When you want to make a loan, you probably get copies of the borrower’s recent financial statements, and you probably take a pretty close look at them as part of your credit process. You might even ask for more information about certain items that you see on the financial statements. But how often do you dig deeply behind the financial statements and conduct your own audit? Probably never, right?
Unless you have reason to think otherwise, it’s likely that you take the financial statements largely at face value and rely on representations from the borrower as to their accuracy. Indeed, nearly every loan agreement contains a representation that the financial statements "fairly present, in all material respects, the financial position of the Borrower" as of the date of the statements and that the statements "were prepared in accordance with generally accepted accounting principles" (or words to that effect). But what if the representation isn’t true?
In a case decided just yesterday in New York, the lenders alleged that the borrower’s representations about its financial statements were false in many important respects. At issue in the case was the question of whether the lenders should have looked behind the numbers, undertaking a review of the borrower’s books and records to discover the alleged inaccuracies. The court in this case said no. Even though the court thought there were some "hints" that could have suggested that the financial condition of the borrower wasn’t all that it appeared to be, and that the lenders might have been "put on their guard" by some of the facts, the court nonetheless found that the lenders had done enough to protect themselves by requiring the borrower to give representations and warranties as to the accuracy of the statements. The court specifically stated that the lenders were not required to conduct their own audit or even engage in detailed questioning of the preparers, so long as they included appropriate representations in the loan agreement. It’s possible for inaccuracies in financial statements to be so obvious that the lenders really should question things further up front, but absent those kinds of facts, we wouldn’t expect more to be required.
The Loan Syndications and Trading Association (LSTA) noted in a publication sent to its membership today that requiring lenders to conduct an independent examination of borrowers’ financial statements could have resulted in a "material disruption" in the commercial lending market. It’s certainly nice to have avoided such an outcome.