This Negotiation Guide forms part of the: Practical lease negotiation collection. See also Practice Notes: New starter guide—entering into new commercial leases and Negotiation guide—short term commercial leases. While each transaction will inevitably turn on its own commercial context, this Negotiation Guide considers the practical steps and issues that commonly need to be considered when negotiating the grant of a long term lease of a commercial property. For the purposes of this Negotiation Guide, a ‘long term lease’ means a lease granted for a contractual term of more than five years at a substantial annual rent (also known as a ‘market rent’ or ‘rack rent’). The grant of a lease for a significant term of years (eg in excess of 50) at a substantial premium gives rise to very different considerations, which are not discussed here. For examples of leases which may be suitable for the long term letting of a commercial property, see Precedents: Lease of part (office), Lease of part (retail unit in a shopping centre), Lease of unit on an industrial estate

Introduction This Practice Note provides a negotiation guide for IT contracts, covering topics relevant to IT services (from support to full outsourcing and anything in between), software licensing and/or hardware purchasing. It sets out key positions across around 30 of the most commonly negotiated issues, and suggests potential compromises and key considerations depending on the scope of the contract, the relative bargaining strengths of the parties, and whether the reader is acting for the customer or supplier. It is intended as a high-level discussion of the issues, prompting the reader to consider what may be needed in the circumstances of any particular deal. Where relevant, specific Practice Notes are also referred to for further information. It is only relevant for business to business transactions. For a discussion of the key negotiation issues arising in services agreements more generally, rather than IT contracts specifically, see Practice Note: Negotiation guide—services agreements. This Practice Note makes reference to example balanced drafting within Precedents: IT services agreement—balanced and Framework agreement for the provision of IT products and services—balanced for some of the topics

This Practice Note provides a negotiation guide for material transfer agreements (MTAs) and data transfer agreements (DTAs) which are among the principal types of technology transfer agreements used to enable the exchange of the research materials and data on which discovery, validation and innovation depend. This Guide discusses key considerations when negotiating MTAs and DTAs with universities and other academic or public benefit research institutions in the United Kingdom (UK), the United States (US), Canada and Europe (principally EU/EEA Member States). Universities and other academic or public institutions including non-profit institutions and charities are collectively referred to in this Guide as ‘universities’ for brevity. These institutions operate under a public and educational mission that impact the negotiation terms of these agreements and can be at tension with commercial private industry interests. The purpose of this Guide is to flag issues that negotiators should probe at the term-sheet stage and translate into drafting choices. It is intended as a high-level discussion of the issues, prompting

This Negotiation Guide forms part of the Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. An alienation clause governs the extent to which (if any) a tenant is permitted to dispose of the demised premises or to allow a third party into occupation. The most common forms of disposal permitted are assignment, underletting and charging, and such disposals are usually subject to landlord’s consent. Some leases also allow the tenant limited forms of other dealings, such as group sharing. The type of alienation permitted and the extent of landlord controls on dealings will depend several factors, including the type of premises, the length of term and the rental arrangements (eg fixed rent or turnover). This Negotiation Guide considers the key elements of an alienation clause (also known as a dealings clause), which can be inserted into a lease of commercial premises. For example alienation clauses, see Precedents: • Lease of whole building • Lease of part (office) • Lease of part—restaurant • Lease of part (retail unit in a shopping

This Negotiation Guide forms part of the Practical lease negotiation collection. See also Practice Notes: New starter guide—entering into new commercial leases and Lease clauses playbook (Pro-Tenant)—Alterations. An alterations clause governs the extent to which (if any) a tenant is permitted to carry out alterations to the demised premises. Modern commercial leases typically distinguish between: • alterations that are prohibited • alterations that are permitted with landlord’s consent, and • alterations that are permitted without landlord’s consent In the unlikely event that the lease does not contain any restrictions on alterations, the tenant is free to carry out any alterations to the demised premises. Most commonly, leases of commercial premises contain a general prohibition on alterations, with a carve out for specific categories of works (eg internal non-structural alterations) that are permitted either with, or without, landlord’s prior consent. Drafting by exception in this way reduces the scope for misunderstanding and future dispute. The permitted alterations (and any conditionality attached to them) is influenced by the nature of the premises, the term of the

This Negotiation Guide forms part of the Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. A lease for a term of years may contain an option for the parties, or one of them, to determine the lease before the expiration of the term. This is known as a break option (also referred to as a break clause, or an option to determine). The break clause may be exercisable: • at any time after a fixed date (a 'rolling break') • on one or more fixed dates, or • on the happening of stated events A break clause in favour of the tenant is known as a tenant’s break option (or tenant's break right)and a break clause in favour of a landlord is known as a landlord’s break option (or landlord’s break right). The parties may also agree mutual break rights, where both parties have the right to terminate the lease. This Negotiation Guide considers the key elements of a break clause which can be inserted into a

