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Advanced Negotiation Issues in M&ADate:

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PUBLIC COURSES

■ Advanced FCA Listing Rules ■ Introdution to the FCA Listng, Disclosure, Transparency and Prospectus

Rules ■ Asset Based Lending ■ Bond Documentation ■ English Law for Non-UK Lawyers ■ Sale & Purchase Agreements ■ ISDA Documentation ■ Negotiating ISDA Master Agreements ■ Listing Rules and Takeover Code - The Fundamentals ■ Market Abuse Regulation - 2017 Update ■ Negotiating & Issuing High Yield Bonds ■ Advanced Negotiation & Structuring Issues in Real Estate Finance Term

Sheets ■ Restructuring High Yield Bonds ■ Securitisation - The Structures, Legal Analysis and Documentation ■ Unitranche & Alternative / Direct Lending ■ Introduction to Financial Issues in Acquisition Agreements ■ Advanced Takeover Code ■ European Term Loan “B” ■ Intercreditor (&AAL) Issues in Leveraged, Real Estate and ABL Transac-

tions ■ Introduction to the Takeover Code ■ Joint Ventures ■ Leveraged Loans in Private Equity and Corporate Transactions ■ Loan Documents and Security Issues ■ Negotiating Heads of Terms (LOI/MOU) & Related Issues ■ Structuring & Negotiating Mezzanine, PIK, Seond Lien and Unitranche ■ Tax Issues in M&A ■ Advanced Negotiation Issues in Financial Covenants ■ Advanced Negotiation Issues in M&A ■ The New UK Corporate Governance Code 2019 ■ Tax Issues Affecting MBOs ■ Corporate Restructuring - Tax Issues ■ High Yield Bonds - Market Update

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IN-HOUSE COURSES

■ Advanced Business & Contract Law ■ Advanced Negotiation Issues in International Commercial Agreements ■ Business Development Planning ■ Corporate Governance - Issues, Updates & Developments ■ Corporation Tax: Update ■ Cybercrime and Financial Services ■ Drafting Commerial Contracts ■ Financial Reporting Requirements in Investment Circulars ■ Fraud and Financial Services ■ IPO Training ■ Interviewing Skills ■ Islamic Banks - Functions and Governance ■ Islamic Finance - Debt Financing Techniques ■ Islamic Finance - Events of Default: Restructure or Litigate? ■ Islamic Finance - Legal problems and their solutions ■ Islamic Finance - Real Estate: The Halah Way ■ Islamic Finance - The Sukuk Revolution ■ Legal Due Diligence ■ Persons of Significant Control Registers: What Charities Need to Know ■ Private Company Sales in the U.S and U.K ■ Private Equity Funds ■ Repo and Securities Lending ■ Restructuring, Turnarounds & Schemes of Arrangement ■ Senior Syndicated Leveraged Loans: Negotiating Issues and Trends ■ Stress Management ■ Syndicated (Leveraged) TLB & Yankee Loans ■ Venture Capital ■ Warranties, Indemnities, Guarantees, Representations Entire Agree-

ments Clauses & Distinctions ■ Yankee Loans ■ Debt Restructuring: For Lawyers ■ Leveraged Buyouts - The LBO Course for Lawyers ■ Trade Finance for Lawyers ■ Structuring and Documentation Issues in Project Finance ■ Negotiation Skills for Lawyers - Issues at the core of legal negotiation ■ Persons of Significant Control Registers: What Private Equity Funds

Need to Know ■ Directors - The Good, The Bad and The Ugly ■ FATCA: The Important Provisions & Practical Compliance ■ Transfer Pricing ■ Business & Contract Law - The Essentials ■ Advanced Negotiation Issues & Trends in Restructuring




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IN-HOUSE COURSES

■ Persons of Significant Control Registers ■ Secondary Equity Offerings ■ The AIM Game ■ Share Capital ■ Securitisation & Structured Products: Upcoming Regulatory Products



Corporate Membership Scheme

Our Corporate Membership Schemes are not valid on any courses held on an in-house basis and are in line with our standard Terms & Conditions

If you would like to enquire about one of our Corporate Membership Schemes then please call or email us for more information.

Email: [email protected] Tel: +44 (0) 20 7387 4484

Our Corporate Membership Scheme gives clients the benefit of discounted course places with absolutely no

restrictions.

Clients pay an annual subscription fee of £595 + VAT to receive 20% discount on all public course and conference

bookings irrespective of the numbers booked.

You Corporate Membership Scheme can be used once payment is received and will be valid for one year.

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Advanced FCA Listing Rules: Latest Updates with DTRsDate: 07 June 2018, 28 Nov 2018

Location: London Standard Price: £695 + VAT Membership Price: £556 + VAT

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On 1 January 2018 a number of updates have been made to the Official List Listing Rules to improve and clarify the rules on the eligibility for a Premium Listing, the classification of significant transactions and reverse takeovers. This course examines these changes and covers other significant updates to the Listing Rules and Technical Notes in the last few years, including shareholder protection and sponsor competence.

The course also covers the Market Abuse Regulation, which became applicable to all quoted companies in the UK in 2016 and is expected to remain, in spite of Brexit, until at least 2019 and probably longer. The requirements of the new MAR and the changes this has brought to the UK market abuse regime are examined.

In addition to comprehensive slides, the course documentation includes exercises illustrating the points in the Technical Notes.

2018 changes ■ Clarification of Premium Listing eligibility

• New holding companies• Historic information on 75% of business• Independence requirements • New Technical Note guidance• Other changes

■ Concessionary routes to listing • New route for property companies• Updates to other routes

■ The Class Tests• Disregarding profits test• Adjustment to profits

■ Suspension of listing for reverse takeovers• Removal of rebuttable presumption• Shell companies• Contacts with FCA

Market Abuse Regulation ■ The new MAR regime

• Replacement of Market Abuse Directive• FCA’s approach to MAR

■ Prohibition of market abuse and market manipulation• Definition of inside information• Insider dealing• Unlawful disclosure

■ Disclosure of inside information• Conditions for delaying disclosure• ESMA guidelines on legitimate interests• Notification of delays in disclosure

■ Safe harbours from market abuse ■ New requirements for insider lists ■ Changes in director/PDMR disclosures

• Information required• Closed period restrictions and excep-

tions

FCA’s rules to strengthen shareholder protection ■ Background to new rules

• Issues arising from Bumi, ENRC and oth-er controlled companies

■ Controlling shareholders targeted by new rules

■ Mandatory relationship agreements ■ Enhanced voting rights of minority share-

holders ■ Provisions affecting all companies

• Independent business and guidance• Annual report disclosures• Smaller related party transactions• Changes to Listing Principles• Notifications for breach of ongoing eligi-

bility criteria

Other Listing Rule and guidance issues ■ Sponsors

• Sponsor competence rules• Broadening of “sponsor services”• Smaller related party guidance• Greater responsibility to provide infor-

mation to FCA• On-going identification of conflicts• Guidance on procedures and resourcing

■ Transactions• Other class tests changes and guidance• When supplementary circulars are re-

quired• Updates to circular rules and guidance• Guidance on hostile takeovers and work-

ing capital


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Introduction To The FCA Listing, Disclosure And Transparency And Prospectus RulesDate: 11 Oct 2018


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Participants will learn about the general principles which underpin the Prospectus Rules, Listing Rules and Disclosure and Transparency Rules and be taught about their practical application regarding obtaining listings and executing further transactions.

They will gain a strong understanding of the role of the sponsor, the conditions and methods of listing, the listing procedures and the contents of prospectuses and all aspects of continuing obligations, including the disclosure of inside information.

They will appreciate how the provisions of the EU Prospectus, Market Abuse and Transparency Directives have been brought into UK regulation and examine the different requirements of premium and standard listings compared to those of AIM.

In addition to comprehensive slides, the course documentation includes detailed notes on the rules, summaries of FCA/FSA enforcement cases for breaches of the rules, and extracts from the different types of prospectus and circular covered in the course.

Background to the regulation

■ The EU Prospectus Directive, Market Abuse Directive and Transparency Directive

■ How the regulators operate ■ Standard and premium listings ■ Recent problems with controlling sharehold-

ers: Bumi and ENRC

Listing Rules

■ Listing principles ■ General requirements for listing ■ Requirements for a premium listing

• Three year track record• 75% of business• Independence• Requirements for companies with con-

trolling shareholder• Special types of issuer

■ Types of flotation ■ Listing application ■ Suspension, cancellation and restoration of

a listing• Reverse takeovers

■ Sponsors• Role and responsibility• Criteria for approval

■ Continuing obligations• Continuing eligibility requirements• Pre-emption rights• Transactions after flotation• Model Code

• Documents requiring prior approval ■ Significant transactions

• The class tests• Break fee rules

■ Related party transactions ■ Share buy-backs

The Disclosure and Transparency Rules

■ Principal concepts ■ Effect of Market Abuse Regulation (MAR) on

Disclosure Rules ■ Disclosure and control of inside information by

issuers• What constitutes inside information?• Is an immediate announcement necessary?• Selective disclosure• Market rumours

■ Disclosure of PDMR dealings ■ Annual reports and interim reports ■ Disclosure of shareholdings

• Thresholds• Timing

■ Access to information ■ Corporate governance

Prospectus Rules

■ Requirement to produce a prospectus ■ Exemptions ■ Contents of a prospectus

• Example of rights issue prospectus• Omissions• Incorporation by reference


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Introduction to the FCA Listing, Disclosure and TransparencyAnd Prospectus Rules

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• Historical financial information • Forecasts and pro formas

■ Approval and publication of a prospectus ■ Advertisements ■ Supplementary prospectuses ■ Passporting and third country issuers ■ Responsibility for prospectus

Key regulation differences with AIM ■ Comparison of premium and standard list-

ings and AIM


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Asset Based LendingDate: 05 Oct 2018

Location: London Standard Price: £675 +VATMembership Price: £540 + VAT

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Asset based lending (“ABL”) has been a well established part of the financing environment in the U.S. for many years and has seen increasing volumes globally. Despite this ABL has struggled to gain the same level of acceptance here for three reason; first, a lack of familiarity, if not confusion, with the product; second, borrower’s reluctance to abandon their traditional-bank led facilities and last, the dated perception of the product. These headwinds are abating and 2015 has seen record issuance in Europe as borrowers, both corporate and PE, are increasingly recognizing the multiple benefits of ABL, not least the increased flexibility and reduced cost vis-à-vis RCFs.

In practice the credit markets adopt two distinct approaches to a credit decision: a cash-flow based approach and an asset-based approach which includes asset based lending. Most lenders are familiar with the former but not the latter. Moreover, ABL is often confused with other asset-related financing techniques especially asset-backed lending and asset finance. In simple terms ABL is a form of secured lending where loans are advanced against specific assets. The main focus is on working capital, although ABL also extends to hard assets such as plant, machinery and equipment, real estate and, more rarely, intangibles.

This programme provides practitioners with a practical toolkit to understanding ABL from the perspective of borrow, advisor, supporting professional and lender. It covers the key assets to which ABL is applied and the typical terms and conditions applied to each class. It also identifies the pros and cons in each asset class such, for example, retention of title in the case of inventory and ineligible items in the case of accounts receivable.

In the U.S. market ABL is frequently used along-side with other forms of lending (especially high yield bonds) and this is partly true of Europe, however, thus far inter-creditor have inhibited these structures from evolving in Europe although these problems have been addressed by asset based lenders who are adopting an increasingly borrower-friendly approach in order to gain market share. For the same reason ABL are also more willing to up their ABL facilities with cash-flow based facilities

The programme will include a number of hands-on cases illustrating ABL in practice which will provide a practical angle to the topic and reinforce the learning experience.

Introduction ■ Two approaches to the credit decision

• Cash-flow based lending• Asset based lending

■ Asset based lending defined and compared with other asset-related finance techniques• Asset-backed lending • Asset Finance compared

■ Comparison of funding options • TLB vs. HYB vs. Cash flow vs. RCF

■ Which types of business are suitable for ABL ■ Which types of firms are not suitable for

ABL ■ Two key concepts in ABL

• The “borrowing base”• “Headroom”

■ Use and application of ABL• M&A• Restructuring• General corporate purposes• Other

ABL in in tandem with other funding sources ■ ABL and traditional senior (bank) loan facili-

ties ■ ABL & high yield bonds (q.v. review of Algeco

Scotsman) ■ ABL & Unitranche

Key intercreditor issues for the ABL ■ Security – resolving the conflict over compet-

ing claims for collateral• Review of various approaches

■ Enforcement Standstills – resolving conflicting agendas with other lenders

■ Option to purchase – does it help ■ Consents & Waivers

Case: Review of key conflict issues between ABL and other funders

Financing accounts receivable (“AR”) ■ The basic approach


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Asset Based LendingContinued

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■ Loan vs. debt purchase structure• Confidential Invoice discounting• Disclosed Invoice discounting• Full service Factoring

■ Key differences between discounting and factoring

■ The key benefits of ABL ■ Critical legal issues for lenders ■ Key accounting issues – off-balance sheet or

not requirements• Recourse vs. Non-recourse• Credit insurance – key issues and tips

■ Ineligible AR – review of typical ineligibles ■ Other typical limits

• Permitted territories• Permitted currencies• Debtor concentrations• Export concentrations

■ Typical Reserves ■ Calculating the advance

Case: Calculate the effective Advance rate on AR Inventory financing ■ What types of inventory qualify

• Finished goods• WIP• Raw materials / Commodities• Typical list of ineligible stock

■ Calculating the Advance• Gross Orderly Liquidation Value• Net Orderly Liquidation Value• Reserves

■ Typical reserves • Prescribed part• Employees• Preferential creditors• Landlord’s “distraint”

■ Retention of title issues – “simple” vs. “all monies”

■ Key risks for the lender ■ Specific issues with “branded” products

Plant, Machinery & Equipment ■ What types of PME qualify ■ Key concerns for the lenders

• Ability to sell & relocation ■ Advance rates ■ Pros and cons of other forms of funding

(leasing, vendor finance) ■ Key terms of the facility

• Margins, amortisation & tenors ■ Funding PME on a revolving (inventory)

basis ■ Legal issues – Taking adequate security

• Plating (why it isn’t always an option)

Real Estate ■ What types of property qualifies ■ Advance rates ■ Valuation issues ■ Key terms of the facility

• Margins, amortisation & tenors ■ Pros & cons of using ABL vs. specialist lenders ■ Legal issues – taking adequate security

Other matters - overview ■ Intangible Assets - Rationale for leveraging

intangibles (unlocking hidden value)• What types of intangibles qualify

■ Cash flow (top-up) loans• Typical terms• Potential pitfalls for the parties

Case: Create a funding structure using ABL Documentation: Overview of a typical term sheet ■ Review of main headings ■ Security package ■ Information & Reporting requirements ■ Financial covenants

• why and when ■ Operational undertakings

• “Dilution” defined ■ Reps and Warranties – typical ■ Events of Default ■ Fees and charges (one size does not fit all) ■ The lender’s approach to margin, fees and

charges ■ Other costs and expenses ■ Exit / termination fees

• “Typical” fees – review various options• Typical triggers• Issues for Borrower’s to consider (potential

pitfalls)


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Bond DocumentationDate: 18 Sep 2018

Location: London Standard Price: £695 +VAT Membership : £556 +VAT

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Course ObjectivesParticipants will: ■ Be introduced to the international capital markets, the ICMA and the key features of bonds. ■ Get an overview of the plain vanilla listed securities, including the four stages of a bond issue. ■ Have explained to them the bond documentations with the payment obligations and mechanics,

including bond trustees and bondholder meetings. ■ Gain an understanding of the prospectus directive (PD) with the PD regulations and key provi-

sions. ■ Learn about the EU and UK regulatory frameworks.

Trained as a lawyer, the trainer has over 19 years experience in international banking and structured finance transactions, including real estate finance, loans, leverage finance, debt capital markets, securitisation, structured products, repos, derivatives and financial regulatory and compliance. She has been actively involved in the creation of innovative award winning structured transactions and negotiating complex financings.

She has advised global institutions such as Credit Suisse, Citigroup and Goldman Sachs and spent many years practicing law at Allen & Overy LLP, Linklaters and Sidley Austin Brown & Wood in multiple jurisdictions including London, New York, Hong Kong, Singapore etc.She holds a Law LL.B (Hons) degree from University College London and has worked in the Finance Know-how team at Clifford Chance. She is an author and now runs her own business advisory, training and legal consultancy.

This Bond Documentation course provides an overview of debt securities and bond trading. It is relevant for in-house lawyers and private practice lawyers alike as well as bankers, bond traders involved in anything from the day to day business such as the usual plain vanilla bonds to the more complex heavily negotiated transactions involving structured securities or unusual assets. This course will also be relevant to the Operations and Documentation teams involved in bond transactions from time to time, structurers, compliance personnel as well as accountants who advise clients on bond trades.

The first part of this course sets the scene by giving an introduction to the international capital markets, the categories of securities and characteristics of plain vanilla bond securities. We then cover the 4 stages of a bond issue and look at stand-alone vs programme-based bond issues.

We go through the various aspects of due diligence that is required followed by a review of the bond documentation overview. In this part we cover the key parties and documents involved, the payment obligations and mechanics and the terms and conditions of the bonds. We discuss in detail the subscription agreement, the representations, warranties, covenants, conditions precedent and the key areas of negotiation. We discuss the events of default and the role of the trustee followed by legal opinions, ratings and the issues around the clearing and settlement of bonds.

Background of the trainer

Course Overview


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Advanced Negotiation Issues in M&AContinued...

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Bond DocumentationContinued...

