- Sutherland

Retail

OUR PRACTICE

As part of our broad and diverse retail practice, Sutherland represents national and regional developers, institutional investors and big-box end-users. We regularly represent developers and retailers in purchase and sale, financing, and leasing transactions in virtually every major market in the United States. Our experience extends to all product types, including regional malls, power centers, lifestyle and mixed-use projects, community centers and stand alone retail facilities.
We have more than 30 lawyers who are actively engaged in our retail practice. Our lawyers are active in industry trade groups, such as the International Council of Shopping Centers (ICSC), and engage in a wide variety of continuing education programs, both as speakers and participants.

SUTHERLAND APPROACH

Our approach is client focused and directed. In addition to understanding the legal issues inherent in retail transactions, we strive to understand our clients’ objectives and the business issues underlying these objectives. Before we provide counsel and advice, we take the time necessary to truly listen to our clients in order to understand their objectives and goals as to the project or transaction at hand.

In order for a complex retail transaction to proceed smoothly, the client and its consultants - brokers, architects, engineers and counsel - must all act together as a coordinated team. We understand the importance of teamwork and strive to work together and cooperate with all the players to ensure that our client’s objectives are achieved. Our role in the transaction varies during the development cycle. At times, we are in the background while our client and its consultants take the lead. At other critical times, such as the closing of an acquisition, sale or financing or the negotiation and documentation of tenant leases and other related documents, we serve a primary role and are responsible for coordinating the activities of all parties involved to achieve the objective at hand. We are comfortable in either role and understand when to lead and when to follow.

We are experienced in negotiating and documenting technical legal concepts contained in loan, lease and purchase documentation, such as indemnities, waivers of subrogation, exculpation provisions, subordination provisions, insurance provisions, provisions regarding the assumption or takeover of existing leases and fire, casualty and condemnation provisions. However, consistent with our clients’ objectives, we give particular attention to the financial, economic and use provisions to ensure that the documents do not contain any hidden surprises and to ensure that these important provisions are negotiated and documented properly.

We regularly represent landlords and tenants, buyers and sellers, and lenders and borrowers. We find that in representing a client in a particular transaction, our prior experience representing the “other side” in similar transactions provides us with an understanding of what is and is not truly important to the “other side” and allows us to quickly identify possible compromise positions. This experience allows us to seek the best possible result for our client in an efficient manner.

Finally, we are aware of the intense time pressures often involved in retail transactions and understand that many transactions will not be consummated unless the relevant documents are promptly negotiated and documented. We pride ourselves on our deal making attitude and our ability to work with all parties, including the other side’s lawyer, in a non-adversarial and cooperative manner so as to seek the efficient and expeditious completion of the negotiation, documentation and closing process.

We seek creative and cost-effective solutions. We commit to our clients to provide dedicated service that is responsive to the company’s objectives and anticipated timeline.

SUTHERLAND’S AREAS OF SUBSTANTIVE KNOWLEDGE

We have the ability to handle, in a cost effective and efficient manner, every aspect of a retail transaction, whether it be straightforward or extremely complicated, including the following:

Leases – We regularly represent landlords and tenants as to every type of retail transaction, including ground leases, space leases and building leases, and virtually every type of big-box retail concept, including unique transactions such as grocery stores, theaters and the like. We regularly prepare and negotiate letters of intent for big-box retail leases, and are also experienced with related lease documents such as SNDAs.
Reciprocal Easement and Operating Agreements – We have substantial experience in negotiating and documenting reciprocal easement and operating agreements which provide the framework for the operation of many complex retail projects. We have experience in negotiating these documents in mall and shopping center transactions from the perspective of the owner and the retailer.
Site Development Agreements – We are especially skilled in negotiating and documenting site development agreements between developers and big-box retailers which allocate the responsibility of performing site work in connection with the development of a shopping center.
General Development Matters – We are experienced in representing our clients in a wide variety of general development matters, including the negotiation and documentation of easement agreements, development agreements, tax abatement agreements, special improvement district agreements, abandonment of public streets and other development matters.
Acquisitions, Dispositions and Section 1031 Like-Kind Exchanges – We are experienced in structuring, negotiating and documenting purchase and sale transactions involving malls and shopping centers. We also are regularly engaged in structuring Section 1031 like-kind exchanges.
Financing Transactions – We are extremely knowledgeable in all aspects of financing shopping centers and other retail projects. Our practice includes construction loans, securitized loans, permanent lending, mezzanine financing, capital market transactions, assumptions and defeasances.
Joint Ventures – We regularly counsel our retail clients concerning the structuring and formation of joint ventures of all types including limited liability companies and general, limited and limited liability partnerships. We have experience in the financial and governance aspects of such arrangements including buy-sell provisions, as well as the complicated tax allocation provisions.
Environmental Matters – We are experienced in assessing environmental risks inherent in retail projects, evaluating options and negotiating and documenting complicated environmental provisions in lease and purchase and sale transactions. Rather than raise problems without providing solutions, we pride ourselves on our ability to realistically evaluate risks and find creative solutions to the underlying problem so as to allow the transaction to be consummated despite the existence of environmental contamination.
Resolution of Disputes and Bankruptcies – In addition to our diverse real estate practice, we are a full service firm with substantial litigation and bankruptcy experience. In this regard, we have experience in resolving virtually every type of real estate dispute including construction contract disputes, lease disputes, joint venture disputes and disputes between adjoining landowners.
Construction Contracts – We assist our clients in negotiating with contractors, subcontractors and architects and in resolving construction disputes which sometimes arise in connection with the development and redevelopment of real estate projects.
Zoning Matters – We understand the importance of zoning matters, including approvals and entitlements, to the successful development of a retail project and are experienced in negotiating such matters in the context of purchase contracts and leases and in administering the work of local zoning counsel expert in the particular jurisdiction.
Real Estate Investment Trusts – We have extensive knowledge of tax, securities and other issues related to the acquisition, ownership and disposition of property by real estate investment trusts, including those arising in connection with typical “upreit” and “downreit” transactions and the contribution and registration rights agreements typically entered into in connection therewith.