Corporate Borrowing: Law and Practice

Transcription

1 Corporate Borrowing: Law and Practice Fifth Edition Geoffrey Fuller MA (OXON), Solicitor Partner, Allen & Overy LLP

2 Published by Jordan Publishing, owned by LexisNexis Jordan Publishing Regus Terrace Floor Castlemead Lower Castle Street Bristol BS1 3AG Whilst the publishers and the author have taken every care in preparing the material included in this work, any statements made as to the legal or other implications of particular transactions are made in good faith purely for general guidance and cannot be regarded as a substitute for professional advice. Consequently, no liability can be accepted for loss or expense incurred as a result of relying in particular circumstances on statements made in this work. Jordan Publishing 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any way or by any means, including photocopying or recording, without the written permission of the copyright holder, application for which should be addressed to the publisher. Crown Copyright material is reproduced with kind permission of the Controller of Her Majesty s Stationery Office. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library. ISBN Typeset by Letterpart Ltd, Caterham on the Hill, Surrey CR3 5XL Printed in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY

3 CONTENTS Preface Table of Cases Table of Statutes Table of Statutory Instruments Table of European Materials vii xix lix lxvii lxxi Chapter 1 The Nature of Borrowings 1 Introduction 1 Loan capital 1 Loans 2 Importance of the distinction 6 Debt versus equity: commercial considerations 6 (a) Effect on gearing 6 (b) Dilution of existing shareholders 7 (c) Tax efficiency 7 (d) Effect on earnings per share 7 (e) Restrictions on borrowing 8 (f) Issue efficiency 8 (g) Investor appetite 8 (h) Cashflow 8 (i) Regulatory capital treatment 8 (j) Use of the proceeds 9 Types of company borrowing 9 (a) Transferability 9 (b) Character of investors 9 (c) Number and identity of investors 9 (d) Disclosure requirements 10 (e) Documentation 10 (f) Advance of funds 10 (g) Interest 11 (h) Repayment 11 (i) Warranties 11 (j) Covenants 11 (k) Events of default 11 (l) Modifications 12 (m) Role of the banks 12

4 x Corporate Borrowing: Law & Practice Chapter 2 Types of Borrowing (1): Bank Loans 13 Generally 13 Overdrafts 13 Loan facilities 14 Types of facilities 14 Conditions precedent 15 Multi-currency options 17 Withholding tax 20 Increased costs clause 28 Syndication 30 Assignment and novation 33 Chapter 3 Types of Borrowing (2): Debt Securities and the Capital Markets 35 Meaning of the term securities 35 What are the capital markets? 36 Distinctions between domestic and international capital markets 37 Stock 41 Eurobonds 43 Generally 43 EMTN programmes 44 Global notes 45 Chapter 4 Types of Borrowing (3): ECP Programmes 51 Introduction 51 ECP programmes 51 Chapter 5 Key Commercial Terms 55 Repayment 55 Clogs on the equity of redemption 55 Time for repayment 56 Prepayment 57 (a) Generally 57 (b) Typical provisions 58 Event of default 63 Other acceleration 66 Purchase 66 Interest 68 Pre-default interest 68 Default interest 69 (a) Agreement 69 (b) Damages 70 (c) Statute 71 (d) Discretion of the court 71 Judgment interest 72

5 Contents xi Default rates 72 Compound interest 73 Effect of liquidation 74 Convertible securities 75 Conversion periods 75 Adjustment provisions 76 Covenants 77 Companies Act 2006, ss 549 and Put and call rights 81 Comparison with warrants 82 Chapter 6 Security 85 Types of security interest 85 Mortgage 85 Charge 86 Pledge 87 Contractual lien 88 Quasi-security 88 Nature of the asset secured 89 Land 90 Shares 92 Contracts 94 Goods and bearer securities 95 Ships, aircraft and intellectual property 95 Security over financial collateral 96 Background 96 When the Regulations apply 96 Effect of the Regulations 98 Floating charges 99 The nature of a floating charge 99 Protection of fixed security 100 Distinction between fixed and floating charges 103 Crystallisation 105 (a) Events denoting cessation of trading as a going concern 105 (b) Intervention by the chargee to take control of the assets 106 (c) Other acts or events specified in the charge 106 Registration of charges 107 Introduction 107 What constitutes a registrable charge 109 Effects of registration and failure to register 110 Overseas companies 112 Priority 113 Priority between competing fixed security interests 113 Priority of floating charges 116