This Practice Note provides an introduction to negotiating a deadlock (50:50) joint venture shareholders’ agreement (JVA) for those new to deadlock joint venture (JV) transactions. It considers the aims of the parties and key areas to focus on when negotiating a deadlock JVA, together with links to more detailed materials and precedent documentation. A ‘deadlock’ or ‘50:50’ corporate joint venture agreement (JVA)—also referred to as a shareholders’ agreement—is a contract between two shareholders who each hold an equal number of shares in a joint venture company (JVC). The JVC itself and shareholder guarantors may also be parties to the JVA. The JVA sets out the JV parties’ expectations with regard to the JVC and anticipates some of the issues which can arise. It governs how the shareholders should interact with each other, the JVC, and, where relevant, its subsidiaries and associated companies. It sets out the aims and objectives of the JVC’s business and its governance structure; the rights, responsibilities, and obligations of each shareholder, including any restrictions on their other business activities; any restrictions on actions

An environmental indemnity is a contractual allocation of financial risk in the form of an undertaking on the part of a seller given to a buyer in relation to contaminated land liability concerns or other specific environment, health and safety (EHS) non-compliance issues. It amounts to a commitment on the part of the seller that responsibility for covering defined costs arising out of an agreed environmental risk shall fall with them. This negotiation guide considers the key elements of an environmental indemnity, which can be inserted into a wider agreement (such as a share purchase agreement or asset purchase agreement) or included in a stand-alone environmental deed. A reasonably negotiated indemnity will generally contain concessions from both sides. The final position can be influenced by several factors: • specific issues arising from the EHS due diligence • evidence of land contamination, water pollution or offsite migration risks from environmental reports • the bargaining position of the parties • the past experience and size of the parties • price adjustment or trading other issues in the deal • the transaction

Contamination risk under a commercial lease is shaped by the site's condition and history, the proposed use, any proposed works, the parties' knowledge and control, applicable law, and lease drafting. This guide focuses on the negotiation of provisions relating to liability for contamination in a new commercial lease. It does not address environmental issues unrelated to contamination except where other lease provisions or regulatory regimes can affect that liability allocation. Aims of the parties Landlord aims The landlord will seek to minimise its liability exposure and also protect the property, its reversion and the wider estate from contamination risk during and after the term by: • avoiding responsibility for contamination beyond the risk accepted in the heads of terms • making the tenant responsible for contamination introduced, caused, knowingly permitted, mobilised or aggravated through the tenant's use, works or controlled persons • preventing unapproved ground disturbance and obtaining effective rights to investigate, monitor and respond to suspected contamination • securing prompt notification, remediation and an appropriate indemnity for tenant-attributable contamination • preserving

This negotiation guide considers the principal issues for a Seller and Buyer negotiating environmental warranties in a share purchase agreement or asset purchase agreement governed by the law of England and Wales. An environmental warranty is a contractual assurance provided by the Seller in a transaction that certain environmental conditions or compliance standards are met. Disclosure is the principal method of limiting the seller’s liability for breach of warranty. The seller will draft a ‘disclosure letter’ which contains a list of specific matters which the seller is disclosing to the buyer, by reference to specific warranties (specific disclosures), as well as ‘general disclosures’, being information and documents of a more general nature (such as accounts and searches of public registers) which are deemed disclosed under the terms of the disclosure letter. While a ‘full, accurate and specific’ disclosure will effectively stop the seller’s warranty from working, the disclosure should be carefully worded. If the disclosure highlights a significant non-compliance or potential liability issue, the buyer might seek an environmental indemnity or price adjustment. See Practice Note: Disclosure—share

A facility agreement sets out the terms on which a Lender will provide funding and is necessary for all loan transactions. This Practice Note provides an introduction to negotiating a facility agreement for those new to lending transactions. It considers the aims of the parties, contains a table of useful precedents, guidance on how a facility agreement is structured, and some key areas to focus on when negotiating a facility agreement, together with links to more detailed materials and finally looks at some common pitfalls that may arise. See also Practice Note: Introductory guide to lending which explains the role of the facility agreement in the context of a loan transaction. Aims of the Parties Lender’s aims The aims of the lender (Lender) when negotiating a facility agreement are to protect its investment and ensure that its capital will be returned, interest payments are made and fees are paid when due. It will attempt to achieve this by: • stating clearly when and how payments need to be made • controlling the circumstances in which

This Negotiation Guide forms part of the: Practical lease negotiation collection. See also Practice Note: New starter guide—entering into new commercial leases. This negotiation guide provides guidance for negotiating the terms of a guarantee where a third party is proposing to act as a guarantor of the obligations of a tenant to a landlord under a lease of commercial premises. The obligations on the part of a guarantor may be contained in either a clause within the lease, or in a separate schedule to it, or in an entirely separate document (although the last of these is relatively uncommon). For the purposes of this guide, the relevant provisions of either a clause, schedule or separate document are simply referred to as ‘a/the guarantee’. In the context of commercial leases, the guarantor will typically be: • a parent company of the tenant, or • a company in the same corporate group as the tenant, or • a director of and/or shareholder in the tenant For example guarantee provisions in the Lexis+ ® UK precedent commercial leases (all