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In the Spotlight: Negotiating a Meaningful Right of First Offer, First Refusal
Rights of first offer and first refusal are frequently sought by tenants, especially for space contiguous to the original leased premises, in order to give tenants a combination of flexibility and leverage when dealing with their potential expansion requirements. Landlords are understandably reluctant to grant such rights, as they may interfere with the landlord's ability to accommodate the future needs of existing or prospective tenants.
If a tenant is successful at obtaining rights of either first offer or refusal, it is very important for the tenant to make sure that in the event that it does lease any additional space, the term of the lease for such space is co-terminous with its original premises. For example, a tenant with a lease term that expires on July 31, 2008 may be presented by its landlord with an offer for contiguous space for a 5-year term commencing Nov. 1, 2005. The tenant may wish to expand into this additional space, but is faced with the very real, practical problem that it must make a commitment to the additional space that extends well beyond its lease term for the original premises. Unless the landlord is willing to be flexible in this situation, the tenant does not have a meaningful way to exercise its rights. A savvy tenant will insist that, notwithstanding any other terms of the landlord's offer, the term of the lease for the contiguous space must be co-terminous. This will obviously create issues for the landlord, as it may effectively be granting the original tenant the right to turn a 5-year deal with a third party into a 3-year deal with the original tenant. May the party with the most leverage (and competent representation) prevail.
William Crowe
Rights of first offer and first refusal are frequently sought by tenants, especially for space contiguous to the original leased premises, in order to give tenants a combination of flexibility and leverage when dealing with their potential expansion requirements. Landlords are understandably reluctant to grant such rights, as they may interfere with the landlord's ability to accommodate the future needs of existing or prospective tenants.
If a tenant is successful at obtaining rights of either first offer or refusal, it is very important for the tenant to make sure that in the event that it does lease any additional space, the term of the lease for such space is co-terminous with its original premises. For example, a tenant with a lease term that expires on July 31, 2008 may be presented by its landlord with an offer for contiguous space for a 5-year term commencing Nov. 1, 2005. The tenant may wish to expand into this additional space, but is faced with the very real, practical problem that it must make a commitment to the additional space that extends well beyond its lease term for the original premises. Unless the landlord is willing to be flexible in this situation, the tenant does not have a meaningful way to exercise its rights. A savvy tenant will insist that, notwithstanding any other terms of the landlord's offer, the term of the lease for the contiguous space must be co-terminous. This will obviously create issues for the landlord, as it may effectively be granting the original tenant the right to turn a 5-year deal with a third party into a 3-year deal with the original tenant. May the party with the most leverage (and competent representation) prevail.
William Crowe
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.