Commercial Contracts: Strategies for Drafting and Negotiating, 2nd Edition (1-year Online Subscription)

VOLUME 1

Chapter 1. MILESTONES: HOW NEW YORK LAW BECAME AMERICA’S DEFINING LAW OF CONTRACT

• § 1.01 Scope Note
• § 1.02 The Business/Legal Continuum: How Contracts and Commerce Came to Define New York as the Ne Plus Ultra Marketplace and Commercial Legal System
• § 1.03 Past as Prologue? New York’s Future as the Capital of Capital

Chapter 2. FORM AND FUNCTION OF A CONTRACT

• § 2.01 Scope Note
• § 2.02 Drafting Strategies
• § 2.03 Substantive Role of Contract Provisions
• § 2.04 Certain Drafting Issues

Chapter 3. ENFORCEMENT ISSUES PRESENTED BY A FEW COMMON CONTRACT PROVISIONS

• § 3.01 Scope Note
• § 3.02 Representations and Warranties
• § 3.03 The “Material Adverse Change” Clause
• § 3.04 Indemnification Clauses and Cost Shifting
• § 3.05 The Arbitration Clause

Chapter 4. CONTRACTS AND CHOICE OF LAW IN NEW YORK

• § 4.01 Scope Note
• § 4.02 Introduction
• § 4.03 General Principles
• § 4.04 Special Clauses, Rules and Statutes
• § 4.05 Drafting the Choice of Law Clause

Chapter 5. THE ARBITRATION CLAUSE

• § 5.01 Scope Note
• § 5.02 Choosing between Arbitration and Litigation
• § 5.03 Choosing the Kind of Arbitration: Administered versus Non-administered Arbitration
• § 5.04 Drafting an Effective Arbitration Agreement
• § 5.05 Negotiation or Mediation as a PreCondition to Resort to Arbitration
• § 5.06 Special Considerations for Multiparty Contracts
• § 5.07 Special Considerations for Related Contracts
• § 5.08 Special Considerations for International Contracts
• § 5.09 Checklist for Drafting the Arbitration Clause

Chapter 6. INTERNATIONAL AGREEMENTS: THE APPLICATION OF A LAW OTHER THAN THE LAW STIPULATED IN THE AGREEMENT

• § 6.01 Scope Note
• § 6.02 Lex Fori and the Validity of the Choice of Law Clause
• § 6.03 The Internal Affairs Doctrine
• § 6.04 Foreign Governing Law and Public Policy of the Forum
• § 6.05 Governing Law and the Public Policy of a Third Country
• § 6.06 Foreign Bankruptcy Proceedings
• § 6.07 The Act of State Doctrine
• § 6.08 Performance in a Foreign Currency and Lex Monetae
• § 6.09 Renvoi and Mandatory Conflict of Laws Rules
• § 6.10 International Comity
• § 6.11 Governing Law Clauses Excluding Principles of Conflict of Laws
• § 6.12 Waiver of Sovereign Immunity
• § 6.13 Legal Opinions and International Agreements

Chapter 7. THIRD-PARTY BENEFICIARIES

• § 7.01 Scope Note
• § 7.02 Original Common Law Rule Versus Modern Law Test
• § 7.03 Defenses to Enforcement by Third-Party Beneficiaries
• § 7.04 Termination or Variation of Third-Party Beneficiary’s Rights
• § 7.05 Intent-to-Benefit Test as Applied to Various Common Settings
• § 7.06 Drafting with an Eye to the Law of Third-Party Standing
• § 7.07 Summary

Chapter 8. CHALLENGES TO FORMATION AND PERFORMANCE

• § 8.01 Scope Note
• § 8.02 Failure of Conditions
• § 8.03 Anticipatory Repudiation
• § 8.04 Fraud/Misrepresentation
• § 8.05 Duress
• § 8.06 Contracts of Adhesion
• § 8.07 Illegality
• § 8.08 Drafting to Avoid Disputes

