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Commercial Lease Diligence
In many acquisition and merger transactions, a component of the real estate holdings of the selling entity is leased commercial property. Counsel to a potential purchaser in an acquisition transaction, whether in the form of an asset purchase, stock or membership interest purchase, or merger, must be equipped to advise the client regarding the leased property both for negotiation of the purchase agreement and for the client's use of the property after the transaction has closed. This article reviews the recommended due diligence efforts of the purchaser's counsel with respect to leased commercial property, and elaborates on the pre- and post-closing rationales for completing such diligence review. The main focus of this article is the due diligence activities and rationale of counsel to a potential purchaser of all of the stock of a selling entity. Where relevant, it incorporates the alternate considerations that might arise in the context of an asset purchase or merger structure.
The Scope of the Transaction
Prior to an immersive review of the minutiae of each piece of leased commercial property, the attorney should engage in an efficient and high-level overview of the seller's real estate holdings in order to become comfortable with the scope and type of leased commercial property involved in the proposed transaction. In a stock purchase structure, the purchaser will take all assets and liabilities associated with each leased property (unless the parties negotiate for a termination of the lease prior to closing). Therefore, consideration of the purchaser's goals is relevant to counsel's diligence efforts. During initial discussions with the client, counsel should understand whether the purchaser needs the leased space for its operations if the transaction is consummated. The attorney's knowledge of the general use (manufacturing, office, raw land), location (and proximity to the client's current facilities), and the length of each lease (including any options to purchase) will aid the client in outlining its overall goals in the context of all of the seller's real property interests.
Major Differences In UK, U.S. Copyright Laws
This article highlights how copyright law in the United Kingdom differs from U.S. copyright law, and points out differences that may be crucial to entertainment and media businesses familiar with U.S law that are interested in operating in the United Kingdom or under UK law. The article also briefly addresses contrasts in UK and U.S. trademark law.
The Article 8 Opt In
The Article 8 opt-in election adds an additional layer of complexity to the already labyrinthine rules governing perfection of security interests under the UCC. A lender that is unaware of the nuances created by the opt in (may find its security interest vulnerable to being primed by another party that has taken steps to perfect in a superior manner under the circumstances.
Strategy vs. Tactics: Two Sides of a Difficult Coin
With each successive large-scale cyber attack, it is slowly becoming clear that ransomware attacks are targeting the critical infrastructure of the most powerful country on the planet. Understanding the strategy, and tactics of our opponents, as well as the strategy and the tactics we implement as a response are vital to victory.
Legal Possession: What Does It Mean?
Possession of real property is a matter of physical fact. Having the right or legal entitlement to possession is not "possession," possession is "the fact of having or holding property in one's power." That power means having physical dominion and control over the property.
The Anti-Assignment Override Provisions
UCC Sections 9406(d) and 9408(a) are one of the most powerful, yet least understood, sections of the Uniform Commercial Code. On their face, they appear to override anti-assignment provisions in agreements that would limit the grant of a security interest. But do these sections really work?