The Gift of Gratitude

The allocation of risk accomplished by indemnification agreements is often a hotly negotiated term of real estate contracts and leases and, when not negotiated, frequently are not in compliance with applicable state indemnification laws or do not reflect the basis axim that liability should follow control. Unbalanced indemnification provisions frequently arise from unbalanced negotiating positions. This panel will address the nuts and bolts of indemnification agreements and insurance contracts, analyzing how indemnification agreements require one party (the indemnitor), bear the risk of claims against the other party (the indemnitee) for loss and damages claimed by a third party. The role of insurance in providing a source of funds for indemnification obligations will be addressed. Indemnification and insurance provisions are standard requirements of PSAs, leases, and construction contracts. Standalone indemnity agreements are also frequently employed to balance the rights of a counterparty with its obligations. Informed counsel must recognize how to protect client interests by deftly structuring indemnification provisions, taking into account state law and respective risks and control in careful drafting. Listen as our authoritative panel discusses current trends and practical strategies in negotiating these provisions, as well as the advanced arguments made by the parties to these instruments.

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PEIs, together with mortgage loans and mezzanine loans, are often a critical part of the capital structure used by sponsors to fund real estate ventures. The terms of PEIs can vary considerably. On one end of the spectrum are PEIs that are economically and functionally equivalent to a mezzanine loan, though structured as equity and not debt. On the other end of the spectrum are PEIs that are pari passu with the sponsor's equity. In any context, a PEI's equity is subordinate to all of the real estate venture's debts. PEIs typically earn a higher rate of return on the investment than debt financing. They may earn a share of cash flow beyond a stated rate of return and any capital appreciation. The preferred equity investor generally has consent over "major decisions" (the list of which can range from a small handful of items to an extensive list), may have buy-sell rights, forced sale rights or put rights, and typically have removal rights (the right to remove the managing member or general partner of the real estate venture and replace it with the PEI or its designee). Removal rights can run the gamut from being limited to bad acts or being performance-based. To achieve all the benefits of PEIs and mitigate the risks, counsel to investors and the recipient entity must negotiate and structure key terms that address matters such as exit strategy, remedies in the event of the entity's default, issues surrounding a change in control, and the impact of an entity bankruptcy. Also, counsel must anticipate and address tax implications for the entity and the investor in the PEI agreement. Listen as our authoritative panel prepares counsel to real estate lenders, investors, and borrowers to structure, enforce, or challenge PEI agreements in the current real estate market. The panel will compare and contrast PEIs vs. mezzanine financing. The panel will also outline the key points of negotiation and agreement provisions for the equity investor and the real estate developer, including remedies for default, change in control, exit strategy, the impact of bankruptcy, and tax implications.

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