Boilerplate Is Not Boring: Why Boilerplate Lease Clauses Matter

You’re familiar with the boilerplate provisions, often under “Miscellaneous” at the end of a lease. Despite their B-side placement within the lease, these clauses can contain key lease terms. From integration and force majeure to indemnification and brokerage, understanding and negotiating these clauses thoughtfully is key to shaping the rights, responsibilities, and risk exposure of both parties.

Integration and Merger Clauses

Integration and merger clauses ensure only terms within the contract govern parties’ rights and obligations. They prevent reliance on external documents or prior statements. In lease amendments, it’s crucial to include all relevant agreements in recitals to avoid unintentional removal of agreements from the “entire agreement.”

Force Majeure Clauses

Force majeure clauses govern impacts of unforeseen events outside parties’ control. How this section links to RCD and rent payment can affect the entire economics of the lease.

Negotiation points:

• Scope of force majeure events.
• Obligations delayed by force majeure.
• Exclusion of “economic struggles” as its own category of force majeure. If that economic struggle results from a larger event of force majeure that is outside of the party’s control with widespread effects, then the resulting economic struggle scenario would be covered under the provisions regardless.
• Treatment of payment obligations and rent commencement dates.

Indemnification and Liability Clauses

Indemnification and liability clauses create recourse avenues and minimize exposure.

Key points:

• Ensure mutual indemnification.
• Match standards of care in indemnity provisions.
• Limit tenant’s responsibility for invitees to within premises.
• Limit damages tenant can pursue to landlord’s interest in the property.
• Prohibit consequential damages, with potential carve-out for holdover.

Brokerage Clauses

Brokerage clauses represent that parties haven’t engaged undisclosed brokers expecting commission.

Ensure:

• Clause is mutual.
• No language has the result of making brokers into third-party beneficiaries.
• Explicit carve-out for agreed-upon brokers.

Recent Additions

Newer boilerplate provisions, which can trigger significant exposure and/or flexibility, depending on which side of the lease you’re on, include:

• Energy efficiency and LEED certification clauses.
• Redevelopment rights for landlords. These require careful negotiation to balance landlord flexibility with tenant protections.

AGG Real Estate attorney and Retail team member, Nolen Moore Zarilli, will participate on a panel discussing these important provisions during the ICSC+U.S. Law conference from October 8-10, 2025, in San Diego, California. To learn more, please contact Nolen.