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RWI? If not, assuming DE, does the doc have anti-sandbagging language?
If no RWI and no sandbagging provision (provision where the buyer knows or should have known about other data/ document…)
F ‘em… let them blow the rep. I just worked all thanksgiving because of this exact issue and will forever be jaded
Is there another rep that seller has not breached any of the material contracts on the schedule? There usually is. If so, then you want as many things on there as possible as buy-side counsel.
The material contract breach rep should be written to say that no contract on the schedule **or required to be disclosed on the schedule** has been breached.
There is some advantage, I suppose. But in almost every deal I’ve worked on (quite a few now), it’s just kind of an understanding among attorneys on both sides that you work together to get the schedules right. If there’s an anti-sandbagging then there isn’t any benefit. I guess you could say your client didn’t know and therefore the sandbagging doesn’t apply, but if there’s an MFN that’s something you should definitely tell the client.
It’s not complicated. Don’t bring to attention of OC things that are beneficial to your client that OC hasn’t clocked. Do tell your client this may come up later.
Source: Am client
Main benefit to client is saving billable hours by you. Would just flag it to opposing counsel and get the good will and lawyer points, but no need to do their job for them. We clean up sellers schedules all the time and if the file is in the VDR and you reviewed it/didn’t flag your argument is much weaker if you are trying to make a claim against any damages for it. Depends on the rep that’s made, whether it’s knowledge qualified, whether you can show seller knew, whether the MFN actually results in costs, whether the amount exceeds the materiality threshold for claims/is recoverable against an escrow, etc.
If the MFN is material, just use it as a chip against purchase price. Don’t be a prick.