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Introduction ■ The International Capital Markets ■ The ICMA ■ 4 Categories of Securities ■ Key Features of Bonds ■ Key Concepts

• Fungibility• Negative Pledges• Custody• Subordination

ӹLegal ӹStructural ӹContractual

ӹ Trust Subordination ӹ Contingent Debt Subordination

• Bearer vs Registered Bonds• Global vs Definitive Bonds• Temporary vs Permanent Global Notes• CGN vs NGN Structure

Plain Vanilla Listed Securities ■ 4 Stages of a Stand-alone Bond Issue ■ Programme-based Note Issue ■ Due Diligence

• Purpose and Scope• Legal due diligence• Accounting and financial due diligence• Business due diligence• Process

Overview of Bond Documentation ■ Parties Involved ■ Main Documents

• Fiscal Agent Structure

• Trust Structure ■ Payment Obligations

• Bullet vs Amortising• Call/Put Options• Spens Clause• Failure to Pay

■ Payment Mechanics• Paying Agent and Credit Lines• Calculating Fixed and Floating Rate Inter-

est• Day Count Fractions• Withholding Tax and FATCA

■ Terms and Conditions of Bonds ■ Representations and Warranties ■ Covenants ■ Events of Default ■ Bond Trustees and Bondholder Meetings ■ Subscription Agreement

• Key Terms• Key Areas of Negotiation

■ Legal Opinions• Issues to be covered• Reliance• 10b-5 Opinions

■ Credit Rating of Bonds ■ Clearing and Settlement of Bonds ■ Selling Restrictions

• EU• US• Other Jurisdictions



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English Law for Non-UK LawyersDate: 29-30 Oct 2018

Location: London Standard Price: £1,300 + VAT Membership Price: £1,040 + VAT

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This course is especially designed for non – UK lawyers who are advising on international commercial agreements which are governed by English law as many international transactions are subject to English law. It covers legal concepts that will be unfamiliar to assist civil law lawyers become more international and enable them to advise on a wider range of transactions. Or indeed ask more informed questions of their English law advisers.

The course sets out the key elements of English law particularly in relation to English contract law.

The approach is interactive - it will involve mini case studies, drafting workshops and a clinic for participants to raise questions about transactions they are involved in.

Participants will learn differences between common and civil law systems, analyse an English law judgment, what makes a binding contract under English law, and cover Tort (Delict) under English law.

In addition it will introduce the law of equity and trust particularly in relation to remedies, look at how damages are awarded under English law, a comparison of Penalties and Liquidated Damages. The different approach to Force Majeure, interpretation of contracts, the transfer of contractual rights, including novation, consideration and the particular place of Deeds in English law.

Who should attend? ■ In-house legal counsel ■ Private practice lawyers ■ Contract managers ■ Legal advisors and consultants ■ Commercial Directors ■ Legal support ■ Finance directors and financial controllers ■ Managing directors ■ Business development managers ■ Project financiers

Introduction

Common Law: nature and methodology ■ What is the ‘common law’? ■ The role of judge-made law ■ The authority of case-law ■ Consensual and non-consensual liabilities

Formation of contract (1) ■ Creating a binding and enforceable agree-

ment ■ Offer ■ Acceptance ■ Consideration

Formation of Contract (2) ■ Intention to create legal relations ■ Certainty ■ Capacity ■ Formalities

■ Deeds

Workshop - Analysing a common law judgment

Formation of contract (3)– Pre Contract Documents ■ Pre-contractual documents and undertakings ■ Letters of intent/commitment/heads of

agreement ■ Agreements to agree ■ Lock-out agreements ■ Letters of comfort ■ Corporate guarantee

Workshop; Consider different forms of pre contract documents and their impact and their role.


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English Law for Non-UK LawyersContinued...

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Tort ■ Nature of tortious liability ■ Types of tort

• Negligence• Specific duty situations• Nuisance• Strict liability• Trespass to land• Torts concerning goods• Trespass to the person• Tort affecting reputation• Employment related torts

Tort of Negligence ■ Duty of care ■ Breach of the duty of care ■ Causation ■ Remedies ■ Damages

Equity and trusts ■ The equitable jurisdiction ■ Trusts: their use and structure ■ Legal and beneficial interests ■ Intention to create a trust ■ Identifying trust property ■ Duties of trustees

The terms of the contract ■ Express Terms ■ Oral Statements ■ Written Terms ■ Parol Evidence Rule ■ Implied Terms ■ Unfair Contract Terms

Warranties, (Mis)representation, Guarantees and Indemnites ■ Warranty ■ Representation ■ Misrepresentation – Types and remedies ■ Guarantees ■ Indemnities

Workshop – Participants will divide into groups and clarify the distinctions between these contractual remedies and their differing legal effect.

Liquidated Damages, Penalties Differences Between Common and Civil Law, and Delay ■ Delay clauses ■ Liquidated damages ■ Service credits and service level agree-

ments ■ Time of the essence

Limitation and Exclusion of Damages ■ Direct ■ Indirect ■ Consequential ■ English law approach to exclusion clauses –

the rules ■ Judicial control of exclusion of damages ■ Statutory control of exclusion clauses

Interpreting a Contract under English Law ■ Construction of contractual terms ■ Rules of interpretation ■ Common terms and phrases ■ Special and technical meanings ■ Courts ‘canons of construction’ ■ Courts looking beyond the contract ■ Implied terms ■ Legislative limitations on standard terms

Transfer of contractual rights and obligations ■ Assignment ■ At law ■ In equity ■ Statutory assignments ■ Novation – transferring the benefits and bur-

dens

Termination, Force Majeure, Frustration and Economic Hardship of contract ■ Termination by agreement ■ Termination by frustration ■ Termination upon breach ■ Force Majeure ■ Economic Hardship

Workshop: Force Majeure real case study

Drafting exercise

Split into groups and draft clauses based on a mini case study.

Clinic

Close


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Sale & Purchase Agreements - The Commercial IssuesDate: 09 Jul 2018, 26 Nov 2018

Location: London Standard Price: £725+VATMembership Price: £580 + VAT

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A simplistic view of an acquisition is that the actual price paid is paramount but experienced practitioners recognise that price is but one aspect of the deal and that there is the potential for significant value leakage in arriving at the actual price and also from claims arising after completion.

The “price” paid may seem a simple concept but, in practice, requires an understanding of how this is derived. Most private acquisitions are based on a “cash-free, debt-free basis” with adjustments for working capital or net assets. Buyers typically develop an enterprise value which is then adjusted to derive an equity value by adjusting for cash, debt and working capital all of which needs to be captured in the Sale & Purchase Agreement (“SPA”). When the consideration is to be paid in a foreign currency, a range of issues can intervene to create problems for both parties.

English law is widely used for many contracts and the recent decision in Arnold v Britton has clarified decisions in earlier judgements and clarified the how the courts and parties will approach this in the future. The course reviews these and the differing approach to this in the USA.

Negotiating and documenting these items is not as straightforward as one might expect; for example, does “cash” include “trapped cash”, what does debt include, what is wrong with using “average” working capital and how can parties minimise subsequent disputes? Additionally, the choice of the completion mechanism (completion accounts or locked box) creates further opportunity for further value transfer. Even after completion the seller may find further value erosion through claims arising under the warranties and indemnities.

There is no right or wrong answer to many of these questions and the ultimate position will be dictated by the negotiating strength of the respective buyer and seller. Despite that, a sound grasp of the key commercial and legal issues can minimise value loss for parties.

This programme focuses on transactions involving the purchase of shares but also covers areas of specific relevance to asset purchases. It provides a step by step template to the basics but also covers the critical legal and commercial aspects in the transaction from the perspective of both buyer and seller. Reference is made to recent or relevant leading cases.

Please note that this course covers material that is also covered on the Advanced Negotiation Issues in M&A course.

SPA structure & Interpretation issues ■ The skeleton structure of a contract: over-

view ■ General approach to interpretation of con-

tracts• UK vs USA vs Europe• Influence of Arnold v Britton case

■ Interpretation – Forex issues re price / cur-rency (avoiding the traps)

■ Implied terms & “duty to negotiate in good faith”• Position in the UK • Position in the USA• Position in Europe / civil law - Traps for

the unwary ■ The spectrum of “endeavours/ efforts” –Best

vs Reasonable other variants ■ Force majeure –

• Doctrine of Frustration • Problems in English law

■ Dispute Resolution ■ Jurisdiction & choice of law

Ancillary agreements ■ Confidentiality letters ■ Exclusivity agreements ■ Heads of agreement / letter of Intent

• Checklist of key issues• Drafting guidelines• Migrating the terms to the SPA• Pros & cons

■ Side letters• What’s in a name

The purchase price: reconciling enterprise to equity value ■ Common purchase price protections

• Cash free/ debt free (What should be in-cluded in Debt)

• Cash vs trapped cash?


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Sale & Purchase Agreements - The Commercial IssuesContinued...

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• Equity / NAV adjustments• Capex issues• Debt – what is included?

■ Adjustments for working capital• Receivables• Inventory• WIP – problem areas• Normalised working capital

Other adjustments to the price – warranties & indemnity claims Completion mechanisms & non-simultaneous exchange & completion ■ How this can affect the deal, source of val-

ue loss ■ Locked box vs completion accounts

• Key differences ■ Completion accounts

• Pros & cons• Problem areas – access post completion

■ Locked box• Pros & cons• Leakage vs permitted leakage• Other areas of potential dispute

■ Issues with the “accounts” • Impact & role in the deal – why they

matter• Which accounts? Consolidated vs individ-

ual, statutory, audited, management ■ Issues to consider when exchange & com-

pletion not simultaneous • Conditions to completion• Matters between exchange & completion• Other matters – warranties, costs,

breach by sellerRepresentations & misrepresentations ■ Representations vs warranties vs indemni-

ties• Representations vs “term” (of contract)

■ Critical negotiating issues (buyer vs seller friendly)• Financial statements “fair presentation”

representation• “No undisclosed liabilities” representation• “Full disclosure” representation

■ Manner of misrepresentations• Statements of opinion vs statements of

law ■ Types of misrepresentations & their reme-

dies• Fraudulent vs negligent vs innocent mis-

representations ■ Accuracy of representations

• When must representation to be accu-rate – agreement vs closing date

• Accuracy of representations - in all vs material respects vs MAE qualification

Warranties ■ Warranties – rationale ■ Warranties and interaction with disclosure ■ Purpose of warranties

• Retrospective price adjustment ■ The common areas of warranty protection

■ The information warranty (on the target)• Quality of information – information is

“true, accurate, complete and not mislead-ing”

• Accuracy of information in the disclosure letter / bundle

• The “full disclosure / sweeper” warranty ■ Who provides the warranties

• Issues with multiple sellers, limits on liabil-ity

• Sales of subsidiaries• Sales by trustees• What about the directors?• Private equity issues - managers (not own-

ers)

Disclosure ■ Why & how it matters ■ General vs specific disclosure ■ The disclosure letter & disclosure bundle ■ When should disclosure be made? ■ Seller’s vs buyer’s approach to disclosure ■ What is disclosed – the data room? ■ How full & complete must disclosure be ■ What is fair disclosure?

Indemnities ■ Purpose of & rationale for Indemnities ■ Key issues

• Sandbagging (buyer’s ability to seek re-dress despite prior knowledge)

• Indemnification as the exclusive remedy (carve-outs)

■ Main areas of Indemnity coverage• Environmental• Product liability• Litigation (esp IPR)

Limitations on liability under the warranties & indemnities ■ Awareness carve-outs ■ Time limits ■ Financial limits

• De minimis limits• Threshold for aggregate claims• Overall cap

■ Other limits ■ Security for breach of warranty

• Retentions & escrow accounts• Set-off• Bank guarantees

■ Warranty & Indemnity insurance – a viable solution?• Buyer vs seller policies – key differences

Tax; what‘s best covenant, warranty, indemnity? ■ Why is a tax covenant needed - rationale

• Benefits vis-à-vis the tax warranties• Scope of the covenant• Why & when is a tax warranty also re-

quired?• Impact of the Zim Properties case


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Course Overview

ISDA DOCUMENTATION


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Course Objectives

Date: 10 Oct 2018

Participants will: ■ Get an overview of what derivatives are, including the aspects and the types of risks hedged ■ Be introduced to how derivatives are traded ■ Have explained to them the different types of derivatives including swaps and equity & credit

deriviatives ■ Learn about ISDA documentation with ISDA definitions and ISDA Credit Support Annexes and

Credit Support Deeds ■ Be appraised of the financial collateral regulations and pertinent

THIS COURSE IS PART 1 OF A TWO PART COURSE, THE SECOND PART IS TITLED “NEGOTIATING ISDA MASTER AGREEMENTS”. It is highly recommended that participants attend Part 2 of this course after attending this Part 1 as the content in Part 2 is a follow up from Part 1 and covers all the salient issues related to ISDA documentation that can not be covered in Part 1 due to time contraints. Part 1 of this course provides full coverage of the important aspects of derivatives trading. It is relevant for in-house lawyers and private practice lawyers alike, traders and bankers involved in complex structuring involving swaps, ISDA documentation teams, operations teams that book ISDA trades, compliance personnel responsible for ensuring that all regulations relating to ISDA transactions are complied with as well as accountants who advise clients on swap transactions. The first part of this course sets the scene by giving an introduction to derivatives; what they are, why they are used, who uses them and how they are traded. We then go through the various types of derivative products in the market showing the potential of the use of derivatives in a wide range of product sectors. We also cover the claims for mis-selling of swaps under and the relevant claims and case law under English law. The second part of the course covers the workings of the derivatives market and the trade association, ISDA. We then go through the ISDA documentation framework including coverage of the ancillary ISDA documentation. We then cover the pertinent issues in ISDA documented trades such as netting, mark to market valuations, negative interest rates, events of default and early termination to name a few. We will then discuss how to document derivatives in loan transactions and cover some English law cases. The third part of the course will cover the upcoming EU regulatory changes effecting derivatives with a timeline on what to expect when. We will go through how the banks and law firms should prepare for such changes with practical guidance where appropriate. Additionally, we will also cover off some of the more pertinent US regulatory changes that will impact derivatives trading in the UK. We then round of with a discussion on the implications of Brexit on derivatives transactions and documents. Please note that this section is subject to change depending on the time of the year this training course is delivered as per the regulations and guidance that are published from time to time.



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Course Content


Course Content


ISDA DOCUMENTATION

Introduction: Derivatives overview What are derivatives? ■ Legal concerns:

• Gaming laws • Insurance laws

■ Types of risks hedged: • Currency risk • Interest rate risk • Commodity risk • Weather risk • Inflation risk • Mortality risk

■ Credit Risk – Regulatory capital and balance sheet treatment

■ Synthetics

How are derivatives traded? ■ Over the counter (OTC) ■ Exchange traded

Types of derivatives ■ Swaps

• Interest Rate Swaps • Interest Rate Caps • Interest Rate Floors • Interest Rate Collars • Currency Swaps

■ Options • Strike price • Call Option • Put Option • European Style Option • American Style Option • Bermudan Style Option

■ Forwards and Futures ■ Equity derivatives ■ Credit derivatives

• Reference Entity • Reference Obligations • Credit Events

■ Swaptions ■ Total Return Swaps ■ Commodity derivatives ■ Property derivatives ■

Mis-selling of Swaps Claims under English Law ■ Economic climate since 2007 ■ s166 FSMA Review ■ Types of Claims

• Breach of Statutory Duty – s138D FSMA: FCA COBS rules

• Contract – Advisory relationship • Tort – Duty of care • Misrepresentation

ӹMisrepresentation Act 1967 ӹTort – Negligence ӹTort - Fraudulent ӹ Implied

• Contractual Estoppel • Limitation

■ Case law

ISDA Documentation Introduction ■ The ISDA ■ Architecture of the ISDA documentation

• 1992 multi-currency cross-border version • 1992 local currency – single jurisdiction

version • 2002 version

■ Summary of the ISDA documents and proto-cols

ISDA Protocols ■ What is an ISDA Protocol? ■ Procedure for Adherence ■ Protocol documentation

ISDA Definitions ■ 2006 ISDA Definitions ■ 2005 ISDA Commodity Definitions ■ 2014 ISDA Credit Derivatives Definitions ■ 2011 ISDA Equity Derivatives Definitions ■ 1998 FX and Currency Option Definitions

Pertinent Issues: ■ Mark to market valuations and Netting

• Insolvency • Section 6(e)

■ Early Termination and Events of Default • Steps to be taken • Commercial considerations • Netting legal opinions • ISDA’s 2017 Netting Memo on enforceabil-

ity fo close-out netting provisions in China for US and UK law governed ISDA agree-ments

■ ISDA 2014 Collateral Agreement Negative Interest Protocol

■ Tax • Tax representations and undertakings • Tax event • FATCA

■ Counterparty issues • Legal capacity • Limitations in constitutional documents

Case law ■ Hammersmith & Fulham






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Course Content


ISDA DOCUMENTATION

■ Credit Suisse International v Stichting Vestia Groep

Documenting Derivatives in Loan Transactions ■ Key Features of a Structured Loan ■ Loan and ISDA Documentation ■ Events of Defaults ■ Additional Termination Events ■ Specified Entities ■ Notional Reductions ■ Collateral

Regulations EMIR ■ Purpose

• Increase stability• Standardisation • Risk mitigation

■ Scope of EMIR • Counterparties • CCPs• Trade repositories • Exemptions

■ Outline of obligations imposed • Clearing obligation • Reporting obligation • Risk mitigation requirements • New Margining Requirements • 2016 Variation Margin Protocol • ISDA SIMM

■ Timeline of implementation MiFID II and MiFIR ■ Purpose

• Transparency • Oversight

■ Scope • Regulated trading venues

ӹOTFs ӹMTF

• Broadens scope of MiFID ■ Impact on derivatives

• Trading on regulated markets • Information to investors • Limits on commodity trades • Level 2 measures

■ Timeline of implementation

MAD II ■ Purpose

• Replaces MAD • Extends market abuse regime

■ Scope • Includes spot commodities

• Expands definitions ■ Timeline of implementation

US Reforms ■ Dodd Frank Act

• Title VII • US Person

■ FATCA • Information reporting • Withholding tax • Affected parties • Payments affected in derivatives trades





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NEGOTIATING ISDA MASTER AGREEMENTSDate: 20 Apr 2018, 11 Oct 2018


