What does amended and restated mean?
Why do you need to amend and restate an agreement?
How does it actually work?
In this article, we will break down the notion of “amended and restated” in contract drafting so you know all there is to know about it!
We will look at what it means to amend and restate an agreement, why it should be done, how you do it, what type of agreements you can amend and restate, sample clauses, compare it with a standard amendment and more.
Be sure to read this entire post as we have awesome content for you!
We are super excited to begin!
Are you ready?
Let’s get started…
What does amended and restated mean
Amended and restated is a way of presenting a revised contract.
Let’s break it down into its components to better understand.
An amended agreement or “amended” means that a contract has been modified, changed or edited.
A restated agreement or “restated” means that the original contract is reproduced in full in one document.
As a result, to say that a contract is amended and restated is equivalent to saying that a contract has been modified in certain ways and the original contract along with the modifications are integrally presented to you in one single document.
Why amend and restate an agreement
Amending and restating an agreement is done for practical use, the economy of time and to reduce potential errors or even as a matter of preference.
Let me explain.
There are no set rules as to when you must amend and restate your contract.
In many cases, it comes down to a question of practical use and preference.
If you have a simple contract of one page and it only gets amended once it is lifecycle, then you don’t have to amend and restate the agreement.
It’s pretty easy to read your original contract alongside one single amendment to fully determine your legally binding obligations.
However, if you have complex commercial contracts of hundreds of pages or master agreements intended to remain in effect for many years and that may be amended multiple times over their lifecycle, you may want to track the amendments in one single document.
How to amend an agreement
Let’s look at two approaches for amending your agreements.
The first approach is to amend your contract over time as follows:
- Keep your original agreement intact
- Draft standalone amendment agreements to modify clauses and aspects of your original agreement
- Label each amendment numerically to adequate track them (example: amendment #1, amendment #2 and so on)
- In each amendment, make reference to the clause or section of the original agreement that you are amending
- Have each standalone amendment agreement signed by the parties
With a low volume of amendments, this approach may be preferred as it may appear convenient, the amendment document may require minimal effort and the process can be easily repeatable.
However, if you have multiple amendments to your contract over time, you will need to switch back and forth between your original contract and each amendment to ensure you are reading the latest expression of the parties’ intention.
This can lead to potential errors, incorporate conflicting provisions in your agreement, make the understanding of your contractual obligations more difficult and result in challenges to properly identify your effective legal obligations as of a specific point in time.
To tackle this challenge, you may want to restate and amend your contract.
Thus, as a second approach, you can:
- Make your amendments directly in your original contract
- Have the entire contract signed by the parties
- Label the contract as “amended and restated”
- Include a merger clause to repeal all past agreements
With this approach, you are presenting your original agreement in full along with your modifications.
It is more practical to have one contract capturing all your past amendments and modifications in the same restated and amended document.
How to amend and restate a contract
You may have signed a contract some time ago and it has been amended several times ever since.
You now find it difficult to read the contract as you must consider your original agreement along with all the subsequent amendments to have a good grasp of your legal obligations.
To make your life simpler, you have decided to amend and restate your contract so you can end up with one contract incorporating all past changes and amendments.
You can refer to this as an A&R Agreement (“amended” & “restated” Agreement).
Here are the steps you need to follow to draft an amended and restated agreement:
Step 1: Collect your contracts
- Read your original contract
- Track all your amendments and read all of them to ensure you fully understand your legal obligations
- Track all the exhibits, schedules and annexes to your contract
- Track any new exhibit, schedule or annex incorporated or removed through your amendment process
Step 2: Incorporate each amendment into the original contract
- Take your original agreement and incorporate the terms and conditions of each amendment in it one by one
- Include the phrase “amended and restated” in the title of your original agreement
- In your recitals, provide background information of the context for each amendment so you can easily track the evolution of the agreement
- Incorporate the amended wording and contract language into your original document
- Make any further modifications or deletions to the agreement
Step 3: Make sure to include a merger clause
- Include a merger clause (also called an integration clause) to ensure you fully repeal and replace the original contract along with all the past amendments
Step 4: Execute the restated and amended agreement
- Share the draft of your amended and restated contract with all parties for review and comments
- Share the original contract along with the amendments to facilitate the review by all parties
- Execute the amended and restated agreement
Amended and restated agreement
Contract lawyers and attorneys can amend and restate essentially any type of agreement.
Amending and restating an agreement is a process where you change certain elements of an original agreement and you reproduce the entire ‘original’ agreement along with the changes in one single document.
This process can apply to agreements such as:
- Amended and restated operating agreement
- Amended and restated shareholder agreement
- Amended and restated partnership agreement
- Amended and restated LLC agreement
- Amended and restated services agreement
- Amended and restated license agreement
- Amended and restated recitals
- Amended and restated articles of incorporation
- Amended and restated corporate bylaws
As you can see, the “amended and restated” process is a way of amending and presenting a document that can apply to virtually any agreement.
In corporate law, amended and restated documents are quite common.
Organizations may need to make changes to their certificate of incorporation, bylaws, operating agreement or other corporate documents.
To avoid having to read the original version along with the amendments side-by-side, it’s best to amend and restate them into one single document.
Amended and restated clause
Here are some sample amended and restated clauses that may be used in contracts:
The parties hereby agree to amend and restate the License Agreement. The parties further agree that the terms and conditions of the License Agreement are fully restated and replaced by the terms and conditions of the presented A&R Agreement. The terms and conditions of the License Agreement shall have no further force and effect and the parties shall be bound by the terms and conditions in the present A&R Agreement as of the Effective Date.
The Company’s articles of incorporation (“Articles”) are hereby amended and restated in its entirety (“A&R Articles”).
The parties agree to fully amend and restate the Partnership Agreement. The Partnership Agreement shall cease to be of any force and effect and the parties shall thereafter be governed in accordance with the presented Amended and Restated Partnership Agreement.
Amended and restated agreement vs amendment
An amendment or amended agreement is when you amend a contract, document or agreement where you refer to only those sections or clauses that are being amended, modified or repealed.
In a standard amendment, you do not reproduce or “restate” all the terms and conditions of the original agreement being amended.
Following the amendment, you will need to read the original agreement and the amendment side-by-side to fully grasp the legal implications of the contract as both the original agreement and the amendment continue producing legal effects.
An amended and restated agreement is when you modify the terms and conditions of your original agreement within the full body of your original agreement.
In other words, you have your entire original agreement and, embedded within it, your modifications, amendments and deletions are found.
Following the amendment and restatement of your contract, the original agreement is repealed and fully replaced with the amended and restated agreement.
Amended and restated FAQ
What is the effect of an amended and restated agreement
When you amend and restate an agreement, typically the legal effect is to replace all prior agreements between the parties and replace them with one single document providing an up-to-date view of the parties’ legal obligations.
What is the effect of an amendment
When you amend an agreement without restating it, your original agreement remains in full force and effect and must be read in conjunction with each amendment.
In other words, both the original agreement along and each amendment are legally binding and must all be read as a whole.
Is there an amendment and restatement rule
There are no set rules for when an agreement must be amended and restated.
Typically, you may want to amend and restate a document when:
- There are too many amendments and modifications making it difficult to read the main contract along with its subsequent amendments
- Further amendments to a contract can lead to confusion
- You are afraid of introducing contradictory obligations in your contract
- For the sake of simplicity and ease of reference to the contract
- To ensure clarity so the parties know what are the applicable terms and conditions
Articles Recommended For You!
If you enjoyed this article on the ‘amended and restated’ phrase, we recommend you read the following articles that you may equally enjoy: