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A condition which delays the vesting of a right until the beginning of an event.
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Drafting a building contract/schedule of amendments—checklist Once the procurement route and form of building contract has been selected (see Practice Note: Choosing the right procurement method—construction projects) the employer should consider the following matters and incorporate the appropriate drafting in the building contract particulars and schedule of amendments. This Checklist assumes that the parties are using a standard form of building contract, such as a JCT form, and that the employer is proposing the first draft including the completed contract particulars and a schedule of amendments, which amends the standard terms. This list is not exhaustive, however, and there may be other project specific matters/risks that need to be taken into account: Contractual matters • Carry out due diligence on the contractor The employer needs to carry out due diligence on the contractor at the outset to determine whether its financial position is acceptable. Confirm the contractor’s company number and name at Companies House. • Obtain consultants’ details Confirm the full details of the consultants engaged by the employer; some...
Intellectual property due diligence in asset purchase transactions—checklist This Checklist has been drafted for use by the buyer and is designed to highlight issues commonly arising, and key questions that should be asked, when undertaking due diligence in the course of an asset purchase transaction, where a buyer is acquiring a business in its entirety or specific business assets. This focuses on IP assets and rights aspects of the transaction and is intended to be used in conjunction with due diligence enquiries in other areas such as IT and as to financial position. For information about the corporate aspects of such transactions, see: Asset purchase agreement—overview. For further information, see Practice Notes: • IP issues to consider in asset purchase contracts • Buying a software business—key considerations • Corporate transactions for technology lawyers • Asset purchase transactions—IP issues—checklist For example agreements, see Precedents: • IP due diligence questionnaire • Assignment of intellectual property rights (asset purchase) (long form) • Assignment of intellectual property rights (asset purchase) (short form) • Intellectual...
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This Practice Note considers the meaning and use of conditions precedent in commercial arrangements. It also considers typical conditions precedent and drafting issues.What are conditions precedent?A condition precedent in a commercial contract details an event which must take place before:•a contract, or•a party’s obligation(s) under a contractcomes into force. The contract, or the relevant obligation, does not become binding until the condition has been satisfied.In Nautica Marine Ltd v Trafigura Trading LLC, the judge distinguished between a ‘pre-condition’ to contract (which has the effect of preventing a contract coming into existence altogether) and a ‘performance condition’ (which does not prevent a binding contract coming into existence, but which if not satisfied means that performance does not have to be rendered). While each case will depend on its own individual facts and commercial context, an important determining factor is whether satisfaction of the condition depends on the decision of a contracting party or a third party. A condition is more likely to be a pre-condition than a performance condition where it...
In financing transactions, conditions precedent are the conditions that need to be fulfilled for funding to occur.This Practice Note explains:•the nature of conditions precedent•the different types of conditions precedent (ie documentary or factual)•what needs to be taken into account when determining whether the conditions precedent have been satisfied, and•what happens if the conditions precedent are not satisfiedThis Practice Note looks at the usual conditions precedent in a finance transaction at the time of:•first drawdown, and•future drawdowns throughout the life of the facilityWhere appropriate, this Practice Note highlights relevant provisions in Precedent: Facility agreement (term loan): single company borrower—bilateral—with or without security or a guarantee and the Loan Market Association (LMA) investment grade multicurrency term facility agreement (the LMA facility agreement) (available to LMA members on the LMA website).The LMA has a series of helpful user guides in the Documents & Guidelines section of its website which provide guidance on its documentation. Additionally, the Association of Corporate Treasurers (ACT) ACT Borrower’s Guide to the LMA’s Investment Grade Agreements contains useful guidance...
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Precedent signing and closing memorandum for a commercial mortgage-backed securities transaction A Signing and Closing Memorandum is required to assist the smooth execution of a complex transaction. This precedent signing and closing memorandum sets out steps to be taken in order to close a commercial mortgage-backed securities (CMBS) transaction. Additional documents or steps may be required depending on the specific transaction. [ISSUER] [CURRENCY][AGGREGATE AMOUNT] CLASS [A] NOTES DUE [•] AND [CURRENCY] [AGGREGATE AMOUNT] CLASS [B] NOTES DUE [•] (THE NOTES) SIGNING AND CLOSING MEMORANDUM 1 Parties involved in the transaction THE PARTIES Issuer [â—] Holdings [â—] Originator [â—] Arranger [â—] Manager [â—] Trustee [â—] Security Trustee [â—] Paying Agent [â—] Account Bank [â—] Cash Manager [â—] Servicer [â—] Special Servicer [â—] Swap Counterparty [â—] Liquidity Facility Provider [â—] Registrar [â—] Corporate Services Provider [â—] [Listing Agent] [â—] Listing Authority [â—] Stock Exchange [â—] [Rating Agencies] [â—] Euroclear Euroclear Bank SA Clearstream Clearstream Banking, societe anonyme Common Depositary [â—] Auditor [â—] Valuer [â—] Issuer's Counsel...