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Course OverviewTHIS COURSE IS PART 2 OF A TWO PART COURSE, THE FIRST PART IS TITLED “ISDA DOCUMENTATION”. It is highly recommended that participants attend Part 1 of this course prior to attending Part 2 as the content is a follow up from Part 1 and will not be repeated or summarised again in Part 2 due to time contraints. Part 2 of this course covers pertinent issues related to the drafting, negotiating and understanding of the ISDA Master Agreements. This course is relevant for: 1. Lawyers both in private practice and in-house, 2. Traders, Bankers and Structurers involved in transactions involving swaps, CDSs, options, swaptions etc., 3. Operations teams involved with swaps, EMIR reporting etc., 4. ISDA documentation teams who typically draft and negotiate ISDA Master Agreements and trades, and 5. Accountants who advise clients on swap transactions. In this course we cover the ISDA documentation framework. A detailed clause by clause analysis is then undertaken of the 2002 ISDA Master Agreement followed by a comparison analysis between the 1992 and the 2002 ISDA Master Agreements. We will undertake a detailed analysis of the ISDA Schedule including any EMIR Regulation related language. The key negotiation points relevant in negotiating an ISDA Agreement will be covered off including the questions to ask depending on who you act for. We will then discuss the CSA, the Financial Collateral Regulations relating to the CSA specifically and the ancillary ISDA documentation. We will go through in detail the settlement netting and close-out netting and the calculations involved including how swaps are valued. We will cover off the Events of Default and Termination Events operative provisions, procedural timelines and checklists outlining the notice requirements, legal, commercial and operational points to tick off the list. We then cover off some case law and amendment to the ISDA Master Agreement. The final part of the course will be an Interactive Group Case Study involving the documenting an ISDA Schedule and key issues to consider. COPIES OF THE 2002 ISDA MASTER AGREEMENT AND THE ACCOMPANYING ISDA SCHEDULE WILL BE PROVIDED TO ALL PARTICIPANTS AS PART OF THIS COURSE

ISDA Documentation Introduction and Architecture of ISDA Documentation – See Part 1 of this course ISDA Master Agreement ■ Detailed clause by clause review (2002)

• Single Agreement ӹCherry picking

• Netting legal opinions ӹGoverning law on insolvency

• Conditions Precedent • Withholding tax • Representations • Undertakings • Events of Default • Termination Events • Early Termination • Transfer • Multi-branch Parties • Waiver of immunity

ӹArbitration clauses ■ Comparison of ISDA 2002 and 1992 Master

Agreements • Events of default provisions

ӹGrace periods ӹScope of the credit support default ӹBreach of agreement ӹSpecified Transactions ӹCross default provisions ӹMerger without assumption

• Termination Events ӹScope of Illegality ӹForce Majeure ӹGrace periods ӹTax event upon merger

• Methodology of calculating payments on early termination ӹFirst Method ӹSecond Method ӹMarket Quotation ӹLoss ӹSet-off ӹUnpaid amounts ӹClose-out amount


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Continued...

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Schedule to ISDA Master Agreement ■ Parts 1 to 5 – Negotiating points ■ EMIR related amendments

• Relevant EMIR Protocols: ӹ2013 EMIR Non-Financial Counterparty Representation ӹ2013 Reporting Protocol ӹ2013 EMIR Portfolio Reconciliation, Dis-pute Resolution and Disclosure Protocol ӹAdherence Letters ӹSuggested EMIR Related Amendments

ISDA Confirmation ■ Process on how trades are done ■ EMIR reporting

• 2013 EMIR Reporting Protocol • Grey area

ISDA Credit Support Annexes and Credit Support Deeds ■ Legal opinions ■ English law deeds and annexes ■ New York law annexes ■ 1995 ISDA Credit Support Annex ■ Close-out netting ■ Valuation agent ■ Eligible Credit Support ■ Haircuts and Valuation Percentages

Financial Collateral Regulations ■ Title transfer ■ Ring fencing ■ Close-out netting on insolvency

Netting and Valuation ■ Settlement Netting ■ Close-out Netting ■ Calculations ■ Mark to market valuations – How Swaps are

Valued

Events of Default and Termination Events ■ Step to follow on Early Termination ■ Conditions Precedent ■ Timeline – summary of process ■ Checklists

• Contractual terms breach • Events of Default and Termination Events • Legal, commercial and operational consid-

erations • Early Termination Procedures

Case law ■ Section 2(a)(iii)

• Lomas and others v JFB Firth Rixson Inc. and others

• ISDA Amendment

GROUP CASE STUDY: Participants to work in small groups to draft and negotiate with another group a first draft of the ISDA Schedule to the 2002 ISDA Master Agreement in accordance with the client instructions provided in the case study pack COPIES OF THE 2002 ISDA MASTER AGREEMENT AND THE ACCOMPANYING ISDA SCHEDULE WILL BE PROVIDED TO ALL PARTICIPANTS.

NEGOTIATING ISDA MASTER AGREEMENTS


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■Course Content

Listing Rules & Takeover Code FundamentalsDate: 11-12 Oct 2018

Location: London Standard Price: £1,100 + VATMembership Price: £880 + VAT

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Course Overview

On day one participants will learn about the general principles which underpin the Prospectus Rules, Listing Rules and Disclosure and Transparency Rules and be taught about their practical application regarding obtaining listings and executing further transactions.

They will gain a strong understanding of the role of the sponsor, the conditions and methods of listing, the listing procedures and the contents of prospectuses and all aspects of continuing obligations, including the disclosure of inside information.

They will appreciate how the provisions of the EU Prospectus, Market Abuse and Transparency Directives have been brought into UK regulation and examine the different requirements of premium and standard listings compared to those of AIM.

On day two participants will learn about how the Takeover Panel operates in practice and how to apply the six general principles.

The course will cover the issues involved in approaching target companies, making announcements, giving independent advice and complying with share dealing restrictions. Participants will also gain a strong understanding of voluntary, mandatory and partial offers as well as the principles of the bid timetable and the conduct of the parties during an offer period.

The course will examine the circumstances when the Takeover Code is applicable, the relevance of the key rules of the Takeover Code, the application of the Code in practice and the documentation requirements of the Panel.

Day One

Background to the regulation ■ The EU Prospectus Directive, Market Abuse

Directive and Transparency Directive ■ How the regulators operate ■ Standard and premium listings ■ Recent problems with controlling sharehold-

ers: Bumi and ENRC ■

Listing Rules ■ Listing principles ■ General requirements for listing ■ Requirements for a premium listing

• Three year track record• 75% of business• Independence• Requirements for companies with con-

trolling shareholder• Special types of issuer

■ Types of flotation ■ Listing application ■ Suspension, cancellation and restoration of a

listing• Reverse takeovers

■ Sponsors• Role and responsibility• Criteria for approval

■ Continuing obligations• Continuing eligibility requirements• Pre-emption rights• Transactions after flotation• Model Code• Documents requiring prior approval

■ Significant transactions• The class tests• Break fee rules

■ Related party transactions ■ Share buy-backs

The Disclosure and Transparency Rules ■ Principal concepts ■ Effect of Market Abuse Regulation (MAR) on

Disclosure Rules ■ Disclosure and control of inside information by

issuers• What constitutes inside information?• Is an immediate announcement necessary?• Selective disclosure• Market rumours

■ Disclosure of PDMR dealings ■ Annual reports and interim reports ■ Disclosure of shareholdings

• Thresholds• Timing

■ Access to information ■ Corporate governance

Prospectus Rules ■ Requirement to produce a prospectus ■ Exemptions ■ Contents of a prospectus

• Example of rights issue prospectus• Omissions• Incorporation by reference• Historical financial information • Forecasts and pro formas

■ Approval and publication of a prospectus ■ Advertisements


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Listing Rules & Takeover Code FundamentalsContinued

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Course Content

■ Supplementary prospectuses ■ Passporting and third country issuers ■ Responsibility for prospectus

Key regulation differences with AIM ■ Comparison of premium and standard list-

ings and AIM

Day Two:

Introduction to the Takeover Code ■ How the Takeover Panel operates ■ Companies, transactions and persons sub-

ject to the Code ■ Enforcement of the Code

The Six General Principles and their appli-cation

Key Code definitions

The approach, announcements and inde-pendent advice (Rules 1-3) ■ Secrecy ■ When announcements are required ■ Announcements of possible offers and nam-

ing ■ Terms and pre-conditions in possible offers ■ Automatic 28 day PUSU ■ Firm offer announcements (Rule 2.7) ■ Consequences of statement of intention not

to make offer ■ Irrevocable commitments ■ Independent advice

Dealing restrictions, disclosures and share purchases ■ Prohibited dealings ( Rule 4) ■ Consideration to be offered (Rules 6 and 11) ■ Consequences of certain dealings (Rule 7) ■ Disclosure requirements in offer period

(Rules 8 and 38) ■ Timing restrictions on acquisition of shares

and exceptions (Rule 5)

Mandatory offers (Rule 9) ■ When required ■ Conditions which are possible ■ Price payable ■ Whitewash procedure ■ Purchase of own shares (Rule 37)

Voluntary offers ■ The acceptance condition (Rule 10) ■ The CMA and the European Commission

(Rule 12)

■ Pre-conditions and conditions in firm offers (Rule 13)

■ Partial offer requirements (Rule 36)

Provisions applicable to all offers ■ Multiple classes of share capital (Rule 14) ■ Convertibles and warrants (Rule 15) ■ Special deals with favourable conditions (Rule

16) ■ Announcement of acceptance levels (Rule 17) ■ Restrictions following offers and partial offers

(Rule 35) Conduct during the offer ■ Standards of care for Information (Rule 19) ■ Responsibility for information ■ Unacceptable statements ■ Post-offer undertakings and statements of

intention ■ Equality of information (Rule 20) ■ Restrictions on frustrating action (Rule 21

Documents ■ Overview of document rules (Rules 23 to 27) ■ Distribution of documents and checklists (Rule

30)

Profit forecasts, QFBS and asset valuations (Rules 28 and 29) ■ Different types of profit forecast ■ Reporting requirements ■ Disclosures for Quantified Financial Benefit

Statements ■ Consensus forecasts ■ Asset valuation reporting requirements

Outline timetables (Rules 31 to 34 and Ap-pendix 7) ■ Contractual offers ■ Schemes of arrangements




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Market Abuse Regulation - UpdateDate: 06 Sep 2018


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Course Overview

In 2016 the new EU Market Abuse Regulation (MAR) became applicable in the UK and will remain so for at least two years and probably longer, in spite of Brexit. This regulation has replaced the Market Abuse Directive and the rules regarding inside information in DTR 2, the dealings of directors and other persons discharging managerial responsibility in DTR 3, and the Model Code for Official List companies.

The regulation is also applicable for the first time to AIM companies

This course examines requirements of the new MAR, it’s Technical Standards, the ESMA Guidelines and Q&A and how this has been interpreted in the UK. In addition to comprehensive slides, course documentation includes the forms required by the FCA and a copy of the Market Abuse Regulation and Delegated Regulation.

The new MAR regime ■ Replacement of Market Abuse Directive ■ UK law offences ■ EU Regulations, Standards and Guide-

lines and ESMA ■ FCA’s approach to MAR ■ Extended application covering MTFs

such as AIM

Prohibition of insider dealing and market manipulation ■ Definition of inside information ■ Reasonable investor test ■ UK interpretation ■ Insider dealing and unlawful disclosure ■ Broadening of market manipulation

Disclosure of inside information ■ Requirements for public disclosure ■ Conditions for delaying disclosure ■ ESMA and FCA guidelines on legitimate

interests ■ Notification to FCA of delays in disclo-

sure ■ Standard for delaying disclosure and

notification ■ DTR 2 and AIM Rule 11 and guidance

Safe harbours from market abuse ■ Market soundings standards and ESMA

guidelines ■ Legitimate behaviour ■ Share buy-back programmes ■ Stabilisation

Insider lists ■ Responsibility ■ Technical Standard format with additional

information ■ Requirements for AIM companies

Managers’ transactions ■ Changes in director/PDMR notifications ■ Annual thresholds ■ Technical Standard for disclosure format ■ Revised definition of closed periods ■ Exceptions from closed period dealing

prohibition ■ DTR 3 guidance and deletion of Model

Code ■ AIM Rule 17 and 21 changes and guid-

ance ■ CLLS and Law Society Q&A and ICSA

Dealing Code

What Redcliffe’s clients are saying about the course;

“Helpful in highlighting both areas of change and issues of uncertainty – very

detailed”

“Very good overview of MAR”


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Negotiating and Issuing High Yield BondsDate: 1 Jun 2018, 20 Nov 2018


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Course Objectives

Participants will: ■ Learn who is issuing HYB and why? Understand the size of the market, and what these bonds

look like when they are issued. ■ Understand how deals are brought to market, allowing for market conditions and examine the

documentation, which is key to the deals value. ■ Gain an understanding of the key terms, such as Pledges, Maintenance Covenants and Equity

Cures. ■ Appreciate the latest trends in the market and why they are happening. For example, why inves-

tors are excepting the move to Cov-Light deals, despite them not offering the same protection as investors insisted on in the past.

■ Have explained to them all the main terminology used in HYB deals and just as importantly in what context they are used.

■ Will look at recent issues to highlight the main points discussed in the programme, and to illus-trate the terminology discussed.

The High Yield Bond Market reached a record of €75bn issuance in 2017. This year has so far shown no signs of slowing down. Selecta Group, the Dutch incorporated food and drinks vending machine provider, started 2018 with two large issues, already equalling some of the largest deals of 2017. Both bonds were issued on the 1st February this year. Selecta issued two 6 year bonds; a €765 m 5.875% fixed and a €365m floater paying 3 month Euribor + 537.5 bp.

The HYB market is complex with detailed jargon and documentation. This course is designed to demystify the terms used in negotiating and issuing. We use real life examples to explain the issues in an easy to understand way. We will look in to the latest trends and explain the motivations and outcomes behind recent changes affecting the market, such as the deterioration of covenants and investor protection.

The programme is designed to give participants an in depth understanding of the High Yield Bond Markets and how deals are negotiated and issued. Delegates will understand how the market operates, seeing who is issuing and who is bringing the debt to market. We will look at recent “real life issues” as examples.

■ The Role of AFME• Association for Financial Markets in Europe• Focus on promoting transparency and li-

quidity in the high yield market• How affective are AFME?

■ Fallen Angels ■ Private Equity Issuance ■ Recent New Issues

• Case study: We look at recently issued High Yield Bonds from the market

• What is being issued and why? ■ The Major Bookrunners

• Ranking of Lead Managers / Global Capital• Life Cycle of an Issue

Course Content

Overview of High Yield Bonds ■ Size of the Market / Market Growth ■ Examples of High Yield Bonds

• A look at real bonds in today’s market place

■ Credit Ratings• The Ratings Agencies• Investment Grade v High Yield Debt

■ Current Credit Spreads• What are the current Credit Spreads in

the Market for High Yield Bonds


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Negotiating and Issuing High Yield BondsContinued...

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■ Origination / Syndication / Underwriting / Distribution

Pricing a High Yield Bond Issue ■ From the Government curve ■ From the Mid Swap curve

• Interest Rate Swaps Overview• Where Mid swap rates come from

■ Duration Risk• Market risk of a bond

■ What impact do changing interest rates have?

■ Case study: we look at the pricing of the recent issues of

• Aston martin• Selecta Group

The Documentation ■ Pledges

• Negative Pledges ■ Early redemption / Callable and Puttable

bonds• Examples are used to show the impact

for investors of call and put options im-bedded in to bonds

■ Events of Default• Seizing Collateral• Recovery Rates

■ Cross Default ■ Risk Factors

• Case study: We look at an example of a High Yield Bond and discuss the “Risk Factors” listed in the documentation.

Covenants ■ EBITDA as a constituent of Covenants ■ Maintenance Covenants ■ Case study: we look at examples of cove-

nants and their impact• Carve Outs• Baskets• Breach of Covenant

■ Covenant Erosion• Impact on the market of these recent

developments• Cov- Loose (leverage only financial main-

tenance)• Cov Light (Springing Leverage)

Equity Cure ■ Recent provision changes allowing the

company to receive equity capital and the impact on investors• Shareholders curing a covenant breach

by injecting further equity funding.• Case study: we look at an Equity Cure

Sample Clause and discuss the meaning and jargon.

• Post Default Alternatives Toggle Notes ■ Deferred payment ■ PIK

Case study: Transaction Execution – the pre-launch task time line from week 1 through to week 6. We discuss all the steps that must be taken before we can bring an issue to market.

Exercise: Delegates look at a recent issue prospectus and examine the risk / reward ratio. Class discussion: Should we invest, what are the risks?


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Advanced Negotiation & Structuring Issues in Real Estate Finance Term Sheets

Date: 13 Jun 2018, 17 Oct 2018 Location: London Standard Price: £695+VAT

Membership: £556 +VAT

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Course Overview

This course covers the various methods of investing in Real Estate Finance including the various structures used and negotiating the real estate finance term sheets including discussions relating the bidding process and issues to consider relating to leveraged deals, large loan portfolio sales and/or acquisition of distressed assets including exit strategies and/or bridge take-outs.

It is relevant for in-house lawyers and private practice lawyers alike and bankers involved in negotiating real estate finance term sheets, complex structuring involving real estate finance, leverage finance or acquisition finance, securitisation particularly CMBS, lending/banking documentation teams, structurers, commercial real estate origination teams including originators, the sales team, commercial real estate investors and borrowers as well as accountants who advise clients on real estate finance transactions or structured transactions with an element of commercial real estate finance.

Whilst this is not a fully fledged course on Leverage Finance or Acquisition Finance, this course is also relevant to private equity houses, investors, commercial banks, wealth fund managers and hedge funds involved in loan portfolio sales backed by commercial real estate including sale and purchase of distressed assets.

We start off this course setting the scene by discussing the various methods of investing in real estate finance and go on to cover the various typical structures including the key features of the Opco/Propco structure, REITs, Investment Finance and Development Finance. We discuss term sheets in general, the binding and non-binding terms and the points of negotiation from a lender’s perspective, a borrower’s perspective and some general points to bear in mind when drafting. We cover the key elements of a real estate finance term sheet – LMA version.

