items c. Review Zoning report Exhibit H – sample PZR d. Review UCC, Tax Lien, Judgment and Bankruptcy searches e. Prepare Title Objection Letter Exhibit I – sample objection letter f. Additional items for client to review: service contracts, warranties, tenant work and financials

CONVEYANCE DOCUMENTS SELLER IV. CONVEYANCE DOCUMENTS:   a. Review PSA for documents to be delivered at closing and draft same. These might include: Seller to draft/deliver: 1. Deed (form of deed should be consistent with the seller’s vesting deed (i.e. Quitclaim (MA); Warranty; Special Warranty (TX)) 2. Bill of Sale 3. Assignment of Leases and Other Intangible Property (contracts, warranties, etc.)(signed by both Buyer and Seller) 4. Tenant Notice Letter 5. Certified Rent Roll (certifying that it’s true and accurate as of a certain date – within 30 days of closing) 6. Owner’s Affidavit/Title Affidavit (including GAP indemnity) 7. Transfer Tax forms, if applicable 8. Seller’s authority and consent to sale, including good standing certificate 9. Seller’s Bring Down Certificate (see EX N for Buyer form) Forms of conveyance documents sometimes included as exhibits to the PSA Exhibit J – Sample Quitclaim Deed Exhibit K – Sample Bill of Sale Exhibit L – Sample Assignment and Assumption of Leases  Title Affidavit and Transfer Tax forms provided by Title Company

CONVEYANCE DOCUMENTS BUYER Buyer to Draft/deliver: 1. Assignment of Purchase and Sale Agreement 2. Buyer’s Brindown Certificate Buyer’s authority (See Section V) Property Management Agreement Exhibit M– Assignment of Purchase and Sale Agreement Exhibit N – Buyer’s Bringdown Certificate

AUTHORITY DOCUMENTS V. BUYER’S AUTHORITY DOCUMENTS: a.   a. Manager’s Certificate (with exhibits): 1. Certificate of Formation 2. Good Standing Certificates 3. Operating Agreement 4. Consent authorizing transaction 5. Organizational Chart (See EX C) Exhibit O – Certificates: Samples of the following attached: EX O-1 Member Certificate EX O-2 Managing Member Certificate EX O-3 Consent EX O-4 Manager’s Certificate w/Incumbency b. Opinions (Authority and enforceability) Things to mention: For opinions, it is often that you’ll need to hire local counsel so that could be a lead-time item.

LOAN DOCUMENTS AND LENDER REQUIREMENTS VI. LOAN DOCUMENTS and LENDER REQUIREMENTS:   Closing Agenda (see for full list of loan documents and lender closing requirements) -Promissory Note -Loan Agreement -Mortgage and Security Agreement (Deed of Trust) -Assignment of Leases and Rents -Guaranty -Environmental Indemnity -UCC Financing Statements Exhibit P – sample closing agenda from lender Things to mention: Paralegal isn’t often involved with negotiation of the loan documents but will be tasked with making sure that lender counsel receives all diligence items. Lender counsel should prepare a signature packet for the loan documents, you should not be responsible for that.

CLOSING VII. CLOSING   a. Preparation of signature packets for client signature. b. Escrow Packages: 1. To Lender’s Counsel (original loan documents) 2. To Title Company (with buyer/seller deliverables and recordable documents) Exhibit Q – sample letter to lender’s counsel Exhibit R – sample escrow letter to title c. Closing Protection Letter (if required) d. Settlement Statement Exhibit S – sample settlement statement and disbursement sheet e. Payoff letter – seller to request

POST-CLOSING VIII. Post-Closing a.   a. Receipt of Escrow Documents and Title Policy from escrow agent/title company b. Confirmation that tenant notices have been sent to Tenants c. Coordinate transfer of Letters of Credit (if any) d. Coordinate with client to insure that warranties are being signed. Closing Binder Things to Mention: Closing binders: Client guidelines? Timely preparation Missing documents? Original promissory notes and title policies Inclusion of documents not delivered at closing.