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Exclusive Use Clauses in Shopping Center Leases
There are few shopping center lease clauses that are more important to a retail tenant than the exclusive use clause. For many retail tenants, the scope of the exclusive use clause represents the essence of the tenant's bargain with the landlord. A tenant's ability to “corner the market” in a retail center for its particular use adds tremendous value to the leasehold estate and can significantly expand the tenant's gross sales at the center.
Bargaining Strength
The earlier the prospective tenant (“Prospect”) can negotiate the scope of its exclusive use rights in the center, the better off the tenant will be. A Prospect should negotiate its exclusive use rights and any exceptions thereto as part of the letter of intent. A Prospect's ability to negotiate a broad exclusive right is in large part a measure of the bargaining strength of the Prospect. Many factors must be considered when assessing the Prospect's bargaining strength, including the size of the leased premises, the desirability of the Prospect, the desirability of the particular use, the financial strength of the Prospect and the reality of the marketplace.
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