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David vs. Goliath
The head of leasing for your new client, a regional restaurant chain, calls to say he has received a request from the owner of a 70-acre regional enclosed mall shopping center to sign an estoppel certificate. The certificate references your client's ground lease for its 8,000 square-foot restaurant on a 1.3-acre outparcel at the center. The estoppel request appears to be in connection with the sale of the shopping center. You think your client just needs help filling out the certificate, but instead, he asks, “What do I need to do to exercise my right of first refusal to buy the leased premises?”
He sends you the ground lease. In it you find the following right of first refusal provision:
Should Lessor, during the lease term, desire to sell the Leased Premises, Lessee shall have a right of first refusal to meet any bona fide offer of sale on the same terms and conditions of such offer, and on failure to meet such bona fide offer within fifteen (15) days after written notice of the offer from Lessor, Lessor shall be free to sell the Leased Premises to such third person in accordance with the terms and conditions of such person's offer.
Sounds pretty simple, right? Your client just has to notify the owner within 15 days that it wants to buy the outparcel. But as you begin crafting the notice, you realize this deceptively simple provision has left a great many questions unanswered.
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