Lending: General

A discussion on Amend & Extend facilities through which certain existing lenders agree to extend the maturity date of part of the existing syndicated loan facility in return for higher fees and interest rate margins.

A Practice Note analyzing the key issues to consider in determining whether a communication is between an attorney and a client and therefore potentially within the scope of the attorney-client privilege.

This Note examines adjustments portfolio companies can make to their net income to improve their EBITDA, in particular the pro forma add-back for cost savings. This Note also compares the cost savings add-back to two other common adjustments to EBITDA, the add-backs for permitted acquisitions or dispositions and for business optimization expenses or restructuring charges.

This Note examines collateral allocation mechanism (CAM) exchange provisions in loan agreements.  It describes common triggering events for CAM exchanges, explains how these provisions typically work, and considers particular issues sometimes encountered in the operation of CAM exchange provisions.

A practice note on climate change issues for institutional investors, shareholders and insurers.

This Note is an overview of conditions precedent in a loan agreement.  It examines common conditions precedent and discusses the twin roles of conditions precedent as conditions to the closing of the loan agreement  and conditions to each extension of credit.

This Note reviews credit ratings, the operations of the nationally recognized statistical rating organizations (NRSROs) and the SEC's proposed and adopted rule amendments  for NRSROs (including those required by the adoption of the Dodd-Frank Act).  An NRSRO is a credit rating agency that has registered as such with the SEC.  On May 18, 2011, the SEC proposed rules under the Dodd-Frank Act intended to increase transparency in and improve the integrity of credit ratings, in particular the credit ratings of structured finance products such as asset-backed securities (ABS). The proposed rules would amend existing rules governing credit ratings and NRSROs to improve the accuracy of credit ratings applied to structured financial products and minimize the mismanagement of risk by financial institutions and investors. See Legal Update, SEC Proposes Rules on Credit Ratings by NRSROs and Creates New ABS Due Diligence Requirements. This Note will be updated to reflect these rules after they have been adopted in final form by the SEC.

This Note discusses the basic differences between a company raising debt by issuing debt securities compared to a syndicated loan. It describes the basic features of debt securities and syndicated loans and also includes a discussion of mezzanine loans.

The Dodd-Frank rule requiring all swap guarantors to be eligible contract participants (ECPs) under the Commodity Exchange Act (CEA) becames effective on March 31, 2013. This rule has implications for loan guarantees and loan documents that may require immediate attention.

A discussion of cross-acceleration and cross-default, two typical events of default under a loan agreement, and the differences between them.

An explanation of assignments and participations, two ways by which lenders can sell interests in loans they have made, and the differences between them.

A discussion of the differences between Business Material Adverse Change (MAC) clauses, Company MAC clauses and Market MAC clauses.

An explanation of cross-default and cross-acceleration, two typical events of default under a finance document, and the differences between them.

This Note discusses the purpose of forbearance agreements, their benefits for both lenders and borrowers, their structure and key terms, and risks and other considerations for lenders entering into these agreements.

This Note provides an overview of the defenses available to guarantors, their practical implications, their background and how they should be addressed in guaranties (also guarantees) in order to protect lenders.

This Note summarizes the employee benefits issues involved when negotiating credit and financing agreements. It includes a discussion of both lender and borrower concerns regarding plan funding and termination liability, controlled group liability and reportable events. It also identifies when these provisions should be included in representations, notice requirements and events of default.

This document discusses the dispute surrounding the proxy contest between Amylin Pharmaceuticals, Inc. and its stockholders, Icahn Capital LP and affiliated funds and Eastbourne Capital Management, L.L.C., and provides a summary of key litigated issues and practical implications indicated by the litigation.

This document discusses the dispute surrounding the acquisition of Clear Channel Communications, Inc. by Bain Capital Partners, LLC and Thomas H. Lee Partners, L.P. and provides a summary of key litigated issues and practical implications indicated by the litigation.

This document discusses the dispute surrounding the acquisition of Genesco, Inc. by The Finish Line, Inc. and provides a summary of key litigated issues and practical implications indicated by the litigation.

This document discusses the dispute surrounding the acquisition of Huntsman Corporation by Hexion Specialty Chemicals, Inc. and provides a summary of key litigated issues and practical implications indicated by the litigation.

A discussion of the Love Funding Corporation litigation over the New York champerty defense that prohibits certain assignments of claims, and the successful outcome of that litigation for lenders and buyers of distressed debt.

This document discusses the dispute surrounding the Solutia Inc. bankruptcy exit financing provided by a syndicate of banks, including Citigroup Global Markets Inc., and provides a summary of key litigated issues and practical implications indicated by the litigation.

This document discusses the dispute surrounding the acquisition of United Rentals, Inc. by Cerberus Capital Management, L.P. and provides a summary of key litigated issues and practical implications indicated by the outcome of the litigation.

This Note discusses the insurance issues facing lenders in leveraged leasing transactions, and the steps a lender should take to protect its interests.

A summary of issues and considerations that arise in relation to the borrower's intellectual property assets in structuring, negotiating and closing loan transactions.

This Note is a description of investment grade loans and the features and terms that distinguish them from leveraged loans.

A discussion of the no litigation opinion that is often included in legal opinions for loan transactions. This Practice Note addresses the concerns that opinion givers have raised about this opinion and approaches that have been taken to address these issues.

