Sample Non Recourse Loan Agreement by zfr20602

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									                          ALI-ABA Course of Study
      Commercial Real Estate Financing: Strategies for Changing Markets
                            and Uncertain Times
                              January 15 - 17, 2009
                           Coral Gables (Miami), Florida

                             TABLE OF CONTENTS
PROGRAM                                                                       xiii
FACULTY PARTICIPANTS                                                           xv


                                    VOLUME 1

1. Selected Issues in the Negotiation of Real Estate Financing Documents        1
   By Alan Wayte
        Exhibit A: Sample Non-Recourse Clause                                 19
        Exhibit B: Non-Borrower Trustor Addendum                              23
        Exhibit C: Intercreditor and Subordination Agreement                  29
        Exhibit D: Subordination, Non-Disturbance and Attornment Agreement
        and Estoppel Certificate                                              35
2. Promissory Note Sample                                                      43
   By Alan Wayte
3. Sample First Deed of Trust, Assignment of Leases and Rents, Security        53
   Agreement, and Fixture Filing Statement
   By Alan Wayte
4. Know Your Financing Sources: Differences in Loan Documentation and        111
   Closing Requirements
   By Eric M. Schiller
5. Selected Issues in Construction Lending                                   125
   By Susan G. Talley
        Study Material                                                       127
        Sample Loan Balancing Provision                                      143
        Sample Repayment and Completion Guaranty                             145
6. Representing the Borrower in Changing Times                               157
   By Michael D. Hamilton
7. Mezzanine Financing                                                       175
   By Steven Horowitz and Lise Morrow
       Study Material                                                        177
       Mortgage and Mezzanine Financing (Chart)                              197
       Key Intercreditor Terms                                               198
       Intercreditor Agreement                                               199

8. Perfection of Security Interests in the Ownership Interests of Borrowers   233
   under a Mezzanine Loan: Article 9 vs. Article 8
   By Richard R. Goldberg
9. Mezzanine Loan Workouts                                                    239
   By Richard D. Jones
       Table of Contents                                                      241
       Study Material                                                         245
       Exhibit A: Mezzanine Lender’s Ownership Position                       272
       Exhibit B: Multi-Tier Mezzanine Loan Structure                         273
       Exhibit C: Senior/Subordinate Participated Mezzanine Loan              274
       Exhibit D: Control Appraisal Event                                     275
       Exhibit E: Note Loan Structure                                         276
10. Working Out Mortgage Loans and B Notes                                    277
    By Richard D. Jones
       Table of Contents                                                      279
       Study Material                                                         281
       Exhibit A: Whole Mortgage Loan                                         310
       Exhibit B: Pari-Passu Loan Structure                                   311
       Exhibit C: A/B Loan Structure                                          312
       Exhibit D: Pre-Event of Default Waterfall                              313
       Exhibit E: Post-Event of Default Waterfall                             314
       Exhibit F: Participated Mortgage Loan Structure                        315
       Exhibit G: Second Mortgage Loan Structure                              316
       Exhibit H: Mezzanine Loan                                              317
       Exhibit I: Typical CMBS Transaction with B Note                        318
       Exhibit J: Defaulted Mortgage Loan Purchase Price                      319
       Exhibit K: Control Appraisal Event                                     320
11. When the Workout Fails                                                    321
    By Richard D. Jones
       Table of Contents                                                      322
       Study Material                                                         325
12. Mezzanine Finance                                                         357
    By Michael Weinberger
13. A Real Estate Lawyer's Guide to Equity Investment                         365
    By Scott A. Lindquist and Eric M. Schiller
        Study Material                                                        367
        Schedule A: Example of Dilution Formula                               386
        Schedule B: Major Decisions                                           387
        Schedule C: Transactions with Affiliates                              391
        Schedule D: "Bidding War" Buy-Sell                                    392
        Schedule E: Provision for Conversion to Property Sale                 394
        Schedule F: Limitation for Service Agreements                         395

