Legal Writing and Research Communications Law

Question: 1. Hamlet Bank (Hamlet) is proposing to enter into a 5-year bilateral $500 million loan agreement with Lear Ltd (Lear) as Borrower. The loan agreement will be governed by English law and will be entered into on standard London Loan Markets Association (LMA) terms.The terms of the loan agreement include a two-year availability period (the Availability Period) permitting Lear to draw down the loan within a period of two years from the date of the loan agreement.Hamlet is concerned that circumstances may arise during the Availability Period which may make the loan much less attractive from its perspective and it seeks your advice on the terms typically included in such a loan agreement to protect the lender in the event it does not wish to satisfy a drawdown request delivered by Lear during the Availability Period. Advise Hamlet.In providing your advice to Hamlet you should consider the terms typically included in a loan agreement entered into on standard London Loan Markets Association terms. You should also advise Hamlet of the potential liabilities in the event that it fails to comply with a compliant drawdown request. 2. White Rose Bank (White Rose) is a syndicate lender in a $750 million loan (the Syndicated Loan) made available to Yorkie Ltd (Yorkie), a company incorporated in England. The Syndicated Loan was arranged by Red Rose Bank (Red Rose). Red Rose is Yorkies house bank and has made numerous loans to Yorkie over recent years. The Syndicated Loan was made available to Yorkie to finance its acquisition of Lancopia Inc (Lancopia), a company incorporated in Ruritania. That acquisition was completed shortly after execution of the Syndicated Loan. Prior to execution of the Syndicated Loan agreement, Red Rose was made aware of concerns regarding the audited financial statements of Lancopia, including a possible failure to identify material contingent liabilities in those statements. Red Rose did not pass that information to White Rose nor did it include it in the information memorandum relating to the syndicated loan.It now transpires that the quantum of the undisclosed contingent liabilities is likely to lead to the insolvency of Yorkie. Answer: Introduction The loan market of UK are controlled and regulated by the provisions provided by the London Loan Market Association. As per the loan market of UK, the borrowers are required to pay base rate of 4% on any mortgage and an interest rate of 6% on any mortgage. The assignments here highlight the facts of the two given cases considering the diverse situations, which the lenders may face within the UK loan market. The first assignment will critically analyze the situation within the term loan market where the lender may restrain from providing draw down facility to the borrower. The second part of the assignment exclusively focuses on the syndicate loan market. In this part the legal analysis of the major terms of the syndicate loan will be assessed and the final assessment will show the claiming aooprtunity in case of breach of information by the arranger in the syndicate loan. Assignment 1 Concepts and terms Common terms in loan agreement London Loan market Association that was formed in 1996 was developed in order to assist the secondary loan market in Europe and provide the necessary regulations for the loan agreements between the different banks and financial institutions. As per the terms of the London Loan market association, the following are the terms that should be present in the loan agreement. Contact addresses of the contracting parties (Lender and the borrower) Definitions and interpretation provisions Purpose of the loan Repayment provisions of the loan Prepayment and cancellation provisions of the loan Interest structure and interest payment periods Payment provisions Loan and interest calculations along with formulas Provisions on default of repayment of the loan The loan market provides the provisions for three types of loan majorly the bilateral loan, term loan and syndicate loan. The bilateral loan is the type of loan between an individual and a lender and the syndicate loan is the loan between an individual and multiple lenders. On the contrary, the term loan is the type of loan that has a specific amount and specific repayment schedule mentioned within the loan provisions. Following are the major common terms within the loan agreement LIBOR:The London Interbank Offered Rate (LIBOR) is a daily reference rate based on the interest rates at which banks can borrow unsecured funds from other banks. It is generally projected for the purposes of a loan agreement with reference to a screen rate (usually the British Bankers' Association Interest Settlement Rate for the relevant currency and period), or the Base Reference Bank Rate, which is the average rate at which the bank can borrow funds in the London Interbank Market. Thus, the LIBOR determines the interest rates within the loan market. Draw down Date: This is the specific proposed date on which the borrower wishes to avail the draw down facility. The draw down facilities are generally provided after the same has been mentioned within a draw down notice. Thus in the draw down notice the borrower will have to mention the time period during which the facility is to be availed. However, the legal provisions states that this time period should be within the availability period of the loan agreement. Draw down facility is not available after the availability period. Similarly, the borrower is nt required to pay any extra commitment fees after the availability period is