A common acronym for Rights of First Refusal – “ROFR” – may bring to mind an image of a dog, for more reasons than the obvious similarity of the term to the sound a dog makes.
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It has become the industry standard for prospective purchasers of commercial or industrial property to obtain a Phase I Environmental Site Assessment (Phase I Report) as part of their due diligence. A Phase I Report may identify environmental conditions that are integral to negotiating the purchase. A Phase I Report can also be used to qualify the purchaser for the federal cleanup defenses under CERCLA:
Almost every lease of commercial, retail and industrial property contains a so-called “subordination clause,” under which the tenant agrees that the tenant’s rights under the lease will be inferior to the rights of any lender who forecloses on the leased property. It is vitally important that any tenant agreeing to subordinate understand the import of such a provision and the available options. It is the rare tenant who can flatly refuse to subordinate his leasehold interest in the event of foreclosure. But there is much that the well-informed tenant can do to prevent termination of its lease in the event the landlord is foreclosed.
So the tenant has failed to comply with one of the more “technical” requirements of the lease; can the landlord terminate the lease for breach on a “technicality?”