Exhibits, Schedules, and Addenda – the “Encores” to a Contract

Encores in classical music began in the 18th century as an informal and impromptu extension of a performance, driven by the audience’s desire to hear more from the performer. If a piece or performance segment was well-received, the applause and calls for “encore,” meaning “again” in French, would encourage the musician to return to the stage and perform an additional piece.

By the late 19th and early 20th centuries, encores became more formalized. With the rise of the virtuoso performer, audiences came to expect encores as showcases of the artists’ technical prowess and musical versatility. Performers carefully selected encores as planned add-ons to complement the main program.  

In the mid to late 20th century, concert programming became even more structured. Although encores were less spontaneous, they remained a beloved part of the classical concert tradition that helped musicians connect with their audiences.

In contemporary classical music, performers use encores to display their technical skills and introduce audiences to new or lesser-known works to broaden the concert repertoire and enrich the audience’s musical horizons. Building on the jazz tradition, some musicians use encores as a platform to engage more directly with the audience, offering brief remarks or explanations about the piece they are about to perform.

For instance, in 2013, violinist Anne-Sophie Mutter added a unique touch to her concert with the Berlin Philharmonic when following a program of classical masterpieces, played John Williams’ “Theme from Schindler’s List” as her encore. This emotionally charged piece from the 1993 movie about a Jewish woman during the Holocaust demonstrated Mutter’s ability to convey deep emotion through her instrument and left the audience with a powerful and memorable conclusion to the concert.

In 2018, after classical cello works, YoYo Ma delighted the audience with a spontaneous rendition of the traditional Appalachian folk tune “Shenandoah.” This encore reflected Ma’s cultural appreciation and connected deeply with the American audience at the Kennedy Center.

Like concerts, contracts may have add-ons, such as exhibits, addendums, or schedules, after the signature page at the end of the contract, which serve different purposes. This article discusses how best to use exhibits, addenda, schedules, and other add-ons to contracts.

Common Contract Add-Ons

Exhibits, addenda, and schedules all can be attached to contracts. They should be agreed to before the contract is signed.

With commercial real estate contracts, there’s a common practice of signing the contract and agreeing to agree on the exhibits and schedules later. I don’t favor that practice. I’ve seen many contracts with missing exhibits or schedules because the parties forgot to add them later. Plus, the parties might not be able to agree on the content of those exhibits later. 

Amendments differ from Exhibits, addenda, and schedules. Amendments are usually negotiated and signed after the contract.

Sometimes, add-ons that function as amendments are labeled as addenda. To avoid misuse of contract add-ons parties must understand and focus on the unique purpose of each.

Exhibit

An exhibit is an additional document attached to the end of a lease or contract. An exhibit frequently will include form documents ancillary to the main contract, such as agreed-upon closing documents attached to a real estate purchase contract or documents a tenant must sign, such as a lease guaranty.

Sometimes, exhibits are used to expand upon the information in the contract. For instance, a real estate legal description or a list of personal property might attached as an exhibit to a real estate purchase agreement to clarify what property is the subject of the contract.  

Exhibits rarely add additional obligations for the parties. Therefore, they usually should not be signed. Best practices are to incorporate the exhibit into the contract.

Schedule

Like an exhibit, a schedule is attached to the end of the contract. There is an overlap between how exhibits and schedules are used. However, schedules frequently include lists or other information that would clutter a contract and are easier to read in a list or tabular format.

For instance, a real estate purchase contract might include a schedule showing existing leases, rent, and arrearages, which the seller represents as accurate. A schedule to a lease might consist of a list of known problems with the property and repairs the landlord has agreed to make. And a schedule to a service contract might consist of a price list or a list of services to be provided.

Schedules should be agreed to when the contract is signed but generally need not be separately signed. Since schedules include information essential to the contract, the contract should state that schedules are incorporated into it.

Addendum

Like exhibits and schedules, an addendum is also attached to the end of a lease or contract. Unlike exhibits, addenda typically add to the parties’ obligations under the agreement. Since addenda aren’t always agreed to when the contract is signed and because they add to the parties’ obligations, the parties should sign them.

For instance, when a tenant under an apartment lease has a pet, they often sign a “pet addendum” which requires the tenant to agree to clean up after their pet and pay an extra pet deposit or fee. Also, when parties have a master agreement outlining a long-term business arrangement, they may sign an addendum to describe specifics for jobs or goods being provided under that contract.

Where the parties sign a pre-printed form contract, the parties might sign an addendum that changes and supersedes the pre-printed language. For example, residential real estate purchase contract usually are written on pre-printed forms. The parties may add an addendum to the contract contingencies or other requirements not addressed in the pre-printed form.

