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Risks for investors at the post-insolvency stage of the covered bond issuer
As a result of EU “legacy” provisions, covered bonds receive a clearly preferential regulatory treatment in the UK, when compared with other similar instruments, especially securities issued as part of a “true sale” securitisation. This article questions the extent to which such treatment is justified, particularly following a covered bond issuer insolvency event, when the risks are arguably greater than those present in “true sale” securitisation structures.
19 March 2024Collateral quality or increased recoveries: CLO portfolio management in a time of credit deterioration
This article considers: (i) the delicate balance between competing interests and incentives in collateralised loan obligations (CLOs) with regard to restructurings of credit-impaired portfolio (broadly syndicated leveraged) loans; and (ii) recent innovations and changes to CLO documentation driven by specific well-publicised examples of leveraged loan restructuring.
19 March 2024Revisiting the transaction at an undervalue risk to UK covered bondholders
This article considers a particular aspect of the insolvency risk to investors in UK covered bonds. Specifically, it considers whether the transfer of assets from the Issuer to the SPV to create the cover pool, including any over-collateralisation, can be impugned as a transaction at an undervalue such that it may be reversed on application to the court by the administrator or liquidator of the Issuer under s 238 of the Insolvency Act 1986. Such risk has long been appreciated. However, the issue has been the subject of fresh comment because of the intended revocation of the Regulated Covered Bonds Regulations under the Financial Services and Markets Bill and the opportunity for a new regulatory regime with a different approach to risks of this kind.11 1
19 March 2024Preserving security interests and guarantees in key EU jurisdictions when the underlying obligation is varied
This article examines the position on the jurisdiction’s approach in France, Germany, Italy and Luxembourg to preserve security interests and guarantees when the underlying obligation (governed by English law) is varied, for example when the maturity date of an existing facility is extended. We think a brief analysis may be useful to understand if and how security interests and/or guarantees, provided by overseas parties incorporated in the abovementioned jurisdictions, still continue to be in force and whether additional formalities will need to be performed to avoid the additional obligations not being covered by the security or guarantee in case of an amendment or variation of the underlying obligation.
19 March 2024The suspense ends: court says certain ISDA bankruptcy defaults can be cured
In 2012 the Court of Appeal ruled that the counterparties of Lehman Brothers International (Europe) (LBIE) who had transacted under ISDA Master Agreements could suspend payment to the administrators indefinitely for so long as the Event of Default occasioned by the appointment of the administrators was continuing. As it has become ever clearer that LBIE will one day exit administration as a going concern (on a solvent basis), the administrators have maintained that the Event of Default will cease to be continuing and the holdouts will have to pay up. In one of the first cases to be heard virtually at the start of the COVID-19 pandemic, the administrators were finally able to ask the court whether implementation of their proposals for ending the administration would mean that the Event of Default was no longer continuing. This autumn the court ruled for the administrators.1 In addition to discussing the meaning of “continuing”, the judgment pays particular attention to what constitutes a Bankruptcy Event of Default under the 1992 and 2002 ISDA Master Agreements. Within the analysis, key variables were the importance to be given to factors such as the impact of an event on the counterparty’s credit risk and the permanent effect of the event on creditors’ rights. The granular analysis will be relevant to users of the ISDA Master Agreements but also to users of other contracts with similar wording such as credit derivatives.
19 March 2024Unsecured loans and ascertaining cash flow insolvency
This article examines whether the funds which a debtor company from a loan provided on an unsecured basis can be taken into account in determining whether it is solvent on a cash flow basis.
19 March 2024The impact of Pt 26A Restructuring Plans on intercreditor dynamics
The inclusion of a “cross-class cram-down” (CCCD) feature in Pt 26A Restructuring Plans was intended to prevent creditors with little or no economic interest in a company from blocking an otherwise well supported restructuring proposal. While this objective has been largely achieved, the wider impact of CCCD is now becoming better understood, with senior secured creditors gaining more influence and operational creditors being increasingly dragged into the restructuring process. This article examines why this is happening and then explores the potential long-term consequences of such changes which could eventually result in a significant reduction in the use of Pre-Pack sales by administrators.
19 March 2024How has the UK National Security and Investment Act impacted cross-border M&A?
This article considers the types of M&A deals that the UK government has intervened in using its powers under the National Security and Investment Act (NSIA) and the conditions that have been attached to secure approval. It further considers the global position of the UK by comparison to similar regimes that regulate foreign investment in other jurisdictions (such as CFIUS in the US) and the potential issues faced by multi-national investors needing to grapple with multiple sets of rules.
19 March 2024Security over e-money and deposits with deposit aggregators: a new approach is required
Over the last decade, fintechs (including EMIs (see definition in the key points above)) have transformed the payments landscape and have driven and facilitated the rapid shift by individuals and businesses away from cash to e-money. This article sets out the practical and legal considerations under English law when taking security over e-money and deposits with Deposit Aggregators (see definition in the key points).
19 March 2024Illusory security of banks in trade finance
In this article, barrister Michael Collett KC considers the types of security commonly taken by banks providing trade finance and their potential weaknesses, in light of recent case-law arising from the collapse of oil traders such as Hin Leong, Zenrock and Gulf Petrochem.
19 March 2024
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