For those of you likely to be involved in submission of bids for purchase of loan portfolios backed by real estate, we cover aspects of the bidding process in detail including commitment letters/mandate letters or the softer highly interest/confident letters, the heavily negotiated clauses and points, due diligence and the various documents and ancillary documents to be agreed. We map out the timeline and finish off this section by discussing distressed assets sale and acquisition.

Additionally, we will cover the various exit strategies used for bridge finance take-out and/or to get further financing including full syndication, securitisation and tap issues to raise more financing.

We will undertake an Interactive Group Case Study during this course whereby participants will be placed into various groups to negotiate the terms of financing and a term sheet for a real estate finance transaction. Complimentary materials will be provided to all participants.

Methods of Investing in Real Estate ■ Real Estate Investment Structures – Types

of Finance • The Lending Structure

ӹ Investment Finance• Structure & Key Features• Security Package & Guarantees• Drawdown, Repayment & Prepayment• Interest• Bank accounts ӹDevelopment Finance• Structure & Key Features

• Security Package• Collateral Warranties and Guarantees• Drawdown, Repayment & Prepayment• Interest• Bank accounts

• Flexible Financing Arrangements• Islamic Finance Structures• Sale and Leaseback

ӹOpco/Propco Structures• Ring fencing• Syndication• Bridge take-out

• REITs ӹForm of a UK REIT ӹThe conditions



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Advanced Negotiation & Structuring Issues in Real Estate Finance Term Sheets

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ӹBreach ӹRingfence ӹProperty Rental Business ӹTax treatment

• Property Derivatives

Term Sheets ■ What is a Term Sheet ■ Reasons for having a Term Sheet ■ Process and Timing ■ Duty to negotiate in good faith

• Case law• Binding terms

■ Negotiation Guidelines• Borrower’s perspective• Lender’s perspective• General points to bear in mind

LMA Term Sheet- Real Estate Specific ■ Section 1 – Senior Facility Terms

• Security• Repayment, Prepayment & Cancellation • Bank Accounts• Representations & Warranties• Undertakings• Events of Default• Conditions Precedent

■ Section 2 – Mezzanine Facility Terms• Bank Accounts• Cross Defaults• Costs and Expenses

■ Section 3 – Intercreditor Agreement Terms• Security Ranking• Payments & Cure Periods• Security Enforcement• Waterfall

Group Case Study: Participants will work together to negotiate the terms of financing and a term sheet for a real estate finance transaction. Groups will be assigned different roles e.g. banker, sponsor, lender, seller). What’s the best deal you can negotiate?

Property Due Diligence ■ Purpose ■ Scope – Materiality ■ Investigation of Title ■ Certificate of Title ■ Warranties, Indemnities & Disclosure ■ Due Diligence Questionnaire ■ Due Diligence Report

Covenant of Title ■ Full Title Guarantees ■ Limited Title Guarantees ■ Subject to and actual knowledge

Loan Portfolio Sale ■ The Bidding Process

• Commitment Letters• Highly Interested/Confident Letters• Due Diligence• Documents• Negotiations

ӹMAC clause ӹMarket Flex clause ӹClear Market provision

• Reliance Letters• Legal Opinions• Reports and Audits

■ Timeline ■ Acquiring Distressed Portfolios

Exit Strategies/Bridge Take-out ■ Syndication ■ Securitisation



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Restructuring High Yield BondsDate: 06 July 2018, 09 Oct 2018

Location: London Standard Price: £695 + VATMembership Price: £556 + VAT

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Course Overview

The programme will review the impact of the draft ECB guidance on leveraged transactions.

Restructuring high yield bonds pose a range of challenges not found in dealing with purely loan-driven structures; custody chains means that noteholders are more difficult (and take longer) to identify; the listed nature of notes means that all stakeholders need to be aware of market abuse aspects; the machinery for instituting action in bonds is more convoluted than loans, since notes are invariably governed by NY State law restructurings may need to take account of compliance with onerous U.S. securities’ laws and last, bond restructurings often use different tools not available in loan structures, such as Exchange offers and consent solicitations (which can be used to covenant strip notes in certain circumstances). The market has also experienced an increase in coersive exchange offers where parties have made use of innovative solutions to encourage holders to accept and discourage holdouts from remaining on the side-lines. DTEK’s triple track Exchange offer, Scheme and consent solicitation being an excellent example.

This programme summarises the methods and tools that have been used to restructure bonds and reviews some of the topical and innovative solutions that have been used to address these more complex restructurings. English schemes of arrangement have gained increasing traction in the bond markets, as they have in the loan markets, and appear to have emerged as the primary pathway of choice in a number of recent restructurings for foreign companies. Despite this Chapter 11 does offer some solutions not available in a Scheme, for example where operational restructuring is required. The programme will illustrate these methods with discussions of recent landmark restructurings including; Zlomrex (parallel Exchange offer and Scheme), Metinvest (Standstill Scheme), Privatbank, Edcon, Codere.

The course will also review the current potential cross-border restructuring options for CGG Restructuring which potentially could involve either US or French pathways or both simultaneously.

The programme will also review the key points of the Draft EU Directive harmonising restructuring and insolvency matters published on 22nd November 2016.

Introduction

■ Bond Restructuring routemap: overview of the stages in the process

■ Overview of current Loan/ Bond structures (what’s market)• SSRCF/Senior Secured Notes• Pari Loan/ Bonds

■ Double Luxco – has back on the agenda

Restructuring triggers

■ Review of the key EoDs in Notes ■ Key EoDs in Loans which will trigger earlier than

Notes ■ Asymmetry of information between Loans and

Notes ■ Other aspects which may give lenders a head

start over the Notes

Gaining leverage

■ Key voting thresholds for Notes ■ Problem areas

• “One Euro One vote” the Schmolz problem in Germany legislation

• Numericable’s change of voting cap• The Bakkavor problem & hedging issue (Who

controls the Restricted Group) ■ Key voting thresholds for loans (vis-a-vis the

Notes) ■ Impact of distressed disposals & release of col-

lateral pre and post distress

Pathways - Chapter 11 and Adminsitration

■ General application and founding jurisdiction ■ Procedure & voting thresholds ■ Key benefits

• Automatic stay - Worldwide impact (practical application)

• Cherry picking contracts• Assets sales• DIP funding• Cram-downs and Cram–ins

■ Review of Truvo ■ Administration & pre-packs ■ Review ATU “flip-up” case

Case Review: CGG Restructuring US and French options

Other problem areas in Bond restructurings

■ CoMi & Jurisdiction issues ■ Organising the Bondholders

• Relationship between the issuer, trustee and bondholders

• Identifying the Bondholders – difficulties and tactics

• Standstill Agreements• Lockup Agreements• Reporting requirements• Obtaining information – problem areas

■ Insider dealing, Fraud and other issues • US anti-fraud• UK & EU rules and regulations

■ Impact of CDS on restructuring• How it matters q.v. Truvo


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Stabilization & liquidity

■ Standstills re the Issuing Group – positive and negative

■ Liquidity – the options and requirements• New shareholder funding• Payment extension and deferment techniques• New debt incurrence via the HY indenture –

sources and problems• Take-outs • Review of Towergate solution for liquidity

■ Issues affecting junior Notes / mezz etc• Standstills (on junior Noteholders and other

creditors)• Payment Stop notices

Draft EU Harmonisation Directive on restructuring

■ Backgorund ■ The three minimum key elements ■ Review of the Key principles ■ Relevance of Brexit




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Securitisation: The Structures, Legal Analysis and Documentation

Date: 25 Sep 2018 Location: London Standard Price: £625+VAT

Membership Price: £500 + VAT BOOK NOW

Course Overview

This Securitisation course is designed to provide an extensive coverage of the important aspects of securitisation, the popular structures in the market, the legal opinions analysis and documentation.

This course is relevant for in-house lawyers and private practice lawyers alike and bankers involved in structured finance, from the documentation teams, structurers, sales teams to compliance personnel monitoring such transactions as well as accountants who advise clients on securitisation or structured finance transactions. This course will also be of relevance to asset managers, portfolio managers, hedge funds and investors such as wealth funds, pension’s funds, insurance companies looking to invest or be involved in structured finance and securitisation.

The course sets the scene by giving an overview of securitisation. The reason why securitisation is frequently referred to as ‘rocket science’ is due to the number of areas of law that are involved and the interplay of the various different types of regulations and case law. It is one of the most document intensive transaction amongst all the structured finance transactions and involves dealing with a multitude of issues simultaneously in order to bring the deal to a close.

We go through the different types of securitisation structures in the market and cover the pertinent issues to consider when undertaking due diligence of the underlying assets. We further cover the risk factors that are typically disclosed to investors and various regulatory considerations.

We then undertake an analysis of the security package, the priority of payments (waterfalls) and enforcement options on event of default. We cover off issues relating to enforcement and restructuring securitisation transactions.

Additionally we will cover off the key documents in a typical securitisation transaction with coverage of the closing mechanics, payments flows, ancillary letters, conditions precedent, stock exchange listing and the crucial searches to be undertaken on closing. We will go through the legal opinions that require to be delivered and what each legal opinion should cover.

Regulatory issues and the upcoming regulatory changes affecting this area along with an analysis of the key features and structure of the various Structured Products are covered on the course titled: “Structured Products & Upcoming Regulatory Changes”.

Participants will: ■ Be introduced to the basics of securitisation, including its definition, the special purpose vehicle,

the credit rating process and profit extraction. ■ Get an overview of the different types of securitisation ■ Have explained to them the underlying assets due diligence ■ Master the risk factors including the risk profile of the asset pool and regulatory considerations. ■ Gain an understanding of the security & priority of payments. ■ Learn about the key documents including the asset sale and purchase agreements, the deed of

charge and the cash management agreement. ■ Be appraised of the securitisation litigation cases.

Course Objectives


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Introduction: Securitisation Overview ■ Definition – What is securitisation? ■ Relevant Areas of Law Involved ■ Basic “True Sale” Structure ■ Special Purpose Vehicle (SPV)

• Bankruptcy Remoteness• Permitted Activities• Limited Recourse

ӹPECOH – Post Enforcement Call Options Holder ӹThe Taxation of Securitisation Companies Regulations 2006 (SI 2006/3296) ӹCase law: ARM Asset Backed Securities S.A. (2013) EWHC 3351 (Ch)

• Non-Petition• Orphan Trust Structure• Accounting Treatment of SPV• Offshore SPV Jurisdictions

■ Key Parties Involved ■ Benefits of Securitisation

• For Originator• For Investors

■ Tranching, Subordination & Payment Water-fall

■ Credit Rating Process ■ Credit and Liquidity Enhancements

• Overcollateralisation• Subordinated Tranches• Subordinated Loan• Retained Spread• Liquidity Facilities• Insurance

■ Liquidity Support ■ Hedging ■ Servicing ■ Profit Extraction

Types of Securitisation ■ True Sale ■ Synthetic ■ Whole Business ■ Trade Receivables ■ Residential Mortgage Backed Securitisation

(RMBS) ■ Commercial Mortgage Backed Securitisation

(CMBS) ■ Master Trusts

• Concept of Bare Trust• Waterfalls• Drawdowns

■ Covered Bonds• Structure• Regulations

Underlying Assets Due Diligence ■ US Securities Act of 1933 Requirements

• Regulation S Offerings (Reg S)• Regulation 144A Offerings (144A)• US 10b-5 Legal Opinions

■ Assignability of Assets• Novation• Assignment

ӹContract that is Silent re: Assignability ӹLegal Assignment• Notice of Assignment• s136 Law of Property Act 1925 Require-

ment• Case law: Van Lynn Development Limit-

ed v Pelias Construction Co. (1969) 1 QB 607

ӹEquitable Assignment Risks ӹRisk Mitigation• Trustee’s Power of Attorney• Warranties• Restrictive Covenants• Charge & Control over Receivables Ac-

count ■ Assignability of Foreign Assets

• Declaration of Trust ■ Re TurcanDon King Productions Inc. v Warren ■ Barbados Trust Company Limited v Bank of

Zambia• Small Business, Enterprise and Employ-

ment Act 2015 (SBEEA)• Sub-participation• Synthetic Structures

■ Validity & Enforceability• Consumer Credit Act 1974 and 2006 (CCA)• Unfair Contract Terms Act 1977 (UTCA)• Unfair Terms in Consumer Contracts Regu-

lations 1999, SI 1994/3159 (UTCCR) • Regulated Contract Example: Residential

Mortgage Loan ■ Confidentiality Restrictions ■ Asset Representations

Risk Factors ■ Disclosure Requirements & Market Standard ■ Risk Profile of Asset Pool

• Legal/Structuring Risk• Credit Risk• Rate Risk• Currency Risk• Political Risk

■ Regulatory Considerations

Security & Priority of Payments ■ The Security Package ■ The Secured Creditors ■ Priorities of Payment – Waterfalls ■ Events of Default ■ Enforcement Methods



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■ Problems with Enforcement

The Key Documents ■ Prospectus or Base Prospectus (for Pro-

grammes) ■ The Asset Sale and Purchase Agreement ■ The Servicing Agreement ■ The Deed of Charge ■ The Cash Management Agreement ■ The Swap Agreements ■ Subscription Agreement ■ Note Trust Deed ■ Liquidity Facility Agreement ■ Legal Opinions

• What should be covered• Tax Opinion• Foreign Legal Opinions



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Unitranche & Alternative / Direct LendingDate: 19 June 2018, 09 Nov 2018

Location: London Standard Price: £675 +VAT Membership Price: £540 + VAT

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Course Overview

Direct lending in general, and unitranche in particular, continues to make significant inroads across Europe. The offering has received a further boost from the relaxation on direct lending in France, Germany and Italy whilst the ECB guidance on leveraged transactions, which is expected to come into effect mid 2017, will hamper bank lending providing further impetus to direct lenders.

Initially unitranche structures competed mainly with traditional senior/junior structures; however, the ability and willingness of direct lenders to lend increasingly larger amounts means the offering now competes with the high yield bond market as evidenced by the recent £475m unitranche backing Bridgepoint’s acquisition of Zenith. At the smaller end, direct lenders are providing increasingly smaller tranches with Beechbrook’s €7.1m unitranche and equity co-invest indicating that all but the smallest deals are now within reach.

Geographically, direct lending continues its advance inside the three main markets (UK, France and Germany) while Scandanavia, Italy, Spain and Ireland are all seeing strong growth and demand for the product. Unitranche recently appeared on the radar in Asia in the shape of the $480m unitranche backing Carlyle’s bid for Australian based pharma company, iNova, so the product seems set to grow in those markets too.

Unitranche continues to evolve as a highly bespoke product offered in a wide variety of forms including; clubbed, bifurcated, “dual-tranche” and even junior unitranche, all of which seem to beg the question of whether the term ‘unitranche’ adequately describes these various structures. Direct lenders are being forced to develop a wider range of strategies and products in an effort to differentiate their offering from other providers and some are increasingly willing to offer undrawn facilities as part of the financing (q.v. the £50 million undrawn capex line provided by Goldmans as part of unitranche financing for Zenith).

Some funds have elected to ride the risk curve in search of higher yields whilst others have gone back to their roots in the mezz market and are using equity to enhance returns; a few are creating mezz funds through the back door. Traditional bank lenders, initially slow to recognise the challenge from thise new providers, have developed various strategies to partner up with direct lenders and are willing and able to provide the “first out” portion of unitranche.

Documentation continues to adapt to the myriad of structures in the market but liquidity in high yield bond market and the syndicated loan market is also having an impact on terms in the mid-to-larger unitranche-style deals.

The complex nature of these structures means that Intercreditor issues have become a key negotiating area for lenders and borrowers, however, the evolution of US-style clubbed (and syndicated?) deals has introduced a further complication via the introduction of the Agreement Amongst Lenders between the parties in some deals although some practitioners question whether these AALs are necessary.

Last, direct lender’s hurdle rates have prevented them from targetting more traditional, unleverage credits leaving a funding gap in the 400–550 bps space. With this in mind, capital formation is taking place to address this, hitherto, neglected sector of the market although providers are having to find other, traditional ways of meeting their target returns; such as warrants.

On the restructuring front, Unitranche has avoided the landmines so far. However the volume of issuance over the past few years means that defaults have occurred with ICG’s investment in Courtepaille the most high-profile restructuring to date but market chatter suggests other deals are already experiencing distress. The course considers how the market has and will address these issues.

Participants will receive various models (including a professionally designed LBO model which measures debt capacity and exit returns) along with a market report from Debt Explained on trends in the loan market.

