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COVID-19 and Executing Contracts at Home, Force Majeure Considerations, and MAE Clauses in M&A Transactions

The devastating impact of the Coronavirus (COVID-19) needs no introduction.  BCLP has consolidated all of its client alerts regarding Coronavirus (COVID-19) as one page of resources. On that page, you can also limit by topic area, jurisdiction and areas of practice.

In this post, we have highlighted some of the client alerts that we believe may be of specific importance to our community bank clients.

Executing U.S. Contracts While Working from Home

Now that many of us are working from home and social distancing, can we still close deals in the US with signed agreements? Are electronically signed contracts really enforceable? Fortunately, most contracts can be entered into electronically without the need to print the agreement and sign it with a pen. This alert discusses the Uniform Electronic Transactions Act, the Federal Electronic Signatures in Global and National Commerce Act, and advises parties how to use readily available services to create legally enforceable contracts with electronic signatures. 

Force Majeure and COVID-19: Considerations for Businesses in the U.S.

In light of the COVID-19 pandemic, many parties are questioning whether their performance of a contract may be excused under a force majeure clause. Force majeure refers to a contractual defense under which a party may be relieved from liability for non-performance if unforeseeable circumstances beyond the party’s control prevent or delay the party from fulfilling its obligations under a contract. This alert outlines the key questions for a force majeure analysis, analyzes the implications of invoking force majeure, and discusses its interaction with insurance coverage.

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Enforceability of PDF Signature Pages

Many loan transactions are closed today with parties delivering to the lender or lender’s counsel an e-mail with scanned PDF copies of signed loan documents. Increasingly often, the original “wet ink” hard copy paper document never makes it to the lender. This is especially true for documents signed by parties other than the borrower, such as a landlord lien waiver.  After the fog has cleared from a closing, a loan officer may call to ask if she really needs to chase down the original document or if having the PDF copy in the loan file is sufficient. Putting aside any internal bank policy requiring original documents, what the loan officer really wants to know is whether that PDF received by e-mail is enforceable against the other party in a court of law.  The answer is probably yes.

Recognizing that business in today’s world is often conducted at least partially electronically, forty-seven states have adopted the Uniform Electronic Transactions Act (UETA) to facilitate electronic commerce. The three states that have not adopted the UETA, Illinois, New York, and Washington, have adopted other statutes allowing for the enforceability of electronic signatures and records. The UETA acts as an overlay statute to clarify requirements for originals or signed writings in other laws. UETA gives electronic records such as scanned PDFs of signed documents the same legal effect as paper records. For example, Section 7 of the UETA provides that an electronic record will satisfy another law’s requirement that a record be in writing.  With respect to evidentiary rules, Section 13 of the UETA states that a record may not be excluded from evidence solely because it is in electronic form.

For the UETA to apply to a transaction, the parties to that transaction must agree to conduct business electronically.  The good news is that this requirement can be satisfied informally and can be inferred from the parties’ conduct. Going back to the landlord waiver scenario, the parties agreed to conduct business electronically when the landlord e-mailed a PDF of the signed waiver to the lender and the lender accepted that PDF for closing. Despite the ability to infer an agreement to apply the UETA, it is good practice to include language in loan documents providing that delivery by PDF is the same as delivery of a paper original or otherwise opting in to UETA.

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