Appropriation – the powerful lenders’ remedy few have heard of

In leveraged finance structures (and often in other commercial lending situations) it is common for a lender to take share charges over the shares of a group. If the financial situation of the group deteriorates to the extent the lender decides to enforce the share charge after an event of default, a sales process is the most likely self-help remedy. This often involves the appointment of a receiver, which will market the shares and sell them on behalf of the lenders.

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By Stephen Phillips, FreiLibertas Law, November 2022

Introduction

On both sides of the Atlantic we are seeing a rise in stress of companies which have issued bonds to finance their corporate activities. Some companies will need a full-scale restructuring perhaps involving formal procedures such as schemes of arrangement or restructurings under formal procedures (in Europe) or Chapter 11 in the US. However, many will look to liability management exercises implemented under the consent procedures embedded in the bonds implemented outside of formal procedures. This article focuses on the nature of the consent mechanics for European issuers of High Yield or Eurobonds and addresses how such consent or exchange requests will be impacted by the case law generated after the global financial crisis.

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The UK government has been looking to normalise the UK economy post the covid pandemic and it has brought to an end many of the number of temporary business relief measures. Many of the measures limiting the ability to wind up a company for unpaid debt have expired. The last remaining temporary fetter on winding up companies will expire on the 31 March 2022. From this date the law will

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We face a rather uncertain end to the year. Just as we thought COVID was going to fade into the background of the long list of winter respiratory illnesses a new variant of concern arrives to blow up our assumptions – to paraphrase Al Pacino in the Godfather ‘Just when we thought we were out they pull us back in’.

The end of the year is

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The End of the Transition Period

In anticipation of the end of the transition period of the EU / UK Withdrawal Agreement which was scheduled to (and did) take place at the end of 2020, the UK deposited an application to accede to the Lugano Convention (‘Lugano’) on 14 April 2020 8 April 2020.

Lugano governs jurisdiction and the enforcement of judgments in civil and commercial matters between EU member states and Norway, Iceland and Switzerland.

English law has often been the law of

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Judicial cooperation amongst EU Members States relating to the opening and conduct of insolvency proceedings has been greatly assisted by European Insolvency Regulation 2003 (EIR) which was replaced and enhanced by the Recast Insolvency Regulation 2015 (RIR). Under this regulation,

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