Distressed Assets & Alternative Investments

Loan Market Breathes a Sigh of Relief As SDNY District Court Finds Loan Are NOT Securities

 

On May 22, 2020, the loan market let out a collective sigh of relief as Judge Gardephe dismissed the Millennium Lender Claim Trust’s complaint alleging securities law violations related to the sale of loans. The central question considered was whether loan trading should be subject to securities laws. The loan market operates on the assumption that loans are not securities, and the LSTA and Bank Policy Institute sought authority for leave to file briefs as amicus curiae to support that position. The motion for leave to file was denied, thus heightening concern over the outcome. But the concerns turned out to be unwarranted. Rather than redefining the leveraged loan market, Judge Gardephe stuck with the status quo finding that the loans were not securities after applying the four prong Reves test, which considers: (i) the motivations of Seller and Buyer; (ii) the distribution plan for the loans; (iii) the reasonable expectations of the investing public and (iv) the existence of another regulatory scheme. The Court pointed to the fact that the documents used the terms “loan documents,” “loan,” and “lender” consistently throughout, instead of “investor” which “would lead a reasonable investor to believe that the Notes constitute loans, and not securities.” The Court also noted in light of the Banco Español case, where the Second Circuit affirmed the district court’s finding that because “the Office of the Comptroller of the Currency has issued specific policy guidelines addressing the sale of loan participations,” application of securities laws is unnecessary as another regulatory scheme exists. (Order at 21, citing Banco Español de Credito v. Sec. Pac. Nat. Bank, 973 F.2d 51 (2d Cir. 1992)). The Plaintiff has until June 5, 2020 to amend the complaint.

COVID-19-Related Defaults in European Leveraged Loans Could Create Opportunities for Distressed Investors

 

Since the last financial crisis, borrowers and private equity sponsors have cut distressed investors out of most European leveraged loan deals. According to Reorg Debt Explained about 66% of European leveraged loans in 2019 restricted transfers to distressed investors.[1] But the recent economic turmoil created by the COVID-19 pandemic could create opportunities for distressed investors to return to the market. Fitch Ratings recently forecast a 4% default rate for European leveraged loans in 2020 and a 7% default rate in 2020.[2] In a severe downside scenario, Fitch projected that default rates could reach as high as 14% next year. In some European leveraged loan deals, the transfer restrictions that have kept distressed investors out of lending syndicates may fall away if events of default (or certain specific events of default) occur and continue. Read our key takeaways here.

Secondary Trading As Usual?

 

In a very short time, the COVID-19 pandemic has spread frightening levels of uncertainty all around the world. While many schools, businesses, and houses of worship have closed, the financial markets remain open. Like other markets, the secondary market for syndicated loans has experienced stomach-churning volatility and steep declines in asset prices in recent weeks. If you aren’t thinking about how COVID-19 could affect liquidity and settlements, you should be. Fortunately, the standard trading documents published by the Loan Syndications & Trading Association (the “LSTA”) already contain important concepts and tools aimed at promoting liquidity and pushing trades toward settlement, even during times as uncertain as these.

Click here for a brief refresher on some of the provisions that could prove critical in the months ahead.

Debtwire European Distressed Debt Market Outlook 2017

 

The 2017 Debtwire European Distressed Debt Outlook report surveyed 100 distressed investors and 30 private equity funds to establish the outlook for 2017.  Jointly sponsored by Orrick and Greenhill, the report predicts that European restructurings will hit their next peak in 2017, with respondents citing interest rate rises (22%), geopolitical conflict (21%) and Brexit (16%) as the most important macroeconomic factors driving this trend.  READ MORE

Orrick Lawyer Co-Authors Article Addressing Unique Confirmation Issues in Nonprofit Cases

 

Orrick’s Evan Hollander co-authored an article for The Norton Annual Survey of Bankruptcy Law  (2016 Edition) addressing unique confirmation issues faced by nonprofit debtors in Chapter 11. The article addresses the applicability of the absolute priority rule, distinctive feasibility issues, and appropriate comparators when considering the best interests test in a nonprofit case. The authors identify emerging trends in nonprofit bankruptcy jurisprudence and suggest legislative action to help clarify certain ambiguities in the law. Read the full article here.

