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Intercreditor negotiation checklist—junior lenders The table below provides an overview of key points that a junior lender should check for when reviewing a straightforward intercreditor agreement involving senior secured lenders, junior secured lenders and unsecured subordinated creditors. It is aimed at users with limited experience of intercreditor agreements. The table focuses on the most important and common issues on a straightforward secured bilateral corporate loan transaction and does not aim to cover every possible negotiating point, nor does it cover points on specialist or more complicated transactions such as those in the leverage finance market. What is acceptable will be influenced by the type of transaction, the particular lender involved, as well as the relative negotiating strength of the parties. For information on intercreditor issues in specialist transactions, see Links to useful intercreditor materials below. Links to useful intercreditor materials Introductory materials For an introductory note on intercreditor agreements, including information on common provisions in intercreditor agreements, see Practice Note: Introductory guide to Intercreditor Agreements. Practice Note: How to draft...
Employer steps to take if design consultant becomes insolvent—checklist This Checklist sets out practical steps that an employer should consider taking where a design consultant engaged by the employer becomes insolvent during a construction project. This Checklist assumes that the employer has entered into a written appointment with a design consultant for services which are not yet complete. It assumes that it is not a PFI project. The actions to be taken in any specific situation will of course depend on the terms of the contract(s) between the parties and the stage of the project at the time of the consultant's insolvency, but this Checklist is intended to provide a starting point for the employer to consider. This Checklist looks at the issue from the perspective of an employer that has engaged a consultant where the procurement route is traditional, or where the procurement route will be design and build but novation of the consultant’s appointment has not yet taken place. Where a contractor engaged under a design and build...
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The primary function of office-holders in both corporate and personal insolvency is to collect in the assets of the company or individual, realise and distribute them to the company's or individual's creditors in accordance with the statutory waterfall. For further information, see Practice Notes:•Waterfall of payments—a comparative guide•Waterfall of payments in administration•Waterfall of payments in liquidation•Waterfall of payments in bankruptcy•Waterfall of payments in administrative receivershipPari passu distributionPari passu is a Latin phrase meaning 'with an equal step' or 'on equal footing'. For the purposes of insolvency it encompasses the principle of proportionality and is referred to when stating how creditors are to be treated as against each other. If they are ranked 'pari passu' then each creditor in the same class is paid equally and without preference to one another. If there is not enough money in an insolvency to pay creditors in full, they will be paid pro rata on a pari passu basis, so each will get a proportionate return. For example, all unsecured creditors (ie those creditors...
This Practice Note gives a basic overview of the anti-deprivation principle (the ADP), and difference between the ADP and the pari passu principle (PPP).The anti-deprivation principleThe ADP is a principle that seeks to prevent parties from contracting out of the statutory regime for the collection, realisation and distribution of an insolvent estate. It prevents assets that should form part of an insolvent estate from being removed from that estate. In that regard, it protects the value of the estate from attempts to evade insolvency laws and operates to prevent an insolvency estate from being deprived of an asset that would otherwise be available for the benefit of its creditors. See Harrison, Re, ex p Jay (1880) 14 Ch D 19 (not reported by ÑÇÖÞÉ«ÇéÍø®).History of the anti-deprivation principleThe origins of the ADP are found in the old common law rules of bankruptcy. Though it was formerly referred to as a fraud on the bankruptcy laws, it is now known as the ‘anti-deprivation principle’.Case law on the anti-deprivation principleHaving become relatively...
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Class rights provisions—articles Add new definitions to ‘definitions’ article: A director • means any director appointed by holders of the A ordinary shares; B director • means any director appointed by holders of the B ordinary shares; A ordinary shares • means the A ordinary shares of [insert amount] each in the capital of the Company; B ordinary shares • means the B ordinary shares of [insert amount] each in the capital of the Company; eligible director • means a director who would be entitled to vote on the matter if proposed as a resolution at a meeting of directors; Add the following new clauses as required and renumber document accordingly: 1 Number of directors 1.1 The number of directors (excluding alternate directors) shall not be less than [two] in number[ nor more than [insert maximum number]] [ and shall be made up of [insert number] A directors and [insert number] B directors]. 2 Proceedings of directors 2.1 Subject to the provisions of these articles, the directors...
Placing letter—AIM [ON THE LETTERHEAD OF THE PLACING AGENT] Application has been made for the whole of the issued and to be issued ordinary share capital of the Company to be admitted to trading on AIM. It is expected that Admission will become effective and that dealings in the Ordinary Shares will commence on AIM on [insert expected date of admission to AIM]. No liability whatsoever is accepted by [insert name of Placing Agent] for the accuracy of any information or opinions contained in the Admission Document (as defined below), for which [insert name of Placing Agent] is not responsible, or for the omission of any material information from the Admission Document. Persons receiving this document should note that, in connection with the Placing (as defined below) and Admission, [insert name of PLACING AGENT] is acting exclusively for the Company and no-one else and will not be responsible to anyone other than the Company for providing the protections afforded to its customers or for advising any other...
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There was a mistake in a debenture that was filed at Companies House, do I need to register the amendment and send another copy to Companies House? Introduction When amending a debenture that creates registrable security interests under the Companies Act 2006 (the CA 2006), it is necessary to consider the nature of the amendment (in particular, whether it creates a new charge) and whether that falls into one of the categories of a registrable amendment. In any event, however, the company must keep copies of the instruments effecting any amendments available for public inspection. In the context of secured lending and for the purpose of this Q&A, the term 'debenture' refers to an agreement that grants security interests over assets provided as collateral for either that party’s own obligations or the obligations of a third party. Note that the term 'debenture' can also refer to a document that either creates or acknowledges a debt. A debenture creates security interests such as mortgages and fixed and...
Does a bonus issue have to be carried out so that the shares are offered to all existing shareholders in a company or can a company choose which shareholders to allot bonus shares to? In this Q&A, we have assumed that the company proposing to carry out a bonus issue is a private company limited by shares. A bonus issue is the allotment of shares by a company to its existing shareholders, usually on the basis that they are fully-paid (as that is often a requirement of its articles of association), and without any payment being required by shareholders for those shares. In essence, a bonus issue will involve a resolution of a company to effect the capitalisation of existing reserves into (normally) fully-paid shares by allotting the shares and applying reserves in paying them up. It is not possible for a shareholder in a company that is making a bonus issue to refuse the allotment of any shares that they are entitled to or to...
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This week's edition of Restructuring and Insolvency weekly highlights includes: the launch of our Market Insights Trend Report on Part 26A restructuring plans, an analysis of the convening judgment in the restructuring plan for Madagascar Oil Ltd, the launch of the 13th edition of Doyle, Keay and Curl: Annotated Insolvency Legislation, plus a round-up of other news and cases for restructuring and insolvency professionals.
Restructuring & Insolvency analysis: What are the current trends in Part 26A restructuring plans (RPs)? This Market Insights Trend Report includes in-depth analysis of the RPs considered by the courts in 2024 and provides insight into what we and our contributors expect to see in 2025 and beyond.
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