Another common pitfall is a unilateral clause stipulating that the lender is not bound by any interim oral or written agreement. Shady lenders want the opportunity to re-register while linking the borrower to all the concessions the borrower may have made during the negotiations. In Bankers Trust Co. Basciano, 960 So. 2d 773, (Fla. 5th DCA 2007), the 5th District Court of Appeals for the District of Florida dealt directly with the contractual requirement of mutual consent, since it was a verbal agreement reached at the same time as an ANP. Bankers Trust Co. participated in an Orlando-based hotel, which had been late in payment with a loan from the Banker Trust. Following the insolvency, Bankers Trust, through its special service, conducted two ANPs to govern any credit settlement or leniency negotiations between the hotel and the banker`s Trust. The parties also entered into a verbal agreement with the ANPs, which provided that “[the particular service provider] had made a commitment to work with [the hotel] to restructure the loan in a manner consistent with the hotel`s valuation, in order to give the hotel a reasonable chance of success as an operating business.” The Court found that, despite the anNA`s oral agreement, he had not failed because of an enforceable contract and therefore could not form the basis for an offence. The Court held that the oral agreement is nothing more than an “agreement to reach an agreement in the future” and stated that “the essential conditions of an agreement remain open and cannot give an enforceable contract subject to future negotiations”. The lender will generally want the ANP to cover past and future discussions. From a technical point of view, this goes beyond maintaining the status quo at the time of the creation of the ANP, but it may be unacceptable for a lender to maintain its right to claim claims on the basis of an initial interview with the borrower prior to the preparation and closing of the ANP.
It is advisable for lenders to do everything in their power to postpone these discussions until the ANP is engaged. In addition to the disintegity of these previous discussions, THE ANPs will sometimes include some or all of the following points that are beneficial to the lender: (i) a ratification of existing loan documents, (ii) a statement on outstanding debt, (iii) confirmation that the lender has fulfilled all of its loan document commitments, iv) if the loan is late , recognition of default and defence waiver, (v) the release of debts on the lender and (vi) an agreement authorizing the lender to discuss the loan and property with other parties who provide equity and equity financing to the property and other creditors.