Discussion on the purpose and structure of legal opinions in finance transactions between corporate borrowers and financial institutions. This Note explains the duties on counsel and considers the various opinions that may be provided by counsel in a finance transaction.

This Note discusses letter of credit migration issues and common situations where letter of credit migration is required and presents three techniques for implementing letter of credit migrations.

This Note summarizes some key limitations on interest deductibility imposed on a US corporate issuer.

This Note describes the process of amending a loan agreement and includes an explanation of common consent requirements for particular types of loan agreement amendments.

This Note discusses standard expense reimbursement and indemnification provisions in corporate loan agreements.

This note analyzes negative covenants typically found in loan agreements including lien covenants, debt covenants, and limitations on transactions with affiliates, distributions and other payments to stockholders, capital expenditures and sale leaseback transactions.

An overview of representations and warranties found in financing documents, including the purpose, description, specific issues and consequences of a breach.

This Note discusses the US federal income and withholding tax rules that potentially apply to payments made by a US corporate borrower to a foreign corporate lender under a loan agreement. 

This Note discusses the general principles of margin lending, how margin loans are regulated and consequences of not abiding by the margin rules.

This Note discusses the margin regulations applicable to US broker-dealers. 

This Note looks at the use of material adverse change (MAC) provisions to allocate risk in acquisition transactions and provides an overview of their typical structure and exclusions as well as relevant case law. It also discusses, from a buyer's perspective, potential modifications and supplements to a customary MAC provision.

This Note discusses the purpose of powers of attorney (POAs), the different types of POAs (including irrevocable, springing and POAs coupled with an interest) and how POAs are used in lending transactions.

A discussion of the applicability of Regulation FD to the syndicated loan market, issues that arise from disclosure of material non-public information in syndicated loan transactions and strategies to comply with the regulations.

This Note focuses on the US tax issues that arise when a corporate borrower grants security to a lender in a secured financing transaction.

This Note provides an overview of structuring and restructuring European leveraged finance transactions for US practitioners. It describes two methods by which senior lenders may recover their debt from an insolvent European borrower. The first method is taking security over the borrower's and its subsidiaries' assets. The second method involves a sale of the borrower's business as a going concern to a new owner which is effected by a share sale.

Litigation financing allows companies and their law firms to reduce the risks and costs of litigation and unlock the embedded value of commercial claims. It is also known as alternative (or external) dispute funding.

A discussion on the issues relating to the creation of a UCC security interest in personal property, the different methods of perfection of that security interest and the priorities of security interests under the UCC.

A discussion of syndicated loan buybacks by borrowers or their affiliates or sponsors in the secondary market, the circumstances under which they arise, typical features of loan buybacks and issues raised under loan agreement provisions.

A discussion on commitment letters including links to recent publicly filed commitment letters for loan agreements.  This Note will be updated quarterly.

A discussion of key industry-specific provisions in credit agreements in the healthcare industry. This Practice Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.

A discussion of key industry-specific provisions in credit agreements for borrowers that are public utilities, organizations providing public services such as electricity, natural gas, water and sewage. This Practice Note includes links to recent deals summarized in PLC What's Market and will be updated quarterly.

A discussion of "amend & extends" including links to large corporate and middle market amend & extend transactions. This Note will be updated quarterly.

A Note discussing "covenant-lite" loans and their reemergence after the financial crisis, including links to credit agreements for covenant-lite loans summarized in PLC What's Market from 2011, 2012 and 2013.  This Note will be updated quarterly.

A discussion on loan agreement defaulting lender provisions, including those protecting borrowers when lenders default and links to recent large corporate and middle market deals summarized in PLC What's Market with defaulting lender language from 2011, 2012 and 2013. This Note will be updated quarterly.

A discussion on the LIBOR interest rate (also known as the Eurodollar Rate) and various market changes to that definition and related interest rate provisions, including links to recent large corporate and middle market deals summarized in PLC What's Market from 2011, 2012 and 2013. This Note will be updated quarterly.

A discussion of the impact of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) and Basel III on loan agreement yield protection provisions, including links to recent large corporate and middle market deals summarized in What's Market from 2011, 2012 and 2013. This Note will be updated quarterly.

A discussion of loan buybacks including links to loan buyback provisions in large corporate and middle market credit agreements. This Note will be updated quarterly.

A discussion on market disruption clauses and various market changes to that clause, including links to recent large corporate and middle market deals summarized in What's Market from 2011, 2012 and 2013. This Note will be updated quarterly.

A review of trends in large corporate and middle market loan terms in 2012.

A review of significant trends in loan terms in large cap and middle market leveraged loan transactions in the first half of 2012.

