The decision will surprise many financiers and lawyers, who would generally view an “amendment and recovery” as a continuation of the existing facility agreement, rather than as a new agreement that terminated the old one. The distinction can have radically different consequences, as has been the case here. The other member of the Court found that there had indeed been an amendment that did not null and for the previous agreement and therefore did not require the agreement of the surety on his face. However, his tribute was paid in favour of the guarantor, on the grounds that “variation” requires the consent of the guarantor, since the carve-outs based on the Ankar principle apply in this case. In this case, the Bank submitted a number of offers to extend and continue the challenge facility, accompanied by letters of motivation that were not entirely clear as to the intended legal nature of the amended provisions. This left open the question of whether there was a replacement or a single variation (this was clearly not a “new” provision). The terms of a commercial financing facility can be subject to a large number of changes over its duration. They are sometimes contained in a brief change document that covers only the various changes. There may be a number of cases, and for more complex and longer transactions, it is customary for the original agreement to be “modified and revised” with its amendments – in other words, consolidated and contained in a single document. It`s as much for the lightness of reading as anything else.
In Manasseh, two of the three members of the Court held that the “modification and recovery” would replace (and thus terminate) the old facility agreement to which the guarantee relates. As the guarantor of the replacement body did not give its consent, its guarantee did not extend to it. In the In Re Fair Finance Company, the amended and amended loan agreement (the “2004 agreement”) explicitly provided that the obligations under that agreement would be secured by a security interest for the same guarantees that guaranteed the original credit contract (“the agreement of 20 2004 agreement “wanted the parties to amend and reaffirm the 2002 agreement” The 2004 agreement is a re-edition of the 2002 agreement : while the relevance of the evidence suggested by the District Court may be questioned to suggest that the parties may intend to carry out a renovation, the instruction that a lawyer may call into question in developing an amended and amended funding agreement in this decision, the importance of the clear assertion of the parties` intention not to constitute an innovation in the revised and revised agreement. The In re Fair Finance Company court stated that the 2004 agreement did not explicitly provide for the parties to consider maintaining the original security interests.9 In the development of an amended and revised financing agreement, counsel should include an explicit statement that the agreement is not intended to be an innovation or an end to the commitments arising from the original agreement. , and as part of guaranteed financing, that security interests established in accordance with the original agreement must be pursued and insured with obligations arising from the revised and revised agreement.