While the inadequacy of the evidence proposed by the District Court suggests that the parties might have wanted to innovate may be questioned, the lesson that counsel developing a modified and revised funding agreement should learn from this decision is the importance of clearly explaining the parties` intention that the amended and revised agreement is not an innovation. 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. An opportunity to submit a revised contract is modified and revised. The modification and modification of an agreement is made for practical use, cost-effectiveness of time and reduction of potential errors, or preferably. To make your life easier, you have decided to modify and modify your contract to obtain a contract at the end containing all the previous changes and changes. With this approach, you will present your entire original agreement as well as your changes. 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.
Overall, and for me, the outcome depended on the regularity of the provisions documented in the “amendment and recovery”: in its decision, the Court reaffirmed the recognized principle that an agreement to “modify” an existing agreement can either modify the existing agreement without compromising its existence or be able to terminate and replace the existing agreement. This question is determined by the objective intentions of the parties. In the decision of the Court of Appeal of Western Australia in Australia and New Zealand Banking Group Limited/. Manasseh (March 10, 2016) was the central theme of the legal nature and the effect of an amendment and reassessment. In the case, this was a request from the Bank as part of a guarantee granted at the time of the initial grant of the facility. The result was a victory for the guarantor, who successfully argued that the guarantee granted at the beginning of the facility would not be extended to amended investment agreements that were “modified and amended” at a later date. In other words, both the original agreement and any amendments are legally binding and must be read as a whole. 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.