A standard form of master assignment and assumption of loans and commitments used for multiple assignments in syndicated loan transactions. This Standard Document (or a similar form for single assignments) is typically included as an exhibit to the loan agreement and is consistent with the form of assignment and assumption published by the Loan Syndications and Trading Association (LSTA). This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A standard form of a certificate to be furnished by a borrower to its outside legal counsel in support of counsel's legal opinion to the lenders in a financing transaction. This certificate includes certifications about the borrower's existence, material contracts, approvals and litigation, and its status as an investment company. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A Standard Document to be used by the borrower to request a borrowing of loans, a conversion of an existing loan from one type to another type, or a continuation of a eurodollar rate loan for an additional interest period. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A standard form of a confidentiality agreement to be used in connection with a loan transaction. This agreement includes exceptions to confidentiality and remedies for breach of the confidentiality provisions. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

This is a standard form of forbearance agreement to be used when a borrower defaults under a loan agreement and the parties are negotiating an out-of-court restructuring. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A standard form of intercompany note used to document an intercompany loan. This Standard Document references a loan agreement with a third-party lender and may be included as an exhibit to that loan agreement. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

This Landlord Lien Waiver and Collateral Access Agreement provides a lender with a lien waiver from its borrower's landlord and the right to access the collateral located at the borrower's leased premises. This Standard Document is a form that may be used by lenders providing borrowers with financing secured by the borrower's property that is located at the borrower's leased premises. This Standard Document has integrated drafting notes with important explanations and drafting tips. 

A Standard Document from a law firm to a prospective client waiving conflicts of interest that arise in representing the propective client whose interests conflict with the interests of an existing client. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

  This is a Standard Document for a loan commitment from a syndicate lender to an agent bank. This Standard Document has integrated notes with important explanations and drafting and negotiating tips. 

This is a standard form of waiver or consent in connection with a loan agreement made by lenders in a bank syndicate in favor of the borrower.  This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A form of a promissory note to be used when the parties want a negotiable instrument. This model describes the terms and provisions that are required or permitted to be included in a negotiable note under the Uniform Commercial Code as in effect in the State of New York and explains the principal differences between negotiable and non-negotiable notes.This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

Where the borrower owns a promissory note that is collateral in a loan transaction, a Note Power is delivered to the secured party together with the note. When completed and signed, the Note Power transfers the ownership interest in the note from the borrwower to the secured party.

This is a typical form of revolving loan promissory note for a syndicated loan agreement that has a revolving credit facility. This Standard Document has integrated notes with important explanations and drafting tips.

This is a typical form of term loan promissory note for a syndicated loan agreement that has a term loan facility. This Standard Document has integrated notes with important explanations and drafting tips.

This is a standard form of officer's certificate provided by an officer of the borrower in a loan financing. This standard document has integrated notes with important explanations and drafting and negotiating tips.

This is a standard form of loan participation agreement to be used for the sale of a participation interest in a bank's funded loans and unfunded lending commitments under a single loan agreement.  This Standard Document has integrated notes with important explanations and drafting and negotiating tips. 

This is a standard form of payoff letter, specifically for use in situations where there are continuing letters of credit.  A payoff letter is typically requested by a borrower from its lender in connection with the repayment of the borrower's outstanding loans to the lender and termination of the loan agreement. If letters of credit were issued under the loan agreement that survive its termination, the payoff letter must reflect this and include provisions addressing ongoing matters relating to the continuing letters of credit. This standard document has integrated notes with important explanations and drafting and negotiating tips.

This is a standard form of Personal Guaranty (also guarantee) made by an individual related to a borrower in connection with a syndicated loan. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

This standard form of resolutions authorizes multiple related subsidary guarantors that are limited liability companies to enter into a guarantee of their parent company's loan transaction. This Standard Document has integrated notes with important explanations and drafting tips.

This standard form of resolutions authorizes multiple related subsidary guarantors that are corporations to enter into a guarantee of their parent company's loan transaction. This Standard Document has integrated notes with important explanations and drafting tips.

This standard form of resolutions authorizes a subsidary to enter into a guarantee of its parent company's loan transaction. This Standard Document has integrated notes with important explanations and drafting tips.

This is a standard form of security agreement to be used in connection with a syndicated loan agreement. It is intended to create a security interest over all assets of the grantors that are covered by UCC Article 9. The grantors are usually the borrower, its parent and its subsidiaries. The grantors typically enter into the security agreement with a collateral agent, which is acting on behalf of lenders under a syndicated loan agreement. This form can also be used for one lender. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

This is a typical form of standby letter of credit that can be used by an issuing bank for letters of credit that are either issued under a letter of credit sub-facility of a syndicated loan agreement, or as a standalone issuance. This Standard Document has integrated notes with important explanations and drafting tips.

This is a standard form of term sheet for syndicated senior secured credit facilities (including a revolving credit loan and term loans). This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

Form of UCC-3 financing statement. The Delaware alternative form of UCC-3 financing statement was amended as of August 1, 2009 (for a copy of the revised form, see http://www.corp.delaware.gov/uccform.shtml).

A form of fixed percentage warrant to be used in connection with the financing of a private company, including in a private equity or venture capital transaction. This agreement sets out the terms and conditions by which the holder of a warrant receives the right to purchase, for a nominal exercise price and for a set exercise period, a number of equity securities of an issuer equal to a fixed percentage of the outstanding equity securities at the time of exercise. It is drafted in favor of the investor, but aims to be reasonable and includes customary provisions commonly included in many warrants. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A form of penny warrant to be used in connection with the financing of a private company, including in a private equity or venture capital transaction. This agreement sets out the terms and conditions by which the holder of a warrant receives the right to purchase, for a set exercise period, a specific number of equity securities of an issuer for a nominal exercise price. It is drafted in favor of the investor, but aims to be reasonable and includes customary provisions commonly included in many warrants. This Standard Document has integrated notes with important explanations and drafting and negotiating tips.

