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3.13 DUTY TO PROVIDE INFORMATION

In order to secure greater protection, the lender must also negotiate a series of clauses which are capable of providing it with timely information on the “state of health” of the borrower and regarding the transaction. Under the terms of these clauses, the borrower is obliged to inform the lender of any disputes, arbitral proceedings, or administrative procedures initiated after conclusion of the agreement which may have a substantial detrimental effect.

Other clauses have been finalized with the goal of monitoring the real estate operation during the term of the loan. The borrower may be required to inform the bank with sufficient advance notice of its intention to sell or exchange the property or to establish any other real right of possession over it. Particularly restrictive clauses on the borrower may require it to secure the prior approval of the lender if the property financed is subject to a new property management agreement.

The abovementioned duties of disclosure will also include a right for the lender to appoint a surveyor in order to ascertain the OMV of the property. An example of a disclosure obligation follows.

Information Undertakings shall remain in force from the date of this Agreement for so long as any amount is outstanding under the Finance Documents or any Commitment is in force.

The undertakings in relation to the Corporate Guarantor shall remain in force during the period of validity of the Corporate Guarantee.

• The undertakings in this Clause (Information Undertakings) in relation to the Corporate Guarantor shall remain in force during the period of validity of the Letter of Patronage and the Hedging Letter of Patronage.

FINANCIAL STATEMENTS

The Borrower shall supply to the bank:

• as soon as the same become available, but in any event within ... days after the end of each of the financial year the unaudited and audited (when available) financial statements of the Borrower, the Guarantor, the Corporate Guarantor and the Quota- holder for that financial year;

• as soon as the same become available, but in any event within ... days after the end of each of the financial half-years the unaudited financial statements of the Borrower, the Guarantor and the Corporate Guarantor for that financial half-year;

• promptly, such further information regarding the financial condition of the Borrower as any Finance Party (through the Agent) may reasonably request, subject to any limitation arising from mandatory provisions of law.

REQUIREMENTS AS TO FINANCIAL STATEMENTS

• Each set of financial statements and other documents delivered by the Borrower pursuant to Clause... (Financial statements) shall be certified by a legal representative of the Borrower, the Guarantor,.... as the case may be, as fairly representing the financial conditions as at the date as at which those financial statements were drawn up.

• The Borrower shah procure that each set of financial statements delivered pursuant to paragraph (a) and (b) of Clause ... (Financial statements) is prepared using (i) GAAP or IAS with reference to the Borrower and (ii) applicable local general accounting principles set forth by applicable law or IAS, the Corporate Guarantor and the Guarantor as the case may be.

• The Borrower must notify the Bank of any proposed change in GAAP or IAS, the accounting practices or reference periods used and deliver to the bank sufficient information, in form and substance as may be reasonably required by the Bank, to enable the Lenders to determine whether Clause ... (Financial covenants) has been complied with.

REPORTS AND UPDATED BUSINESS PLANS

• Without prejudice to the right of the Lenders to request at any time and at their own expense a Valuation Report, the Borrower shall supply the Bank with:

• a Valuation Report at the Borrower's expense;

• a quarterly Lease and Property Report, carried out at the Borrower's expense;

• an Updated Business Plan specifying in detail the updates/and or variations to the Initial Business Plan or preceding Updated Business Plan, as appropriate, it being understood that should the Project Monitor report on any variation that causes costs overrun and those details are not satisfactory to the Bank, then the Agent shall have the right to request a more detailed explanation to the Borrower;

• a report setting out:

• the progress of the Development substantially in the form agreed with the Agent and based on the standard usually produced by the Borrower for internal purposes;

• a cash flow analysis;

• details of any material breaches of the Preliminary Sale and Purchase Agreement and the steps being taken to remedy such breaches;

• an update in relation to the Property which shall confirm that there are no Securities.

• All reports listed in paragraphs ..., shall be supplied as soon as they are available and:

• in the case of Valuation Reports, no more than once a year starting from the issue of the Initial Valuation and no later than 60 days after the occurrence of an event of default;

• in the case of each of the Lease and Property Reports and Updated Business Plans, quarterly starting from the First Utilization Date until the Maturity Date;

• in the case of the report provided for in paragraph ..., monthly starting from the First Utilization Date until the Maturity Date;

• in the case of the report provided for in paragraph ... every 12 calendar months starting from the First Utilization Date.

• Each of the Valuation Reports shall be provided in originals and signed (or countersigned as the case may be) by an authorized signatory of the Borrower.

KNOW YOUR CLIENT REQUIREMENTS

• The Borrower shall promptly, on the request of the Lender, supply any documentation to enable the Lender to carry out and be satisfied it has complied with the control of the “Know Your Customer” under all applicable law.

• The Borrower expressly confirms to the Finance Parties that all funds made available according to this Agreement have been or shall be utilised for his own direct benefit and to such purposes the Borrower confirms that:

• it is acting in its own name and not as lender or trustee or Bank on behalf and/or interest of third parties,

• the transactions contemplated by the Finance Documents do not infringe any law, regulation or any other provision or procedure of administrative or governmental nature aimed at preventing Money Laundering.

INFORMATION: MISCELLANEOUS

The Borrower shall supply to the Bank:

• promptly upon execution thereof the Sale and Purchase Agreement and the Leasing Mandate Agreement;

• copies of all valuation reports commissioned to external valuers, in relation to the Property;

• the details of any litigation, arbitration or administrative proceedings which are current, threatened in writing or pending against it and/or the Property and which in case of a negative outcome would have a Material Adverse Effect;

• promptly upon and only in case it becomes aware of the relevant claim, the details of any claim which is current, threatened in writing or pending against the Vendor or Developer, but in any event only related to claims existing, respectively, prior to the execution of the Preliminary Sale and Purchase Agreement or any other person in respect of the Finance Documents such information as the Bank may reasonably require in writing concerning the Property and compliance with the terms of the Transaction Documents within 20 Business Days of receipt of the Bank's request;

• in case from the information supplied to or received by the Bank there emerges the reasonable need to obtain information on the creditworthiness of the Guarantor and the Corporate Guarantor, promptly such further infonnation or explanation regarding the financial condition of the Guarantor and the Corporate Guarantor as any Finance Party through the Bank may reasonably request; and

• details of any other event (including, for the avoidance of doubt, any Permitted Security Interest over the Property as and when it may arise) which might be considered prejudicial to the Borrower and/or the Property and/or the Development and/or the rights of the Finance Parties arising under the Finance Documents.

• The Borrower shall communicate to the Project Monitor details of the Development Team and any material modification.

NOTIFICATION OF DEFAULT

The Borrower shall notify the Bank of any Default (and the steps, if any, being taken to remedy it) immediately upon becoming aware of its occurrence.

COMPLIANCE CERTIFICATE

The Borrowers must supply to the Bank a certificate on each Interest Payment Date:

1. certifying that no default is outstanding (or if a default is outstanding, specifying the default and the steps, if any, being taken to remedy it); and

2. setting out calculations in reasonable detail of ICR/DSCR/LTV as at that Interest Payment Date and evidencing that the Borrower is in compliance with its obligations concerning to the ICR/DSCR/LTV.

 
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