Acknowledgements | p. V |
Table of Cases | p. xiii |
Introduction | p. 1 |
Fundamental Considerations in Contract Drafting | p. 5 |
The Context: The Deal Timeline: Big or Little, Deals Follow a Pattern | p. 5 |
The Drafting Process-Step by Step | p. 7 |
The Goal: Practical, Precise Documents | p. 7 |
Shelby County State Bank v. Van Diest Supply Company | p. 9 |
Plain English; Clear & Conspicuous Drafting | p. 18 |
American General Finance, Inc. v. Bassett (In Re Basset) | p. 19 |
Questions & Clauses for Consideration | p. 23 |
Attention to Detail; Pride in Your Work; Neatness Counts | p. 24 |
Questions & Clauses for Consideration | p. 24 |
Thinking Like a Transactional Lawyer | p. 26 |
The Form of Transactional Documents | p. 29 |
General Outline | p. 29 |
Transactional Documents Memorialize a Deal | p. 30 |
The Document's Title and Introduction | p. 30 |
Preambles; Recitals; Transitioning Into the Agreement | p. 31 |
Definitions and Defined Terms: A Powerful Technique to Enhance Meaning and Readability | p. 32 |
Questions & Clauses for Consideration | p. 35 |
Information Schedules | p. 36 |
Informational Documents | p. 36 |
Supplemental Documents | p. 36 |
Substantive Provisions as Exhibits | p. 37 |
The Table of Contents | p. 37 |
Cross-references and Paragraph References | p. 37 |
Headings | p. 37 |
Substantive Numbers | p. 38 |
Exemplar Considerations | p. 39 |
Drafting Rules | p. 41 |
The Active Voice-Who does What to Whom, When | p. 41 |
Herein | p. 41 |
And/Or-Ambiguity Alert | p. 42 |
Shall, Will, Must and May | p. 42 |
Doublets, Triplets, and Other Forms of Synonymous Repetition | p. 43 |
Omit Needless Words | p. 45 |
Keep Related Words Together | p. 46 |
Use Familiar and Concrete Words; Avoid Lawyerisms | p. 47 |
Use Normal Word Order and Inversions for Emphasis | p. 47 |
Hyphens | p. 47 |
Parentheses | p. 48 |
Some Basic Rules of Grammar Relevant to Drafting Contracts | p. 48 |
Misused and Abused Words and Expressions | p. 51 |
Quotation Marks | p. 53 |
Spacing After Sentences | p. 53 |
Qstions & Clauses for Consideration | p. 53 |
Document Review and Comments | p. 57 |
Comments and Mark-Ups Indicate Interest in Your Work | p. 57 |
Different Considerations for Different Reviewers | p. 57 |
Your Colleagues and Supervisors | p. 57 |
Client Review | p. 59 |
Review by Opposing Counsel | p. 59 |
Control of the Document, Making Revisions, and Subsequent Drafts | p. 61 |
Reviewing Documents-A Ten Point Checklist | p. 62 |
A Cautionary Tale | p. 64 |
Deposit Extortion: A Poorly Drafted Contract Leads to a Lawsuit | p. 64 |
Consideration and the Term of the Agreement | p. 69 |
Consideration | p. 69 |
Allocation of Consideration | p. 70 |
Questions & Clauses for Consideration | p. 71 |
Variable Consideration | p. 72 |
Questions & Clauses for Consideration | p. 73 |
The Term of the Agreement | p. 74 |
Questions & Clauses for Consideration | p. 75 |
Conditions | p. 77 |
Questions & Clauses for Consideration | p. 80 |
Representations, Warranties, Covenants, Guaranties, Indemnities | p. 83 |
General Rules for Representations, Warranties, and Covenants | p. 84 |
Representations | p. 84 |
Linden Partners v. Wilshire Linden Assocs | p. 86 |
Warranties | p. 96 |
CBS Inc. v. Ziff-Davis Publishing Co. et al | p. 97 |
Note | p. 103 |
Covenants | p. 103 |
The UCC Approach | p. 104 |
General Rules and Techniques: Typical Representations & Warranties | p. 104 |
Guaranties, Indemnities, and Releases | p. 106 |
Cautionary Procedures | p. 108 |
Questions & Clauses for Consideration | p. 109 |
Events of Default and Remedies | p. 115 |
Beal Bank v. Crystal Properties, Ltd., L.P. (In re Crystal Properties, ltd., L.P.) | p. 117 |
Questions & Clauses for Consideration | p. 130 |
The Original Great American Chocolate Chip Cookie Co., Inc. V. River Valley Cookies, Ltd | p. 131 |
The Original Great American Chocolate Chip Cookie Co., Inc. V. River Valley Cookies, Ltd | p. 139 |
Clause for Consideration | p. 148 |
Questions | p. 151 |
The Import and Scope of Boilerplate | p. 153 |
Questions & Clauses for Consideration | p. 154 |
Arbitration and Other Alternative Dispute Resolution Provisions | p. 161 |
Signature Blocks | p. 167 |
Introductory Language for Signatures | p. 167 |
Traditional Signature Blocks | p. 167 |
E-Signatures and Related Matters | p. 170 |
The E-Signature Act | p. 170 |
The Uniform Electronic Transactions Act | p. 171 |
Amending and Restating Agreements | p. 173 |
Questions & Clauses for Consideration | p. 174 |
Covenants and Agreements Not to Compete | p. 181 |
Questions & Clauses for Consideration | p. 182 |
Letters of Intent | p. 185 |
Why Use a Letter of Intent? | p. 185 |
The Risks of Using a Letter of Intent | p. 186 |
Enforceability and Drafting Points for Letters of Intent | p. 186 |
Beekman Invest. Partners, L.P. v. Alene Candles, Inc. | p. 187 |
Questions & Clauses for Consideration | p. 195 |
Opinions of Counsel | p. 201 |
Dean Foods Company v. Arthur J. Pappathanasi | p. 203 |
Bibliography | p. 231 |
Appendices | |
Secured Promissory Note | p. 237 |
Asset Purchase and Sale Agreement | p. 241 |
Real Property Lease | p. 267 |
Settlement Agreement | p. 279 |
Software License Agreement | p. 285 |
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