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Considerations in Drafting and Negotiating Early Lease Terminations
The first impression one may have when preparing to draft an early termination agreement is that such a document should be a simple matter. It is true that simplicity and brevity in drafting are, in most circumstances, admirable qualities, and it is equally true that we frequently draft and negotiate documents that are much more complex than most lease termination agreements. Nevertheless, as with any effort to document a transaction, care must be taken in the preparation and negotiation of such an agreement to avoid overlooking potential risks and to protect the client's interests. This article explores some considerations in documenting the early termination of a lease, though not necessarily in order of importance. Although some specific suggestions are made and some sample provisions are included, the primary intent of this discussion is to alert the leasing practitioner to various issues and pitfalls that may be encountered.
The Introduction
The recitals or other introductory provisions should clearly identify the underlying lease and all amendments, addenda, and other modification documents. As obvious as it may seem, the drafter should take particular care to recite the correct name and date of the underlying lease and each related document; it is good practice to add at the end of the detailed description a phrase such as 'as the same may have been further amended.' This all-inclusive list of prior documents should be defined collectively as the 'Lease' for purposes of the termination agreement. The goal, of course, is to be certain that there is no doubt as to the identity of the documents and relationships, which are the subject of the termination, and to declare the intent of the parties clearly to terminate those documents and relationships.
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