“In Furtherance of the Foregoing”

Remember without limiting the generality of the foregoing? (See MSCD 13.763–70 and this 2006 post.)  Well, allow me to introduce you to its equally evil twin, in furtherance of the foregoing.

They serve the same function, to the extent they can be said to perform any function. In fact, they’re sometimes conjoined: in furtherance of the foregoing and not in limitation thereof. Ay caramba!

Just as there’s always a better alternative to without limiting the generality of the foregoing, there’s always a better alternative to in furtherance of the foregoing. But what that is depends on the context. Simply deleting it might be the best fix. Or some creativity might be in order.

Below are four examples from EDGAR featuring in furtherance of the foregoing. In the first two, I’d delete in furtherance of the foregoing. As for the two that follow, in furtherance of the foregoing is the least of their problems—they need a complete rewrite.

The Parties acknowledge that the indemnification provisions hereof do not relieve any insurer who would otherwise be obligated to pay any claim to pay such claim. In furtherance of the foregoing, the Indemnitee shall use commercially reasonable efforts to seek to collect or recover any Insurance Proceeds and any Third Party Proceeds … to which the Indemnitee is entitled in connection with any Loss for which the Indemnitee seeks indemnification pursuant to this Section 7 …

The Administrator shall prepare for execution by the Issuing Entity or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Issuing Entity or the Trustee to prepare, file or deliver pursuant to such documents. In furtherance of the foregoing, the Administrator shall take all appropriate action that is the duty of the Issuing Entity or the Trustee to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):

In order to facilitate planning for the integration of the operations of the Partnership Business and the Argon Business and to permit the coordination of their related operations on a timely basis from and after the Closing, and in an effort to accelerate to the earliest time possible after the Closing the realization of the benefits expected to be realized as a result of the transactions contemplated hereby, Blackstone and the Founder, in addition to the matters set forth in Section 6.3(b), shall consult on strategic and operational matters relating to the integration of the Partnership Business and the Argon Business, including with respect to matters attendant to Argon HoldCo being a publicly traded corporation following the Closing, in all cases only to the extent such consultation is not in violation of Applicable Law. In furtherance of the foregoing, between the date of this Agreement and the Closing Date, (i) Blackstone shall, subject to applicable confidentiality and regulatory restrictions, inform the Founder prior to the financial and strategic advisory businesses of BAP entering into a new executory engagement letter or any other similar or related type of agreement that would constitute part of the Argon Business, and (ii) the Founder and Blackstone will consult with each other periodically or otherwise establish appropriate procedures to assess, in a manner that comports with Applicable Law and any applicable confidentiality obligations of the parties, whether any actual or potential conflicts of interest could arise from entering into new client engagements, and in the event such an actual or potential conflict is identified, the Founder and Blackstone shall use their respective reasonable best efforts to prepare an integration plan to resolve such actual or potential conflict.

Except for the representations and warranties contained in Article IV, Parent and Merger Sub acknowledge and agree to the Company’s express disavowal and disclaimer of any other representations and warranties, whether made by the Company or any other Person on behalf of the Company, and of all liability and responsibility for any representation, warranty, projections, forecasts or other material made available to Parent or Merger Sub, including any opinion, information, projection, forecast or other information that may have been or may be provided to Parent or Merger Sub by any director, officer, employee, agent, consultant or other Representative of the Company or any of its Affiliates. In furtherance of the foregoing, and not in limitation thereof, Parent and Merger Sub specifically acknowledge and agree that none of the Company or any of its Subsidiaries or Affiliates makes or has made any representation or warranty, express or implied, with respect to any financial projection or forecast delivered to Parent or Merger Sub with respect to the performance of the Company or any of the Company’s Subsidiaries either before or after the Closing Date.

About the author

Ken Adams is the leading authority on how to say clearly whatever you want to say in a contract. He’s author of A Manual of Style for Contract Drafting, and he offers online and in-person training around the world. He’s also chief content officer of LegalSifter, Inc., a company that combines artificial intelligence and expertise to assist with review of contracts.