We understand that funding a development project carries greater risk for lenders than taking security over an established building.
We provide advice and comfort to our lender clients at every stage of the deal, from putting together the initial credit proposal to drawdown of the last tranche of funding and completion of the works. We assist with:
- Carrying out due diligence to ensure that valid planning permission and building regulations approval are in place and that the conditions attached to them are being complied with
- Reviewing and approving any Deeds of Easement or statutory agreements (such as S106 Agreement or highways agreements) which need to be executed by the lender as mortgagee
- Reviewing and approving the building contract, sub-contracts and professional appointments
- Providing advice as to whether collateral warranties are appropriate or necessary for a particular development, and, if so, which parties should provide them
- Putting in place collateral warranties (including step-in rights) in favour of the lender from the contractor, subcontractors and professional team (either using our “lender-approved” suite of documents or reviewing and approving the customer’s draft warranties)
- Ensuring suitable new build warranties are in place (NHBC or equivalent) for residential developments;
- Working closely with the Monitoring Surveyor prior to completion of the charge over the site and also when each subsequent tranche of funding is requested
- Providing advice on the impact of Option Agreements with developers or Promotion Agreements for land already charged to a lender.
Examples of recent work in this area include:
- Acting for a bank funding the construction of a new auction mart.
- We negotiated and put in place a full suite of collateral warranties from the main contractor, architect, civil and structural engineer, M&E engineer, Employer’s Agent and highways engineer.
- Provided advice on a S106 Agreement and a S278 Highways Agreement.
- Advised on how the terms of an option for a third party (who partly funded the works) to buy back the site if the works were not completed within an agreed timeframe impacted on the bank’s legal charge over the site.
- We worked with the bank and the customer to find an acceptable solution and then drafted bespoke wording for the facility agreement to protect the bank’s position
- Completing a development loan for a residential development where we:
- Reviewed and signed-off to the bank on title and planning matters.
- Oversaw the building contract and drafted bespoke collateral warranties in favour of the bank.
- Pushed this deal through to completion within four weeks.
- Acting for a lender on a high value residential refurbishment project where there was no building contract because the contractor and customers were group companies (and so no collateral warranty could be provided). We drafted and completed a “direct agreement” between the contractor and the lender to protect the lender’s position.