14. Joint Ventures: Hard Questions                                        397
    By Andrea M. Mattei
15. Covertible Mortgage Option Agreement                                  407
    By Richard R. Goldberg
16. Convertible Mortgage Anti-Clogging Affidavit                          421
    By Richard R. Goldberg
17. Participating Loan Agreement                                          425
    By Richard R. Goldberg
        Table of Contents                                                 428
        Study Material                                                    429
18. Equity and Debt Financing Techniques for the Mixed Use Project        461
    By Andrea M. Mattei and Susan G. Talley
19. Maintaining and Enhancing Title Insurance Coverage                    471
    By Jeffrey G. Gurren
20. 2006 ALTA Title Insurance Policies: Significant Changes               489
    By Jeffrey G. Gurren
21. Third Party Opinion Letters for Mortgage Loans                        501
    By John S. Hollyfield
22. The Choice of Law Opinion                                             517
    By John S. Hollyfield
23. Common Issues in Mortgage Loan Opinions: Lessons Learned in the       523
    Quest for Standardized Forms
    By Portia Owen Morrison
        Study Material                                                    525
        Appendix: Inclusive Real Estate Secured Transaction Opinion       535
24. Interest Rate Hedging Products                                        555
    By Eric M. Schiller
        Study Material                                                    557
        Appendix: Fixed Rate Achieved Through Swap                        564
25. Current Issues in Loan Co-Lending Arrangements                        565
    By Eric M. Schiller, Scott A. Lindquist and Christopher Q. King
26. Representing the Borrower in the Capital Markets Mortgage: Advanced   603
    By Steven G. Horowitz
        Borrower Structure Chart                                          605
        Sample Borrower Structure Chart                                   606
        Secured Loan Facility: Summary of Terms                           607
27. Working Backwards: Talking a Prospective Lender through Your          653
    Hospitality Project
    By Andrea M. Mattei

28. Credit Enhancements in Turbulent Times                                663
    By Andrea M. Mattei
       Study Material                                                     665
       Exhibit A: Sample Contribution Provisions                          675
       Exhibit B: Irrevocable Standby Letter of Credit                    679
29. Insurance                                                             683
    By Richard R. Goldberg
30. Revised Article 9 of the Uniform Commercial Code and Selected Real    703
    Property Finance Issues
    By Steven D. Shattuck
31. Deposit Account Control Agreement - Model Form                        711
    By Steven D. Shattuck
32. UCC Foreclosure Sale of Equity Interests                              731
    By Steven D. Shattuck
        Study Material                                                    733
        Pledge and Security Agreement                                     735
        Notification of Disposition of Collateral                         758
        Form of Advertisement                                             759
        Investment Intent Letter                                          763
        SEC No-action Letters                                             765

                                        VOLUME 2

33. Dissolution of the Dream                                              815
    By John D. Hastie
        Study Material                                                    817
        Appendix A: Summary of the Development of Thrift Bank Tower       828
        Appendix B: Representation Letter                                 833
        Appendix C: Revolving Loan Agreement                              837
        Appendix D: Forbearance Agreement                                 872
        Appendix E: Dissolution Agreement                                 896
34. Real Estate Workouts                                                  935
    By John D. Hastie
        Study Material                                                    937
        Addendum A: Default Notice                                        947
        Addendum B: Pre-Negotiation Letter (Jury Friendly)                949
        Addendum C: Pre-Negotiation Letter (More complete, but not jury
        friendly)                                                         952
        Addendum D: Forbearance Agreement                                 958
        Addendum E: Loan Modification Agreement                           972
35. REMIC Limitations on the Work Out of Troubled Mortgages               991
    By Louis W. Ricker and Richard R. Goldberg