over. Debt service requirements: This term is included within the loan agreement since the draw down facility is not provided for all types of services. This term specifies that the lender may agree to provide the draw down facility of the borrower is able to confirm that the advances are taken for debt services. A debt service in this respect constitutes of the financing costs of the projects. In this case, the lender may also limit the draw down facility on the grounds if the borrower is not able to produce a valid DSR proof. Availability period As per the London loan market Association, availability period in a loan agreement is the period during which the borrower may draw down a loan. During this period, the lenders are obliged to provide advance loans. During this period, the borrower is also indebted to pay a commitment fee to the lender. As per the London Loan market Association, commitment fee is also known as the commitment commission. The payment of this fee is calculated on the terms of the loan amount. The commitment fee thus paid by the borrower acts as a source of mortgage during the availability period on the grounds of which the borrower may avail the draw down option and request the lender for further advances. Draw down facility Draw down facility within a flexible loan agreement enables the borrower to take further advances in form of loans in the middle of the existing loan with very low legal formality. The draw down facility is generally given within the availability period and the borrower is permitted to draw the advances against any suitable mortgage that has been kept as a part of the loan terms. The draw down facility is given out of the personal mortgage at any time during the commitment period provided the borrower does not increase the amount of the loan over the original mortgage amount. This is an option given by the banks to build a self-build mortgage facility. The facility thus helps the borrowers to get access to financial assistance during the terms of the project and this finance helps the borrower in completion of the initial stages within a project. As per Clause 4.1.5, the following terms are necessary for the systematic and legal processing of the drawdown loan: The proposed draw down date The purpose of the advance borrowing which should be for facility purpose The amounts of the drawdown advances which should be a minimum of 50,000 The provision however also states that the borrower is not liable to make a request for more than one advance in a calendar month falling within the availability period. Clause 4.1.1 states that the lenders are not obliged to make any advance available unless they receive the Draw down notice including all the three above stated terms. Further, Clause 4.1.6 states that a drawdown notice is irrecoverable and no draw down shall be made if the total amount of proposed advances exceeds the total commitment fees paid by the borrower to the lender. Analysis of the case The case here states that Hamlet bank who is the lender enters into a bilateral loan agreement with Lear Ltd who is the borrower with a two-year availability period. The 2 year availability period permits the borrower Lear to avail the opportunity of draw down facility within the period of 2 years from the date of the loan agreement. However, the lender bank that is Hamlet encounters problems related to issuing of draw down loan to the lender. The lender in this respect is concerned with the protection terms that will help the lender in avoidance of the draw down facility. For analyzing this case, the difference between the term loan facilities and the bilateral loan facilities needs to be discussed. The term loans provide a lump sum amount of money for no more than five years. The repayment schedule of a term loan is predetermined. The repayment schedules are amortization, balloon payment or bullet payment. Another advantage of the term loan facility is that the lender may issue the loan depending upon the needs of the borrower. These types of loan give the borrower the option of availing the availability period and the option of draw down facility. The major advantageof a term loan facility is that the borrower can manage the sum of the loan borrowing and thereby managing the amount of commitment fees and the interest rates accruing out of the loan. However, the major disadvantage of the same is that the amount, which is repaid, cannot be used for draw down facility. The provisions states the draw down facility can only be availed from the commitment fees. On the contrary, bilateral loaninvolves two parties, namely the lender and the borrower. Bilateral facilities are common in the case of small term loan, revolving credit and overdraft facilities. Since it is a short period loan, hence the commitment fees are also low. However, in a short period of time the sanction of draw down loan will not be given to the borrowers.In this case, the loan is taken for a period of 5 years which shows that although its a bilateral loan however the loan was taken as a term loan. Hence as per the terms of the term loan the lender is obliged to make the draw down facility available to the borrower Since the borrower is making the payments of the commitment fees for the availability period of 2 years. The draw down loan is the accumulated reserves of the borrower himself. The borrower is liable to make advance issues from the commitment fees hence the money taken as loan is the money of the borrower by default. Hence, draw down facility is a legal right o f the borrower. Thus, analyzing the case shows that the borrower in this case