6 xii Corporate Borrowing: Law & Practice Chapter 7 Structured Finance 119 Overview 119 Structured finance generally 119 Transaction structures and history 121 (a) Repackagings 121 (b) Securitisations 122 (c) CDOs 124 (d) SIVs 125 Overview of common themes 126 Common themes 127 The SPV and insolvency remoteness 127 Tranching and priorities of payment 130 Cash v synthetic structures 133 Ratings 135 Repackagings 136 Securitisation 138 CDOs 142 Chapter 8 Subordination 145 Introduction 145 Reasons for subordination 146 Difficulties in achieving subordination 148 Methods of subordination 150 (1) Trust subordination 150 (2) Contingent debt subordination 151 (3) Simple contractual subordination 152 (4) Comparison of the three methods 152 Legal issues arising from subordination 152 (1) Treatment of the subordinated debt in the debtor s winding up 153 (2) Whether the arrangements can be modified without the consent of the senior creditors 154 (3) Whether the arrangements constitute a grant of security by the junior creditor in favour of the senior creditor 154 (4) Whether the effectiveness of subordination arrangements can be defeated by set-off rights between the company and the junior creditor 155 Chapter 9 The Power to Borrow, to Guarantee and to Give Security 157 Introduction 157 Corporate power 157 Authority 159 Commercial benefit 162 Restrictions (1): contracts 164 Introduction 164 Outer borrowing limit 164

7 Contents xiii Inner borrowing limit 171 Secured borrowing limit 173 Negative pledge provision 174 Restriction on disposal of assets 178 Borrowing, etc in breach of contractual restrictions 178 Restrictions (2): statute and financial regulation 180 Statutory restrictions 180 (a) Consumer protection legislation 180 (b) Financial Services and Markets Act 2000 ( FSMA 2000 ) 181 (c) Companies Act 2006, ss 549 and (d) Finance Act 2009, Sch (e) Companies Act 2006, ss (f) Companies Act 2006, ss 678 and (g) State aid 183 (h) Competition law 184 (i) Companies Act 2006, s Listing restrictions 185 Chapter 10 Accepting Deposits 187 Introduction 187 Deposits 187 Exclusions 190 Conclusion 191 Chapter 11 Guarantees 193 Introduction 193 Types of guarantee 194 Differences from other types of credit support 197 Keepwell agreements 198 Comfort letters 199 Capacity and commercial benefit 199 The need for writing 199 Consideration 200 Transactions at an undervalue 201 Protective provisions 202 Example guarantee 204 Chapter 12 The Role of Trustees 209 Introduction 209 Trustees functions 209 Why are trustees appointed? 214 Advantages for holders 214 Advantages for the issuer 215 Circumstances of the issue 216

8 xiv Corporate Borrowing: Law & Practice Trustees liability for breach of trust 216 Duty of care and skill 216 (a) Standard of care 216 (b) Attempts to reduce the duty of care 217 (c) Relief by the court 219 (d) Reliance on certificates, etc 220 (e) Exercise of discretions 220 Fiduciary duties 221 (a) Duty to avoid conflict of interest and duty and conflict of duty 222 (b) Where conflict is permissible 222 (c) Trustees options where conflict arises 224 Specific duties under the Trustee Act Example protective provisions 225 Chapter 13 Attracting Lenders 231 Introduction 231 Methods of solicitation 231 Syndicated loans 231 Domestic stock 232 Eurobonds 232 (a) Stand-alone issues 232 (b) Issues under EMTN programmes 234 Offering circulars and prospectuses 235 Overview 235 When is an approved prospectus required? 236 An offer of transferable securities to the public 237 Offers to the public exempt securities 237 Offers to the public exempt offers 238 Admission to trading on a regulated market exempt securities 240 Election under s Content requirements of an approved prospectus 241 Type of issuer 241 Nature of the securities 241 Form of an approved prospectus 242 Form 242 Order 242 Summary 243 Risk factors 243 Documents incorporated by reference 243 Making the prospectus available to the public 243 Requirements for listing particulars 244 Content requirements of listing particulars 244 Differences from disclosure required for an approved prospectus 245 Supplementary offering documentation 245 Supplementary prospectus 245 Supplementary listing particulars 246

