Lexis Practice Advisor® Practice Insights—October 8, 2015

Lexis Practice Advisor® Practice Insights—October 8, 2015

LexisNexis partners with leading practitioners from across the country to develop Lexis Practice Advisor® practical guidance for transactional matters. Periodically InfoPro highlights the practical insights developed by these attorneys on specific topics in their area of expertise. These insights can be shared with your attorneys, used in your newsletters and on your intranet.  


The Credit Agreement—Assignments and Participations
Banking & Finance Insights by Sherry Mitchell

During the term of a loan, lenders may want to divest themselves of all or a portion of their interests and obligations in that loan. They can accomplish this via an assignment or participation. Practitioners must understand the nuances of assignment and participation provisions because they are oftentimes confused, but in reality are quite distinct. In a syndicated facility, the credit agreement may include borrower and/or sponsor buyback provisions. These concepts are generally included in transactions involving private equity sponsors and may face pushback from lenders in transactions with less creditworthy borrowers.

Learn more about the credit agreement—assignments and participations:

Sherry Mitchell, Esq., head of Lexis Practice Advisor® Banking & Finance, brings eleven years of experience to LexisNexis®, joining the team from Clifford Chance U.S. LLP.

Claims Trading
Bankruptcy Insights by Cody Tray

The world of claims and distressed debt trading is complex, highly unregulated and difficult to navigate. Claims trading can vary depending on the specific intricacies of the underlying bankruptcy case, the creditors and parties-in-interest in the case, and the trading motivations of those involved in the claims trade. Having a full understanding of the various reasons for purchasing claims, the elements of the claims trade itself, and any potential disclosure issues and restrictions on trade is key.

Learn more about claims trading:

Cody Tray, Esq., head of Lexis Practice Advisor® Financial Restructuring & Bankruptcy, brings nine years of bankruptcy experience to LexisNexis®, including experience at Davis Polk & Wardwell LLP and a clerkship with the Honorable Robert E. Gerber, SDNY Bankruptcy Judge.

Preparing an Office Lease Agreement

Business/In-House Insights by Eric Bourget

The initial draft of a commercial lease is usually prepared by the landlord and will therefore demonstrate an emphasis on the landlord’s interest. If the leasing market is landlord-oriented, a landlord may elect to make further revisions to this following lease to secure further protection. Similarly, the lease form will require additional modifications to make it provide language favoring a tenant. Tenant’s suggested provisions should be separately titled, or included within the landlord’s provisions in italics. Tenant’s representative can review and consider the suggested tenant language that has been provided. In all cases, both the landlord and tenant must have the draft lease reviewed by a professional real estate attorney as each property has differing issues that cannot be addressed in single lease form.

Learn more about preparing an office lease agreement:

Eric Bourget, Esq., Lexis Practice Advisor® Team Lead and Group Director of Specialized and Corporate offerings, brings ten years of both private and in-house practice experience to LexisNexis®.

Drafting a California Acquisition Agreement

Business Insights by Eric Bourget

In the acquisition of a business, the parties will use an asset purchase agreement, stock purchase agreement or merger agreement. Although the type of transaction can vary, and every transaction will have distinct issues that need to be addressed in the transaction documents, acquisition agreements have many elements in common. All acquisition agreements address the consideration to be paid and contain representation and warranties, covenants and boilerplate provisions. The acquisition agreement also reflects applicable state law requirements, which often relate to approvals that are necessary to consummate the transaction. California law, for example, provides a procedure for dissenters’ rights under specified circumstances in connection with merger and certain asset sale transactions. Buyers may seek a provision in the acquisition agreement allowing them to decline to close the acquisition if these dissenters’ rights are exercised.

Learn more about drafting a California acquisition agreement:

Eric Bourget, Esq., Lexis Practice Advisor® Team Lead and Group Director of Specialized and Corporate offerings, brings ten years of both private and in-house practice experience to LexisNexis®.

Navigating the Stored Communications Act
IP & Technology Insights by Lindsay Bringardner

The Stored Communications Act (SCA) governs the disclosure of electronic communications stored with technology providers. Though the SCA was passed in 1986, its importance continues to grow given the rapid advances in technology. However, applying the statute in modern times can be somewhat difficult. Thus, it is important to understand how the SCA applies to today’s fast-growing technology.

Learn more about navigating the Stored Communications Act:

Lindsay Bringardner, Esq., head of Lexis Practice Advisor® Intellectual Property & Technology, brings twelve years of legal experience to LexisNexis®, including experience at Latham & Watkins LLP and Pryor Cashman LLP.

International Secondment Agreements
Labor & Employment Insights by Carrie Wright

For a variety of reasons, employers may seek to temporarily assign employees to work abroad. When a company temporarily lends—or, seconds—one of its United States–based employees to another organization based outside of the United States, it should enter into two types of agreements to govern this arrangement. One agreement is between the U.S. company and the seconded employee (the secondee). The other agreement is between the U.S. company and the host country company.

Learn more about international secondment agreements:

Carrie Wright, Esq., head of Lexis Practice Advisor® Labor & Employment, brings nearly fifteen years of legal experience to LexisNexis®, including experience at Epstein Becker & Green, P.C., Paul, Weiss, Rifkind, Wharton & Garrison LLP and Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.

M&A Insights by Dana Hamada

If buyer and seller cannot agree on whether or not to allow sandbagging, a common middle ground is to remain silent on the issue. Given the varying case law on the issue, however, practitioners should be sure to include language in the purchase agreement addressing the sandbagging head on. They can include an anti-sandbagging provision expressly prohibiting the buyer from bringing a claim against the seller for breaches or inaccuracies that the buyer was aware of before closing; or, alternatively, they can include a pro-sandbagging clause expressly permitting the buyer to bring such a claim.

Learn about sandbagging:

Dana Hamada, Esq., head of Lexis Practice Advisor® Mergers & Acquisitions, brings a wealth of legal experience to LexisNexis®, joining the team from Jenner & Block LLP and Gibson, Dunn & Crutcher LLP.

Title Insurance Endorsements
Real Estate Insights by Richard J. Sobelsohn

Title insurance endorsements are supplements that expand or modify coverage of a title insurance policy. Endorsements enable the insured lender or owner to customize its policy and obtain protection against particular issues that may negatively impact the subject property, such as zoning and survey matters. The availability of endorsements depends on many factors, including the location of the property, the type of policy being issued and the circumstances of the underlying transaction.

Learn more about title insurance endorsements:

Richard J. Sobelsohn, J.D., GGP, LEED Accredited Professional, Team Lead and Group Director of Lexis Practice Advisor® Financial Practice Area Modules, brings almost sixteen years of both private and in-house practice experience to LexisNexis®.

An Overview of the SEC’s Proposed Crowdfunding Regulations
Securities Insights by Ron Llewellyn

Pursuant to the JOBS Act, the SEC has proposed crowdfunding regulations and a framework for exemption from the federal securities registration requirements. Although these rules are not yet final, counsel should be aware of the key components of the proposed regulations, and the responsibilities of intermediary parties that host the funding platforms where people can invest in crowdfunding offerings.

Learn more about an overview of the SEC’s proposed crowdfunding regulations:

Ron Llewellyn, Esq., head of Lexis Practice Advisor® Securities & Capital Markets, brings a wealth of expertise to LexisNexis®, including experience at Skadden, Arps, Slate, Meagher & Flom LLP, MasterCard Incorporated and Saks Incorporated.