Negotiation and Drafting. The parties hereto have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the parties hereto and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
Negotiation and Drafting. This Agreement was negotiated among the Parties, each of whom had the opportunity to consult with legal counsel during the negotiation, drafting, and execution of this Agreement, and the Parties agree that this Agreement shall not be construed against any Party as the drafter.
Negotiation and Drafting. This Agreement will be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting or causing any instrument to be drafted.
Negotiation and Drafting. The Parties negotiated this Agreement, and it shall not be construed against any Party as the drafter.
Negotiation and Drafting. Employee acknowledges that this Agreement has been negotiated at arms’ length by the parties. Neither of the parties is under any compulsion to enter into this Agreement. This Agreement is deemed to have been drafted jointly by the parties. Any uncertainty or ambiguity will not be construed for or against any party based on attribution of drafting to any other party.
Negotiation and Drafting. Both Parties have participated jointly in the negotiation and drafting of this Agreement and the other agreements and documents delivered in connection with this Agreement. Any rule of construction or interpretation otherwise requiring this Agreement or any of such other agreements and documents to be construed or interpreted against any Person by virtue of the authorship of this Agreement or any of such other agreements and documents shall not apply to the construction and interpretation hereof or thereof. [Remainder of page intentionally left blank. Signature page follows.]
Negotiation and Drafting. Given the lack of formal restrictions on leasing and the deference given to the terms of the lease, the drafting and negotiation of leases becomes critically important as discussed in this section of the paper. This deference is present even though the stated premises for it – that the parties are in equal bargaining positions – is likely false and potentially growing even more false as more institutional owners saturate the markets. For instance, sovereign wealth funds have been purchasing properties at a record pace the last few years.6 Should a small tenant be considered an equal negotiating partner with the investment arm of a country heavily invested in real estate? Other institutional owners such as REITs, which may own multiple properties in multiple states, and even local developers’ business often rely solely on the leasing of property for the generation of their revenue. Therefore, the landlord is often the party preparing the lease. And controlling the documentation gives the landlord an additional advantage. There are some form commercial leases prepared by various groups but none is widely used outside of certain, limited submarkets. Whether the tenant actually is in an unequal negotiating position and needs to accept most provisions without revision or is a large tenant who may, in fact, be able to 5 Id. at 791, 429 6 See, e.g., Sovereign Funds to Expand Property Buying After Record Year, Xxxxx Xxxxx, available at xxxx://xxx.xxxxxxxxx.xxx/news/2013-02-06/sovereign-funds-seen-expanding-property-buying-after- record-year.html negotiate many provisions, it is critical to understand the important terms and the negotiation process. What is the Worst that Can Happen. When thinking about how to draft and negotiate leases, it is often important to consider what the worst case scenario is for any given lease situation. While each case may be different, one presenter at a national continuing education conference7 summarized, I think rather well, the worst case scenarios in order as: • 3rd worst: No deal; • 2nd worst: A bad deal (not correctly reflecting the business terms agreed to or containing hidden terms or costs for either or both parties); • Worst: No deal after negotiating a significant amount of time and expending significant funds. Accepting this paradigm argues for identifying potential issues early in the process and focusing on the most important items for each party. In order to do so, I would argue it is important to know and understand t...
