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Unitranche financing began as a middle-market product, tracing its origins to the days of recovery from the global credit crisis. The credit markets re-opened with an explosion of available capital from traditional lenders, business development companies and other direct lenders. With an increasing supply of capital, leverage shifted to borrowers and private equity, allowing them to better dictate the terms and conditions of their loan facilities. With the greater prevalence of so-called “covenant-lite” loans, also came the exponential growth of the unitranche market. What began as a financing structure most often used for loans of less than $50 million, unitranche loans are now regularly used for financings exceeding $1 billion, and in 2021, up to $3 billion.  A unitranche facility combines the benefits of multi-tranche debt regularly found in the syndicated lending markets (i.e., the ability to raise funds from lenders with different risk profiles and return expectations), with those of speed and certainty that are a hallmark of the private lending community. In its simplest form, unitranche facilities are structured using a single-tier, combing the senior and junior components of syndicated loans into one loan. Whereas a syndicated loan may require distinct grants of senior and junior liens on collateral to multiple lending groups, a unitranche uses a single lien to secure the entire facility. The benefits to the borrower are obvious: it is faced with a single term loan: one set of principal and interest payments, a single package of covenants to monitor, and a uniform list of defaults to avoid. Layering on the advantage of a single agent, a unitranche facility greatly streamlines loan administration from the borrower’s perspective.

Continue Reading The Continued Growth of Unitranche Financing

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The financing of commercial litigation has grown enormously since it first appeared on the scene in the US, about 15 years ago.  While still small relative to the overall US financial market, it is estimated that more than $11 billion has been invested in litigation finance in the US last year alone.  In essence, lenders (often referred to as “funders”) provide commercial claimants and contingency law firms with the capital needed to prosecute legal claims which the funders believe have a strong likelihood of success.  Funders receive a return based upon, and typically conditioned upon, a successful conclusion of the litigation.  The use of litigation funding by bankruptcy practitioners is a growing phenomenon and one that we see as an increasingly important element in how bankruptcy-related litigation is managed.

Continue Reading The Use of Litigation Funding in Bankruptcy

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Considerations of “environmental, social and governance” (or ESG) criteria with respect to a company’s management and operations continue to take on greater importance in lenders’ and investors’ credit and investment decisions.  How a borrower or a target company measures up to these ever-developing ESG standards will impact its cost of capital and value to potential investors and acquirors. While it remains difficult to predict how the perception of a company’s ESG performance (or even its rating) may impact its capital-raising efforts or its likelihood of success or failure, a number of trends seem inevitable.

Continue Reading Trends in ESG for Members of the Restructuring Community

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The merchant cash advance (“MCA”) industry recently provided two different bankruptcy courts with an opportunity to consider the characterization of MCA funding transactions as either “true sales” of receivables or “disguised loans”. [1] MCA funders typically provide cash to a financially distressed company in exchange for a percentage of that company’s future receivables collection. Companies in need of liquidity will often seek to monetize their receivables, either by selling them (i.e., a true sale) or using them as collateral for a loan (i.e., a secured loan). Recognizing the benefits of having an ownership interest in such assets in case of a counterparty’s bankruptcy, MCA funders typically attempt to structure their transactions as “purchases” of a company’s future receivables. For that same reason, a bankruptcy trustee or a debtor-in-possession will often argue that these transactions are really “disguised loans” and that the MCA funder is only a secured creditor of the bankruptcy estate that owns the receivable.

Continue Reading Receivables Transactions Revisited: Recent Decisions Split on Sale vs. Loan Characterization

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Hot on the heels of crises driven by shortages of carbon dioxide and HGV drivers, it is perhaps the ultimate irony that – in the month before COP 26 in Glasgow – the UK and to a lesser extent much of the rest of the world has been rocked by a series of crises in the fossil fuel driven energy market.  Whilst much of Asia is being impacted by a shortage of coal, Europe is feeling the full effects of a shortage of natural gas.  This is perhaps particularly acute in the UK for a number of reasons including reduced storage capacity, issues with one of the key grid interconnectors to France, and a spike in global demand as the world economy seeks to pick up from where it left off pre-pandemic.  The result?  Eye watering wholesale gas prices that have risen more than double since January 2021, with a 70% increase since August. Prices rocketed a further 37% in one day on 6 October.

Continue Reading Energy Crisis Looms for Business

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Does a lender’s demand for the appointment of a Chief Restructuring Officer (or CRO) by its borrower constitute “undue duress” for purposes of invalidating a personal guarantee? That question was before the Fifth Circuit in Lockwood International, Inc. v. Wells Fargo, National Association et al. v. Michael F. Lockwood, Case 20-40324 (5th Cir. 2021).

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By Cathryn Williams, Paul Muscutt and Beth Bradley of the London Crowell Restructuring Team.

The Insolvency Act 1986 (HMRC Debts: Priority on Insolvency) Regulations 2020 (SI 2929/983) (the Regulations) were made on 11 September 2020 and will come into force on 1 December 2020.

As a result of the changes brought about by

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By Cathryn Williams, Paul Muscutt, Andrew Knight and Beth Bradley

Following our recent post (https://www.restructuringmatters.com/?p=2017&preview=true) on the new Corporate Insolvency and Governance Act 2020 (“the Act”), we now take a closer look at the moratorium and the effects on priority between pre-existing and moratorium lenders.

The New Moratorium – an Overview

The moratorium is

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By Cathryn Williams, Paul Muscutt and Beth Bradley

The full implications of COVID-19 may not be known for some time, but it has had an immediate impact upon UK insolvency law. The government has expedited the Corporate Insolvency and Governance Act 2020 (“the Act”) through Parliament in order to support distressed businesses and assist with

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In these unprecedented times, all businesses will be facing issues they have never encountered before. The disruption caused by the measures imposed to combat the COVID-19 outbreak are significant and wide-reaching, impacting every business and its suppliers, customers, workforce, investors and lenders. At Crowell & Moring, our lawyers across the globe have extensive experience of