has the right of withdrawing the loans during the availability period. However, the draw down facility is provided only once to the borrowers within the total tenure of the availability period. Since the draw down facility is a interest free advance loan hence the borrower will have to make regulations that will allow the borrower to take the loan only once. Thus, Hamlet in this respect can limit the draw down facility for Lear. Thus the case analysis suggests that the draw down facility is compulsory and there are no potential terms or laws which will protect the lender from issuing of such loans. Thus, the lender in the case study that is Hamlet is obliged to make draw down loans to Lear whenever the loan is demand within a period of 2 years. Assignment 2 Concepts and terms Syndicated loan The syndicated lenders regulate the secondary market of UK and US. The syndicated loans are the loans provided by a group of lenders and are arranged by one or several commercial banks or investment banks. Clause 26 of the LMA standard Loan agreement states that the arranger bank is the bank that acts as the contact point between the party and the syndicate lenders. As per the legal provisions, they are required to negotiate the lending terms and the arrangement of the syndicate loans. As soon as the syndicate loan agreement is signed the arranger takes the responsibility of processing the loan, assignment of the loan proportions, interest payments to different syndicate members. In the UK, secondary market the participants prefer syndicate loans compared to bilateral loans since the syndicate loans unites the borrowers and the lenders under one contractual agreement. The price of syndicated loan iscombined of loan interest and fees. The loan is provided for a period of three to five years for short-term purpose, seven to ten year for medium term and 10 to 20years for long term purpose. Another he advantage of this type of loan includes the fact that it has a multi-currency facility. Hence, it is advisable to take syndicated loans. However in case of syndicated loans since the arranger and the arranger handle the whole process is responsible for the process of providing the information to the lenders and the borrowers hence the breach of turst and misrepresentation of the information gives rise to the economic loses. Legal liabilities of arrangers or house banks in syndicate loans As per the English Law, the liability of the arrangers in a syndicate loan can arise in four major ways namely: The tort of negligence The Misrepresentation act 1967 The tort of deceit A claim for breach of fiduciary duty Under the above terms, the syndicate lenders or the borrowers may make claims against the arranger. The tort of negligence will arise if the arranger will make any negligent statement that may result in any economic loss of either the lender or the borrower. The case of The Sumitomo Bank Ltd v Banque Bruxelles Lambert S.A, stated that it is the duty of the arranger to take reasonable care in delivery of information to the lender. The Misrepresentation act 1967 terms that any inaccuracies or misleading information within the information memorandum provided to the syndicate lenders will make the arranger liable for the loss. This can also arise from a tort of deceit. However, the tort of deceit can be charged against the arranger if the plaintiff is able to prove the case. Finally, the arranger can be made liable if the arranger owes any fiduciary duty of disclosure to the syndicate lenders. However, if the arranger takes the help of the exclusion clauses then the arranger is able to g et free from the liability of the syndicate loans. Relevant case laws Harbinger Capital Partners Master Fund I, Ltd. v Wachovia Capital Mkts., LLC. 2011 NY This case was long pending in the supreme court of New York. The case arose out of a massive fraud committed by the Le Nature Inc. who is a beverage manufacturer in Pennsylvania. The Harbinger Capital who acted as one of the syndicate lenders in the syndicate loan given to Le Nature filed a suit against Wachovia who was the loan arranger claiming Wachovia to be liable for the fraud.Wachovia in the year 2006 arranged for a syndicate loan of $ 258 million for Le nature Inc. Harbinger Capital was one of the syndicate lenders in this loan process. However, shortly after the loan was arranged and sanctioned it was revealed that Le Nature was financially weak and had produced false financial statements and is unable to make repayment of the loan. After this fact came into notice, Le Nature filed for a bankruptcy protection. The lenders thus filed a suit against the company as well as the arrangers stating that it was the liability of the arrangers to ensure the correct submission of the fi nancial information of the borrower to the lender. However, the verdict of the court was in the support of Wachovia because Wachovia took the help of the exclusion clause. Case analysis In the given case White Rose is the syndicate lender who sanctioned a loan to Yorkie Ltd who is the borrower. The arranger of the syndicate loan was Red Rose bank. Yorkie Ltd used the loan to make a financial acquisition of Lancopia Inc. The arranger in this case was made aware of the false representations within the financial statements of Lancopia. This information was given to the arranger prior to the sanctioning of the loan. The arranger however did not pass the information to the syndicate lender nor was the information provided within the information memorandum. The misleading info4rmtaion within the financial statement of Lancopia will lead to insolvency of