9 Contents xv Responsibility 246 Approved prospectus 246 Listing particulars 247 Liability for misleading offering documents 248 Investor protection statutes 248 Misrepresentation 249 Liability under s 90 of the FSMA Financial promotion 251 Private companies prohibitions on public offers and listing 254 Public offers 254 Listing 255 UK selling and distribution restrictions 255 Stabilisation 258 Safe harbours 259 Regulated market safe harbour 259 Non-regulated market safe harbour 260 Chapter 14 US Securities and Tax Laws 261 Overview 261 Securities Act 262 Exchange Act 262 TEFRA and the HIRE Act 262 Other statutes and laws 262 (a) Investment Company Act of (b) Investment Advisors Act of (c) Trust Indenture Act of (d) Sarbanes-Oxley Act of (e) Blue sky laws 263 Securities Act 263 Regulation S 264 (a) Requirements 264 (b) Categories 266 Rule 144A 267 (a) Conditions 267 (b) Other considerations 268 Section 4(a)(2) 269 (a) Requirements of Regulation D 269 (b) Other considerations regarding Section 4(a)(2) 271 Other exemptions 272 (a) Section 4(a)(1 1/2) 272 (b) Rule (c) Commercial paper 272 TEFRA and the HIRE Act 272 TEFRA C 274 TEFRA D 274 Comparison with Regulation S 275 (a) Certification 275

10 xvi Corporate Borrowing: Law & Practice (b) US person 275 Selling restrictions 275 Invitation document 275 Offering circular 276 (a) Front cover 276 (b) Inside front cover 276 (c) Subscription and sale section or equivalent 276 Subscription agreement 277 (a) Representations and agreements of the issuer 277 (b) Representations and agreements of the managers 278 Definitive notes 280 Chapter 15 Transfers of Lenders Interests 281 Introduction 281 Bearer securities 281 Meaning of negotiable instrument 281 Bearer bonds and notes, etc 284 Bearer global securities 285 Assignment 286 Distinction between legal and equitable assignments 286 Giving notice of assignment 289 Non-assignable rights, etc 291 The impact of CREST 294 (a) Background 294 (b) Participating securities 295 (c) Title and transfer 296 Novation 297 Participation 302 Additional considerations 303 Stamp duty 303 Capital adequacy 304 Confidentiality 304 Other securities regulation 304 Chapter 16 Variation of Rights 307 Introduction 307 Contractual powers of a majority 308 Acting bona fide and in the interests of the class as a whole 312 Substitution of debtor 315 Chapter 17 Debentures 317 Significance of whether a document is a debenture 317 Meaning: generally 319 Common law meaning 319 Companies Act meaning 322

11 Contents xvii Chapter 18 Taxation 325 Withholding tax 325 Generally 325 Typical provisions 327 Stamp duty and stamp duty reserve tax 328 Stamp duty 328 Stamp duty reserve tax 331 Chapter 19 Execution of Documents 333 The distinction between deeds and other agreements 333 Types of agreement 333 (a) Oral agreements 333 (b) Agreements under hand 333 (c) Deeds 334 Effects of the distinction 335 (a) Consideration 335 (b) Limitation period 336 (c) Enforceability by person not a party 336 (d) Estoppel 336 (e) Contra proferentem rule 336 (f) Achievement of purpose 337 When a deed is necessary 337 (a) Under statute 337 (b) At common law 338 (c) Other situations 339 (d) Documents under seal which are not deeds 339 When an agreement under hand is necessary 340 When evidence in writing is necessary 340 Powers of attorney 341 Generally 341 Revocation 342 Execution of agreements under hand 342 The general requirement of signature 342 English companies formed and registered under the Companies Act Other English companies 344 Overseas companies 344 Attorneys and other agents 345 (a) Where the agent is an individual 345 (b) Where the agent is a company 345 Suggested execution clauses 346 (a) For execution by a company 346 (b) For execution by an agent 346 Execution of deeds 347 Generally 347

12 xviii Corporate Borrowing: Law & Practice English companies formed and registered under the Companies Act (a) In normal circumstances 349 (b) During insolvency, etc 350 Other English companies 352 Overseas companies 352 Attorneys 353 (a) Where the attorney is an individual 353 (b) Where the attorney is a company 354 Suggested execution clauses 355 (a) For execution by an English company formed and registered under the Companies Act (b) For execution by an overseas company 356 (c) For execution by an attorney 357 Delivery 358 Generally 358 Delivery in escrow 359 Presumptions 361 Electronic communications and signatures 361 Background 361 Admissibility in evidence 362 Requirements of writing and signature 364 Legislative amendment 365 Dating 365 Alterations 366 Alterations before execution 366 Alterations after execution 367 (a) Immaterial alterations 367 (b) Accidental alterations 367 (c) Material alterations with the consent of all parties 368 (d) Intentional material alterations by one party without the consent of the other 368 (e) Intentional material alterations by someone not a party 368 Notarisation 369 Index 371