An important question in the context of many conditions is what would be required to have it satisfied (or prevent it to be fulfilled). I will briefly touch upon this and furthermore address the transaction related practice of ‘closing agendas’.
Satisfaction of the conditions (and closing agenda). After signing the agreement, the closing conditions must be satisfied. The question whether a condition is satisfied is after all a matter of interpretation, the scope and extent of matters or efforts required depend on what the parties (or the lawyers on their behalf) agreed.
Usually, the parties’ lawyers take the lead in identifying all work that needs to be done before completion can take place. This requires foresight, organization and attention to details. The first step is usually the creation of a “closing list” or “closing agenda”, a document or spreadsheet listing all of the (closing) conditions in each of the transaction documents, as well as all actions on the closing agenda. In the table, for each item ownership (i.e., responsibility) is allocated, the current status and the action required from time to time. This closing agenda is a roadmap to closing and neither a negotiation document nor a document that requires drafting skills. It is typically shared openly amongst all the lawyers involved in the transactions. Despite the typical lack of professional project management skills of a lawyer, the lawyers involved in the transaction take a lead and take care of satisfaction of the conditions and the fulfilment of all other actions required for closing. At the closing the closing schedule or action list serves as the guide to tick off each closing document.
