Estoppel Certificates Are Important Than You Already Think They Are
At its core, an estoppel certificate is simply a statement that a commercial lease exists and a recitation of certain provisions of the lease. But estoppel certificates also typically require a tenant to attest to compliance with the lease by the landlord and tenant. Commonly requested admissions include the absence of any defaults, lease […]
Avoid Unforced Errors When Executing Contracts
This firm works with a number of business brokers and investment bankers who are very good at their professions. They should be commended for their hard work and creativity to help buyers and sellers reach agreements. But they are not attorneys in the same way attorneys are not business brokers or investment bankers. Therefore, your […]
Price Escalation Clauses
Inflation has made price escalation clauses a relevant topic. Yet many of these clauses fail to create a clean, straightforward understanding as to how the escalation will work. A well-drafted price escalation clause should have the following five elements: Many business considerations need to be addressed within the five elements. In talking with business owners […]
Limitation of Liability Clauses
A limitation of liability clause is a term in an agreement that limits potential exposure if a lawsuit or claim is filed. Liability caps can focus on prohibiting liability beyond specific amounts of money: This is rather straightforward. Limiting the types of damages that can be recovered is trickier. Many agreements permit parties to recover […]
#MeToo Clauses
#MeToo clauses are still relatively new additions to the numerous representations and warranties in M&A agreements. These clauses focus on a seller’s knowledge or awareness of accusations of sexual misconduct against its executives and others, which could be internal and financial land mines. It is unsurprising that these provisions are now being inserted into other […]
NDA No-Nos
It is common knowledge that a Non-Disclosure Agreement (NDA) does not provide absolute protection of a company’s intellectual property or other proprietary information. Unfortunately, many business owners are not advised with sufficient detail as to (1) why an NDA is insufficient and (2) how to keep an NDA enforceable. Receiving poor or no advice concerning […]
Short Post: Text Agreements Are Like Penciled Agreements
So many people make and confirm agreements via text, WhatsApp, or other electronic message but then never formalize their agreement. This is also true with amendments to existing agreements. I think of text agreements like agreements that are written in pencil. Agreements written in pencil and texts can be “real contracts” contrary to the urban […]
Effective Use of Arbitration Clauses
Clients often want dispute resolution provisions to include only jurisdiction, venue, and choice of law terms to avoid overwhelming their clients. In these circumstances, I always recommend one additional term: mandatory non-binding mediation before a claim or lawsuit is filed. When the stakes are very high, I often recommend clients to include details that do […]