A Standard Clause in sponsor commitment letters for acquisition financings that mirrors a typical material adverse change clause found in acquisition agreements. The Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A standard form of cross-collateralization clause found in a loan agreement or security agreement in some consumer and corporate loan transactions. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

These Standard Clauses provide examples of borrower-friendly ERISA provisions relating to definitions, representations and warranties and covenants for credit and financing agreements. These Standard Clauses include integrated notes with important explanations and drafting tips.

Standard Clause included in a sale or supply of goods agreement under which the buyer grants to the seller a purchase-money security interest (PMSI) in the goods to secure the buyer's obligation to pay the purchase price of the goods. This Standard Clause has integrated notes with important explanations and drafting tips.

Standard Clauses for affirmative covenants in a bilateral or syndicated corporate loan agreement, including, among others, covenants regarding the borrower's payment obligations, information reporting, property maintenance and environmental compliance, and obligations regarding collateral assets.  These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

These Standard Clauses for syndicated loan agreements specify terms for assignments and participations of loans. The Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

These Standard Clauses set out boilerplate provisions typically included in loan agreements, including governing law, submission to jurisdiction, waiver and severability provisions. The Standard Clauses have integrated notes with important explanations, and drafting and negotiating tips.

A typical change of control event of default clause found in corporate loan agreements. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A Standard Clause for confidentiality provisions typically found in syndicated loan agreements. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

Typical cross-acceleration event of default clause in a loan agreement. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A Standard Clause for loan agreements permitting the parent company to make an equity contribution to the borrower in order to enable the borrower to meet its financial covenants. The Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

Standard Clauses for payment of expenses and indemnification obligations in corporate loan agreements. The Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

These Standard Clauses are typical provisions setting out the terms of a letter of credit facility made available to the borrower under a revolving credit loan. These Standard Clauses govern the process for requesting letters of credit and specify the borrower's obligations to reimburse the letter of credit issuing bank for amounts drawn under the letters of credit.  They also set out the obligations of the revolving lenders to participate in outstanding letter of credit obligations if not reimbursed by the borrower. Also included are provisions requiring the borrower to post cash collateral to secure letter of credit obligations under certain circumstances, and provisions regarding letter of credit fees. These Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

Discussion of a limitation on debt negative covenant typically found in loan agreements. The Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

Discussion of the limitation on investments negative covenant typically found in loan agreements. The Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

Discussion of a limitation on restricted payments negative covenant typically found in loan agreements. The Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

A typical material adverse change (MAC) event of default clause often found in loan agreements. This Standard Clause has integrated notes with important explanations and drafting and negotiating tips.

Typical prepayment and commitment reduction and termination clauses in loan agreements. These Standard Clauses have integrated notes with important explanatory, drafting and negotiating tips.

Standard Clauses for representations and warranties made by the borrower and other loan parties in corporate loan agreements. The Standard Clauses have integrated notes with important explanations and drafting and negotiating tips.

Standard loan agreement definitions. These definitions assume the loan is syndicated with an administrative agent acting on behalf of the lenders, secured and guaranteed and involves a domestic borrower.  These definitions may be used for transactions with different terms but modifications may be required.

A resource providing the text of and drafting notes for the standard recommended arbitration clauses of the American Arbitration Association (AAA), International Centre for Dispute Resolution (ICDR), International Chamber of Commerce (ICC) and the United Nations Commission on International Trade Law (UNCITRAL).

This Checklist describes issues that borrower's and lender's counsel may need to consider under a loan agreement before the borrower can enter into a joint venture. It highlights negative covenants, prepayment provisions, debt restrictions, financial covenant tests, collateral requirements and definitions to be considered. Use this Checklist to review your loan agreement for restrictions on entering into a joint venture when the borrower asks, “Can we do this?”

This Checklist describes issues that borrower's and lender's counsel may need to consider under a loan agreement before the borrower can dispose of any assets. It highlights negative covenants, mandatory prepayment provisions, financial covenant tests, collateral requirements and definitions to be considered. Use this Checklist to review your loan agreement for restrictions on disposing of assets when the borrower asks, "Can we do this?"

This Chart provides a summary of the jurisdictions that have initialed or signed a model intergovernmental agreement (IGA) to implement the Foreign Account Tax Compliance Act (FATCA)

A Checklist of issues that parties negotiate, and the objectives that each side may seek, in a typical one-way confidentiality agreement used in connection with an M&A transaction.

Description of searches conducted and information gathered in connection with a legal opinion in a financing transaction. This Checklist also discusses the issues counsel should consider in connection with opinion due diligence.

This Checklist summarizes certain issues lender's counsel should consider when reviewing an acquisition agreement in an acquisition financing.

This Checklist outlines the main issues in the anti-dilution provisions of a general form of warrant used in a financing transaction and provides negotiating points for both the investor and the company.

Description of issues relating to foreign and local counsel in a secured financing transaction.

A summary of trends in "SunGard" provisions in 2013, 2012 and 2011 acquisition financing commitment letters in PLC's What's Market.

