Minutes and Written Consents for a Lending Transaction Toolkit | Practical Law

Minutes and Written Consents for a Lending Transaction Toolkit | Practical Law

Resources to help counsel prepare the resolutions a loan party is required to deliver to the lenders as a condition precedent to the closing of a loan transaction. These resolutions authorize a loan party to enter into and execute the loan agreement and any related ancillary agreements including guarantees and security documents whether at a meeting or by written consent.

Minutes and Written Consents for a Lending Transaction Toolkit

Practical Law Toolkit w-031-0670 (Approx. 5 pages)

Minutes and Written Consents for a Lending Transaction Toolkit

by Practical Law Finance
MaintainedUSA (National/Federal)
Resources to help counsel prepare the resolutions a loan party is required to deliver to the lenders as a condition precedent to the closing of a loan transaction. These resolutions authorize a loan party to enter into and execute the loan agreement and any related ancillary agreements including guarantees and security documents whether at a meeting or by written consent.
Before disbursing a loan, lenders need confirmation that each loan party is authorized to:
  • Enter into the loan transaction.
  • Grant any security interests to the lenders, in the case of a secured loan transaction.
  • Provide guarantees, where applicable.
  • Perform its obligations under the loan documents.
  • Take any other action as may be necessary or appropriate to consummate the transactions contemplated by the loan documents.
A resolution is the method by which the governing body of a loan party authorizes it to enter into the loan transaction. These resolutions may be:
  • Adopted at a meeting of the loan party's governing body. In this case, the loan party must deliver copies of the minutes evidencing the adoption of these resolutions.
  • Included in written consents. To the extent permitted under the laws of the loan party's jurisdiction of formation and its organizational documents, the loan party may approve the transaction in a written consent. Written consents are often used in place of a meeting because:
    • it is easier, less time consuming, and less expensive. It is often not possible for the directors or other persons needed to attend a meeting, whether in person or by phone. This is especially the case for entities with large boards or public entities that may need to comply with certain securities laws requirements. By contrast, these persons can sign and return a written consent from their respective locations;
    • the timing of these transactions. Companies may meet annually, quarterly, or semiannually on scheduled dates for which the directors or other parties can plan. In certain circumstances (for example, to approve transactions that are out of the ordinary course, such as an M&A transaction or to unexpectedly replace an officer) the board may hold a special meeting. The entry into a loan transaction and related agreements for many companies is an unusual transaction for which a special meeting is usually required. These transactions also are not typically consummated on a schedule that allows the board to approve them at a regular meeting; and
    • no notice requirements. Directors must be given adequate notice of the meeting, although that can be waived. Depending on when the parties need to close the loan transaction, this may be an issue.
The form and substance of the resolutions (whether they are included in minutes or written consents) must be satisfactory to the lenders before they fund the loans. Borrower's counsel also rely on these resolutions to issue any legal opinion that may be required on the due authorization, execution, and delivery of the documents covered by the legal opinion (see Practice Note, Legal Opinions: Lending).
This Toolkit includes forms minutes and written consents to be delivered by a:
  • Borrower.
  • Parent guarantor.
  • Subsidiary guarantor.
The Toolkit includes form of documents to be delivered by:
  • The board of directors of a corporation.
  • The board of managers, the managing member, or the sole member of a limited liability company.
  • The general partner of a limited partnership.