Allocating Construction Obligations in Leases
One of the biggest areas of conflict after a lease is signed is the allocation of construction responsibility between the landlord and the tenant, but many of these problems are easily avoided by careful drafting and use of terminology at both the letter of intent and lease negotiation phases. Often, especially in the letter of intent, parties use terms that each thinks is perfectly clear, but actually mean different things to each of them. Below are some suggestions for how to handle these issues effectively.
Making the Work Letter Work
The Work Letter (sometimes referred to as a 'Construction Agreement' or 'Work Agreement') is the portion of a lease, usually an exhibit, setting forth the provisions relating to the build-out of the tenant improvements to be made to the space leased. Often dealing with very large expenditures, the Work Letter is an extremely important part of the Lease. However, perhaps because of the varying types of build-outs, with differing parties responsible, it is a document that often breeds considerable confusion. This two-part article discusses the three common types of office space build-out arrangements to which landlords and tenants might agree, how they differ, and how those differences are to be addressed in drafting the Work Letter.
In the Spotlight: Lease Commencement -- Getting the Ball Rolling
Sometimes the hardest part of a leasing relationship is getting started ' establishing if there will be contingencies, when they will expire, when the space will be delivered, and when the rent will commence. Often the transition is smooth, and everything falls into place. In other situations, however, coordinating the requirements, obligations, and schedules of both landlord and tenant feels like an in-air refueling of a jetfighter.
Restaurant Leasing Within a Shopping Center
While all retail leases pose an array of issues to the landlords and tenants involved, retail leases relating to restaurants pose certain other issues that must be addressed in order to avoid surprise costs, liabilities, and delays. This article addresses several of those issues that relate to restaurant leases in a shopping center setting (either in a food court or as an outparcel location), including trash removal, pest and rodent control, parking, and exclusive uses.
Anti-Suit Injunctions: Is the Best Defense a Strong Offense?
In a case of significance to the secondary loan and distressed claim market, a North Carolina state court has entered an 'anti- suit injunction' barring a group of secondary, secured debt holders (the 'Fund Defendants'), from commencing any actions against Wachovia Bank. The case, <i>Wachovia Bank, NA and Wachovia Capital Partners, LLC v. Harbinger Capital Partners, et al.</i>, Civ. Action No. 07-CVS-5097 is pending in the General Court of Justice, Superior Court Division (Mecklenburg, NC) (the 'State Court Anti-Suit Action'), but its parties and the underlying facts arise from the Chapter 11 case of <i>In re Le-Nature, Inc.</i> pending in U.S. Bankruptcy Court, Western District of Pennsylvania (the 'Bankruptcy Case').
Attorneys' Fees Preserved In Bankruptcy Cases
This article discusses the development of the <i>Fobian</i> rule and other courts' treatment of it. The article also summarizes the Supreme Court's reasoning in abrogating the rule in <i>Travelers Casualty & Surety Co. v. Pacific Gas & Electric Co. (In re Pacific Gas & Electric Co.)</i>, 549 U.S. ____, 127 S. Ct. 1199 (2007).