The programme will review the impact of the draft ECB guidance on leveraged transactions and its potential impact on direct lending


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Direct Lending – review of lenders and the market ■ Introduction to direct lending & unitranche ■ Overview of the basic unitranche product ■ The direct lending market in Europe – where

does it fit in? ■ Reviw of direct lending fundraising ■ The changing landscape of direct lending

providers ■ Review of market trends and developments

in direct lending ■ Impact of the ECB guidance on leveraged

transactions

Direct lending vs other forms of financing ■ Direct lenders approach to the unitranche

• Are all lenders the same• What do they want• General approach pricing & terms

■ The borrower’s perspective ■ Direct lending vs traditional bank-led finance ■ Unitranche vs Senior / junior structures

(mezz/2L)• Pros and cons

■ Direct lending vs High Yield Bonds ■ Pros and cons ■ Review of Zenith

How are traditional bank lenders respond-ing? ■ Can traditional bank lenders work with funds ■ Banks and direct lenders – creating a symbi-

otic relationship ■ Three ways banks can stuucture their rela-

tionships with direct lenders• Formal JV - pros and cons• Framework agreements - - pros and cons• Ad-hoc - - pros and cons

■ Other stratagies banks can adopt to retain market share

Review of Unitranche and direct lending structures – past, present, future? ■ Overview of direct lending spectrum ■ “Original” Unitranche – the US product ■ European Unitranche - The “classic” struc-

ture ■ “Structured” unitranche

• Review of recent deal structures• Bifurcated unitranche• “Dual” tranche unitranche • Parallel unitranche• “Junior” unitranche• JV structures• Syndicated unitranche

■ Bilateral vs. Clubbed unitranche ■ Unitranche vs Senior+Mezz/2L vs SSHYB ■ Bond structure

• Rationale, use and application in other EU jurisdictions

■ Interaction with the bank-led facilities - RCF, Acquisition, Capex

Facility size and leverage ■ Facility size and application – how small or

large can it go? ■ Leverage ratios

• Is there a typical range?• Comparison with separate senior/junior

facilities - senior/mezz and senior /2L ■ Tenor – what’s market ■ Bullets vs amortising – impact on the deal

Role play: Traditional senior / mezz vs Uni-tranche structure

Margins & Call protection ■ Where’s the market now - current trends ■ Approach to margin ratchets - ■ Other margin protection measure – OID and

floors ■ Structuring the coupon

• Cash vs PIK & Warrants ■ Warrants – which investors want these and

why?• Why these matter to investors• Key issues for lenders (information, rep-

resentation)• Issues for borrowers

■ Hard vs. soft call-protection • Why it matters• “Typical” terms

Terms where unitranche differs from “standard” LMA terms ■ Permitted actions

• M&A• Additional borrowing, security & guaran-

tees• Permitted payments (to equity)

■ Cash sweeps • Approach of the funds• What about the banks

■ Covenants generally• Guarantor coverage

■ Financial maintenance covenants• Standard LMA?• Cov-lite vs cov-loose• Springing covenants• Aggressive borrower-friendly terms -

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Use and application for non-sponsored corporate deals ■ Review of the US market examples ■ European examples – deals we have seen ■ A viable option for corporate deals – what’s

changed ■ Pros and cons of using unitranche in corpo-

rate deals ■ “Typical” use and application for European

corporates

Documentation ■ Overview of the loan structure ■ MA precedents as a point of departure ■ Documenting bifurcated deals: who is the

lender of record? – various approaches ■ Hedging facilities

• Who provides this• Ranking (always first?)• Handling large RCFs

■ Voting issues & thresholds• The traditional LMA approach • Will it work in clubbed or dual tranche

deals• Is it time for a change?

Collateral & Security ■ Collateral in the UK & Europe ■ Financial assistance ■ Separate Facility agents – are they neces-

sary? ■ Separate Security Agents – why and how

Transferability, Assignment and Portabil-ity ■ Transferring / selling post completion

• Who is the Lender of Record – does it matter

■ Methods of selling down - impact• Assignment• Sub-participation• Other structure methods

■ What borrower controls might apply Role play: Borrower vs lenders – negotiat-ing selected aspects in the term sheet

Inter-creditor issues and Agreements Among Lenders (“AAL”) ■ Who are the Lenders of Record – pre and

post sell-down? ■ Who are the parties to the ICA ■ Who are the key parties to the AAL

• Should the Borrower be a party to the AAL - Pros and cons

■ What is the “typical” ranking ■ Hedge facilities – are they always super

senior? ■ Deciding which aspects go in the ICA or the

AAL ■ Amendments and Waivers

• What is controlled and by whom• Dual consent structures – a viable solu-

tion? ■ Enforcement and Standstill issues

• Who is the “Instructing Group” – what happens in dispute

• Reconciling the unitranche and the RCF tensions

• Reconciling tensions in split unitranche • Standstill periods

■ The concept and application of “Material Events of Default” • What does it cover• When does it matter• Are there other solutions

■ Problems when things go wrong• How will dual or bifurcated structures af-

fect Schemes of Arrangement• Potential problems with “class” where

lenders are in both RCF and unitranche• When unanimous consent is no longer

unanimous





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Introduction to Financial Issues In Acquisition Agreements

Date: 05 Jul 2018, 29 Oct 2018Location: London Standard Price: £550 +VAT


Course Overview

This course is designed to help participants understand and deal effectively with the financial issues arising from sale and purchase agreements. It will help them prepare for discussions and negotiations around working capital and completion accounts. Cash free debt free transactions, earn out agree-ments and the option to apply locked box provisions.

The course will also consider some of the key current issues such as the impact of the transition to new UKGAAP from 2014, the new IFRS on revenue recognition and the full impact of fair value accounting on sale and purchase negotiations. The course will help participants to add value to the transaction.

The course is designed to be highly practical and will include case studies that will reflect the actual sale and purchase process including the most common contentious areas.

The initial steps ■ Setting the target Net Asset Value and under-

standing the main influences on price ■ The importance of the statutory accounts and

transactions in the critical window to comple-tion

■ Completion accounts – why they are neces-sary and what they can and should achieve

■ What pricing options work best? Based on completion values or using a locked box struc-ture

■ Policies, estimates and uncertainties – under-standing the positives and the negatives

Case study – assessment of typical accounting and financial policies and consideration of what could be used to your advantage and disadvantage. The case study will consider contentious issues such as contingencies and provisions, financial instruments and impairments.

Debt free cash free ■ What is meant by debt free cash free and why

it is important ■ Reconciling the net proceeds amount ■ What is meant by cash, cash equivalents and

debt? ■ Cash v non-cash transactions – how and why

to tell the apart ■ Some contentious matters – invoice financ-

ing and the increasing use of fair values (net present values)

Case study – examination of a typical balance sheet and consideration of what should be included as debt and what should not. This exercise will introduce issues such as invoice financing arrangements, non-controlling interests, preferred stock and compound financial arrangements (convertibles)

Working capital ■ What is meant by working capital ■ What should be included and when is it signifi-

cant – what types of business and industry ■ Calculating working capital needs ■ Cash movement restrictions ■ Timing the transaction to maximise the advan-

tage – the window dressing opportunities Case study – calculating working capital requirements and identifying the fundamental uncertainties – how could these be used for or against you?

Locked box agreements ■ What is a locked box provision and how does it

work? ■ Why such agreements exist compared to the

traditional structures used ■ What are the likely problem areas and what

protections should be put in place? Case study – comparing a transaction applying a locked box provision to a traditional arrangement with a balance due based on values in completion accounts.

Earn outs ■ Why used and when are these best used? ■ Typical performance indicators and measures

Case study – consideration of a typical earn out agreement identifying the issues which could arise and how they should be dealt with. This example will look at revenue targets, profits and earnings measures and impact on overall value (or share price).

Structured business arrangements ■ Understanding key trading arrangements and

structures involving the entity for sale• Group companies and other related parties –

associates and joint arrangements• Inter-company transactions, asset transfers

and other barter arrangements• Service concessions, operating leases and

possible ‘off balance sheet’ arrangements


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Advanced Takeover CodeDate: 27 Apr 2018, 8 Nov 2018


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Course Overview

This course covers key rules in the Takeover Code regulating takeovers and the bid strategies and tactics that are used in the current marketplace.

Following the extensive Code Review in 2011, the tactical advantage that possible bidders have had in takeovers has changed and the course examines the numerous effects this has had on bidder and target strategies.

Participants will learn how takeovers are conducted from the initial stages to the completion or lapsing of the bid and will gain an understanding of which strategies and tactics have and which have not worked, with examples from many recent deals.

The Takeover Code: Conduct of Offer ■ The UK takeover framework ■ Legal, UKLA and Code provisions

Key rules for the conduct of public bids ■ Announcements

• When possible/firm offer announcements are required

• Advisers’ responsibilities for announce-ments

• What is an untoward share price move-ment?

• Disclosures following announcements• Naming and Put Up or Shut Up• Contents of firm offer

■ Conditions/pre-conditions• When can they be subjective?• When can they be invoked?• What pre-conditions are possible in firm

offer announcements? ■ Minimum consideration following market

purchases ■ Restrictions

• No special deals • Management incentivisation in PTPs• Frustrating actions and exceptions

■ Squeeze out requirements ■ Overview of recent changes to rules ■ Types of takeover

• Offer statistics• Contractual offer timetable• How hostile offers are played out• Timetables in competitive situations• Development of Schemes of Arrangement• The rules for Schemes and timetable• Mandatory offer and whitewash require-

ments and uses• Partial and tender offers – rules and

when they are useful

Public Takeovers: Strategies and Tactics ■ Changes in marketplace which have affected

takeoversBidder Strategies and Tactics ■ Buying share stakes in Target

• Advantages of buying share stakes before and during bid

• Risks of buying stakes• Restrictions on stake-buying and regulatory

requirements • Methods of acquiring stakes• Is it worth holding a large minority stake?

■ Irrevocable undertakings• Advantages of holding irrevocables• Attitude of shareholders• Hard and soft irrevocables• Non-binding letters of intent

■ Impact of Code changes• Return to traditional bid approach• Effect of 28 day PUSU and naming• Work which needs to be done before ap-

proach• Friendly negotiations or hostile offer?• Possible offers and bear hugs

■ Timing considerations of firm offer announce-ments and bid Issues if US shareholders are present

■ Structure: Scheme of Arrangements or Offer• Advantages and disadvantages compared to

contractual offer• Examples of Schemes/offers meeting share-

holder opposition• Examples of Schemes in competitive situa-

tions ■ Cash or share offer?

• Advantages/disadvantages of cash and shares

• Different mixes of consideration• Cash alternative structures• Other financing structures• Means of using foreign shares


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Advanced Takeover CodeContinued

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Course Content

■ Care with statements• Price and other future actions

■ Concluding the offer• When to increase offer• Are no increase / no extension state-

ments useful?

Target Strategies and Tactics ■ Basic arguments for defence ■ Directors and advisers’ responsibilities

in accepting/rejecting an offer ■ Measures before a bid

• Keeping close to market• Identification of stakes• Position of pension fund

■ Negotiate, open books or make possible offer announcement?• Effects of a possible offer announcement

and timing• Advantages of an auction• When should Target refuse to talk?• When to open up books?

■ Forecasts and undertakings• Profit/dividend forecasts• Restructuring and valuations• Share buy-backs and special dividends• What works best?

■ Pleadings ■ Anti-trust ■ White knight/squire ■ Bolster the board ■ “Get them before they get you”

Both Sides’ Strategies and Tactics ■ Conflicts of interest ■ Examining documents/statements ■ Financial and managerial arguments ■ Direct approach to shareholders/analysts

WHAT OUR CLIENTS ARE SAYING ABOUT THE COURSE:

“The trainer had a good knowledge of the code

& how the various takeovers have been implemented”

“The best aspect of the course has been the chance of having an experienced

professional as a trainer.”

“Good first-hand experience, practical real life examples & updates

of recent rules”

“The trainer had years of experience giving excellent overview of the code”

“Lead by an experienced market practitioner. Very interesting to hear deal experience of other

participants too”

“Lots of good ideas of things I’ve not came across before and can consider

in future transactions”


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European Term Loan “B”Date: 26 Sep 2018


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■ ■

The European leveraged loan market saw issuance rise to €135 billion (an 85% increase vs the corresponding prior period) significantly outpacing high yield bond issuance of €86.8 billion. This trend is expected to gather pace in 2017 as issuers, particularly PE sponsors, appear set to prefer loans over bonds for a number of reasons. First, loans are currently enjoying lower spreads (E+350 + 0% Floor) than bonds (c. 6.6% all in); second, loans offer greater flexibility to sponsors in terms of the ability to both refinance (q.v. Flint Group, Cooper, B&B Hotels) and reprice existing facilities (q.v. Douglas €1.37 Term Loan “B”) whilst offering sponsors enhanced flexibility (and lower cost) in terms of their exit options.

Most, if not all, of the syndicated loans and many of the larger club deals (e.g. Independent Vetcare’s £180m Term Loan “B”) bear little resemblance to the traditional LMA precedents and include many features imported from high yield bonds or New York-style credit agreements (e.g. grower and builder baskets which apply inter alia to; debt incurrence, liens/collateral, restricted payments). The high yield bond and leveraged loan markets have been converging for some years (indeed the trend in Europe stared before the credit crisis with the arrival of the first cov-lite deals) but this convergence accelerated in 2016 in the face of the continuing benign conditions in credit markets caused by an imbalance of demand and supply and magnified by QE as well as the preference for increasingly influential U.S. lenders and sponsors for (more familiar) U.S. style documentation.

Whilst these Term Loan “B”s share many common features there are significant and subtle variations between them such that European Term Loan “B” market has fragmented into four different “styles”; first, English law cov-lite Term Loan “B” (typically for larger and better credits); secondly, English law covenanted Term Loan “B”s (typically or smaller or less attractive credits); thirdly, New York cov-lite Term Loan “B” and finally, High Yield style Senior Secured Term Loan “B”s generally used for very large transactions. The course will refer to current trends in the market by referring to the DebtXplained Loan Database which tracks the key terms in these Term Loan “B”s; including restrictions on transferability, MFN and sunset periods, equity cures.

The programme will appeal to practitioners involved in larger leveraged loan market such as lawyers, bankers in lending, PE professionals, corporate financiers, M&A advisors, debt advisors and restructuring. Investors in larger loans and direct lending will also benefit from an understanding of these topics since some of these features have begun to appear in much smaller deals (e.g. grower baskets in deals sub €50m).

Course Overview


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European Term Loan “B”Continued...

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Key concepts ■ Different variations of European Term Loan

“B”• English law Term Loan “B”• New York law Term Loan “B”• European “high-yield” style Term Loan

“B” ■ The Restricted Group

• Inclusions and exclusions• Approach used in high yield bonds &

why it matters• Re-designation of subsidiaries to and

from the Restricted Group• Typical requirements

■ Material subsidiaries• What constitutes at material subsidiary

– market approach to the threshold %• The various tests: EBITDA and other

approaches• Relevance and application in the SFA• Date and manner of determination-

Certificate (LMA vs market approach) ■ Information and financial reporting ■ Term Loan “B” vs LMA approach

• Treatment of unrestricted group• Presentations• Access rights•

A word about baskets ■ Use and application ■ Key variables and their ramifications

• Lender vs Borrower friendly ■ Fixed baskets

• Life time vs annual limit• Carry forward and back

■ Grower• Application • Key variables

■ Application • Key variables • Scalable

■ Builder• Application • Key variables

■ Are baskets refillable, can amounts be split, restrictions

Case: review of use and application of different types of baskets

Voting thresholds, Amendments & Waivers ■ LMA / EUK thresholds vs NY style thresh-

olds

■ Majority lenders ■ Super-majority

• Thresholds • Typical matters

■ Entrenched rights • “Unanimous” consent? - Typical matters

■ Facility change / Structural adjustments (or equivalent)• Approval Requirements• Major vs minor vs payables• Matters affected

■ Snooze you lose – timing ■ Yank the bank

• Required consent threshold• Non-consenting trigger• Can non-consenting lenders be prepaid

or bought at par• Required ource of funds

■ Debt buy-backs• Permitted• Cap on amount• Disenfranchisement

Yield / Margins, Ratchets & Call protection & Hedging ■ Trends in LIBOR/Euribor floors

• Differences in NY law vs English law• Matters affecting the Floor

■ OID – market trends ■ Margin ratchets

• Incidence – Application to facilities & step downs

■ Commitments fees on RCFs etc ■ Call protection

• Application & Scope - Repricing Events• Specific carve-outs (Specifc Asset Sales

or Significant Acquisitions, CoC, IPO, EBITDA increase, other)

• Basis of calculation of the Call protec-tion (effective yield)

■ Hedging required

Permitted Acquisitions & Investments ■ Structure of ‘Permitted” acquisitions ■ Permitted Acquisitions – LMA vs Term Loan

“B” approach ■ Ability to acquire Majority interests & ap-

plicable requirements/ conditions• Type and structure of basket lifetime or

annual limit • Typical tests & thresholds• Similar or complemetary business• Leverage test applicable to Target• Due diligence requirement - Third party

/ Independent certification






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• Other restrictions (jurisdiction) ■ Treatment of pro-forma synergies

• Can management add synergies to the test

• What synergies qualify, time limits? ■ Limits on non-guarantor entities ■ Must target accede to the collateral pack-

age ■ Ability to acquire minority stakes

• Applicable requirements/ conditions

Permitted Asset Sales ■ Requirements for assets sales ■ Threshold amount ■ Nature of the consideration received ■ Other requirements ■ Fair market value – certificates? ■ Payment waterfall & de minimis amounts

Debt incurrence ■ Incremental / additional debt generally

• “Accordion–style” facilities• Permitted Alternative debt

■ Structure of incremental debt basket• Ratio debt vs hard vs soft caps• Grower cap• Ratio & hard cap• Hard and grower caps• High Yield Bond style

■ Accordion facilities • Terms and conditions

■ Intercreditor accession ■ Types of debt baskets

• Free and clear baskets• General basket • Acquired debt basket• Acquisition debt basket• Contribution debt basket

Case: review of use and application of different approaches to incremental (and accordion) debt

MFN & Sunset provisions that relate to Incremental Facilities ■ MFN provisions – scope

• Incidence in deals• Scope – application to specific facilities• Method – margin cap vs all-in-yield

cap• Other requirements and exclusions • Structuring the yield cap to avoid be-

ing gamed by borrowers• Issues for lenders

■ Sunset provisions• Incidence • Duration• Effective date?• Differences in NY law vs English law

Case: review of approach to MFNs and sunset provisions

Restricted payments (Distributions) ■ Permitted / Restricted Payments General

Basket(s)• Hard vs soft caps• “Source of funds” condition• “Builder basket” approach

■ Investor Payments Leverage Basket• Typical range

■ Available Amount (“AA”) / Cumulative Credit (“CC”) - Leverage compliance test

■ Investor payments - Leverage Basket Fund-ing Sources (other than AA/CC)

■ Other conditions for Investor Payments Lev-erage Basket (other than AA/CC)

Sponsor fees & Sub-debt payments ■ Types of fees and their caps

• Holding Co / Admin fees• Sponsor / Monitoring fees• Advisory fees• Other material fees• Parent Debt Servicing / Fees/ Expenses

■ Aggregate of hard capped equity and sub debt related payments• Equity repurchases• Employee benefits