Chapter 9. EXCUSE DOCTRINES

• § 9.01 Scope Note
• § 9.02 Contract Law
• § 9.03 Considerations in Approaching Contract Negotiation and Drafting
• § 9.04 Excuse Doctrines
• § 9.05 Characteristic Problems and Drafting Approaches
• § 9.06 Checklist of Excuse Doctrine Affirmative Defense Allegations

Chapter 10. RESERVED

Chapter 11. EQUITABLE RELIEF

• § 11.01 Scope Note
• § 11.02 Equitable Remedies
• § 11.03 Equitable Defenses and Counterclaims
• § 11.04 The Implied Covenant of Good Faith and Fair Dealing
• § 11.05 Application to Particular Commercial Contracts
• § 11.06 Effect of Certain Clauses
• § 11.07 Conclusion

Chapter 12. CONTRACT INTERPRETATION AND SUPPLEMENTATION

• § 12.01 Scope Note
• § 12.02 Preliminary Considerations
• § 12.03 Implied Duties
• § 12.04 Rules in Aid of Interpretation
• § 12.05 Pitfall Avoidance
• § 12.06 Clarity of Expression

Chapter 13. TORTIOUS INTERFERENCE WITH CONTRACT

• § 13.01 Scope Note
• § 13.02 Historical Background
• § 13.03 Interference with Existing Contractual Relations
• § 13.04 Interference with Business Relations
• § 13.05 Affirmative Defenses
• § 13.06 Statute of Limitations

Chapter 14. RESERVED

Chapter 15. LETTERS OF INTENT

• § 15.01 Scope Note
• § 15.02 Preliminary Considerations, Strategies, and Objectives
• § 15.03 Disclosure Obligations
• § 15.04 Binding Nature of Letter of Intent
• § 15.05 Negotiating and Drafting Points
• § 15.06 Sample Letter of Intent and Commentary—Nonbinding Provisions
• § 15.07 Sample Letter of Intent and Commentary—Binding Provisions

Chapter 16. UNSECURED BANK CREDIT AGREEMENTS

• § 16.01 Scope Note
• § 16.02 Objectives and Concerns of the Parties: Financing Strategies
• § 16.03 Pre-Loan Steps, or “Let’s Make a Deal”
• § 16.04 Final Documentation—Typical Terms
• § 16.05 Ranking of Debt: Subordinated Debt Versus Senior Debt
• § 16.06 Summary of Practice Pointers
• § 16.07 Summary
• § 16.08 Appendix A—Form of Unsecured Bank Credit Agreement

Chapter 17. AGREEMENTS FOR SALE OF A BUSINESS

• § 17.01 Scope Note
• § 17.02 Objectives and Concerns of the Parties to the Transactions: Strategies for Negotiation of the Agreement
• § 17.03 General Drafting Considerations
• § 17.04 Forms

Chapter 18. JOINT VENTURE AGREEMENTS

• § 18.01 Introduction
• § 18.02 Venture Objectives
• § 18.03 Choice of Entity
• § 18.04 Regulatory Concerns
• § 18.05 International Joint Ventures
• § 18.06 Forms of Joint Venture Documents

VOLUME 2

Chapter 19. SHAREHOLDERS’ AGREEMENTS

• § 19.01 Scope Note
• § 19.02 Objectives and Concerns of the Parties; Purposes of the Agreement
• § 19.03 Illustrative Clauses

Chapter 20. DESIGN AND CONSTRUCTION CONTRACTS

• § 20.01 Scope Note
• § 20.02 Choosing the Proper Delivery System for the Project
• § 20.03 Pricing the Construction Project
• § 20.04 The Standardized Forms
• § 20.05 Owner-Architect Agreements
• § 20.06 Owner-Contractor Agreements
• § 20.07 Design-Build: Special Contract Issues
• § 20.08 Integrated Project Delivery: Special Contract Issues
• § 20.09 Building Information Modeling (BIM): Special Contract Issues
• § 20.10 Green Building: Special Contract Issues
• § 20.11 Insurance Considerations for the Construction Project
• § 20.12 Dispute Resolution in the Construction Process
• § 20.13 Glossary of Construction Terms
• § 20.14 Contract Document Sources