36. A "No Substantive Consolidation, No Fraudulent Conveyance" Opinion     997
    Letter from Counsel to the Bankruptcy Remote Entity
    By James R. Stillman
        Study Material                                                     999
        Form of Opinion Letter: Bankruptcy Remote Entity as Borrower      1001
37. Real Estate Defaults Investigation Check List and Issue Summary for   1025
    Lender's Counsel (Annotated)
    By Marvin Garfinkel
       Table of Contents                                                  1027
       Study Material                                                     1034
38. Players in the Universe of Securitized Loans                          1113
    By Richard R. Goldberg
39. Capital Markets Mortgage: A Ratable Model for Main Street and Wall    1117
    By Joseph Philip Forte
        Table of Contents                                                 1119
        Study Material                                                    1120
        Appendix: Deed of Trust and Security Agreement                    1129
40. Ten Easy Ways to Make a Loan Non-Securitizable                        1225
    By Joseph Philip Forte
41. CMBS Special Servicing                                                1241
    By Joseph Philip Forte and Eric Klingenberg
42. "Servicing Standard" Definitions                                      1271
    By Joseph Philip Forte
43. Representations and Warranties - The Capital Markets Context          1277
    By Joseph Philip Forte
44. Availability vs. Confidentiality: Loan Information in the Capital     1285
    By Joseph Philip Forte
45. Solving the Mortgage Tax Barrier to Defeasance in New York            1299
    By Joseph Philip Forte
46. Joint CMSA/MBA CMBA Loan Document Intergrity Task Force Final         1309
    Report and Recommendations (June 2001)
    By Joseph Philip Forte
47. Real Estate Loans: Default and Workout                                1319
    By Joseph Philip Forte
48. Working Out Securitized Mortgage Loans                                1345
    By Marvin Garfinkel
49. Disruption in the Capital Markets: What Happened?                     1351
    By Joseph Philip Forte
50. Federal Deposit Insurance Corporation                                 1361
    By Joseph Philip Forte

51. Selection and Use of Local Counsel in Multistate Lending Transactions   1377
    By Alan Wayte and John D. Hastie
52. Multi-State Loan Checklist for Local Counsel                            1419
    By Richard R. Goldberg
53. The REIT Transaction: Strategies and Hints (An Update)                  1425
    By Richard R. Goldberg and Wendi L. Kotzen
54. Intercreditor Agreements                                                1439
    By John S. Hollyfield
55. Intercreditor Remedies - When and How                                   1445
    By K.C. McDaniel
56. Financing Documentation and Distressed Operating Assets: What           1451
    Works, What Doesn't
    By K.C. McDaniel
57. CMSA Suggested Form Mezzanine Intercreditor Agreement                   1461
    By Richard R. Goldberg
58. Mezzanine Loan Intercreditor Agreement (Sample)                         1497
    By Richard R. Goldberg
59. Complex Cash Management Agreement between Borrower, Senior              1537
    Lender, and Junior Lender
    By Richard R. Goldberg
60. Form of A/B Note Intercreditor and Servicing Agreement - 2006           1553
    By K.C. McDaniel and Timothy Little
       Study Material                                                       1555
       Appendix: Intercreditor and Servicing Agreement                      1558
61. Ethics Hypotheticals (Handout)                                          1601
    By Andrea M. Mattei
62. The Future of Real Estate Financing (Handout)                           1613
    By Richard R. Goldberg
63. Capital Markets 2009 Forecast (Handout)                                 1623
    By Joseph Philip Forte and Thomas F. Kaufman

                             ALI-ABA Course of Study
                        Commercial Real Estate Financing:
              Strategies for Changing Markets and Uncertain Times

                                January 15-17, 2009
                                Coral Gables, Florida


Thursday, January 15, 2009
 8:00 a.m. Registration and Continental Breakfast
Webcast Segment A
 9:00 a.m. Introductory Remarks and Course Overview – Mr. Goldberg and
           Ms. Mattei
 9:15 a.m. Grappling with Default, Workout, and Bankruptcy Issues; Dealing with
           Relationship Lenders, Servicers, and Special Servicers; the Place of the
           Securitized Market — Mr. Kaufman and Panel
10:30 a.m. Networking Break
10:45 a.m. Default, Workout, and Bankruptcy Issues (continued)
12:15 p.m. Questions and Answers
12:30 p.m. Lunch Break
Webcast Segment B
 2:00 p.m. Know Your Lender: Advanced Issues in Construction and Permanent
           Financing from the Lender’s Perspective — Mr. Schiller and Ms. Talley
 3:15 p.m. Networking Break
 3:30 p.m. Representing the Borrower: Advanced Issues — Mr. Hamilton and
            Mss. Mattei and McDaniel
 4:30 p.m. Mezzanine and Preferred Equity Financing – Messrs. Goldberg and
 5:15 p.m. Questions and Answers
 5:30 p.m. Adjournment for the Day