On February 28, 2013, Practical Law Company, Davis Polk & Wardwell LLP and Jones Day LLP presented Current Trends in Loan Terms: Large Corporate and Middle Market Loans, a one-hour webinar on current trends in loan terms in both the large corporate and middle market segments of the loan market.  You can access the recorded webinar here.  Click here to download the webinar slides.

Typical provisions for certain syndicated term loans have undergone a transformation in the last ten years, adopting some features traditionally found in high yield bonds. Investors and arrangers should understand the implications of this unmistakable trend and take into account the related risks in their decision-making.

An assessment of the international implications of the US Foreign Account Tax Compliance Act.

On March 1, 2012, Practical Law Company, Davis Polk & Wardwell LLP and Jones Day LLP presented Early 2012 Trends in Loan Terms: Large Corporate and Middle Market Loans, a one hour webinar on current trends in loan terms in both the large corporate and middle market segment of the loan market. You can access the recorded webinar here. Click here to download the webinar slides.

An article about recent developments relating to the US Foreign Account Tax Compliance Act.

This Article explains how the federal New Market Tax Credit (NMTC) Financing Program works to encourage private investment in low-income areas. It also highlights the benefits and drawbacks for investors and borrowers.

This Article looks at leveraged buyout (LBO) financing activity in 2010, assesses the extent to which financing trends and changes to loan agreement provisions identified last year have held and considers some new developments in acquisition financing trends for 2011.

An expert Q&A with Joerg Esdorn of Gibson, Dunn & Crutcher LLP on the recovery of the leveraged loan market, including factors driving the increased activity, which new investors are replacing CLOs and how loan terms are changing to attract them.

This Seyfarth Shaw LLP memorandum discusses the impact on the retail industry of a joint FASB-IASB proposal to change the lease accounting standard for lessors and lessees, which among other things would eliminate the distinction between operating and capital leases.

Michael I. Zinder of Willkie Farr & Gallagher LLP explains recent developments in mandatory prepayment provisions.

A discussion of how recent changes to generally accepted accounting principles affect acquisition loan agreements.

Almost a year has passed since Bank of America acquired Merrill Lynch, but the controversial deal continues to make headlines. Professor Steven M. Davidoff looks back at the deal and its subsequent fall-out, and draws out significant lessons.

An article on European and UK trends in private M&A in the post-Lehman deal landscape.

Professor Steven M. Davidoff writes on lessons learned from the Huntsman litigation against the acquisition financing lenders claiming tortious interference of contract.

An article discussing the impact of the financial crisis on LIBOR provisions in credit agreements.

Distressed debt investment can yield high returns but the risks are also significant. This article reviews the reasons why investment firms buy the debt of companies in distress and outlines hurdles that distressed debt investors must overcome.

Professor Steven M. Davidoff writes on the potential future shift in private equity deal structures.

This Article discusses the impact of the decision in Clear Channel Outdoor, Inc. v. Knupfer on section 363(m). Click here to view the full text.

This Article discusses new strategies for stalking horses in section 363 bankruptcy sales.

Professor Steven M. Davidoff writes on the recent changes in, and future of, the strategic deal structure.

This article discusses the proliferation of debt exchanges in the current financial climate.

A consideration of the issues involved in investing in distressed debt in the UK and US markets.

ISDA has published a set of provisions that may be incorporated by reference into loan documents or other transaction documents to address Dodd-Frank rules requiring swap guarantors to be eligible contract participants (ECPs) under the Commodity Exchange Act (CEA).

The LSTA and the ABA filed a joint letter requesting an extension from implementation of new supervisory guidance on leveraged lending.

US bank regulators released new supervisory guidance on leveraged lending, offering high-level guidance to supervised institutions on leveraged lending, which replaces existing guidance.

The Dodd-Frank rule requiring all swap guarantors to be eligible contract participants (ECPs) under the Commodity Exchange Act (CEA) is scheduled to become effective on March 31, 2013. This has implications for loan guarantees and other loan documents that may require immediate attention.

Companies have been increasingly taking on debt to issue dividends to shareholders in 2012 before a potential rise in dividend tax rates.

Rating agencies have reported a sharp increase in the issuance of covenant-lite loans due to low interest rates, a competitive credit environment and investor willingness to take on increased risks.

A summary of six key points on loan participations and participation agreements, drawing comparisons between participations and assignments and including links to PLC Finance's further resources on loan participations.

The Loan Market Association (LMA) has published revised versions of some of its secondary debt trading documents in the light of the US Dodd-Frank Act.

HM Treasury has published Martin Wheatley's final report on the review of LIBOR. Certain aspects of the report are of particular interest to transactional finance lawyers.

The US and UK signed an agreement to improve international tax compliance and implement the Foreign Account Tax Compliance Act (FATCA) on September 12, 2012.

US District Court for the District of Delaware held in Delaware Coalition for Open Government v. Honorable Leo E. Strine, Jr. that the new confidential judicial-arbitration procedures established under Delaware law are unconstitutional.

HM Treasury has published a discussion paper outlining initial thinking on the review of the London Interbank Offered Rate (LIBOR) being undertaken by Martin Wheatley, Chief Executive-designate of the Financial Conduct Authority (FCA). (Free access.)

