M&A Agreements: Drafting Real Estate and Environmental Contract Provisions

Most M&A transactions require consideration of complex legal issues related to the target company’s real estate, environmental compliance and liability exposure. Due diligence regarding potential real estate and environmental liabilities is critical to assessing the viability of the deal, maximizing the deal’s value, and minimizing unexpected liabilities.

Counsel for buyers and targets must be prepared to negotiate and draft provisions in the purchase, merger or consolidation agreement that effectively allocate all known and potential liabilities and obligations related to the target company’s real property. This is generally accomplished through written representations, indemnification provisions and post-closing adjustments.

Listen as our authoritative panel provides their perspectives on how deal counsel can successfully guide buyers and sellers in managing and allocating real estate and environmental risks and liability exposure in complex transactions through carefully structured contract provisions in the M&A agreement.

1. Real estate considerations in M&A deals
   1. Due diligence: title, surveys, appraisals, zoning
   2. Contractually allocating real estate risks
      1. Real-estate specific representations
      2. Indemnification
      3. Post-closing adjustments
   3. Negotiation Strategies
2. Environmental considerations in M&A deals
   1. Due diligence: environmental reports, contaminated property
   2. Contractually allocating environmental risks
   3. Brownfield programs and environmental insurance

The panel will review these and other key issues:

• Best practices for conducting real estate due diligence in M&A
• Best practices for conducting environmental due diligence in M&A
• How to leverage real estate-specific representations, indemnification and post-closing adjustments in M&A agreements