Yorkie in future, which will make it difficult for the company to repay the syndicate loan.Analysis of the case shows that as per the English Law, the arranger here had not made any exclusion clause within the syndicate loan agreement, which confirmed that the arranger is liable for any economic or legal losses. Since the information about the liability issues within the financial statement of Lancopia were provided to the arranger prior to the arrangement of the syndicate loan, hence the non-disclosure of the information will be regarded as Tort of deceit on the part of the arranger. Moreover, Article 8 of the Banking Regulatory commission states that following are the major functions of the arranger bank namely Launching and organizing a syndicate loan Appropriate the loan parts to the member banks Conduction of due investigation about the borrower before arranging for the loans Provide all the necessary information both positive and negative about the borrower within the information memorandum Negotiation of the loan terms Assisting the correspondent bank in arrangement of the loan Article 20 suggests that information memorandum is the most important source of reference for the syndicate lenders in consideration of the credit opportunities. Thus, the article states that the memorandum should include the following terms namely Conditions for applying a syndicate loan Legal status and financial performance of the borrower Over all explanation of the project for which the loan is taken and the potential risks involved with the project Information about the guarantor or the collateral security Risky situations and counter measures that should be taken by the borrow for loan payment Approval documents for the project and environmental assessment documents for the project As per the provisions of the article 20, the arranger in the given case should have supplied the information about the legal status and financial performance of Lancopia within the information memorandum. Moreover, Article 20 also requires the arranger to disclose the risks related to the project undertaken by the borrower with the loan amount. In the given case, Red Rose has failed to make any disclosure related to the risk that Yorkie Ltd will face after the acquisition of Lancopia. In order to file a case on the grounds of Tortof Deceit, White Rose needs to show evidences that Red rose has made the misrepresentations knowingly and dishonestly. However, if the arranger proves that the misrepresentation conducted by the arranger was believed to be true by the arranger than the liability for deceit cannot be filled against the arranger. In the given case, though the arranger that is the Red Rose bank cannot claim that the failure to provide the information about Lancopia was an act of carelessness. The arranger can also not suggest that the arranger had misinterpreted the financial statements of Lancopia since the liabilities were not disclosed within the financial statements. The facts that the liabilities are not stated within the financial statements were previously informed to Red rose. However, Red Rose did not bother to include the same within the information memorandum. Thus White Rose can make claims against Red Rose successfully on the grounds if Tort of deceit. In thecae United Pan-Europe Communications NV v Deutsche Bank, it was confirmed by the court that the arrangers have fiduciary duty of loyalty towards the lender and the borrower both. Thus keeping the prospect in mind it may be concluded that in the given case the arranger bank that is Red Rose has a fiduciary duty as well towards the White Rose. Hence, the White Rose can claim for the economic losses from the arranger since the arranger has breached the terms of syndicated loans under two grounds namely the Fiduciary ground and the Tort of deceit grounds. Thus the case can be concluded with the basic notification of the fact that the lender can legally claim compensation from the arranger since the arranger has deliberately restrained from providing the useful financial risks involved with the loan sanction. However, White Rose cannot make any legal claim on the borrower that is the company because the company had substantially supplied all necessary information about the probable risks that may arise due to the non-disclosure of the liabilities in the financial statements. Conclusion The assignment shows the legal aspect of the loan agreement terms. From the first part of the assignment, it is clear that the major terms that are included within a term loan are the LIBOR interest rates, the availability period, the percentage of commitment fee, the loan period and the breach terms. The first assignment also shows that Hamlet is legally liable for payment of draw down loans to Lear. If Hamlet restrains from making payments to Lear, then Lear can file legal suits against Hamlet. However, Hamlet is able to restrain the loan on two major grounds, firstly if the borrower that is lender is not able to produce any proof of the DSR or if the borrower that is Lear, makes claim of the loan more than once. The second part of the assignment focuses extensively on the syndicate loan terms and policies. The second par shows that since the syndicate loans involve three major factors namely the group of lenders, the party and the arranger hence all the three parties have a legal obligation of loyalty against each other. The case analysis of the second case shows that arranger of the syndicated loan is a defaulter on the grounds of tort of deceit and Fiduciary obligation. 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