The phrase among other things is usually benign, because usually it’s used to refer to something treated fully elsewhere—for example, in the same contract (the first example below) or in another contract (the example under it).
Attached as Appendix A is an amended and restated Schedule B to the Subadvisory Agreement setting forth, among other things, the fee that the Adviser will pay the Subadviser with respect to each of AMG River Road Long-Short Fund and AMG River Road Select Value Fund pursuant to Section 2(a) of the Subadvisory Agreement.
WHEREAS, the Borrowers , the Administrative Agent and the Lenders have agreed to enter into the Floorplan Credit Agreement , subject to, among other things, a condition that the parties amend and restate the Existing Guaranty Agreement as provided herein; and …
But sometimes among other things is used in an open-ended way, leaving the reader to wonder exactly what other things are included. Here’s one example in which among other things is just one of the problems:
“Reasonable Efforts” means, among other things, that the Company shall submit to the SEC, within two business days after the Company learns that no review of a particular Registration Statement will be made by the staff of the SEC or that the staff has no further comments on the Registration Statement, as the case may be, a request for acceleration of effectiveness of the Registration Statement to a time and date not later than 48 hours after submission of that request.
And here’s another example:
Each Letter of Credit shall, among other things, (i) provide for the payment of sight drafts or other written demands for payment when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have an expiry date not later than twelve (12) months after such Letter of Credit ’s date of issuance, extension or renewal, as the case may be, and in no event later than twelve (12) months after the Scheduled Termination Date.
With respect to each of those examples, my concern isn’t so much that among other things could be used by a disgruntled contract party to drag something unexpected into a provision. I think it’s clear that among other things is used in this context to say, “Here’s the stuff we care about enough to mention specifically.” But I think there are less loosey-goosey ways to accomplish that. What it might look like depends too much on the circumstances of the deal for me to attempt to revise these two examples.
7 thoughts on ““Among Other Things””
‘Among other things’ is always open-ended, like ‘including without limitation’. In the ‘reasonable efforts’ definition, ‘among other things’ seems to mean something like, ‘whatever else ‘reasonable efforts’ require, they require filing a request with the SEC’.
You perhaps don’t understand the distinction I draw in the post.
I’ve revised the second half of my post.
I failed to get the distinction you drew in the post. Prompted (by you) to read more closely, I now understand that not all uses of ‘among other things’ are open-ended,
Open-ended uses may nevertheless be sometimes legitimate, though perhaps better phrased. The SEC example would be unobjectionable if it began ‘Reasonable efforts’ include that the Company shall submit’, no?
Prompted (by you) I pondered further my objections. Yet more pondering has me thinking that my recommendation boils down to “always use including (or includes) instead.”
I wouldn’t want to include an obligation in an autonomous definition, so I’d probably say includes the Company’s submission.
I usually only see this phrase, or its Latin equivalent, in recitals, where the recital gives a commercially helpful but legally incomplete summary of terms set out in more detail later in the document. Therefore not part of the contract and perhaps more latitude should be given.