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LMA incremental facility wording: one size fits all?
In this article the authors examine the process of establishing an incremental facility using the steps prescribed by the Loan Market Association’s (LMA) template wording and consider whether it represents common practice in the mid-market. An incremental facility (otherwise known as an “additional” or “accordion” facility) is an uncommitted facility (usually capable of being made available for acquisition, capex or general working capital purposes) which can be established by a borrower without the need to seek lender consent or amendments to the finance documentation provided that certain pre-agreed parameters are complied with.
13 June 2024Validation of the Financial Collateral Arrangements Regulations post-Brexit: legal considerations
This article considers the implications of the unusual validating provisions in the Financial Services Bill (HL Bill 162), which retrospectively validate the Financial Collateral Arrangements (No 2) Regulations 2003 (SI 2003/3226) notwithstanding any lack of power to make the Regulations, in circumstances where the Regulations give effect to EU Directive 2002/47/EC. It examines the critical questions that would have arisen pre-Brexit, and those that now arise, in relation to whether such validating legislation is lawful and argues that such validation is likely to be effective post-Brexit.
13 June 2024Out of time amendments
Dov Ohrenstein reviews how the courts approach applications to amend claims after the end of relevant limitation periods.
13 June 2024Consent under PSD2 and the GDPR: squaring the circle
The scope for misalignment between the payments and the data protection regimes in Europe and the UK gives rise to a number of challenges for banks and fintechs. This issue is particularly evident in relation to the potentially inconsistent requirements for individual consent.
13 June 2024Knowing receipt and the proprietary base
A recent High Court decision in a knowing receipt claim against a Saudi Arabian bank has considered the vexed issue of whether a beneficiary must have a continuing equitable interest enduring upon receipt of the property by the recipient to establish a knowing receipt claim. In a detailed and well-reasoned judgment Mr Justice Fancourt answered that question in the affirmative.
13 June 2024The court’s discretion in relation to the Pt 26A cram down
This article explains that a fundamental purpose of the court’s discretion whether to exercise its cram down power under the new Pt 26A process now found in the Companies Act 2006 would be to ascertain whether the dissenting class was promised a just and equitable distribution of the restructuring surplus, ie the value expected to be preserved and perhaps created by the proposed plan itself. By way of comparison, Chapter 11 of the US Bankruptcy Code, which contains the best-known cram down mechanism, requires the court to ensure a “fair and equitable” treatment of members of the dissenting class. In the US, however, the much-misunderstood Absolute Priority Rule (APR) supposedly governs this exercise. This article shows that the APR is untenable and is honoured as much in breach in US practice as in observance. Similarly, the cram down powers under the new Dutch and the proposed German restructuring regimes also envisage “exceptions” to the APR which in practice may well overwhelm the rule. Understanding why the APR cannot and should not govern the distribution of the restructuring surplus goes a considerable way to establishing that distribution of the restructuring surplus by reference to the relative contributions to the restructuring surplus by the dissenting and all junior classes provides the appropriate starting point. The article also considers the appropriate treatment of “new money” and “sweat equity”, and of classes excluded from the plan.
13 June 2024Re-imagining the phrase “pursuant to the Finance Document” and considering the ICA’s wide power to restrain junior challenge
In this article, the authors consider the judgment in Re Arboretum Devon (RLH) [2021] EWHC 1047 (Ch) and question the judge’s finding that the borrower’s obligation to “repay” arising by reason of a restitutionary claim in unjust enrichment constituted a “Secured Liability” arising “in accordance with” the transaction and was therefore secured.
13 June 20242020 vision: expanding the toolbox for European restructurings
Whilst 2020 will be remembered for less positive reasons, restructuring professionals may remember it for the creation of: (i) the “Restructuring Plan” under the UK’s Corporate Insolvency and Governance Act 2020 (CIGA 2020); (ii) the Dutch scheme under Wet homologatie onderhands akkoord (Dutch Scheme); and (iii) the German scheme under the StaRUG (German Scheme). Each bears similarities with the tried and tested English scheme of arrangement but has adopted certain features from the US Chapter 11 process. This article covers some of the important differences between each process that practitioners should be aware of.
13 June 2024First among equals: priming debt in leveraged capital structures
In this article the authors examine how US transactions that rank new money claims senior to existing lenders were structured and assess the options for European borrowers looking to achieve similar results.
13 June 2024Ipso facto clauses: the international dimension
This article considers the new provisions in the Corporate Insolvency and Governance Act 2020 (CIGA) on so-called ipso facto clauses and how those provisions interact with cross-border contracts.
13 June 2024
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