Director's certificate This is a Precedent director’s certificate for use by the borrower of a bilateral facility. . What is a director’s certificate? Delivery of an original director's certificate is usually one of the conditions precedent in a facility agreement. Conditions precedent are the conditions that need to be fulfilled for funding to occur. They are included to provide the lender with a mechanism to ensure that, before funds are lent to the borrower: • certain documentary matters are dealt with, and • certain factual circumstances exist Documentary conditions precedent The documentary conditions precedent to lending are usually listed in a schedule to the facility agreement. ). As well as an original director’s certificate, documentary conditions precedent typically include certified copies of certain documents such as: • the constitutional documents and register of members and register of directors of the borrower, any guarantor and any party providing security for the transaction (a third-party security provider) • the board resolutions of the borrower, any guarantor and any third-party security...
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To what extent do arbitral tribunals (governed by English law) apply the Halsey approach following a failure to mediate under a tiered dispute resolution clause? The English courts have imposed costs sanctions on litigating parties who have unreasonably failed to mediate and one of the leading cases in this regard is Halsey v Milton Keynes General NHS Trust. See Practice Note: Costs consequences of refusing to consider ADR in civil proceedings for, among other matters, more information on that case and how it has been interpreted by the English courts in the context of litigation proceedings. One of public policy reasons for the English court’s decision to sanction parties in costs for unreasonable refusing to mediate in litigation is that the court resources are finite and, if possible, the parties should resolve their disputes without recourse to the courts or with limited court intervention. However, it may be suggested that no equivalent public policy exists in arbitration as arbitration is a private, consensual dispute resolution procedure...
Are you aware of any case law on what is required or constitutes compliance for the purposes of clause 2.27.1 of JCT Standard Building Contract 2011? Clause 2.27.1 of the JCT Standard Building Contract 2011 (SBC) provides: 'If and whenever it becomes reasonably apparent that the progress of the Works or any Section is being or is likely to be delayed the Contractor shall forthwith give notice to the Architect/Contract Administrator of the material circumstances, including the cause or causes of the delay, and shall identify in the notice any event which in his opinion is a Relevant Event...' Lexis+® UK practical point: identical clauses are contained in the Standard Building Contract 2016 (cl 2.27.1) and the JCT Design and Build Contract 2011/2016 (cl 2.24.1), albeit that the reference to ‘Architect/Contract Administrator’ is replaced with the ‘Employer’ in the design and build contracts. There are two main issues to be considered when determining whether compliance with a notification provision such as clause 2.27.1 of the SBC...
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Local Government analysis: The Court of Appeal in Norton v London Borough of Haringey upheld the local authority’s decision regarding its discharge of homelessness duties under Part VII of the Housing Act 1996 (HA 1996). The court held that Haringey had lawfully determined that it had discharged its duty to Mr. Norton by offering suitable accommodation and that its decision-making process was procedurally fair and rational. This case is significant for housing law practitioners, particularly those advising on homelessness applications and judicial reviews of local authority decisions. It reinforces the principle that courts will not interfere with local authority decisions unless there is a clear error of law or procedural unfairness. The Court of Appeal agreed with Haringey’s case that a Housing Needs Assessment (HNA) and Personal Housing Plan is not a condition precedent to a finding that the accommodation provided was suitable. Written by Clive Adams, partner at Birketts LLP.
This week's edition of Local Government weekly highlights includes: expert analysis on the proposed reforms and implications of modernising planning committees and on the planning reform working paper on reforming site thresholds. Case reports include Norton v Haringey LBC, in which the Court of Appeal dismissed an appeal on whether a section 189A housing needs assessment was a condition precedent to determine suitability of offered accommodation under Housing Act 1996; Re H (Care Proceedings: Risk Assessment), in which the Court of Appeal considered an appeal by a LA contesting a family court decision to return a child to her mother under a supervision order; R (CY) v The Independent Review Panel of PQR Academy Trust, in which the court dismissed a judicial review claim by a child challenging the IRP decision to uphold their permanent exclusion from a secondary academy; R (Peacekeepers Foundation) v Liverpool and Knowsley Magistrates Court, in which the court ruled on a judicial review application by PeaceKeepers Foundation against a liability order issued by Liverpool City...
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