Negative Pledge, Permitted liens / security ■ Can incremental debt be secured & if so

what assets are available• Existng collateral• No colateral assets• Non-Guarantor Restricted Subsidiaries• Restrictions on securing incremental debt

■ Availability of general and other baskets ■ Hard vs soft “grower” permitted lien baskets ■ Intrecrediotr accession

Mandatory prepayments (Cash sweeps) ■ Excess cash

• Opening percentage• Step down • Step down mechanism – linear or stepped

■ IPO• Applicable repayment percentage






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■ [Available amount vs Cumulative Credit basket]

■ The five main basket combinations ■ CNI and “out of the box” amount ■ Build up basket start date – when does

this start? ■ Ratio test

• Leverage• FCCR• Other

■ Change of control• Is this treated as an EoD or mandatory

prepayment• Six approaches – automatic exit, Lender

has option etc

Transferability & Portability ■ Transferability

• Whitelists • Approved lenders• Blacklist / Disqualified Institutions List

present• Specific affected parties

■ Industry competitors ■ Loan to own investors

• Consent, Demmed consent & “Resona-blnesss requirement

• Consultation • Carve-outs• Minimum transfer & hold sizes – inter-

action with Related/ Exisiting lenders ■ Matters affceting the RCF ■ Portability

• Ratings test• Ratio - Leverage or Enterprise value

ratio ■ Timing periods/limits & Frequency ■ Additional requirements

Financial maintenance covenants & covenant suspension

■ Financial covenant package type ■ Review of current market approach: Tradi-

tional vs Cov-lose vs Cov-lite ■ “Springing” leverage covenants

• What are they• Typical terms

■ Aggressive add-backs to EBITDA• Synergies and other add-backs• Por-forma ajustments - Scope• •dditional requirements and time limits

■ Equity cures • Current market approach – what can be

cured; how often, over-cures?• Deemed cures – what are they and are

they widely used ■ Deal outliers

• Introduction of minimum EBITDA cove-nant

• Maintenance covenants tested at great-er intervals

■ Covenant suspension• Trigger• Availability and scope

Case: review of Equity cures

Guarantor coverage ■ Incidence of guarantor coverage ■ GCT percentage (where present) ■ Exclusion of Material subsidiaries & mate-

riality threshold ■ Other market exclusions ■

Events of Default ■ LMA EoDs and typical market exclusions ■ Clean-up period ■ Cross-default or cross-acceleration ■ Right to accelerate ■ Grace periods

• Non-payment• Other obligations• Commencement of grace period

■ MAC• Review of market variations





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Intercreditor (& AAL) Issues In Leveraged, Real Estate and ABL Transactions

Date: 18 Jun 2018, 01 Oct 2018, 30 Nov 2018Location: London Standard Price: £695 + VAT

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Course Overview

Intercreditor Agreements come to the fore in distress and restructurings. In essence their aim to provide lenders with the tools to implement an orderly restructuring by mimicking some (but not all) of the features available under Chapter 11. In particular, ranking/priority available under the “Absolute Priority rule (recently reaffirmed in the Jevic case), enforcement standstills (especially junior lenders), payment stop notices, turnover process and the ability to sell assets free of collateral (the so-called “intercreditor release mechanism which featured in the European Directories case). The course reviews the key aspects of typical Intercreditor agreements, especially the various LMA precedents for leverage loans, pari-loan/bond deals and real estate transactions. However, as the LMA acknowledges, their precedents are simply a point of departure so the programme also reviews other approaches found in the market. Moreover the LMA does not yet boast a precedents for transactions which include ABL or Unitranche deals (although the latter is in the works at present). Dovetailing ABL with other forms of debt has proved problematical outside the EU so the course calls on the presenter’s expertise to consider some solutions to this issue. This course will provide participants with an understanding of the role of the key intercreditor and how these tools are used in practice. The course also covers related aspects of topical issue of value and price which was central in both the IMO Carwash and the Stabilus cases. The role and importance of the Facility And Security Agents is also considered.

Introduction to Ranking and Subordination techniques ■ Summary of key terms of relevant Junior

debt instruments • Mezzanine • Second Lien Loans & Notes • Subordinated/Unsecured Notes • PIK Loans & Notes

■ Methods of creating ranking/subordination • Taking collateral / security • Contractual • Structural

■ Temporal • Equitable subordination (US, Germany,

Spain, France, Italy)

Relevant LMA precedents and market documentation ■ 2012 Leveraged precedent ■ SSRCF 2013 version for pari Loan Bond

structures ■ The Real Estate intercreditor precedents –

Structural & Contractural ■ The LMA ICA as a point of departure for

negotiations ■ Agreement Amongst Lenders (“AAL”) – no

standard approach!

Review of relevant deal structures ■ “Traditional” senior loan vs. mezzanine,

shareholder loans ■ Legacy deals - senior, 2nd lien loans, mezza-

nine, shareholder loans ■ Pari-Senior Loan/Bond structures (“Loan and

Note”) ■ Real Estate transactions ■ Unitranche / direct lending structures ■ Asset Based Lending structures

Ranking & the Payment Waterfall: general approach ■ Who should be a party to the ICA ■ Problems with Shareholder Loans ■ Ranking of the various “layers” of debt

• Typical ranking • Position of hedge liabilities • Dealing with intra-Group & parent liabilities • Issues arising in re Loan notes, Equity sub-

stitutes, Vendor loans • Rationale for inclusion as parties to the

Intercreditor • Rationale for exclusion as parties in the

Intercreditor ■ Position in pari Loan / Bond structures ■ Ranking as to Payment

• Permitted Payments on Hedge Liabilities • Permitted payments & restrictions on Mez-

zanine


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• Mezzanine Payment “Stop Notice” • Potential abuse and cure • Mezzanine Debt purchase by sponsor

■ Ranking as to Proceeds of Enforcement of Transaction Security

■ Senior Facility Liabilities - Restrictions and Permissions

■ Security and guarantees/indemnities - Sen-ior Lenders

Enforcement of Security ■ Who can Enforce – importance of the “In-

structing Group” • Instructing Group in Senior loan v Mezz

structures • Instructing Group in pari Loan / Bond

Structures • Role of the “Security Agent”

■ Timing of Enforcement standstills • Enforcement standstills • Senior loans vs. mezz • pari Loan / Bond structures • When can Mezz and other junior lenders

Enforce? ■ Problem areas re Enforcement

• Timing, manner of Enforcement • Role of the Security Agent in Enforce-

ment • Lessons from Saltri v MD Mezzanine

(Stabilus) case

Non-Distressed disposals ■ Application and scope – “Non-Distressed”

defined ■ Interaction with the Senior Facilities Agree-

ment ■ Interaction with the Mezzanine Agreement ■ Release of Security ■ Waterfall of “Disposal Proceeds” ■ Position in pari Loan / Bond structures

• Covenants in High Yield Bonds affecting Disposals

• Reconciling conflicts in pari Loan / Bond structures

Distressed Disposals ■ Release of Guarantees and Security

• What can be released? • Circumstances in which the junior lend-

er’s claims can be “discharged” • Lessons from the European Directories

case ■ Valuation issues – Price vs Value

• Lessons from IMO Carwash case – what went wrong (and how to fix it)

• A closer look at Stabilus – is this more

instructive? • Valuation approach – going concern vs.

liquidation • Valuation method - problems with “tradi-

tional approaches” in distress • “Fair value” defined • Approaches per the 2012 LMA ICA • Potential problems with “Fair Value” (why

“fair” may not be “fair”) • What is a “Competitive Sales Process”? • Solutions for Junior lenders re “Fair Value”

■ Form of consideration; cash vs. non cash con-sideration

■ Credit bidding • Is it available under the Intercreditor • The Stabilus position • Credit bidding in action • Potential pitfalls

Interaction of cross-default vs. cross-acceleration between senior & junior ■ Implications for EoD under the SFA on the

Mezzanine ■ Trigger options for Mezz EoD

• SFA EoD, Default or Acceleration ■ Limit to specific Events / covenants

• Typical carve-outs ■ Position in pari Loan / Bond structures

• Potential solutions

Issues with Hedging & Hedge parties ■ Definitions relevant to Hedging

• “Close-out Netting” • “Senior Credit Participation”

■ Voting pre-close out – key issues ■ Post close out - inclusion in “Majority Senior

Lenders”

Option to Purchase & Turnover ■ Key terms ■ How effective is this remedy: Examples in

practice • Lessons from IMO Car Wash • Does Stabilus change things

■ Approach in pari-Loan/Bond structures • Is it workable solution?

■ Current market trends / wish-list for Mezza-nine

■ Turnover per and post enforcement

Key differences between the Leveraged and Real Estate Intercreditor ■ Differences in deal structure and ramifications ■ Approach to security ■ Issues with the Security Agent ■ Dealing with Hedging ■ Acquisition of shares in the mezzanine bor





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■ rower ■ Cure rights – a different approach ■ Release of security and disposals

Intercreditor issues in Asset Based Lending structures ■ Key concerns of ABL lenders ■ Key concerns of the other finance parties

(high yield, unitranche, Loans) ■ Interaction with ABL Facilities (Algeco Scots-

man) ■ Intercreditor issues in ABL

• Standstills • Enforcement • Dealing with “pools” of collateral

■ Possible solutions in the European context

Issues in Agreement Amongst Lenders ■ Use and application (lessons from America?) ■ Intercreditor vs AAL ■ Issues in the AAL ■ Problems for borrowers

Inter-creditor issue re additional debt ■ Should the new debt be subject to an inter-

creditor ■ Issues with Secured Debt ■ Accordions vs Incremental Equivalent Debt ■ Issues with Unsecured debt ■ Documentary options – upfront ICA or de-

ferred?

Intercreditor issues arising from US parties / security ■ Terms to include in LMA / European Inter-

creditor • Bankruptcy waiver • Automatic Acceleration • Separate security

■ EU terms to include in NY style Intercreditor • Release / Assignment of claims on sale or

enforcement • Payment subordination




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Introduction to the Takeover CodeDate: 12 Oct 2018


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Course Overview

On this introduction to the Takeover Code course, participants will learn about how the Takeover Panel operates in practice and how to apply the six general principles.

The course will cover the issues involved in approaching target companies, making announcements, giving independent advice and complying with share dealing restrictions. Participants will also gain a strong understanding of voluntary, mandatory and partial offers as well as the principles of the bid timetable and the conduct of the parties during an offer period.

The course will examine the circumstances when the Takeover Code is applicable, the relevance of the key rules of the Takeover Code, the application of the Code in practice and the documentation requirements of the Panel.

Introduction to the Takeover Code ■ How the Takeover Panel operates ■ Companies, transactions and persons

subject to the Code ■ Enforcement of the Code

The Six General Principles and their application

Key Code definitions

The approach, announcements and independent advice (Rules 1-3) ■ Secrecy ■ When announcements are required ■ Announcements of possible offers and

naming ■ Terms and pre-conditions in possible

offers ■ Automatic 28 day PUSU ■ Firm offer announcements (Rule 2.7) ■ Consequences of statement of intention

not to make offer ■ Irrevocable commitments ■ Independent advice

Dealing restrictions, disclosures and share purchases ■ Prohibited dealings ( Rule 4) ■ Consideration to be offered (Rules 6 and

11) ■ Consequences of certain dealings (Rule

7) ■ Disclosure requirements in offer period

(Rules 8 and 38) ■ Timing restrictions on acquisition of

shares and exceptions (Rule 5)

Mandatory offers (Rule 9) ■ When required ■ Conditions which are possible ■ Price payable ■ Whitewash procedure ■ Purchase of own shares (Rule 37)

Voluntary offers ■ The acceptance condition (Rule 10) ■ The CMA and the European Commission

(Rule 12) ■ Pre-conditions and conditions in firm offers

(Rule 13) ■ Partial offer requirements (Rule 36)

Provisions applicable to all offers ■ Multiple classes of share capital (Rule 14) ■ Convertibles and warrants (Rule 15) ■ Special deals with favourable conditions

(Rule 16) ■ Announcement of acceptance levels (Rule

17) ■ Restrictions following offers and partial

offers (Rule 35) Conduct during the offer ■ Standards of care for Information (Rule

19) ■ Responsibility for information ■ Unacceptable statements ■ Post-offer undertakings and statements of

intention ■ Equality of information (Rule 20) ■ Restrictions on frustrating action (Rule 21)

Documents ■ Overview of document rules (Rules 23 to

27) ■ Distribution of documents and checklists

(Rule 30)

Profit forecasts, QFBS and asset valuations (Rules 28 and 29) ■ Different types of profit forecast ■ Reporting requirements ■ Disclosures for Quantified Financial Benefit

Statements ■ Consensus forecasts ■ Asset valuation reporting requirements

Outline timetables (Rules 31 to 34 and Appendix 7) ■ Contractual offers ■ Schemes of arrangements


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Joint VenturesDate: 10 Sep 2018


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Course Overview

Joint ventures are an important option for businesses in their home country or internationally. Along with acquisi-tions it is a model for corporate growth.

The course looks at the reasons for joint ventures including the commercial reasons and how they are reflected in the legal structure and documents.

Looking at negotiations it focuses on the general aspect of negotiations as well as critical areas for joint venture negotiations.

The course recognises the commercial and legal problems that regularly arise during the life cycle of a joint venture. It covers the often thorny issue of pre contract documents including the differences in common and civil law.

It goes on to look at the different options of legal structures that can be selected depending on the commercial ob-jectives and addresses the advantages and disadvantages of each option including limited companies, partnerships and contractual joint ventures.

It then looks at challenges of decision making in a joint venture where parties are working to a common end but have different ultimate interests. This leads to differences, ways to resolve them are looked at and what happens if the joint venture partner are unable to reach a decision. , including deadlock and options such as ‘Russian Roulette’ and Texas Shoot Out’. How and to whom parties may transfer shares, minority shareholders.

Coming to the end of the life cycle the programme focuses on exit, termination and change of control.

During the course participants will look at case studies, look at sample documents and receive checklists to assist them with dealing with joint ventures a following the course.

Introduction ■ What is a Joint Venture? ■ Why enter into a Joint Venture? ■ Reasons for Joint Ventures ■ Choosing a legal structure ■ Key legal considerations ■ Information you need to decide on the legal

structure ■ Key success factors

Negotiating – General Guidelines ■ Objectives in negotiations ■ Strategy ■ BATNA ■ Zone of Possible Agreement ■ Price versus value ■ Creating and sustaining value ■ 10 areas where joint venture negotiations

can establish successful sustainable joint ventures

Pre Contract Documents – Heads of Terms/MoU with Sample Document ■ Pros and cons ■ Types of pre-contract documents ■ Duty of good faith ■ Letters of intent ■ Memorandum of Understanding

■ ‘Subject to contract’ ■ Governing law – choice and impact ■ Advice to negotiators – Checklist

Selecting the Legal Structure that Reflects Commercial Objectives – Key Determinants ■ Relevant laws ■ International joint ventures ■ Questions to address ■ Restrictions

Main Joint Venture Structures – Advantages & Disadvantages ■ Limited Liability Company ■ Limited Liability Partnership ■ Partnership ■ Contractual Joint Venture ■ Contentious areas

Decision Making ■ Directors ■ Votes ■ Quorum ■ Reserved Matters ■ Conflicts of Interest

Deadlock & Default


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Joint VenturesContinued...

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■ Default ■ Casting Vote ■ Winding – up ■ Put and Call Options ■ Sale ■ ‘Texas Shoot Out’ ■ ‘Dutch Auction’ ■ ‘Russian Roulette’

Transfer of Shares ■ Pre – emption rights ■ Right of first offer ■ Right of first refusal ■ Pre – emption problem areas ■ Permitted transfers ■ Change of control ■ ‘Drag and Tag’ Rights

Exit, Termination and Change ■ Importance and Key Issues ■ Fixed term/joint renewal ■ Termination for convenience ■ Termination for Cause ■ Consequences of Exit/Termination ■ Winding –up

Case studies

Sample documents and checklists


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Leveraged Loans in Private Equity and Corporate Transactions

Date: 04 Oct 2018


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Course Overview

This programme focuses on club and syndicated leveraged loans provided to both corporate and PE borrowers (i.e. typically this covers loans > 2.0x Debt/EBITDA for most sectors). Loan markets have experienced significant changes over the last few years on a number of fronts; first, larger, syndicated and club deals have seen the importation of terms from the bond markets (e.g. grower baskets and cov-lite, cov-loose packages). Many of these larger deals have also imported N.Y. style language, which is more familiar to U.S. borrowers and lenders. At the same time direct/alternative lending had made significant inroads into the lending market bringing with them a more eclectic approach to lending (e.g. a preference for bullet, as opposed to amortising facilities).

Whilst there are subtle differences between the objectives of corporate and PE borrowers, both share a common objective of seeking to obtain the optimum terms, pricing and flexibility which will allow them to execute their strategic objectives. Clearly the larger deals, where borrowers have the option of accessing the high yield bond market, offer borrowers greater flexibility however smaller facilities have also benefitted from stiff competition from direct lenders (which reaches well below that threshold - in some cases 15 million) which has forced banks and other lenders to offer borrowers better terms and pricing (e.g. grower baskets have been seen in facilities below 30 million).

The topics aim to provide participants with an understanding of the trends and key issues affecting loan facilities in both club deals syndicated deals and also provides borrowers and lenders with a template of how to approach the negotiations. The programme is aimed at borrowers and lenders as well as lawyers, accountants, debt and corporate advisory and other professionals involved in these transactions.

Whilst there are subtle differences between objectives of corporate borrowers on the one hand and PE borrowers on the other; there is a high degree of overlap across.

