| |
| |
| Acknowledgements | |
| |
| |
| Table of Cases | |
| |
| |
| Introduction | |
| |
| |
| Fundamental Considerations in Contract Drafting | |
| |
| |
| The Context: The Deal Timeline: Big or Little, Deals Follow a Pattern | |
| |
| |
| The Drafting Process-Step by Step | |
| |
| |
| The Goal: Practical, Precise Documents | |
| |
| |
| Shelby County State Bank v. Van Diest Supply Company | |
| |
| |
| Plain English; Clear & Conspicuous Drafting | |
| |
| |
| American General Finance, Inc. v. Bassett (In Re Basset) | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Attention to Detail; Pride in Your Work; Neatness Counts | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Thinking Like a Transactional Lawyer | |
| |
| |
| The Form of Transactional Documents | |
| |
| |
| General Outline | |
| |
| |
| Transactional Documents Memorialize a Deal | |
| |
| |
| The Document's Title and Introduction | |
| |
| |
| Preambles; Recitals; Transitioning Into the Agreement | |
| |
| |
| Definitions and Defined Terms: A Powerful Technique to Enhance Meaning and Readability | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Information Schedules | |
| |
| |
| Informational Documents | |
| |
| |
| Supplemental Documents | |
| |
| |
| Substantive Provisions as Exhibits | |
| |
| |
| The Table of Contents | |
| |
| |
| Cross-references and Paragraph References | |
| |
| |
| Headings | |
| |
| |
| Substantive Numbers | |
| |
| |
| Exemplar Considerations | |
| |
| |
| Drafting Rules | |
| |
| |
| The Active Voice-Who does What to Whom, When | |
| |
| |
| Herein | |
| |
| |
| And/Or-Ambiguity Alert | |
| |
| |
| Shall, Will, Must and May | |
| |
| |
| Doublets, Triplets, and Other Forms of Synonymous Repetition | |
| |
| |
| Omit Needless Words | |
| |
| |
| Keep Related Words Together | |
| |
| |
| Use Familiar and Concrete Words; Avoid Lawyerisms | |
| |
| |
| Use Normal Word Order and Inversions for Emphasis | |
| |
| |
| Hyphens | |
| |
| |
| Parentheses | |
| |
| |
| Some Basic Rules of Grammar Relevant to Drafting Contracts | |
| |
| |
| Misused and Abused Words and Expressions | |
| |
| |
| Quotation Marks | |
| |
| |
| Spacing After Sentences | |
| |
| |
| Qstions & Clauses for Consideration | |
| |
| |
| Document Review and Comments | |
| |
| |
| Comments and Mark-Ups Indicate Interest in Your Work | |
| |
| |
| Different Considerations for Different Reviewers | |
| |
| |
| Your Colleagues and Supervisors | |
| |
| |
| Client Review | |
| |
| |
| Review by Opposing Counsel | |
| |
| |
| Control of the Document, Making Revisions, and Subsequent Drafts | |
| |
| |
| Reviewing Documents-A Ten Point Checklist | |
| |
| |
| A Cautionary Tale | |
| |
| |
| Deposit Extortion: A Poorly Drafted Contract Leads to a Lawsuit | |
| |
| |
| Consideration and the Term of the Agreement | |
| |
| |
| Consideration | |
| |
| |
| Allocation of Consideration | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Variable Consideration | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| The Term of the Agreement | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Conditions | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Representations, Warranties, Covenants, Guaranties, Indemnities | |
| |
| |
| General Rules for Representations, Warranties, and Covenants | |
| |
| |
| Representations | |
| |
| |
| Linden Partners v. Wilshire Linden Assocs | |
| |
| |
| Warranties | |
| |
| |
| CBS Inc. v. Ziff-Davis Publishing Co. et al | |
| |
| |
| Note | |
| |
| |
| Covenants | |
| |
| |
| The UCC Approach | |
| |
| |
| General Rules and Techniques: Typical Representations & Warranties | |
| |
| |
| Guaranties, Indemnities, and Releases | |
| |
| |
| Cautionary Procedures | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Events of Default and Remedies | |
| |
| |
| Beal Bank v. Crystal Properties, Ltd., L.P. (In re Crystal Properties, ltd., L.P.) | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| The Original Great American Chocolate Chip Cookie Co., Inc. V. River Valley Cookies, Ltd | |
| |
| |
| The Original Great American Chocolate Chip Cookie Co., Inc. V. River Valley Cookies, Ltd | |
| |
| |
| Clause for Consideration | |
| |
| |
| Questions | |
| |
| |
| The Import and Scope of Boilerplate | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Arbitration and Other Alternative Dispute Resolution Provisions | |
| |
| |
| Signature Blocks | |
| |
| |
| Introductory Language for Signatures | |
| |
| |
| Traditional Signature Blocks | |
| |
| |
| E-Signatures and Related Matters | |
| |
| |
| The E-Signature Act | |
| |
| |
| The Uniform Electronic Transactions Act | |
| |
| |
| Amending and Restating Agreements | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Covenants and Agreements Not to Compete | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Letters of Intent | |
| |
| |
| Why Use a Letter of Intent? | |
| |
| |
| The Risks of Using a Letter of Intent | |
| |
| |
| Enforceability and Drafting Points for Letters of Intent | |
| |
| |
| Beekman Invest. Partners, L.P. v. Alene Candles, Inc. | |
| |
| |
| Questions & Clauses for Consideration | |
| |
| |
| Opinions of Counsel | |
| |
| |
| Dean Foods Company v. Arthur J. Pappathanasi | |
| |
| |
| Bibliography | |
| |
| |
| Appendices | |
| |
| |
| Secured Promissory Note | |
| |
| |
| Asset Purchase and Sale Agreement | |
| |
| |
| Real Property Lease | |
| |
| |
| Settlement Agreement | |
| |
| |
| Software License Agreement | |