A Letter of Intent expresses preliminary terms for a potential transaction, outlining intent before formal contracts. This playbook clarifies binding vs. non-binding provisions and confidentiality obligations.
Why This Matters: Inaccurate or overly broad reps can expose a party to unexpected liability and undermine transaction integrity.
Negotiation strategy
If you're the Buyer:
Ensure all representations are accurate and include knowledge qualifiers to limit liability. Define clear survival periods for each representation.
If you're the Seller:
Disclose any exceptions to representations and warranties in a detailed schedule. Negotiate survival periods that align with your risk tolerance.
Essential elements
1
Accuracy of Representations
Ensure all statements are true.
2
Knowledge Qualifier
Limit liability to actual knowledge.
3
Survival Period
Define duration post-closing.
Action framework
ACCEPT
Propose edits if representations are too broad or lack necessary qualifiers.
EDIT
Reject if representations are inaccurate or impose undue risk.
ADD
Add clauses for exceptions and material adverse effects.
PRO TIP
Always align representations with actual business practices and ensure they are backed by documentation.
Example clauses
FAVORABLE
Comprehensive Accuracy Clause
"Each party represents and warrants that all statements made in this Agreement are true and accurate as of the date hereof and will be true and accurate as of the closing date, except as otherwise disclosed in writing to the other party."
NEUTRAL
Standard Knowledge Qualifier
"Where any representation or warranty is qualified by the expression 'to the best of its knowledge' or any similar expression, it shall be deemed to refer to the actual knowledge of the party making the representation or warranty, after due inquiry."
UNFAVORABLE
Vague Survival Terms
"All representations and warranties shall survive indefinitely without clear terms."
Fallbacks
High-Risk Transactions
In high-risk transactions, ensure representations are detailed and include robust survival periods to mitigate potential liabilities.
Cross-Border Deals
Consider jurisdictional differences in representations and warranties, especially regarding knowledge qualifiers and survival periods.
Tech Industry Specifics
In tech deals, focus on IP representations and ensure they are comprehensive and accurately reflect the company's assets.
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