The Treasury Department published a model intergovernmental agreement to implement FATCA in consultation with France, Germany, Italy, Spain and the UK.

The FSA has fined Barclays Bank plc £59.5 million for breaching Principles 2, 3 and 5 of the FSA's Principles for Businesses through misconduct relating to its submission of rates that formed part of the London Interbank Offered Rate (LIBOR) and Euro Interbank Offered Rate (EURIBOR) setting processes.

According to an article in Leveraged Finance News, May was the first month in 2012 in which more borrowers were pressured to improve pricing on loans during syndication than others that were able to reduce borrowing costs from those contained in the initial loan proposal.

In a blow to lenders, the Eleventh Circuit Court of Appeals reversed a district court ruling and affirmed the decision of a bankruptcy court in In re TOUSA that liens granted by TOUSA's subsidiaries to secure TOUSA's debt constituted fraudulent transfers under section 548 of the Bankruptcy Code. The Lenders' appeal to a prior ruling by the bankruptcy court that questioned the enforceability of saving clauses, which was stayed pending the Eleventh Circuit's decision, may now proceed.     

As the date to implement the Basel III capital reserve requirements nears, many European banks are re-evaluating the economics of corporate lending.

The British Bankers' Association is reviewing the process by which LIBOR is set.

Financial Crimes Enforcement Network (FinCEN) further extends the deadline to file a Report of Foreign Bank and Financial Account (FBAR) by one year to June 30, 2013 for filing individuals that were previously extended in FinCEN Notices 2011-1 and 2011-2.

The Loan Market Association has published four new versions of its primary documents (investment grade) that contain the drafting for a swingline facility. It has also published revised versions of its (investment grade) user guides.

The FASB and the IASB issued common disclosure requirements intended to help investors better assess the effect of offsetting arrangements on a company's financial position.

The FASB and IASB jointly issued a revised exposure draft on a proposed accounting standard for revenue recognition.

The US Court of Appeals for the Second Circuit, in Interpharm, Inc. v. Wells Fargo Bank, National Ass'n, held that a release of the lender in a post-default forbearance agreement was enforceable because the release was not induced by economic duress. 

On August 29, 2011, Innkeepers USA Trust sued Cerberus and Chatham Lodging Trust for terminating the planned acquisition of 64 hotels on the basis of a material adverse change (MAC). Innkeepers claims invocation of the MAC is inappropriate as its business had no significant change since the signing of their agreement.

An update on the final revised tax clauses of the LSTA's Model Credit Agreement Provisions.

HMRC updated its FAQs on the double tax treaty passport scheme on 7 July 2011.

An update on lenders reducing LIBOR floors, as reported by PLC What's Market, and pricing on loans, as reported by S&P Leveraged Commentary and Data.

An update on the lower rate of default among covenant-lite loans as compared with traditional loans from 2007 through 2009, as reported in a study released by Moody's Investors Service.

An update on the increase in borrowing by companies concerned about possible rate increases when the Federal Reserve's Treasury-bond buying program, known as quantitative easing (QE2), ends.

Amended versions of certain Loan Market Association loan trading documents are now live.

An update on the increasing popularity of risky loan structures, including covenant-lite loans and PIK toggle notes.

An update on final regulations issued by Financial Crimes Enforcement Network (FinCEN) on the Report of Foreign Bank and Financial Accounts (FBAR) requirements for US persons.

An update on a decision by the US Bankruptcy Court for the Southern District of New York in the Lehman bankruptcy finding that Bank of America was not entitled to set off a special purpose fund and that they violated the automatic stay under the Bankruptcy Code. 

An update on the Delaware Chancery Court's opinion in CML V, LLC v. Bax, in which the court held that creditors of an insolvent LLC do not have standing to bring derivative claims under the Delaware LLC Act.

An update on the increase in second lien high-yield bond and leveraged loan deals in the market.

An update on the increased liquidity in the leveraged loan market due to investors seeking high-yielding alternatives to stocks and junk bonds.

An update on the impact of the recent surge in high-yield bond issuances on the loan market, including the effects on collateralized loan obligation (CLO) funds, the availability of second lien loans, amend & extend amendments and loan maturity dates.

An update on FASB's extension of the deadline for comments on its proposal to amend disclosure requirements relating to loss contingencies in a company's financial statements to September 20, 2010.

An update on the UK tax authority's "passport" system for new loan facilities, under which US and other foreign lenders can receive interest payments from UK borrowers with no (or reduced) UK withholding tax under an applicable double tax treaty.

An update on the increased use of call protection in the leveraged loan market.

An update on LSTA's white paper discussing the impact of the Dodd-Frank Act risk retention provisions on syndicated loans and collateralized debt obligations.

An update on an initiative to reform international company financial reporting standards.

An update on the publication of new LSTA trading documents which will take effect on August 6, 2010.

An update on the increasing number of small commercial banks buying leveraged loans in 2010.

An update on a proposed accounting standard for revenue recognition jointly issued by the Financial Accounting Standards Board (FASB) and the International Accounting Standards Board (IASB).

An update on the FASB's release of common fair value measurement and disclosure requirement amendments to its proposed accounting standards.

An update on banks offering investors better terms for new deals.

An update on the tax treaty between UBS and the Swiss government dealing with the release of client data.

An update on an anticipated increase in the demand for mezzanine debt.

