Feature

“High Water” mark EBITDA provisions: should lenders fight fires with a pre-agreed “low water” mark EBITDA de minimis?

In this article Michelle Gilmore-Parry considers what “high water” mark EBITDA provisions are and discusses the key considerations lenders and practitioners should take into account when reviewing leveraged finance and private credit documentation.

An overview of debt and royalty financing structures for life sciences businesses

As a supplement to equity capital and licensing and collaboration revenues, there is an increasingly broad array of evolving methods for life sciences companies to raise money to fund their drug development and commercialisation activities. These include venture lending, growth lending, synthetic royalties, drug development financings and royalty monetisations. Each of these are available to life sciences companies in different stages of development, have unique structures, involve varying degrees of contractual restrictions, and provide different risk/return profiles for investors. In this article the authors consider these key methods for raising non-dilutive financing.

The lucrative AI debt market – disrupting traditional debt lending: Part 2

In two parts, the first published in the March edition (2025) 3 JIBFL 183, we discuss how the unique nature of AI companies and AI-related assets could present distinct challenges to traditional lending frameworks if such frameworks are not properly considered in the context of such companies. Part 1 discussed how the unique nature of AI companies could present distinct challenges to financial covenants in traditional lending frameworks if not properly considered in the context of such companies.
This Part 2 discusses how the unique nature of AI-related assets could present similar challenges to the process of security enforcement in traditional lending frameworks if not properly considered in the context of such assets. 

Cross-border privilege

This article considers cross-border privilege issues that can arise in a number of different contexts.

Recognition and enforcement of Ukrainian judgments against the Russian Federation in the UK

This article examines the enforcement prospects of Ukrainian court judgments against the Russian Federation in the UK, following Ukraine’s 2022 Supreme Court ruling denying Russia immunity in tort claims related to its military aggression. It analyses key procedural obstacles under the Hague Convention 2019, the UK’s State Immunity Act 1978 and common law, including jurisdiction, service of process and public policy defences, highlighting the tension between sovereign immunity and international accountability.

Navigating the impact of portfolio company distress events under NAV facilities

Net Asset Value (NAV) facilities are a key liquidity tool for private investment funds, allowing borrowing against portfolio company valuations through loan-to-value covenants. This article examines how financial distress events are managed under such facilities via Material Investment Events – provisions that trigger the exclusion or downward adjustment of an investment’s value from the NAV calculation. It discusses various distress triggers, including insolvency events, adverse auditor opinions, accelerated indebtedness, defaults, and adverse judgments, and highlights the critical negotiation of these definitions. The article also explores valuation challenge rights, which allow lenders to contest fund valuations, and outlines the operational consequences for NAV facilities where portfolio company distress events trigger increases in LTV.

The expanding nature of undervalue transactions: recent cases and practical issues

Recent case law has raised some interesting points around challenges to transactions at an undervalue, which have application for insolvency practitioners who may wish to bring such cases, and creditors seeking to use this legislation to enforce judgments or otherwise challenge the disposal of assets by a debtor. In this article, the authors consider some legal and practical issues to which the authorities give rise and offer some considerations for parties who may find themselves involved in such litigation.

Considerations for lenders to infrastructure assets

Lenders continue to structure financing packages to minimise the risk of default. However, wider risks now need to be in focus as the pace of investment in infrastructure increases. There are many different estimates of the amount of investment required in global infrastructure and energy assets. Each country has a different starting point and a different need – but trillions of dollars of investment per year for a sustained period is anticipated, with a significant amount provided by debt. With the rise of private and institutional debt providers alongside active export credit agencies, development finance institutions, wealth funds and commercial debt, the sources of debt capital are expanding to meet demand. In light of that increased debt, this article considers key issues for lenders funding infrastructure projects.

Freezing the status quo: a critical analysis of 2024’s watershed moments in freezing injunction jurisprudence

Bank Resolution (Recapitalisation) Bill: good policy, bad politics?

The UK’s resolution authorities successfully handled the failure of Silicon Valley Bank in 2023. The Bank Resolution (Recapitalisation) Bill (the Bill) seeks to address a lacuna identified as part of that process. The Bill is framed as a technical amendment to the regime for handling bank failures but, as this article argues, also highlights tensions between that framework and the government’s plans to improve the competitiveness of the financial services sector.