Strategies to Avoid or Quickly Resolve Thorny Legal Issues Presented by: Nick Mann, Esq., Waller Lansden Dortch & Davis, LLP Rick Plotkin, Esq., GrayRobinson, P.A.

Collecting the Entire Lease Collect any and all amendments, addendums, and any ancillary agreements Pay particular attention to any estoppels and note the dates of execution Note any technical errors such as execution, notary, or witnessing errors Discuss document retention policies Discuss how this may be beneficial at a later stage

Read the Lease Determine all applicable lease provisions Focus on defined terms and sentence structure Determine whether any of the applicable lease provisions have been modified by an estoppel or other ancillary agreement Consider the applicable lease provisions both by the language on their face, and in totality of the lease

Prepare Strategy to Address with Landlord When to get counsel involved (immediately!) Attorney-Client Privilege and Attorney Work Product Know who is (and who isn’t) your client Practice pointers to ensure privileges aren’t waived Explain Concepts

Prepare Strategy to Address with Landlord (continued) Big Picture Strategy Consider company’s long-term relationship with the Landlord Consider how an unfavorable result could impact the company’s larger portfolio Lease Specific Strategy Determine whether any of the applicable lease provisions contain a specific remedy Determine the default procedures, cure periods, and remedies

Prepare Strategy to Address with Landlord (continued) Venue / Law / Alternative Dispute Resolution Determine all applicable jurisdictions and venues Determine applicable law and the impact of any provisions that create different rules Determine if there is an arbitration or mediation clause If yes, determine if that would create more favorable or less favorable result Importance of arbitrator’s expertise in commercial real estate Discuss conflict of law provisions and any provisions regarding interpretations in favor of drafting party

Prepare Strategy to Address with Landlord (continued) Outcome Determine the Best Case Result Rent Reduction Self-Help Lease Termination Increased Allowance Determine Worst Case Result Acceleration of Rent Consequential Damages Determine Acceptable Result

Prepare Strategy to Address with Landlord (continued) Witnesses and Evidence Prepare list of potential “laymen” witnesses and begin interviews Prepare list of potential “expert” witnesses and even begin consultations Gather all evidence and determine what may be admissible Evidence not admissible in court may be admissible in arbitration or mediation. This may, in turn, affect the venue strategy

Initiating Contact or Responding to Landlord Factors to consider in “informal” correspondence: Audience (Attorney vs. Non-Attorney) (Large Corporation vs. Mom and Pop) Tone Level of detail and analysis Conclusion (“Govern yourself accordingly” is not a good independent conclusion) This is referring to correspondence outside of a formal tribunal setting such as default notices, etc.

Initiating Contact or Responding to Landlord (continued) Follow Notice provision at all times (even if the Landlord does not) Keep records, including notes, of all communications and phone conversations Factors to consider when filing a formal complaint or response: Level of detail varies from court to court, but generally a complaint must contain enough facts to state a claim to relief that is plausible on its face Must contain all claims and plaintiff can “plead in the alternative” This is especially important during negotiation periods

Settlement Agreement Waiver and Release Confidentiality Non-disparagement Non-admission of fault

Questions

Thank You Nick Mann Rick Plotkin Waller Lansden Dortch & Davis, LLP GrayRobinson, P.A. nick.mann@wallerlaw.com rick.plotkin@grayrobinson.com