Overview of the market trends affecting corporates and PE borrowers ■ Bifurcation of the leverage loan market ■ Trends larger syndicated deals ■ Trends in club loans ■ Influence of high yield bond market

trends ■ Impact of New York style documentation ■ Corporates vs PE – what’s the difference

Key negotiating strategies – the Borrower’s view ■ Criteria for selecting the most appropriate

lender - Banks vs Direct lenders ■ Key differences in approach between

banks and direct lenders ■ Pros and cons of Banks vs Direct lenders ■ Some banks (and branches) are different ■ Can direct lending applicable for corpo-

rate borrowers? ■ Strategies for negotiating the key com-

mercial terms ■ How to approach the term sheet

• Hard or soft terms?• Focus on everything or only a few “criti-

cal” issues ■ Do debt advisors offer value for money -

Getting the best from your advisors ■ What about the fees ■ A Checklist for borrowers

The Lender’s perspective ■ Beware Commitment letters – reflections

post Novus Aviation ■ The role of the information covenants – do

they really matter ■ If financial covenants don’t matter, what

does? ■ What to focus on in the collateral package ■ Problems with non-guarantor restricted sub-

sidiaries


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Scope of the Loan ■ Concept and composition of the “Cove-

nant (Restricted) Group” ■ Matters affecting Material subsidiaries ■ Matters affecting Immaterial subsidiaries ■ Dormant subsidiaries – why they matter ■ Issues re Joint Ventures & Equity

Changes to the Lenders ■ Transferring a loan – methods, pros and

cons• Novation• Assignment – legal and equitable• Sub-participation

■ Ability to transfer - Consent vs Consulta-tion• Trends in the leveraged market• Why transferability is important for

lenders• Potential problems for borrowers

■ Restrictions on Transferability ■ White / approved lists vs disqualified

lenders

Voting thresholds ■ Key voting thresholds & why they matter ■ Different problems for PE and corporate

lenders ■ Different approaches in syndicated vs

club loans• Majority lenders• Unanimous consent• Super-Majority lenders – “typical”

scope & thresholds ■ Potential pitfalls for lenders ■ Impact of Yank the Bank ■ Role of Snooze & Lose ■ Treatment of Hedge counter-parties

A word about baskets – how and why they matter ■ Role and application of baskets in the

loan market ■ Types of baskets, structure use and ap-

plication• Grower baskets• Builder baskets• Scalable baskets

■ Reclassification and splitting between baskets

“Permitted” definitions – how & why they matter ■ Role and relevance of the “Permitted”

definitions

■ Synchronising the “Permitted” baskets ■ Permitted Acquisitions

• Typical carve-outs- hard vs soft baskets• Additional restrictions

■ Permitted Financial Indebtedness / Security / Guarantees• Scope – Financial Indebtedness defined

(typical exclusions)• Incremental debt- scope and coverage• Accordion facilities

ӹTypical terms & conditions ӹPricing - MFN & sunset periods – what’s market

• General & other debt-related baskets ■ Permitted Payments - typical carve-outs

• What payments are permitted• Basket carve outs – amounts, caps, carry

forward/back• Subordinated debt, equity & equity substi-

tutes• Management/monitoring fees

■ Permitted Disposals• Scope & typical conditions

Debt Service ■ Differences between banks and direct lenders

to amortisation ■ Interest and default interest periods ■ Libor/Euribor floors ■ Original issue discount (OID) – use in the

deal, market trends ■ Margin and margin ratchets ■ Increased costs & gross up clauses

Specific issues for Revolving Credit Facilities (“RCFs”) ■ Clean-downs re RCFs ■ Cashless rollovers – why they matter ■ Problems with Headroom

Mandatory prepayments (Cash sweeps) ■ Excess Cashflow defined ■ Excess Cashflow – typical deductions ■ De minimis basket ■ Cash sweep – step downs (PE vs Corporate) ■ Use and Application of Retained Excess Cash

flow

Mandatory prepayments (Disposal proceeds) ■ What is a “Disposal” ■ Baskets to sale proceeds ■ Annual – individual deal amount ■ Annual basket carve-out ■ Excluded Disposal proceeds / Reinvested

amounts





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Other mandatory prepayments - overview ■ Acquisition Proceeds - overview

• What are “Acquisition Proceeds”• Excluded Acquisition proceeds

■ Insurance Proceeds• Excluded Insurance Proceeds• Basket – annual or per deal• Retention periods

■ Listing Proceeds & change of control

Covenants & Undertakings generally ■ Covenants generally – three categories ■ Information covenants

• Why and how they matters• Issues for lenders issues for borrowers• LMA v Market approach

■ General undertakings• Guarantor coverage – scope and issues

for borrowers• Core carve-outs for sponsors• Carve-outs for corporate borrowers

Financial covenants and Equity cures ■ The main covenants per the LMA & market

• Cash flow cover• Leverage• Interest cover• Capex limits• EBITDA limits (not LMA)• Springing covenants – use, application

and triggers• Other matters – starting headroom

■ Market trends• Number of covenants• Headroom

■ Equity cures• What do they apply to EBITDA, leverage,

cash flow?• Terms - How many, consecutive, over-

cures, application of the funds• Cures in practice

■ Covenant Suspension/ Loosening• Use and application• Typical triggers• Scope of covenants affected

Default and Events of Default ■ Default vs Event of Default ■ What are the key EoDs ■ Grace periods ■ Borrower-friendly exclusions ■ What about cross-default ■ MAC / MAE clause

• Do they still matter posy recent cases?

• Different formulations – LMA vs market (what is reasonable)

■ Problems with “Sanctions” clauses• How to mitigate conflict between U.S.

and EU regulations




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Loan Documentation & Security Issues

Date: 11 Jun 2018, 18 Sep 2018, 05 Nov 2018 Location: London Standard Price: £725 + VAT

Membership: £580 +VAT BOOK NOW

Course Overview


This course provides a full coverage of all of the important aspects of lending. It sets the scene by explaining the banks approach to lending, the roles of the key departments in the bank and the key documents in the process.

The programme then proceeds to discuss where to focus in analysing the loan and examines the key commercial terms in the loan and security documents from the perspective of both the lender and the borrower. Reference is made to established case law (Spectrum) and to recent cases, such as Stabilus and Urvasco and their relevance to key clauses and aspects.

Whilst Loan Market Association precedents are widely used as a point of departure for loans throughout Europe, there are a number of key clauses which are left “blank” for negotiation, in particular the various “permitted” baskets which need to be tailored on a case by case basis. Furthermore, syndicated (and club) loans raise additional issues which are not relevant in bilateral loans, such as voting thresholds and transfer restrictions.

In view of the standardised approach to lending across Europe, the course is presented so that it has a pan-European relevance.The course will also discuss briefly the potential impact of Brexit on existing and new documentation. The longer term impact on loan documentation will depend upon what is agreed between the UK and the EU.

Facilities in general ■ Investment grade vs high yield - key di-

viding line in credit markets, why & how it matters

■ Preliminary issues for the borrower – the 7 key aspects

■ Types of bank facilities & key issues• Committed vs uncommitted facilities• Overdraft, term loans, RCFs, multiple op-

tion facilities, swingline facilities ■ Obtaining a loan - bi-lateral vs club vs syndi-

cated deals• Key differences

■ Repayment styles and what drives them• Amortising vs balloon vs bullet• Lenders approach to amortisation

Overview: Key documents & their uses ■ Commitment and mandate Letter ■ Term sheet ■ Fee letter ■ The loan facility agreement ■ Security documentation

Case Study: Review key aspects of a sheet in the context of a relevant deal including the market flex

The key players in a loan & their roles ■ Dramatis personae in the loan (bilateral,

clubs & syndicated) ■ The mandated lead arranger ■ Origination & syndication departments ■ Credit department ■ Portfolio department ■ The facility agent & security agent

• key lessons from the Stabilus case

Issues relevant to syndicated (& club) deals ■ The various types of Lenders & what they

want • Banks, CDOs, institutional lenders, cred-

it & hedge funds, direct lenders ■ Role and importance of “The Instructing

Group” ■ Critical voting thresholds ■ Transfer restrictions

General approach to the loan ■ The Lender’s approach to the Loan ■ The borrower’s aims ■ Interplay of the various “models/scenarios” ■ How to “read” a loan facility agreement

• What to do and what not to do• What are the key areas to focus on

■ Generic drafting issues• Materiality• Reasonableness• De minimis / permitted baskets• Other conditional clauses (might, may,


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Loan Documentation & Security IssuesContinued...

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• will, would etc)• Further assurances – provide less assur-

ance since Ford v Polymer Vision ■ Negotiating tactics in handling the banks

• What do the lenders want – the 3 key areas

• Knowing where to focus your negotiat-ing firepower

• How to handle the lenders when things “go wrong”

Different types of facilities – use and key issues ■ Overdraft - why these are unsuitable for

corporates ■ Term Loans

• Uses – general corporate purposes, M&A, capex

• Typical terms• Tranching and alphabet notes – ration-

ale and use ■ Revolving credit facilities

• Typical terms & problem areas• Fee /margin structure – what’s market

for committed amounts• Clean-downs – why they matter, what

to look for• Rollovers & cashless rollovers (lessons

from Lehman)• Dealing with “headroom”

The senior facility agreement – the key commercial terms ■ Primary loan senior facility agreements

• when and where are they used ■ Scope of the Loan

• “the Restricted Group” - where and why it matters

■ “Permitted baskets” what they are and why they matter

■ Interest & fees• Arrangement fees• Commitment fees• Typical margins• Utilisation periods• Use and interaction with hedging

(SWAPS) ■ Default vs. events of default and cross

default ■ LMA approach vs market ■ Impact of a breach; theory vs practice ■ Covenants generally

• Information• General undertakings (the negative

pledge & guarantor coverage test)• Financial covenants – typical covenants

■ MAC / MAE• Does it matter• Impact of the recent Urvasco case

Case Study: Discuss specific terms in the Senior Facility Agreement specifically various formulations of the MAC clause, the maintenance covenant package (which ones should be used and why), the role of the “Permitted” baskets

Types of security ■ Debentures defined (UK only)

• Companies Act (UK) approach vs case law (impact of recent Fons case)

■ Mortgages• Charges – fixed vs floating• Key differences • Key issues for lenders & why it matters

(Spectrum & Brumark Cases) ■ Pledges ■ Liens ■ Security re intellectual property and con-

tracts ■ Security in the EU – general approach

• Parallel debt arrangements ■ Collateral in the US – general approach

Case Study: Discuss some of the key issues affecting security from both lender’s and borrower’s perspective

Registering & perfecting security ■ Registering security interests created by

companies & LLPs• Charges created on or after 6 April 2013• Charges created before 6 April 2013• Charges created by overseas companies

■ Registering security over land ■ Registering security over intellectual prop-

erty ■ Priority between company mortgages and

charges ■ Methods of perfecting security

• The five key questions

Impact of Brexit on loan documentation ■ Events of default ■ Mandatory prepayments (illegality) ■ MAC clauses ■ Force majeure ■ Other matters (repeating reps, gross up) ■ Passporting issues ■ Governing Law and Jurisdiction


http://redcliffetraining.com/training/corporate-finance-training-courses/security-and-loan-documentation-course/


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Negotiating Heads of Terms (LOIMOU) & Related IssuesDate: 12 Oct 2018


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Course Overview

The Heads of Agreement (“Heads”) are perhaps even more important than the SPA since, if they are poorly drafted, they can fail to clarify the essential aspects of the deal adequately they can either delay its completion (or even scupper the transaction) whilst the parties revisit the original terms. Secondly, they can inadvertently create a binding obligation to conclude the deal on unfavourable terms if they omit suitable CPs; for example, not making the deal conditional on adequate due diligence or available financing or being unable to adjust the purchase price later when the assumptions on which the initial price was based, differ post due diligence and finally they could expose the parties to potential liability even if the deal does not proceed (e.g. the duty to negotiate in good faith).

Negotiating some cases, (e.g. dealing with unsophisticated sellers) failure to address contentious issues in the heads can mean the transaction doesn’t complete or takes much longer. The three areas which create the most friction are; First, which Accounts (and accounting policies) have been used by the seller as the basis for valuation (private owners rarely use IFRS/GAAP); secondly, what qualifies as debt (or cash) in the equity bridge and finally, if an earn-out is to be used, what-if scenarios must be considered to avoid disappointment and disputes later.

Whiles the Heads are vital, they often dovetail with other key aspects in the deal particularly the Confidentiality (the “NDA”) and the Exclusivity. Whilst these aspects are often included in separate documents they may also appear in the Heads themselves. They play important role in the deal in differing ways.

The NDA is often the first point of friction between the parties and thus sets the tone for the negotiations that follow. Its rationale is often misunderstood by many practitioners; whilst it is true that confidentiality is critical in deals with proprietorial IP, they offer other benefits to sellers and even the ultimate buyer too. Getting the terms of the Engagement letter right also matters; not only does it set the scope and fees for work but, as numerous clients have found out to their cost, Tailgunner fees can have a nasty sting in the tail (e.g. the Recap and Grandtop cases).

The programme also reviews other critical documents and elements of the M&A process which precede the SPA but which are inextricably linked with the final SPA. For example, Due diligence is inextricably linked with the warranties, disclosure and indemnities but it is vital to strike a balance which enable buyers to make an informed view on the target whilst protecting key commercial information on the target if the deal does not proceed. In this context, the data room (and data room rules) play an important part in this but also giving the seller insight into the buyer’s thinking.

The programme is aimed at those involved in M&A transactions and is designed to focus on the key legal and commercial issues of the deal. It will appeal to lawyers, corporate finance advisors, bankers and principals in the UK and Europe.

Part 1: Heads of Terms (“Heads”)

Tactical matters ■ What’s in a name & does it matter – Heads,

Term sheet, LOI, MOU etc. ■ Rationale & Purpose

• Are they always necessary?• 7 key advantages of using Heads• 4 disadvantages and how to mitigate them

■ Format of Heads • Detailed vs short• Who prepares them

Key legal issues to consider ■ Legally binding or not (q.v. RTS Flexible Sys-

tems case)• Clauses which should not be legally binding• Clauses which should be legally binding• Position in Europe / Civil law• Position in the UK• Impact of “Subject to Contract” (q.v. Global

Asset case) ■ Regulatory matters – Financial Promotion?

(§21, Financial Services and Markets Act 2000)

■ The Duty to negotiate in Good Faith• UK vs Europe/ Civil law• Traps for the unwary

■ Agreements to Agree

Parties, deal structure, price & consideration ■ The Parties (and any guarantors) ■ Description of the proposed transaction

• Deal structure• Full title full title guarantee’ and ‘limited

title guarantee’ ■ Details of the Purchase Price

• Fixed price, a range or to be determined• Basis/Assumptions on which the price is

based (why this matters)• Valuation assumptions

The purchase price mechanism – Locked Box


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Negotiating Heads of Terms (LOIMOU) & Related IssuesContinued...

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v Completion Accounts ■ Three critical issues which need to be ad-

dressed in the Heads (& not left to the SPA)• Which set of “Accounts” are used – why

and how this matters• Earn-outs – defining the benchmark & how

to mitigate problems• Specific issues with the Equity Bridge

■ Nature and timing of the Consideration• When the consideration will be paid• Nature of the consideration e.g. cash

shares loans etc.

The Main Conditions ■ How and why this matters to the buyer ■ Required approvals - clarity is key ■ Due diligence

• Arrangements & requirements• Access to key staff• Data rooms

■ Completing a definitive, legally binding SPA• Who prepares this & why that matters

■ Material Adverse Change• Scope

■ Commercial matters, Legal & Regulatory proceedings• Commercial contracts & licenses / CoC• Completion issues

■ Financing • Terms of financing inter-relation with the

financing documents ■ Pre-completion restructuring ■ Timing - Milestones & long-stop dates

Limiting Liability – Representations, Warranties, Disclosure & Indemnities ■ Liability for pre-contractual statements ■ Dealing with the Warranties

• General or Specific approach to warranties• Scope • Tactical matters for the parties

■ Warranty insurance ■ Due diligence - a risk matrix ■ Interaction with Warranties and Disclosure ■ Key areas of DD

• Lawyers• Accountants / tax• Commercial DD• Insurance• Environmental

Miscellaneous ■ Transaction documents

• Migrating the Heads to the SPA• Interaction with other key documents• Non-compete - Issues re employees and

customers ■ Costs & Break Fees

• Triggers for break fees• Potential problems with Break fees• Legal issues – Is it a penalty?

• Fiduciary duties• Financial assistance

■ Other agreements ■ Rights of third parties ■ Governing law and jurisdiction

Confidentiality letter / NDAs Real purpose of NDAs

• Seller’s perspective • Buyer issues

■ Long vs Short form ■ “Confidential Information” defined

• Form, Source, Method ■ Dealing with Extremely sensitive information ■ “Residual” clause ■ “Authorised Persons” defined

• Seller and buyer issues ■ The 9 Key Undertakings by the Buyer ■ When the deal fails – “Return or Destroy”

• Potential problem areas for the buyer ■ Enforced Disclosure ■ Other ancillary terms

• No offer, representation, warranty or license• Non-solicitation of staff, customers, suppli-

ers• Non-disclosure of discussions• Enforcement and remedies

■ Practical steps for the Seller

Exclusivity ■ Rationale ■ Format – separate document or in the Heads ■ Lock outs vs Lock ins (are latter enforceable)

• Duration - Potential problems “”reasonable period”

■ Pros and cons • Seller’s view• Buyers view

■ Main clauses• Conduct during the Exclusivity Period• Approaches by 3rd parties• Access during the Exclusivity period• Relief and Remedies• Announcements• Termination & Waivers • Costs• Status of the Exclusivity

■ Issues in re fiduciary duties

Appendices (covered time permitting – materials in Appendix)

Engagement letters ■ Defining the deal ■ Role & scope ■ Remuneration & expenses

• Contentious issues - Abort and Tailgunner fees

■ Duration and Termination ■ Liability and Limiting liability ■ Hold Harmless letters


http://redcliffetraining.com/training/corporate-finance-training-courses/heads-of-terms/

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Structuring & Negotiating Mezzanine, PIK, Second Lien And Unitranche

Date:10 Jul 2018, 27 Nov 2018 Location: London Standard Price: £725 + VAT


Course Overview

Credit markets continue to provide copious amounts of liquidity across the funding spectrum from senior debt through second lien, mezzanine and PIK-style instruments driven by traditional funding sources and a significant increase in capital formation from alternative lenders. Although unitranche continues to comprise the most popular offering from alternative lenders, these funds adopt an eclectic approach to credit and are willing to provide established junior products such as mezzanine and PIK either in conjunction with senior debt or to complement their unitranche offering.

