Cross-Referencing … To a Sentence?

Some of my hard-core readers have probably grown disenchanted with this blog. “Oooh, Mr. Globetrotter went to Denmark!” “Oooh, Mr. Fancypants is doing the artificial-intelligence thing!”

Well, I still got it, bitchez.

Courtesy of Fabian Schäfer, SAP’s Chief Expert in Legal Information Management, check out the following (emphasis added):

AFFILIATE shall mean a corporation, company or other entity, now or hereafter, directly or indirectly, owned or controlled by, or owning or controlling, or under common control with by one of the PARTIES, but such corporation, company or other entity shall be deemed to be an AFFILIATE only so long (subject to sentence three (3) of this definition) as such ownership or control exists. For purposes of this definition “control” of a corporation, company or other entity shall mean to have, directly or indirectly, the power to direct or cause the direction of the management and policies of a corporation, company or other entity, whether (i) through the ownership of voting securities entitling to the right to elect or appoint, directly or indirectly, the majority of the board of directors, or a similar managing authority, (ii) by contract or (iii) otherwise. For a period to be agreed upon (but if so required by ACME not being more than one year), any company, business or business unit which is acquired by, merged into or divested by ACME or a ACME AFFILIATE during the term of this AGREEMENT, notwithstanding the fact that such entity might not meet the criteria of “control” set forth by sentence 1 of this definition for the period to be agreed upon.

What, Fabian asked, do I think of cross-referring not to a section, but to a sentence within a section?

I hadn’t thought of that before. *stunned look on face* It’s certainly a commonplace practice. Here are some examples trawled from Edgar:

“outstanding,” when used with reference to Notes, shall, subject to the provisions of Section 8.04, mean, as of any particular time, all Notes authenticated and delivered by the Trustee under this Indenture , except: … Notes repurchased by the Company pursuant to the penultimate sentence of Section 2.10.

Subject to the provisions of the last sentence of this Section 13(b) and of Section 13(c) below, the Company shall have the right to defend Indemnitee in any Proceeding which may give rise to indemnification hereunder; provided, however, that the Company shall notify Indemnitee of any such decision to defend within 15 calendar days following receipt of notice of any such Proceeding under Section 13(a) above.

Each Borrower unconditionally and irrevocably agrees that, in connection with any Letter of Credit issued for the support of any Subsidiary ’s obligations as provided in the first sentence of this paragraph, such Borrower will be fully responsible for the reimbursement of LC Disbursements in accordance with the terms hereof, the payment of interest thereon and the payment of fees due under Section 2.12(b) to the same extent as if it were the sole account party in respect of such Letter of Credit (such Borrower hereby irrevocably waiving any defenses that might otherwise be available to it as a guarantor or surety of the obligations of such Subsidiary that is an account party in respect of any such Letter of Credit ).

You can even cross-refer to less than a complete sentence:

During the term of this Agreement , subject to the proviso in the final sentence of this Section 3.C, the Executive shall receive the following benefits (together, the “Other Benefits”): …

And how about this, from a 293-word sentence:

… equal to the sum of (a) eighty-nine and nine tenths percent (89.9%) of the aggregate Property Cost for the Construction Period Property (excluding any such Property Cost with respect to which a Full Recourse Event of Default exists, which is fully recoverable as referenced in the first parenthetical phrase of this Section 5.4), exclusive of …

So what do I think of this sort of cross-reference? Well, you do what you gotta do, but having to count sentences is a real imposition. I’d have thought that in most circumstances you could avoid this sort of thing by being adroit in how you tell the story and how you divide up text.

For example, here are three alternatives to the cross-reference in the first extract above (after the definition Fabian provided):

• It might be worthwhile creating a defined term—Purchased Notes?—to avoid having to say “Notes repurchased by the Company pursuant to the penultimate sentence of Section 2.10,” even if you use the defined term only once.

• But it would be simpler to cross-refer to the entire section. Only one sentence provides for the company to repurchase notes, so it’s not as if referring to the entire section might create confusion.

• But if you cite the entire section, you force the reader to read the entire section if they wish to read the part that relates to the section containing the cross-reference. The reader-friendly thing to do would be make the part in question its own subsection.

But here’s the kicker: The sentence of section 2.10 that provides for the company to repurchase notes (“… the Company may … repurchase Notes in the open market or otherwise …”) is the #@$%^& second sentence, not the third (and penultimate) sentence. (Go here for a copy, if you wish to check for yourself. It’s an indenture dated 28 June 2018, with Wright Medical Group, Inc. as the issuer and The Bank of New York Mellon Trust Company, N.A., as trustee. Hi guys.)

So perhaps the best reason not to cross-refer to sentences is that in a draft that’s being negotiated, cross-references to sentences can become inaccurate. It’s unrealistic to expect harried outside counsel, or anyone else, to think to count sentences one last time before preparing the final version. And as Fabian mentioned to me, it’s hard to conceive of this sort of cross-reference ever being automated.