Every time a new bankruptcy opinion is rendered with respect to a lease, or even a challenge to a lease clause is made in a court, draftspersons and their clients wonder what could have been done to avoid the risks and expense of dealing with the issue. Thus, these days, form leases are being reviewed frequently. Some attempted drafting solutions will be rejected by the court outright as being within the ambit of a statutory prohibition or as interfering with the role of the court in interpreting statutes. In a commercial case, especially one in which the lease grants the landlord alone the right to attorneys' fees, draftpersons may view a questionable clause as possibly intimidating an unsophisticated tenant or as giving the landlord at least an additional argument in court. This article deals with some of the provisions landlords or tenants may attempt to draft into leases to deal with a bankruptcy of themselves or of the other party.
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.
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- Particular facts and circumstances, and changes of law or fact, may affect the statements in the articles in this Blog.
Recently in Commercial Real Estate Transactions Category
Sometimes deals fall apart, or turn-out badly, for reasons that have nothing to do with economics. One of those reasons can be the attorney/client relationship involved. The purpose of this presentation is state some of the miscommunications and other attorney/client missteps that can occur and how you can avoid them.
This article is intended to address certain transactional issues that can come up in a bankruptcy proceeding or in relation thereto - specifically family asset protection vehicles, special purpose entities, sale lease-backs, and bankruptcy court ordered sale bidding procedures (including break-up fees). This article is here because it sets forth a number of issues to consider. However, because this area of the law is changing, this article is out of date, particularly with respect to whether any protections are provided by single member limited liability companies or separate, but related, entities that in fact work together, particularly through cross-guaranties and cross-collateralizations.
There are times when an attorney, in representing a corporation or other business entity, cannot simple "go along to get along" or "see no evil, hear no evil, speak no evil". Times arise when the interests of some owners don't correspond with those of other owners, or when the interests of the owners generally don't correspond with the interests of the board of directors, of the managing partner(s), or of individual directors, officers or employees. Times also arise when the desire or rush of the business people to consummate a transaction may go too far. These duties are particularly applicable when the attorney is representing a publicly-traded company. Sarbanes-Oxley, the regulations adopted thereunder, and the various rules of professional conduct or responsibility dictate, among other things, who the client really is, when and how an attorney has an obligation to report to higher-ups in the company, to the SEC, and otherwise publicly. The purpose of this article is to focus upon the laws, rules and regulations governing the obligations of attorneys to speak-up, or to be whistleblowers, in such situations.