New LSTA Par Confirm Penalizes Buyers for Settlement Delays

 

In an effort to reduce settlement times, the Loan Syndications and Trading Association (the “LSTA”) recently revised its standard par loan trading documents to penalize buyers who take too long to settle. Beginning September 1, 2016, buyers who fail to fulfill their obligations to timely settle par loan trades will forfeit the right to receive interest that accrues prior to the settlement date. The changes do not apply to loans trading on distressed documents.

The LSTA’s revisions represent the trade group’s most aggressive step to combat settlement delays. The revisions are also the most consequential changes to the LSTA’s standard par trading documents in years.

Under the current version of the LSTA’s Standard Terms and Conditions for Par/Near Par Trade Confirmations (the “Standard Terms”), buyers are automatically compensated for interest that accrues on a loan during the period beginning on the seventh business day after the trade date up through the settlement date (“Delayed Compensation”). Starting on September 1, 2016, this provision will no longer be automatic. Instead, par loan buyers will only be entitled to Delayed Compensation if they satisfy several new requirements, including paying the purchase price to the Seller in accordance with specific timing requirements (the “Delayed Compensation Prerequisites”). The LSTA believes that the Delayed Compensation Prerequisites will create a new sense of urgency for buyers to close trades and discourage buyers from tying up sellers’ balance sheets. READ MORE

English Law Schemes of Arrangement: Class Composition

 

Focus on the AB InBev and SABMiller merger

Having received the sanction of antitrust regulators in Europe, the U.S., China and South Africa, the planned merger of brewing giants AB InBev and SABMiller was scrutinised this week by the High Court in London on a topic very familiar to those acquainted with English law restructurings: class composition. The outcome of the hearing, that not all members of SABMiller should be considered to be in the same class for scheme voting purposes, raises some interesting questions around class composition because of the unusual circumstances of the proposed merger. READ MORE

Orrick Ranked Among Top Ten Bankruptcy Law Firms

The Deal has once again recognized Orrick as a Top Ten Bankruptcy Law Firm in its Q1 2016 Bankruptcy League Tables. After being named to the top ten in each quarter last year, Orrick extended the streak by gaining one spot in the rankings (now #7).

During a busy Q1 period, we advised several clients on a diverse blend of bankruptcy matters, with a particular emphasis in the areas of distressed energy, municipal debt and cross-border restructurings.

The Deal’s Bankruptcy League Tables are the industry’s only league tables focused solely on active bankruptcy cases. These rankings are compiled on a quarterly basis through comprehensive deal intelligence to identify the top law, crisis management, investment, and non-investment firms and professionals involved in bankruptcy transactions throughout the United States.

Orrick Named Top Ten Bankruptcy Law Firm in Every 2015 Quarter

DealPipelineTablesQ415Once again, Orrick has been ranked a Top Ten Bankruptcy Law Firm by The Deal Pipeline. These rankings are released on a quarterly basis, compiling comprehensive deal intelligence to identify the leading law, crisis management, investment, and non-investment firms and professionals involved in bankruptcy transactions throughout the United States. After cracking the top ten in Q1, Orrick remained among the top ten bankruptcy law firms in every quarter in 2015.

Orrick’s restructuring team enjoyed a busy year, including such recent highlights as representing the City of Stockton in its exit from bankruptcy and dismissal of an appeal filed by holdout creditor Franklin Templeton in the US Bankruptcy Appellate Panel of the Ninth Circuit; Tirreno Power on a complex corporate reorganization including the negotiation and drafting of a €1 billion debt restructuring agreement, which was awarded Restructuring Deal of the Year at the 2016 Legalcommunity Energy Awards; and IFM Investors Pty Ltd, on behalf of IFM Global Infrastructure Fund, in its $5.72 billion acquisition of 100% of the membership interests of ITR Concession Company, which operates and maintains the Indiana Toll Road – named M&A Deal of the Year by ​M&A Advisor.

To see the complete list of rankings, please click here.

VIDEO: Debtwire European Distressed Debt Market Outlook 2016

Orrick partner and co-head of Europe Restructuring Stephen Phillips recently joined a Debtwire panel on potential high yield restructurings in Europe and current volatile market conditions at the 12th European Distressed Debt Market Outlook. Several videos from the launch are now available on Debtwire’s site.

sphillipsdebtwire

For more information, please contact Stephen.