Real Estate Finance: Acting for a lender—property specific conditions precedent What are conditions precedent? In finance transactions, conditions precedent (CPs) are the conditions which the borrower must satisfy: • (usually) before the borrower is entitled to serve a utilisation (drawdown) request, and • before the lender is obliged to make the funds available to the borrower The CPs are contained in the facility agreement. The facility agreement usually provides that each CP must be 'in a form and substance satisfactory to the lender'. The purpose of he usual property specific CPs in a real estate investment finance transaction is to satisfy the lender that: • the lender will obtain a first legal charge over the property, and • the property will be acceptable security for the loan What are the usual property specific CPs? A satisfactory certificate of title or report on title The lender will require property due diligence to be undertaken to check that the borrower will obtain a good and marketable title to the property and that it will constitute good security for the lender. At the outset of the transaction, the lender (on the advice of its solicitors) should decide: • who should carry out the due diligence (ie the lender’s solicitors or the borrower’s solicitors), and • where the due diligence will be carried out by the borrower’s solicitors, whether the lender requires a certificate of title or whether the lender will accept a
infrastructure-levy-'>Community Infrastructure Levy (CIL)—enforcement Introduction The Community Infrastructure Levy (CIL) is a charge levied in respect of development. The legislative basis for CIL is found in Part 11 of the Planning Act 2008 (PA 2008), which empowers the Secretary of State to make regulations providing for the imposition of CIL. Those regulations were made in the form of the Community Infrastructure Levy Regulations 2010 (the CIL Regulations), SI 2010/948. CIL applies to both England and Wales. CIL is charged by ‘charging authorities’ in respect of certain development of land in their area and is collected by ‘collecting authorities’. For more information on charging and collecting authorities, and the circumstances in which CIL is charged on development, see Practice Note: Community Infrastructure Levy (CIL)—who administers CIL, when does CIL arise, and when and by whom must CIL be paid. The CIL Regulations contain enforcement provisions, giving collecting authorities the power to issue a range of surcharges, stop notices, and if necessary to recover funds by appropriate legal action. Collection and enforcement arrangements are supported by the right to appeal certain decisions (see Practice Note: Community Infrastructure Levy (CIL)—appeals). The Planning Practice Guidance (PPG): Community Infrastructure Levy contains limited guidance on the enforcement provisions. Common terms The following terms used in this Practice Note should be read in accordance with their definitions in the CIL Regulations: • ‘chargeable development’ is defined in CIL
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Debenture: multi-chargor—syndicated—specific monies—for use with a syndicated facilities agreement This Deed is made on [insert day and month] 20[insert year] Parties 1 THE COMPANIES identified in Schedule 1 (each a Chargor and together the Chargors); and 2 [insert name of Security Agent] as security agent and trustee for the Finance Parties on the terms and conditions set out in the [Facilities Agreement OR Intercreditor Agreement OR Security Trust Deed] (the Security Agent). Recitals: (A) The Finance Parties have agreed to make available loan facilities on the terms and conditions set out in the Facilities Agreement (as defined below). (B) It is a condition precedent to the availability of the loan facilities that each Chargor enter into this Deed for the purpose of providing security in favour of the Security Agent in respect of the Secured Obligations (as defined below). IT IS AGREED as follows: 1 Definitions and interpretation 1.1 Definitions In this Deed, unless otherwise provided: [Additional Chargor • means a member of the Group which becomes an Additional Chargor in accordance with Clause 28 (Accession of an Additional Chargor);] [Blocked Bank Account • means each bank account designated as a ‘Blocked Bank Account’ with: (a) account number [insert account number] and sort code [insert sort code] and maintained by [insert the name of the Chargor holding this Blocked Bank Account] with [the Security Agent OR [insert name of third-party bank]] (and any replacement account or
Debenture: multi-chargor—syndicated—third party—specific monies—for use with a syndicated facilities agreement This Deed is made on [insert day and month] 20[insert year] Parties 1 THE COMPANIES identified in Schedule 1 (each a Chargor and together the Chargors); and 2 [insert name of Security Agent] as security agent and trustee for the Finance Parties on the terms and conditions set out in the [Facilities Agreement OR Intercreditor Agreement OR Security Trust Deed] (the Security Agent). Recitals (A) The Finance Parties have agreed to make loan facilities available on the terms and conditions set out in the Facilities Agreement to the Principal Obligors (as defined below). (B) [It is a condition precedent to the availability of the loan facilities that each Chargor enter into this Deed for the purpose of providing security in favour of the Security Agent in respect of the Secured Obligations (as defined below). OR The Chargors have agreed to provide security in favour of the Security Agent in respect of the Secured Obligations (as defined below).] It is agreed as follows: 1 Definitions and interpretation 1.1 Definitions In this Deed, unless otherwise provided: [Additional Chargor • means a member of the Group which becomes an Additional Chargor in accordance with Clause 28 (Accession of an Additional Chargor);] [Blocked Bank Account • means each bank account designated as a ‘Blocked Bank Account’ with: (a) account number [insert account number] and sort code [insert sort code] and maintained
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What are the benefits to each of the buyer and seller in a sale and purchase (whether of shares or assets) where part of the consideration is paid by the issue of loan notes which are structured as qualifying corporate bonds (QCBs)? Qualifying corporate bonds (QCBs) are debt securities which are exempt from tax on chargeable gains. Disposing of a QCB accordingly gives rise to no chargeable gain or allowable loss for the purposes of capital gains tax, with one exception. Where: • there is a share disposal that would otherwise have given rise to a chargeable gain, and • QCBs were issued as consideration for those shares and the existing chargeable gain is held over disposal of the QCB will crystallise the chargeable gain. For further information on QCBs, see Practice Note: Share for share exchanges and qualifying corporate bonds (QCBs). If an individual or trustee receives QCBs as consideration for shares in a takeover or reorganisation, the gain on the sale of the shares is held over and will not be brought into charge until the QCBs are disposed of (unless an election is made alongside a claim for entrepreneurs' relief, where applicable). For entities within the charge to corporation tax, with limited exceptions, a QCB includes any asset representing a loan relationship of the entity. In any other case (eg where issued to an individual or a trustee),
What tax implications are there (NIC etc) for someone based in the UK, but carrying out tasks for a company overseas? The concepts of residence and domicile are used to establish the extent of an individual's liability to UK taxation. For more detail, see Practice Note: UK tax liability. The tax treatment will heavily rest on what is meant by an individual being ‘based in the UK’—for example, if the individual is resident in the UK, they will be taxable on their worldwide income. For more information, see Practice Note: Introductory guide to residence and domicile for UK tax purposes. The UK NICs position will turn on the
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Employment analysis: An employer that provided access to a permanent health insurance scheme under which benefits terminated at age 65 did not discriminate because of age. In the period until the claimant became incapacitated for work, the then wording of the relevant exemption under the Equality Act 2010 (EqA 2010) covered such benefits which terminated at age 65 and, in the period after that, if the insurer ceased the benefits at age 65 that was its own act, not the employer's, so the employer was not liable as the insurer was not its agent, according to the EAT.
TMT analysis: Nikki Worden, partner, Paul Harris, partner, Nick Price, partner and Seirian Thomas, senior knowledge lawyer, at Osborne Clarke discuss HM Treasury’s ‘Critical third parties to the finance sector: policy statement’ policy paper, which proposes the introduction of a new regime for regulatory oversight of critical third-party service providers.
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