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Guidelines And Negotiating Conditions Precedent

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[The Credit Agreement] [The Loan] 1. Conditions Precedent to Funding 2. Drafting and Negotiating Conditions Precedent (Credit Agreement) The conditions precedent section of a credit agreement sets out the requirements that must be met before the credit agreement becomes effective and loans can be funded. One of the most fundamental tensions in a financing transaction is between the lender’s need to mitigate the risk that its loans will not be repaid and the borrower’s need for certainty that the lender will fund the loans as agreed. This tension plays out in the drafting and negotiation of the conditions precedent, where the borrower typically seeks to minimize the scope and number of conditions and the lender typically seeks to preserve its options not to fund if it discovers information that changes the risk profile of the transaction. Depending on how the loans are structured, the conditions precedent can take several different forms, but are generally drafted as one article of a credit agreement broken into two sections that respectively cover the condition for the initial closing and any subsequent borrowings. Alternatively, if only one borrowing is possible under a facility, only one conditions precedent section is needed (i.e. no revolving facility or future incremental availability). See Sample Provisions: Conditions Precedent to Credit Extensions (Credit Agreement) [ADD LINK] for an example of how these provisions operate in the context of a syndicated

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