An update on the rise of the three-month US dollar LIBOR to its highest level since July 2009.

An update on the Fifth Circuit Court of Appeals' decision in Highland Crusader Offshore Partners LP, et al. v. LifeCare Holdings, Inc., et al, which affirmed the district court's decision that a lender's claim for a credit agreement amendment fee should be dismissed.

An update on the International Securities Lending Association (ISLA) publishing Guidance Notes to the Global Master Securities Lending Agreement of 2010.

An update on the resurgence of corporate leverage.

An update on recent rises in leveraged loan prices and reductions in LIBOR floors.

An update on a Wall Street Journal article reporting on several pending deals that involve staple financing.

An update on the increasing demand for exit financing and the availability of better terms for borrowers. 

An update on a report from the Federal Reserve Board (FRB) that shows that banks are not making it more difficult for businesses to borrow.

An update on a white paper issued by 51 law firms analyzing issues related to amendments to the New York power of attorney law.

An update on the Delaware Court of Chancery's new voluntary arbitration rules for certain business disputes.

An update on the ruling by the United States Court of Appeals for the Second Circuit on the Love Funding NY champerty lawsuit.

An update on the Swiss Federal Administrative Court's decision holding that FINMA, Switzerland's financial services regulator, violated Swiss law when it ordered UBS to hand over the names of nearly 250 US clients to US authorities in February 2009.

An update on recent trends in bond offerings, including payment-in-kind bonds, not seen since 2007 before the credit markets froze.

An update on a lawsuit filed by four luxury resort investors against Credit Suisse for allegedly operating a predatory loan-to-own scheme.

An update on the FDIC finalizing the regulatory capital rule for statements of financial accounting standards.

An update on proposed amendments by the SEC to impose additional annual reporting requirements on nationally recognized statistical rating organizations (NRSROs).

An update on a Moody's report finding that future investment grade liquidity could suffer as a result of tougher terms on back-up credit facilities.

An update on a Second Circuit decision holding that a contractual mandatory forum selection clause may bind a non-signatory/successor to the contract.

An update on the opinion issued by the New York Court of Appeals in the Love Funding litigation concerning the application of the champerty statute to the assignment of claims in connection with the trading of debt instruments.

An update on an IRS generic legal advice memorandum that analyzes a foreign corporation's US lending activities.

An update on the Loan Syndications and Trading Association's (LSTA) publication of exposure drafts showing changes the LSTA has made to certain trading documents.

An update on Delaware's VTCI Tax Amnesty Program for 2009.

An update on a S&P report on the pace of global defaults and bankruptcies by corporate issuers.

An update on the release of the FDIC's banking profile for the second quarter of 2009, which shows a rise in distressed banks and a drop in the FDIC's deposit insurance fund.

An update on the fall of three-month US dollar LIBOR to its lowest rate since 1986.

An update on the improvement of the collateralized loan obligations (CLOs) market.

An udpate on a lawsuit in San Francisco Federal District Court stemming from losses from auction-rate securities (ARSs)

An update on the FASB's plan to expand the use of mark-to-market accounting.

An update on a draft interpretation from the International Financial Interpretations Committee (IFRIC) regarding settling financial liabilities with equity instruments.

An udpate on adjustments made by Moody's to improve its global consistency in the analysis of financial statements of banks, securities firms and financial companies.

An update on FASB Statement of Financial Accounting Standards No. 157 Fair Value Measurements.

An update on real estate investment trusts (REITs) using initial public offerings (IPOs) to raise capital to buy distessed mortgage assets.

An update on DTCC Solutions LLC's plans to transfer its Loan/SERV business to a new wholly-owned subsidiary, DTCC Loan/SERV LLC.

An update on the three-month US dollar LIBOR dropping to a record low rate.

An update on a Professional Risk Managers' International Association (PRMIA) survey showing that credit losses are the biggest concern for risk managers.

An update on Standard & Poor's (S&P) commitment to update its ratings process in the wake of the global financial crisis.

An update on a Department of Justice investigation into possible antitrust violations in the credit derivatives market.

An update on an article by Standard & Poor's (S&P) that says 15 issuers' ratings were downgraded to speculative grade from investment grade in the month of June 2009.

An update on the agreement between Switzerland and the US to amend a treaty related to the exchange of tax information and the dispute over US efforts to compel UBS to turn over client records related to an investigation into tax evasion.

An update on the Financial Accounting Standards Board (FASB) announcing the launch of a new project aimed at creating a framework for effective financial statement disclosures.

An update on the Swiss government's refusal to allow UBS to turn over the names of its clients to federal prosecutors in the US as part of an investigation into tax evasion at the Swiss bank. 

An update on the launch of the FASB Accounting Standards Codification.

An update on an article in the Daily Bankruptcy Review which discusses a new strategy by private equity in acquiring interests in banks.

An update on the June 30, 2009 filing deadline for the Report of Foreign Bank and Financial Accounts (FBAR).

An update on the Loan Syndications and Trading Association (LSTA) publishing revised draft trading documents.

A further update on the proposal introduced by the Obama Administration on June 17, 2009, which sets its sights on the nation's largest financial institutions.