Chapter 21. FRANCHISE AGREEMENTS

• § 21.01 Introduction
• § 21.02 The Foundation for Franchising
• § 21.03 Understanding Franchising as a Regulated Relationship
• § 21.04 The Mechanics of the Registration Process
• § 21.05 Understanding Different Types of Franchise Arrangements and Contracts
• § 21.06 Discussion of Illustrative Franchise Agreement Clauses

Chapter 22. EMPLOYMENT, CONSULTING, AND SEVERANCE AGREEMENTS

• § 22.01 Scope Note
• § 22.02 Glossary
• § 22.03 Employment Agreements
• § 22.04 Consulting/Independent Contractor Agreements
• § 22.05 Severance Agreements
• § 22.06 Appendices: Forms

Chapter 23. MORTGAGES IN BUSINESS TRANSACTIONS

• § 23.01 Scope Note
• § 23.02 Overview of Mortgages
• § 23.03 Understanding the Real Estate
• § 23.04 Lender’s Basic Agenda in Preparing a Mortgage: The Starting Point
• § 23.05 Negotiating a Mortgage
• § 23.06 Common Substantive Problems and Issues
• § 23.07 Title Insurance
• § 23.08 State-Specific Problems
• § 23.09 Opinions of Borrower’s Counsel
• § 23.10 Mortgage Substitutes and Shortcuts
• § 23.11 Model Mortgage
• § 23.12 Model Opinion of Local Counsel
• § 23.13 Checklist of Additional State Law Issues
• § 23.14 Real Estate Security Process Checklist

Chapter 24. LEASING TRANSACTIONS

• § 24.01 Scope Note
• § 24.02 Objectives and Concerns of the Parties
• § 24.03 Strategies for Real Estate Lease Negotiations
• § 24.04 Brokers’ Functions, Brokerage Agreements, and Entitlement to Fee
• § 24.05 Primary Lease Clauses
• § 24.06 Other Important Lease Clauses
• § 24.07 Summary of Practice Pointers

Chapter 25. MASTER AGREEMENTS FOR OVER-THE-COUNTER DERIVATIVES

• § 25.01 Scope Note
• § 25.02 General Criteria for OTC Derivative Transactions
• § 25.03 Bankruptcy Code Safe Harbor
• § 25.04 The ISDA Master Agreement and Schedule

Chapter 26. AGREEMENTS FOR THE SALE OF GOODS

• § 26.01 Scope Note
• § 26.02 The Reach of Article 2: What Constitutes “Transactions in Goods”?
• § 26.03 The Process of Contract Formation
• § 26.04 Contract Construction Under Article 2
• § 26.05 Seller’s Warranties
• § 26.06 Drafting Effective Disclaimers and Limiting Remedy Clauses
• § 26.07 Risk of Loss
• § 26.08 Sample Sale of Goods Agreement

Chapter 27. GOVERNMENT CONTRACTS

• § 27.01 Scope Note
• § 27.02 Comparison to Commercial Contracting
• § 27.03 Socioeconomic Considerations
• § 27.04 Basic Considerations of Government Contracts
• § 27.05 The Federal Acquisition Process
• § 27.06 Federal Contract Terms and Conditions: Noncommercial Item Contracts
• § 27.07 Commercial Item Contracting
• § 27.08 Standard FAR Solicitation Provisions and Contract Clauses
• § 27.09 Standard FAR Forms
• § 27.10 Glossary of Acronyms

