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Welcome to my blog. I use it primarily to publish my materials from programs I present before the American Bar Association, the American College of Real Estate Lawyers, the American Inns of Court, the District of Columbia Bar, the Maryland State Bar Association, the Harvard Business School Club of Washington, D.C., and other organizations. I would love to receive any questions, comments, criticisms and suggestions you may have on any of these topics. Please check my law firm’s website, at www.samuelson-law.com , and contact me.

Please note the Disclaimers , Privacy Policy, and Terms of Use of this Blog governing all of the articles and comments set forth in this Blog. In addition, please note the following:

  1. All articles contained in this Blog are only as of their respective dates. None of them has been updated since then. The reader is urged to supplement all of those materials.
  2. Particular facts and circumstances, and changes of law or fact, may affect the statements in the articles in this Blog.
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Landlords are often persuaded to add, to their letters of intent, estimates with numeric figures (as distinguished from just verbal descriptions) as to the size of the premises, CAM, CAM ratios, fund contributions, construction completion dates, the costs of the contemplated tenant improvements, etc. Landlords are often willing to provide such figures because (a) those amounts are clearly labeled as being only “estimates”; (b) the letter of intent usually states that it is not binding; and (c) any resulting lease would almost certainly contain an integration clause (i.e. a clause purporting to negate any such estimates as are not specifically repeated in that lease) and, probably, a no-reliance clause (i.e. a clause to the effect that the tenant is relying upon its own investigation, not upon any representation or warranty not specifically set forth in the lease).

However, in the recent case of Thrifty Payless, Inc. v. The Americana at Brand, LLC (1), the Court allowed a tenant to sue the landlord – for fraud, negligent misrepresentation, mutual mistake, and reformation and rescission – in such a case. (2)

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Many real estate attorneys probably never heard of the Exon-Florio Amendment or CFIUS, much less imagined that, under them, a foreign real estate purchaser may be forced to divest the property post-closing. However, recently, the U.S District Court for D.C. held, in the Ralls case [1], that the Amendment gives the President of the U.S. practically unchallengeable authority to require divestiture in a “covered transaction”, and, absent pre-clearance, to do so at any time.

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Posted in: CFIUS
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Table of Contents
I. Bankruptcy filings by or against such entities.
II. Having someone with general liability is the key distinction.
III. “Insolvency” as a variation among the entities.
IV. Disagreements as to whether to file a voluntary bankruptcy.
V. A limited partner or member as an “Insider”.
VI. Inadvertently discharging guarantors.
VII. One potential gift a real estate debtor can offer – tax savings.

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Sometimes a parcel of commercial real estate suffers such title problems that it becomes so unwieldy that a title insurance is unwilling to insure over. In such situations, the extraordinary powers of a Bankruptcy Court may be the only solutions available. The program for which this paper was written dealt with the questions of when Bankruptcy applies, and what extraordinary tools it provides, for such title problems.

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For Bankruptcy purposes, limited liability companies (“LLC’s”) are not treated as limited partnerships, but as corporations. Even a single member LLC is treated differently from an “individual” in Bankruptcy. The Bankruptcy of a member of a LLC call have a sever impact on the LLC itself. This Article is from a program recently given by Ken Samuelson, and deals with (a) some of the unique aspects of LLCs under Bankruptcy law; and (b) issues that frequently arise in Bankruptcies of LLCs, even if not unique to LLCs.

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Many real estate developers have signed so-called “bad boy” clauses personally guaranteeing the re-payment of all or part of a mortgage, made to a single asset entity as the borrower, if that entity files bankruptcy (or, even under some clauses, is placed in an involuntary bankruptcy). In Bank of America, N.A., et. al. v. Lightstone Holdings, LLC, et. al., Index No. 601853/09, the Supreme Court of the State of New York, New York County, recently enforced one such clause dealing with a voluntary bankruptcy of the mortgagor.

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When a real estate development is carved-up in such a way as to create multiple owners with different types of interests, trying to structure a workout package that pleases everyone can be extremely difficult. Often, the debtor’s tools in bankruptcy – to discharge, prioritize, bring in new money, avoid, recapture, limit, and cramdown – are the only ways to try to salvage the development. This program examines the use of such remedies in the context of one such multi-owner structure – the condo/hotel – and why receiverships simply don’t provide enough recognized controls.

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When a commercial real estate loan goes, or is going, bad, each party has options. Pretend and extend, state receiverships, foreclosures, short sales, bankruptcies, and deeds-in-lieu of foreclosure – whether within or without the context of a formal workout agreement – each has its own pros and cons for each party. Deciding what to do is particularly difficult in the case of a hotel, since a hotel is both a real estate investment and an operating business, usually with labor unions and flags, sometimes with public/private incentives, and often with numerous other third parties. Hotels that are part of a complex including condominiums or other facilities add even more interested parties and their lenders. The following are some of the main considerations involved.

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The decision of whether and how to sell assets in a bankruptcy proceeding can trigger a number of disagreements, and the bidding process itself can attract some unusual bids. For example, in some cases, the Trustee may not feel that selling a particular asset is worth the time and trouble; however, a creditor may disagree. Another example occurs in a case in which the bankruptcy estate has potential claims for breach of contract or torts. In such a case, the breaching party or tortfeasor may be willing to offer the highest and best price to buy (and, thus, resolve) those claims against itself. In some cases, the most valuable bid may be a non-cash one. However, if the benefits of such a non-cash bid are public benefits, or do not otherwise ultimately produce cash with which to pay the creditors entitled to be paid, the Trustee may not be able to accept that bid. In some cases, it is difficult to evaluate the value of a bid in terms of the ability of the bidder to perform of of the Trustee’s costs of keeping the bankruptcy proceeding open or of performing its own obligations under the terms of the bid. The purpose of this article is to high-light some of the case law dealing with such conflicts

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