Amendment

Amendments change the parties’ obligations after the contract or lease is signed. Amendments need not be attached to the contract and should be signed separately. An amendment should refer to specific sections of the contract or lease being amended and explain how those provisions are being changed.

Selecting the Proper Contract Add-On

It’s essential to select the correct type of “add-on” for a contract based on its purpose. However, it’s even more important that the “add-on” be adequately referenced in the contract and contain the content necessary to achieve the parties’ intent.

Parties should be on the lookout for these common errors in contract “add-ons,” which may result in the contract not reflecting the parties’ intentions:

Missing or Blank Exhibits or Schedules

Parties may reference an “add-on” in the contract but forget to attach it. When drafting contracts, I usually include a blank placeholder page with a heading identifying each exhibit and schedule to remind myself to finalize those add-ons before the contract is signed. Another strategy is to include a list of necessary exhibits or schedules at the end of the contract. 

However, neither strategy is foolproof. Parties still may sign the contract without attaching the exhibits or schedules first, which can create ambiguity about the parties’ intentions.

It’s a common (and in my opinion, undesirable) practice for parties to sign a real estate purchase contract intending to add the exhibits or schedules later. This practice is common when the exhibits or schedules include information the parties don’t know when the contract is assigned. For example, real estate purchase agreement exhibits may list title exceptions or carveouts from the seller’s representations based on a not-yet-ordered title or environmental report.

I try to avoid that practice because it’s easy to forget they need to complete the necessary “add-ons.” Plus, there’s no guarantees that the parties will be able to agree to them later.

Instead, if the parties aren’t expected to agree to exhibit or schedule contents until after the contract has been signed, the contract should include a covenant that the parties will agree upon that information by a fixed date. The contract also should describe what will happen if the parties can’t agree.

Typically, failure to agree won’t be a breach of the contract, but it should permit the parties to terminate the contract. However, if a party knows they can trigger termination by refusing to agree to an exhibit, they may refuse to accept an exhibit on a trivial basis if they want to terminate the agreement for reasons that otherwise wouldn’t be permitted.

Failing to Incorporate Exhibits, Schedules, or Addenda by Reference

Exhibits, schedules, and other documents separate from a main contract or lease may not be part of that contract unless they are incorporated by reference into the contract. Many parties address this concern by including blanket language that says that “all exhibits, schedules, and addenda to this contract are incorporated by reference into this contract as if fully set forth herein.”

However, sometimes, the exhibits should not be incorporated into the contract. For instance, when parties combine and supersede several existing contracts, an exhibit might include complete copies of the previous contracts. However, incorporating those contracts into the replacement could be interpreted as a reaffirmation the contract provisions the parties are trying to replace.

If the entire text of the old contracts is incorporated into the new contract, a merger clause (which states that the new contract supersedes the old contracts) might not serve the intended purpose. If the new contract is to replace the old contracts, incorporating the old contracts’ entire text into the new contract could create ambiguity regarding what’s being changed. To address this, parties can carve items in former contract versions out of the merger clause or not include former versions in the current contract.

Signing Exhibits

Frequently, exhibits are made up of prearranged forms or papers that are signed at a later time. For example, forms of the closing documents often are attached to a real estate contract. Loan documents for a mortgage, where the money is to be drawn down over time, may include a draw request form as an exhibit.

Frequently, parties signing a contract flip through the contract and sign every signature line–even those on the exhibits. This results in exhibits being signed before it is appropriate to do so. Although most contracting parties are honest, if a party inadvertently signs an exhibit, the signature could later be attached to a document the parties haven’t approved. Fortunately, many contracts now are signed via online electronic platforms, which enables the attorney who prepared the contract to identify where the parties should sign (and prevent them from signing where they should not). 

Contract Encores

Performers use encores to connect with the audience through a new musical message or by introducing new songs to their repertoire. When used correctly, contract “encores” and “add-ons” likewise can improve communication between contracting parties regarding their intentions.

© 2024 by Elizabeth A. Whitman

Any references clients and their legal situations have been modified to protect client confidentiality.

DSCLAIMER: The content of this blog is for informational purposes only and does not provide legal advice to any person. No one should take any action regarding the information in this blog without first seeking the advice of an attorney. Neither reading this blog nor communication with Whitman Legal Solutions, LLC or Elizabeth A. Whitman creates an attorney-client relationship. No attorney-client relationship will exist with Whitman Legal Solutions, LLC or any attorney affiliated with it unless a written contract is signed by all parties and any conditions in such contract are satisfied.