ICSC European Retail Property School
The Law in Shopping Centers July 7-11, 2014 Scandic Potsdamer Platz, Berlin, Germany
Avv. Claudio Cocuzza Cocuzza & Associati Milan, Italy www.cocuzzaeassociati.it The Law in Shopping Centers
What do we want to achieve today? The Law in Shopping Centers
Negotiation The Law in Shopping Centers
Reliance
General Contract Principles
Formalities: Oral Vs. Good Faith Written The Law in Shopping Centers
Commercial Correspondence
Letters of Intent Side Letters Heads of Terms
Steps to the Lease
Lease Binding Offers
Preliminary Lease The Law in Shopping Centers
Letters of Intent (LOI)/Heads of Terms (HoT)
Binding offers The Law in Shopping Centers
Commercial People
Key People in Real Estate Fiscal Counsel Negotiating Brokers SC Leases
Legal Counsel: In-House Counsel Vs. Outside Counsel The Law in Shopping Centers
Who should lead the negotiation? The Law in Shopping Centers
Precontractual Liability The Law in Shopping Centers The Law in Shopping Centers The Law in Shopping Centers
From: John Worthington "Honest John" Foulfellow [[email protected]] To: Pinocchio [[email protected]] Sent: July 7, 2014 Re: Shopping Center “Field of Miracles”, Catchfools
Dear Pinocchio, Meeting you this morning was such an incomparable pleasure! I am so happy we got a deal!!! Please let me recap our agreement: -Premises n. A503; first floor; 123.99 sf -Use clause: toys - Hand-over: 30 days as of today -Term: 7 years -Walk out right: none -Rent: 7% T/O -Minimum guaranteed rent: GBP 100.000,00 + VAT -CAM: GBP 15.000,00 + VAT
Please confirm asap the foregoing by replying to this e-mail. Our lawyers shall take care of boring formalities.
Yours faithfully,
HJ
P.S.: greetings from Giddy!!
John Worthington Straight Fox and Cat Associates The Law in Shopping Centers
Tips and Tricks in Negotiation
Controlling the The “Alternative “I’m not the bad “It’s for your Have a Way Out Text Clause Menu” guy” benefit, too!” The Law in Shopping Centers
The End of the Negotiation: the “Quiet Room” Tip The Law in Shopping Centers
The Lease in Shopping Centers The Law in Shopping Centers
Landlord Tenant Lease The Law in Shopping Centers
Lease Provisions (clauses)
Lease
Exhibits The Law in Shopping Centers
?Lease Fixed or renewable Term Pros and Cons
Walk-Out Clause. Risks for the Landlord: how to mitigate them?
Right of First Offer, Right of First Refusal in favor of Tenant: does it make sense? The Law in Shopping Centers
Description
Technical Surface Specifications The Premises
Exhibits Tolerances The Law in Shopping Centers
The Main Lease Clauses
Use Lease Clause Term
Maintenance Rent
Tenant’s Service Fitting Charge Works The Law in Shopping Centers
?Lease Fixed or renewable Term Pros and Cons
Walk-Out Clause. Risks for the Landlord: how to mitigate them?
Right of First Offer, Right of First Refusal in favor of Tenant: does it make sense? The Law in Shopping Centers
Fixed Rent Variable Rent The Law in Shopping Centers
T/O to be % of turn-over (T/O) Variable communicated by obtained in a lease Tenant. How many year Rent times in a year?
Is Landlord entitled Remedies in case of When to pay variable to check Tenant’s untruthful/missing rent? account books? Is T/O declaration there an audit right? The Law in Shopping Centers
What is Turn-Over?
Omni-Channel Sales The Law in Shopping Centers
Rent Adjustment
Adjustment through the Lease Years: Indexation
Adjustment of the Rent in Case of Renewal The Law in Shopping Centers
Bank Cash Deposit Guarantee
Security The Law in Shopping Centers
Taxes for Insurance for Common Common Areas Areas?
Cleaning of Use of Parking Common Areas Spaces
Costs of Common Area Utilities Extraordinary Consumption Maintenance? for Common Areas Systems
Promotional Common Areas Service and Ordinary Advertising Maintenance Charge Costs? The Law in Shopping Centers
Surface Criteria Ponderation
How to Split The Case of Service Charge among Tenants Food Courts
Caps The Law in Shopping Centers
Tenants Association/Consortium of Tenants Promotional/Advertising Costs Managed by Landlord The Law in Shopping Centers
Tenant’s Works
To Consider: Non Structural Technical Structural Works Works Specifications of the Shopping Center The Law in Shopping Centers
Maintenance of the Premises: Who Ordinary Is Doing What? Maintenance
Extraordinary Maintenance The Law in Shopping Centers
Other Typical Clauses
Regulation of Radius Clause: the Shopping an Antitrust Center Issue?
Sublease of Exclusivity Clause: an the Premises Antitrust Issue ?
Assignment Insurance of Lease Clause
Signage Trademarks The Law in Shopping Centers
Informing Tenant of the Date of Grand Opening: When?
New SC: Additional Clauses
Tenant’s Tenant’s Obligation to Obligation to Open Its Store Complete Fitting upon Grand Works within Opening Grand Opening The Law in Shopping Centers
Plan of the Premises
Others (e.g. Shopping Pilotage Center Agreement, Technical etc.) Specifications
Exhibits
By-Laws of the Tenants Draft Bank Association/ Guarantee Consortium
Regulation of the Shopping Center The Law in Shopping Centers
Use of Common Areas
Service Charge (Criteria) Trade Hours
Shopping Center Continuous Regulation Operations
Shop Windows
Penalties
Other The Law in Shopping Centers
Handover of the Premises
Before Upon Execution After Execution Execution of the Lease of the Lease of the Lease The Law in Shopping Centers
Conditions of the Premises Authority to Sign It
Handover/Return Certificate The Law in Shopping Centers
Breach of an obligation
Termination by Penalties Default The Law in Shopping Centers
Litigation
Courts Arbitration The Law in Shopping Centers
A Case in Existing Shopping Centers: Relocation of Existing Tenants
Key-Money as Cost of Fitting Purpose: New Tenants Compensation for Works/Rent for Existing in SC Relocation Tenant
Mutual Termination of the Lease + New Lease for New Premises Vs. Transfer Agreement The Law in Shopping Centers
Managing a Shopping Center The Law in Shopping Centers
The Contracts Entered into/Administered by SC Managers
Lease Agreements
Insurance Promotional Contracts Contracts
Operational Labor Service Contracts Contracts The Law in Shopping Centers
Landlord’s Responsibility Insurance for Insurance for for Common Damages Civil Liability Areas The Law in Shopping Centers
SC Collective Labour Employees Bargaining Contracts Contracts Agreements
ICSC European Partners
ICSC Global Partner
ICSC European Partners The Law in Shopping Centers
Avv. Claudio Cocuzza