Chapter 28. SETTLEMENT AND RELEASE

• § 28.01 Scope Note
• § 28.02 Creating a Valid Settlement Agreement or Release
• § 28.03 Construction and Operation of Settlements and Releases
• § 28.04 Settling with Joint Wrongdoers
• § 28.05 Grounds for Invalidation
• § 28.06 Settlement of Arbitrations
• § 28.07 Suggested Language

Table of Cases

Table of Statutes

Index

Vladimir R. Rossman

Vladimir R. Rossman, General Editor of this second edition is a member of the New York and federal bars. Mr. Rossman is a retired partner of Shearman & Sterling (where he practiced in its New York office and, at intervals, in its Paris, Hong Kong and Singapore offices), and a former partner of McDermott Will & Emery. He specializes in U.S. and cross-border bank finance, debt and asset restructurings, and workouts. He is co-chair of the Corporation Law Committee of the New York County Lawyers’ Association and a member of the Working Group on Legal Opinions, and he was Senior Survey Editor of The Business Lawyer. From 1969 to 1977, he taught in Columbia University’s Department of French & Romance Philology, rising to the rank of Assistant Professor.

Mr. Rossman holds a J.D. from Columbia U. Law School, and a Certificate in Foreign Law from Columbia’s Parker School of Foreign and Comparative Law. He also holds an M.A. and a Ph.D. from Columbia’s Graduate School of Arts & Sciences, a B.A. From Columbia College, and a Diploma from Juilliard School.

Mr. Rossman was a Woodrow Wilson Fellow, a Columbia University Presidential Fellow, and a member of Phi Beta Kappa. He was listed, at various times, in “Leaders in Their Field” (Chambers Global and Chambers USA).

Morton Moskin

Morton Moskin, general editor of the first edition of this treatise, was a partner in the law firm of White & Case for 33 years until his retirement at the end of 1994. He joined the firm as an associate in July of 1950 immediately following his graduation from Cornell Law School, where he was a member of the Cornell Law Quarterly. His practice encompassed a broad range of corporation law specialties, including corporate finance, securities law, banking, and mergers and acquisitions. He advised public and private companies and counseled their boards and board committees, and, in 1993, the Ministry of Privatization of the Russian Federation, in respect of aspects of corporate governance, shareholders’ rights, and regulatory concerns.

Involved throughout his career in activities related to the legal community, he participated in the Section of Business Law of the American Bar Association’s revision of the Model Business Corporation Act Annotated (3rd Edition) and in the production and publication in 1991 of that Section’s Third-Party Legal Opinion Report. He served as a member of the Editorial Review Group for that Report. He was for many years, Co-Chairman and, until June 1995, Chairman of the TriBar Legal Opinion Committee. A member of New York County Lawyers’ Association’s Board of Directors he formerly chaired its Committee on Corporate Law and was a member of its Legal Ethics Committee and served as Chairman of White & Case’s Ethics Committee. He lectured and wrote in his areas of specialization for local bar associations, the International Bar Association, the Practicing Law Institute and other groups.

Mr. Moskin also served on boards of directors of public and private and not-for-profit corporations. He continues to serve on the boards of various charitable not-for-profit entities. He was Secretary of a publicly traded real-estate investment trust organized under Massachusetts law and President of several foundations and communal service organizations. He was for over 25 years a board member of a Fortune 400 company incorporated in New York that does business on a global basis. He chaired that corporation’s Executive Committee and was Chairman of its Corporate Governance Committee when, in 1995, the company’s board was selected as the first “Board of the Year” for foresight in governance issues and practices in a competition conducted by The Wharton School and Spencer Stuart, Incorporated.

Mr. Moskin was the author of Chapter 1, Matching the Client’s Needs with the Practicalities of the Business Law Environmentand of Chapter 21, Corporate Governance of the Public Corporation; Advising the Board of Directors in the first of this treatise, as well as the co-editor of the Transactional Lawyer’s Deskbook: Advising Business Entities.