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The Do's and Don'ts of Assigning or Assuming a Lease

DON’T: Assume you are off the hook once you assign your lease. That is not the way it works unless your lease already says you are off the hook upon assignment. Most leases are silent.


DON’T: Assume that you are getting options to extend or purchase or rights of first refusal when you assume a lease. Unless they are specifically assigned in addition to assignment of the lease, you are not.

DON’T: Assume the landlord’s lender cannot kick you out if the landlord does not pay the mortgage. They absolutely can kick you out. But you can protect yourself with a Subordination, Non-Disturbance and Attornment Agreement that is typically quite easy to get if you know how.


DO: Delegate all obligations under the lease. Assigning obligations is not the correct way to impose obligations on a third party. They must be delegated.


DO: Hire an attorney when assigning a lease. It might save you a lot of money in the long run.

The Do's and Don'ts of Signing a Personal Guaranty

Although many dealers have never signed a personal guaranty for a lease or a loan, many more dealers do sign them. If you are going to sign one, here are a few things to keep in mind:


DO: Ask for a loan of over $10 million or more if you need anything close to that. They are easier to get than smaller loans, especially without a personal guaranty.


DO: If your lender insists on a personal guaranty and you have another entity, offer the other entity as a guarantor rather than signing yourself.


DON’T: If the lender insists on having you sign, don’t allow your spouse to also sign a guaranty.


DON’T: If you are signing personally, don’t allow your house or car to be at risk. Carve your house and car out of the personal guaranty.


DO: If you sell your business, consult with your attorney about how to make sure you are removed from the guaranty, otherwise, depending on the facts and circumstances and the kind of guaranty you signed, you may be surprised later to get a call asking for payment if the buyer defaults.


Super Lawyers Magazine Feature Interview

With a longstanding legal career focused on the automotive industry, Partner Erin K. Tenner has built a reputation as the go-to advisor for auto dealership sales and acquisitions since 1986. Super Lawyers Magazine spoke with Erin to discuss how she got her start in the industry, how her practice has evolved through the years and her approach to getting deals done.


"It’s so much fun working with auto dealers," Erin said. "They are a very gregarious bunch for the most part, great characters."


Erin shared a story about a client who was assigning his lease, but was reluctant to ask for too much. "I suggested to him that he should ask the factory, from whom he was leasing the property, for a novation" – an agreement that the seller would no longer be liable on the lease once it was assigned to someone else. Despite protests from the broker, Erin called the factory, had the novation in hand within an hour and closed escrow that day. That one decision saved the client millions.


"For some reason brokers and dealers think these transactions are very fragile and easily blow up. That has not been my experience," she explained.

Read the Full Interview

Erin K. Tenner is a partner with Gray, Duffy, Eisenbaum & Lee, LLP and has been legal counsel representing auto dealers in buying and selling auto dealerships for more than 30 years. She can be reached at 818-907-4071 or etenner@grayduffylaw.com.

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ATTORNEY ADVERTISING DISCLAIMER:

These articles are necessarily general in nature and do not substitute for legal advice with respect to any particular matter. Readers should consult with an attorney before taking any action affecting their interests.


California Auto Dealer is a registered trademark of Erin K. Tenner. The content of this newsletter may not be duplicated without permission. If you know someone who would like to receive this newsletter, have them email: etenner@grayduffylaw.com