In Practice
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European CMBS and its new cousin, the CRE CLO
Iain Balkwill considers the differences between CRE CLOs and European CMBS and the rationale for their application.
19 March 2024Implications of proposed legislation in New York for sovereign debt restructuring
The New York legislature is currently considering three Bills that could substantially impact sovereign debt markets if enacted. The Bills would: (i) limit private creditors’ recovery in the event of sovereign default; (ii) block private parties from purchasing sovereign debt for the purpose of litigating a renegotiation of the debt; and (iii) create a binding, bankruptcy-like restructuring mechanism for sovereign debtors. This In Practice article looks at some of the potential implications of the New York Bills.
19 March 2024The art of the intercreditor
Over the last decade, financing transactions have moved away from typical senior/mezzanine loan structures to a wider variety of products including syndicated loans, first lien/second lien loans, direct lending and high yield bonds (and in some cases, a hybrid of them). This has increased lenders’ attention on the intercreditor terms, which establish the relationship and priority between the different types of creditors in the financing structure, particularly in the circumstances when things go wrong. In this In Practice article, the authors consider the key terms of intercreditor agreements that creditors should be focused on during negotiations and, how these and other provisions differ between a structure comprised of senior and junior loans (Senior/Junior Structure) and a structure comprised of notes, each accompanied with a super senior revolving facility (Notes/SSRCF Structure). 11 1
18 March 2024Coaching and the corporate witness
In this In Practice article, James Barrett considers several key practices which can help a corporate witness to prepare for giving evidence including to courts and public inquiries.
18 March 2024Green expectations: ESMA’s Statement on sustainability prospectus disclosure
ESMA’s July 2023 public statement about sustainability disclosures in prospectuses attracted significant attention. Understandably so. The Statement is directed at National Competent Authorities and provides ESMA’s recommendations to follow when reviewing prospectuses, but issuers will also need to take note.
18 March 2024Consolidation in the CLO management industry: hampered by EU and UK risk retention requirements?
In this In Practice article, the authors consider the regulatory restrictions that hamper the transfer of risk retention where a collaterised loan obligation (CLO) manager wants to solely acquire a CLO management contract from the incumbent CLO manager.
18 March 2024Transferability: does there need to be a re-balance?
In the period leading up to (and during) a default or distress, the ability to trade loan positions takes on renewed significance, with transferability provisions in sharp focus. In recent years, the move towards more borrower/sponsor friendly documents has resulted in more restrictive “approved” lists and blanket restrictions on transfer to certain types of transferees (without consent). With those constraints driving more limited liquidity in the secondary market, it may be time to reflect on the extent of transfer restrictions, particularly where in practice, it may be beneficial to a borrower to move the debt away from the traditional lenders.
18 March 2024Does the “D” in PSD3 stand for “divergence”? PSD3 and payment services in the UK
In June, the European Commission published a set of proposals to modernise the payment services sector and bring it into the digital age. The package included proposals for a revised EU Payment Services Directive (PSD3) and a new set of EU Payment Services Regulations (EU PSRs and, together with PSD3, Payments Proposals). This In Practice article outlines some of the proposals and what they mean for the UK as it diverges from the EU payment services framework.
18 March 2024Embedded finance and chargebacks: consumer duty and proposition structuring
As embedded finance and payment models continue to develop, I consider: (i) how merchants and their payment solution partners balance offering customers the optimum checkout experience with providing appropriate consumer protections; and (ii) what these models mean for liability arrangements between merchants and fintechs.
18 March 2024Can the consent of an obligor be taken at face value?
Lenders and their legal advisors carefully check the capacity of obligors, and the due authorisation of their signatories, at the commencement of a deal. In this In Practice article, we consider the issues arising when consents are needed from obligors during the life of a facility. The recent case of CRF I Ltd v Banco Nacional De Cuba and another [2023] EWHC 774 (Comm) is a cautionary reminder of the consequences of failing to obtain required obligor approvals going forward.
18 March 2024
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