An update on the New York Court of Appeals' decision in Koehler v. Bank of Bermuda, Ltd., holding that New York courts may order a bank to deliver assets located outside the state as long as New York has personal jurisdiction over the bank holding the assets.

An update on guidance published by the Financial Crimes Enforcement Network (FinCEN) on information sharing by financial institutions under the safe harbor provision of Section 314(b) of the USA Patriot Act.

An update on the new "Windows" securities being offered by various banks to municipalities which allows for long-term borrowing at short-term interest rates.

An update on the Treasury Department's release of the April 2009 bank lending survey results.

An update on the impending court battle between chemical maker Huntsman and two investment banks over the failed leveraged buyout of Huntsman.

An update on the Loan Syndications and Trading Association's (LSTA) publication of new "borrower deemed consent" language in final form.

An update on a report by Moody's Investors Service estimating that US banks will incur about $470 billion in losses and writedowns in 2009 and 2010.

An update on the Financial Accounting Standards Board's (FASB) plans to officially launch the FASB Accounting Standards Codification on July 1, 2009

An update on a report that the short maturities of many commercial real estate loans held by banks may cause large losses.

An update on a Standard & Poor's (S&P) report showing there has been an increase in the amount of bond issuances sold for the purpose of repaying loans.

An update on a Standard & Poor's (S&P) article about the number of defaults by global corporate issuers caused by distressed exchanges.

An update on Standard & Poor's release of a revised article, including a list of frequently asked questions, about the ratings implications of exchange offers, debt buybacks and similar restructurings.

An update on a Texas court granting Huntsman the right to sue Deutsche Bank and Credit Suisse over Hexion's failed takeover.

An update on the trend among banks of giving less favorable terms to borrowers on revolving loans due to the financial crisis.

An update on the rapidly increasing rate of distressed bond exchanges in the US.

An update on the April Federal Open Market Committee meeting.

An update on a partnership between CUSIP Global Services and Avox to create a universal identification system, named "CABRE," for global business entities.

An update on the growing trend among higher rated companies to use asset-backed loans.

An update on a response sent by a collection of trade associations, including the International Swaps and Derivatives Association (ISDA), to the Basel Committee on Banking Supervision's proposed enhancements to the Basel II framework.

An update on the FDIC publishing its banking profile for the fourth quarter of 2008.

An update on Standard & Poor's global downgrade ratio reaching 93%, a record high.

An update on changes to rating agency criteria announced this week.

An update on changes to rating agency criteria including a new S&P white paper examining credit rating firms business models.

An update on an article that examines reasons for a decline in ratings coverage.

An update on the response of the Financial Accounting Standard Board (FASB) to public comments on proposals related to fair value (mark-to-market) accounting and accounting for impaired securities.

An update on the London Stock Exchange's decision to drop its plan to offer trading of contracts for difference and stocks on the same platform.

An update on the Delaware Chancery Court's opinion in Sutherland v. Sutherland holding that corporations cannot remove a director's fiduciary duty of loyalty through contract.

An update on the London Stock Exchange (LSE) launching a new central counterparty for trading depositary receipts on the LSE's International Order Book.

An update on new and revised rating agency criteria, including S&P ratings assumptions for US first-lien high loan-to-value RMBS transactions and Fitch's updated surveillance methodology for RMBS transactions.

An update on the Financial Accounting Standards Board's proposed Staff Position No. 157-e, Determining Whether a Market is Not Active and a Transaction is Not Distressed.

An update on the Office of Thrift Supervision's views on the reform of mark-to-market accounting rules.

An update on the IASB's request for comments on the FASB's proposals relating to fair value measurement and impairments of financial instruments.

An update on a new asset-backed commercial paper structure marketed by Royal Bank of Scotland.

An update on the identity of banks receiving payments from AIG.

An update on an S&P report stating that the proposed Basel II Committee rule amendments would increase banks' capital requirements.

An update on the bulletin describing important changes to DTC's Representations for Rule 144A Securities Rider.

An update on the SEC's plans to implement an electronic monitoring system to track hedge fund transactions in an effort to curb abuses.

An update on the adoption of guidelines for responsible investment by members of the Private Equity Council.

An update on Europeans companies offering higher interest rates to lock in future bank loans before their current commitments expire.

Legal Update on the Financial Accounting Standards Board (FASB)'s Proposed Amendments to FASB Statement No. 107.

Legal Update on the Federal Open Market Committee's Decision to Keep the Target Federal Funds Rate at Between 0% and 0.25%

An update on the release by the two private-sector committees established by the President's Working Group on Financial Markets of their finalized sets of best practices for asset managers and hedge fund investors.

An update on the New York Banking Department's release of a letter interpreting New York banking laws to apply to same-sex marriages.

An update on the LSTA's publication of exposure drafts of trading documentation.

An update on Fitch Ratings' 2009 credit rating outlook for financial institutions.

An update on the Realogy-Carl Icahn litigation.

An update on the decision of the Federal Open Market Committee to lower the target federal funds rate to between 0% and 0.25%.

An update on US generally accepted accounting principles being accepted in Europe.

An update on the Financial Accounting Standards Board's upcoming release of a unified, authoritative Accounting Standards Codification.

An update on a lawsuit filed against Realogy Corporation claiming its debt exchange offer constitutes a fraudulent transfer.