Friday, January 16, 2009
 8:30 a.m. Continental Breakfast
Webcast Segment C
 9:00 a.m. Equity as a Form of Alternative Financing: Joint Ventures,
           Partnerships, LLCs, and Private Equity Funds — Mr. Goldberg and Mss.
           Mattei and Talley
10:00 a.m. Networking Break
10:15 a.m. Title Insurance — Mr. Gurren
11:00 a.m. Legal Opinions — Messrs. Hamilton and Hollyfield and Ms. Talley
12:00 noon Questions and Answers
12:30 p.m. Lunch Break

Webcast Segment D
 2:00 p.m. Credit Enhancement: Guarantees, Letters of Credit, and Swaps (Caps
           and Collars) — Ms. Mattei and Mr. Schiller
 2:45 p.m. Insurance for Financing Transactions — Mr. Goldberg
 3:30 p.m. Networking Break
 3:45 p.m. The Future of the Capital Market Transaction: Where is the Industry
           Heading? Dealing with CMBS Pools and CDOs — Mr. Forte
 5:00 p.m. Questions and Answers
 5:30 p.m. Adjournment for the Day

Saturday, January 17, 2009
 7:30 a.m. Continental Breakfast
Webcast Segment E
 8:00 a.m. Inter-Creditor Techniques and Mezzanine Loan Inter-Creditor
           Relationships — Messrs. Goldberg and Hollyfield and Ms. McDaniel
 9:00 a.m. Co-Lending Agreements — Ms. McDaniel and Mr. Schiller
 9:45 a.m. Networking Break
10:00 a.m. Ethical Issues in Real Estate Financing — Ms. Mattei and Faculty
11:00 a.m. Questions and Answers
11:15 a.m. Adjournment

Total 60-minute hours of instruction: 16, including one hour of ethics

                             ALI-ABA Course of Study
                        Commercial Real Estate Financing:
              Strategies for Changing Markets and Uncertain Times

                                January 15-17, 2009
                                Coral Gables, Florida

                                PLANNING CHAIRS

Richard R. Goldberg, Esquire                  Andrea M. Mattei, Esquire
Ballard Spahr Andrews                         Paul, Hasting, Janofsky & Walker LLP
 & Ingersoll, LLP                             75 East 55th Street
51st Floor                                    New York, NY 01605
1735 Market Street
Philadelphia, PA 19103


Joseph Philip Forte, Esquire                  Thomas F. Kaufman, Esquire
Alston & Bird LLP                             Hunton & Williams LLP
4th Floor                                     1900 K Street NW
90 Park Avenue                                Washington, DC 20006
New York, NY 10016

Jeffrey G. Gurren, Esquire                    K.C. McDaniel, Esquire
President and General Counsel                 K.C. McDaniel PLLC
Title Associates Inc.                         100 Jay Street, #26H
12th Floor                                    Brooklyn, NY 11201
825 Third Avenue
New York, NY 10022
                                              Eric M. Schiller, Esquire
Michael D. Hamilton, Esquire                  Sonnenschein Nath & Rosenthal LLP
DLA Piper US LLP                              Suite 8000, Sears Tower
Suite 2300                                    233 South Wacker Drive
550 South Hope Street                         Chicago, IL 60606
Los Angeles, CA 90071

John S. Hollyfield, Esquire                   Susan G. Talley, Esquire
Fulbright & Jaworski L.L.P.                   Stone Pigman Walther Wittmann L.L.C.
Suite 5100                                    546 Carondelet Street
1301 McKinney Street                          New Orleans, LA 70130
Houston, TX 77010


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