The Second Lien market experienced a resurrection in July 2014 (after a nascent period post 2007) but, according to S&P, is expected to experience a renaissance in 2017, for a number of reasons. The appeal to borrowers is first, the ability to increase leverage from 2L to fund higher purchase price multiples; second, reduced public disclosure and need for credit ratings; third, lower pricing than senior/ mezzanine structures and finally, is easier to restructure in distress than high yield bonds. Lenders are keen to take the product as it provides higher margins than senior debt, includes some level of call protection, provides additional investment opportunities (given the relative dearth of senior paper) and is structured differently to first generation deals, so providing greater protection in distress.

Mezzanine continues to face pressure from other cheaper products (2L in larger deals and unitranche in smaller deals), Despite this, global mezzanine funds have raised very large amounts of capital over the last year (GSO, Highbridge, Prudential and Crescent together raised nearly $20 billion). Competition from competing forms of capital means it is less likely these funds will be deployed in entirely conventional structures so these lenders have had to evolve new strategies to deploy their funds although there remains demand for the traditional senior / mezzanine structure. Despite the decline in mezzanine issuance, mezzanine continues to exert a strong influence on other junior debt products as many direct lenders had their roots in mezzanine and have been willing to apply the practices in that market to direct lending (e.g. the use of PIK and warrants)

PIK itself continues to find a place in the sun for a wide range of purposes including LBOs and the €3.6 billion Schaeffler multi-tranche PIK in late 2016 (up-scaled from €2.5 billion) evidenced strong demand for that product notwithstanding the miserly pricing (275bps on the 5 year Euro). Many of these deals now tend to be issued in note, rather than loan, form. In current market conditions, PIK is expected to remain popular as lenders chase returns up the risk/reward curve.

European direct lending funds reportedly have c $17 billion of capital to deploy. Unitranche continues to be the most dynamic product in that market however the offering has splintered from the original-classical structures to more structured bespoke products embracing a wider range of more complex structures including dual unitranche, first-in/ first-out. Banks, unwilling to be left on the sidelines, have also proved willing to fund both the bank-led facilities as well as some of the unitranche itself. The recent £475 million unitranche financing Bridgepoint’s acquisition of Zenith illustrates that direct lending can compete with head-on high yield bonds whilst the recent redemption of Soho Houses’ high yield bonds, with a £275 million unitranche, reinforces that notion. The large amounts of dry powder available to funds coupled with stiff competition from the traditional senior/junior loans has compressed pricing so lenders have had to find innovative/alternative ways of deploying their funds. Despite this, the recent ECB leverage guidance is expected to hamper banks and boost direct lending in general.

Whilst junior debt offers attractive returns, this is not without risk and the lesson from the credit crisis is that these providers invariably ended up receiving little or nothing in distress (e.g. Imo Carwash, Stabilus). Against this background, junior lenders have sought ways to mitigate these risks and have been assisted by an updated LMA Intercreditor (2012). However, many, more sophisticated providers have sought other ways to improve their position, for example through the appointment of their own Facility and even Security Agents, although this is not without controversy.

This programme examines the range of junior debt loan products available in the market, their use and application, the typical terms and conditions, market pricing and returns. The program also considers the various techniques junior lenders can adopt to structure their credit ab initio (via Intercreditor issues), how they can monitor their credit thereafter (and have advanced warning of impending distress) and finally how they can maximise recovery in distress. The course is highly practical and interactive and will include case studies which will first, require participants to devise appropriate junior debt structures and second, to consider the various Intercreditor and other matters which can protect their position in distress.


A model will be provided in advance of the programme and participants will be required to bring a laptop to the course with that model loaded.


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Course Content

Introduction to the junior debt spectrum ■ Overview of the market ■ The role of direct lenders ■ Review of the various products

• Mezzanine• PIK, PIYC & Toggles• Second Lien• Unitranche

Structuring parameters – how much senior and how much junior debt ■ Typical approaches to gauging debt capacity

/ capital structure ■ What are the key criteria to consider

• Multiples vs Capital approach • Key ratios (covenants where relevant)

used to right-size the debt ■ How Jurisdiction can affect debt capacity

(and how to mitigate)

Types of Mezzanine: use and key issues ■ Main features of the mezzanine ■ European vs US vs Asian mezzanine ■ Warrantless mezzanine – return structure

• Fixed vs floating rate• Cash pay• PIK• Redemption premia – stepped vs linear

■ Other tools for achieving the target IRR• OID to enhance returns• Using Libor/Euribor floors• Fees• Call protection - hard vs soft call protec-

tion ■ Key issues for warranted mezzanine

• Key issues & pitfalls for warrantless mezz• Dealing with recaps & refinancing• The order of priority vis-a-vis PE loan

notes ■ Other variants of mezzanine

• Senior mezzanine• Junior mezzanine• Hybrid mezzanine

Second Lien ■ Use and application ■ Market trends / recent deals ■ Documenting the 2nd Lien - composite or

separate facility agreement ■ “Typical” terms, leverage, pricing and call

protection ■ Pros and cons of 2L vs unitranche, high yield

bonds ■ Other tools for achieving the target IRR

PIK (PIYC, PIYW, Toggles) ■ Pay-in-Kind (PIK) generally ■ Different types PIK

• PIYW• Toggle • PIYC

■ “Typical” terms, leverage and pricing ■ Call protection - hard vs soft call protection ■ Market trends / recent deals

Unitranche & direct lending products

■ The onward march of direct lenders in Europe • Market trends• Recent developments

■ Where and how its used ■ Review of different “unitranche” structures

• Classic product• Clubbed • Dual tranche • Structured • First out / last out

■ Interaction with bank led finance & impact on bank lenders

■ “Typical” terms & leverage ■ “Typical” pricing

• Cash coupon• PIK• Warrants

■ Other tools for achieving the target IRR ■ Leverage – how much and impact on returns ■ Call protection

• Why it matters to lenders• Hard vs soft call protection

■ Pros & cons vs other types of products• Senior / junior (mezz/2L)• High Yield Bonds

Intercreditor issues & Agreement Among Lenders (“AAL”) ■ Typical inter-creditor issues for junior debt

• Enforcement standstills• Turnover – why and where this matters• Option to purchase - Practical issues

■ Key issues in distress• Information rights• Why going on the Board may not help• Costs in distress• Valuation in distress (q.v. IMO Carwash)• Release of collateral (q.v. European Directo-

ries) ■ The role of the Agents - how and why it mat-

ters in distress• Appointing a separate Facility Agent• Appointing a separate Security Agent – key

issues to consider

Draft ECB Guidance on Leveraged Transactions ■ Which lenders are affected ■ Which deals are affected ■ EBITDA calculation ■ Ramifications for market players

Structuring & Negotiating Mezzanine, PIK, Second Lien And Unitranche





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Tax Issues in M&ADate: 23 May 2018, 02 Oct 2018


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This seminar considers the taxation implications of buying and selling businesses.

The viewpoints of the purchasers and vendors are both considered in depth, with the relevant taxes being covered with worked examples and a case study.

The seminar also covers the tax treatment of managers’ shares and tax issues relating to venture capital.

Advising the Purchasers

■ Purchase of shares or trade and assets? ■ Tax relief for goodwill and intangibles ■ Capital allowances considerations, particu-

larly fixtures in buildings ■ Taking advantage of trading losses in target,

including the new rules from 1 April 2017 ■ Financing the transaction – tax relief for

interest costs ■ Stamp Duty and Stamp Duty Land Tax con-

siderations

Advising Individual Vendors

■ Pre-sale planning ■ Sale of shares or sale of assets? ■ Maximising CGT entrepreneurs’ relief ■ The importance of “trading company” status ■ Tax treatment of consideration – cash,

shares, loan notes and earn-outs ■ QCBs or Non-QCB loan notes? ■ Tax implications of liquidation following the

sale of the trade

Advising Corporate Vendors

■ Pre-sale planning ■ Form of consideration – cash, shares, loan

notes and earn-outs ■ The substantial shareholdings exemption

and the new rules from 1 April 2017

HMRC Clearances, in particular

■ Section 138 TCGA 1992 re capital gains ■ Section 701 ITA 2007 – cancellation of tax

advantages

Tax Issues affecting employee shares

■ Taxation of employee shares including re-stricted securities

■ Impact on “earn outs” and MBOs ■ The use of share options to attract and retain

key staff ■ Availability of CGT entrepreneurs’ relief for

the management team

Tax Issues relating to Venture Capital

■ An overview of the Enterprise Investment Scheme (EIS) and Seed EIS

■ Qualifying companies and excluded activities ■ Conditions for the individual investor ■ Significance of being “connected” with the

company ■ The “Business Angel” rule ■ Venture Capital Trusts


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Advanced Negotiation issues in Financial CovenantsDate: 12 Jun 2018, 24 Sep 2018


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The loan market in Europe has bifurcated into two main approaches to loan documentation; smaller club and bilateral deals on the one hand, which broadly follow the more lender-friendly LMA approach, and larger syndicated TLB-style deals on the other hand which are increasingly influenced by high yield bonds and invariably are structured on a cov-loose or cov-lite basis. These larger deals also include a far more eclectic approach to the key definitions comprising the ratios with many add-backs taken copied from high yield bonds.

This programme covers financial covenants in leveraged loans and real estate deals and includes specific reference and analysis of the covenants, terms and definitions in the LMA Senior Facilities Agreement for Leveraged transactions and LMA Real Estate precedents. The programme uses information from the Debt Explained database, to review the current trends in the market in the larger syndicated (TLB-style) deals which so often include springing leverage covenants and high-yield-bond style covenant packages.

The larger syndicated TLBs also vary in approach depending on whether they apply English law or NY law (for example, the latter do not usually permit overcures or require prepayment of loans from equity cure cash). Direct lenders, which typically use the LMA leverage precedent as a starting point, also tend to adopt a more borrower-friendly approach to the terms in the loan and the financial covenants.

Financial covenants are arguably one of the most heavily negotiated aspects of the Loan Agreement.

Too often; some parties fail to understand the key negotiating issues that really matter, for example they view the financial covenants in isolation rather than appreciating that they must be seen in the context of the particular capital structure. Secondly, too much time is spent on which covenants apply rather than focusing on the key constituents of the key terms in the financial covenant. Finally, many parties fail to appreciate that, even in cov-lite deals, the financial covenants and/or the components of those covenants play an important role as they also affect a wide range of other critical matters in the loan. This usually includes the various “permitted” actions such as debt incurrence (security and guarantees), sponsor payments, cash sweeps, guarantor coverage and grower, scalable and/or builder baskets where these appear.

This course provides a detailed look at commercial aspects of financial covenants and looks under the bonnet at the critical issues that arise in practice. It provides an in-depth look at the covenants as set out in the Loan Market Association precedent together with other covenants that might be used in practice. Reference is made to the Debt Explained loan database which tracks key terms in the larger syndicated TLB market.

Participants will gain an in-depth view of which covenants should be used together with a detailed analysis of the constituents of the covenants and the sponsor friendly add-backs and other sponsor friendly techniques used by borrowers to manipulate the covenants.

The programme will appeal to practitioners involved in leverage, real estate and infrastructure, such as Lawyers, Private Equity professionals, Bankers in Lending (all departments), Corporate financiers, M&A advisors, Debt advisory and Restructuring. Accounting professionals looking to expand their knowledge of this topic will also benefit as many of the issues embrace legal /documentary considerations. The programme adopts a pan-European approach to the topic but the presenter is able to discuss issues relevant in the USA in view of his exposure to those markets.

To derive full benefit from the programme, it is essential that attendees have a basic understanding of the main / headline elements of a Profit and Loss account (Sales, EBITDA, EBIT etc) and a basic understanding of the differences between P&L /Accrual Accounting and Cash accounting. It is emphasised that participants DO NOT require an understanding of IFRS or GAAP.

A short module summarising the key differences between P&L /Accrual Accounting and Cash Accounting is available on request prior to the programme.

The programme will review the draft ECB guidance on leveraged transactions published in November 2016. The course will examine which type of transactions are covered, which lenders are affected, the approach to EBITDA and the potential implications for players in the debt markets.Case Study: Participants will be required to:- (a) calculate how to derive the key elements of the various covenants (b) identify some of the more problematic components in the covenants (c) calculate the various covenants and (d) explain the pros and cons of each of the covenants and why they may be appropriate for one deal but not another. The calculations are relatively simple and are designed to explain the basic principles and reinforce learning.


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Advanced Negotiation issues in Financial CovenantsContinued...

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Course Content

Introduction - Interaction of capital structure & financial covenants ■ Types of instruments & impact on the finan-

cial covenants ■ What is the purpose of financial covenants ■ Relevance of Capital Structure on Financial

Covenants• Bullet loans• Impact of PIK

■ How the lenders and borrwers approach setting the Financial Covenants

Key financial ratios used by Lenders and typical LMA ratios in leveraged deals ■ Market based financial ratios ■ The four LMA covenants in leveraged deals ■ Leverage ratios (Balance sheet and P&L

ratios)• Total Debt / EBITDA• Senior Debt/ EBITDA

■ Interest coverage ratios• EBITDA / Total interest • EBITDA / Senior Interest• EBITDA / Cash interest• [EBITDA – Maintenance Capex] / Cash

Interest ■ [EBITDA – Capex] / Cash Interest ■ Cash flow cover (DSCR)

• CADS / Total Debt Service• CADS / Senior Debt service

■ Capex covenant• LMA vs Market approach• Carry forward / carry back amounts -

LMA vs Market approach• Add-backs – LMA vs Market

Calculation of EBITDA and Cash flow ■ EBITDA

• Simplistic calculation of EBITDA• Consistency of application (Accounting

changes under IFRS, GAAP etc)• Exceptional items – LMA approach, UK

GAAP vs IFRS• Discontinued Operations – LMA, different

approaches of UK GAAP vs IFRS• Derivative & Financial Instruments - UK

GAAP vs IFRS• Pension Items - UK GAAP vs IFRS

■ Current trends affacting EBITDA (aggressive add-backs)• Anticipated synergies and cost reductions• What are the “typical” requirments for

“anticipated synergies”• Business optimisation expenses• Run-rate EBITDA – how is this calculated

■ Definition of “Cash flow”

• Typical adjustments• Sponsor friendly adjustments• Potential problems with “cash-flow”

Calculation of Debt and Borrowings and Finance Charges ■ “Total [Net] Debt” and “Senior Total [Net]

Debt”• “Borrowings” per the LMA• Simplistic calculation of Net Debt• Example of net debt items• Treatment of PE “Debt” • Vendor Loans – do they matter• Impact of Debt Buybacks and impact on

“Debt”• Treatment of “trapped” cash on Debt • What does “senior” only exclude?• What about PIK loans – should they be in-

cluded in Total Debt? ■ “Borrowings”

• Treatment of receivables• Redeemable shares• “Sweeper” clause

■ Finance charges & Net Finance Charges• Impact of “PIK” • Hedging impact

Finance Leases v Operating Leases – problem areas ■ Current approach ■ Impact of proposed changes to IFRS ■ Which sectors will be affacted by the changes ■ Potential problem areas (& solutions) with the

new regieme ■ Sectors posing particlar problems with operat-

ing leases

Current market trends ■ Key differences between large vs mid cap vs

smaller deals ■ Cov-lose

• Use and application• Typical ratios

■ Cov-lite• Use and application• Typical ratios

■ Springing Leverage covenants• When should the ratio spring• Calculating the constituents of the cove-

nants• When is the covenant tested• Potential problem areas

Application and compliance with the Financial Covenants ■ How many covenants are needed ■ Which companies should be included

• Definition of “Group”






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Advanced Negotiation issues in Financial CovenantsContinued...

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• Adjusted EBITDA (effect of acquisitions & disposals)

■ Dealing with “short” periods (i.e. less than 12 months post the deal)• Periods shorter than 12 months• Typical pitfalls to avoid

■ Frequency of application: When should the ratios be tested • Historic TTM/LTM, forecast, both (quarter-

ly, monthly)• 2 options per LMA

■ What level of “Headroom” is appropriate• What’s market• When and why does headroom matter

■ Impact of Clean-ups ■ The Compliance Certificate

• Typical requirements per LMA Sch 9 • Current commercial requirements• Traps for borrwers• When does the breach occur• Ramifications of the breach for Lender

(traps to avoid)

Equity cures ■ Equity cures - What are they, good or bad ■ What should be cured (EBITDA, Cashflow,

Debt) ■ Treatment of “overcures” ■ Is the cure EBITDA? And if yes what effect

will this have ■ How should the cash be used? (Why repay-

ment of debt is not appropriate) ■ Deemed cures – what are they and are they

worth having? ■ Review of recent lessons from Ideal Stand-

ard

Covenants used in Real Estate deals ■ The LMA financial covenants ■ Interest cover – constituents, pros and cons

• Historical • Projected

■ Key differences from the leveraged ratio• Calculation periods• “Passing Rental” – what is included and

what is excluded• Difficult / contentious aspects - break

clauses, non-rental income, costs/ex-penses

• “Finance costs” – treatment of hedging ■ Loan to Value

• Constituents, pros and cons• Items to be netted off

Impact of the Financial Covenants on other aspects of the loan facility ■ Aspects of the loan affected by Leverage

test• Margin ratchets• Cash sweeps• Debt incurrence (Incremental/Accordion

facilities) ■ Aspects of the loan affected by the defintion

of EBITDA• Material subsidiaries and their relvance• Guarantor coverage test

■ Impact and relevance on Grower, Sclable and Builder baskets• Key differences• Impact on and relevance to the loan facility

Draft ECB Guidance on Leveraged Transactions ■ Which lenders are affected ■ Which deals are affected ■ EBITDA calculation ■ Ramifications for market players

Appendices (Not covered in the course but included in an appendix the materials)

Overview of ratios used in Project finance / Infrastructure ■ Annual Debt Service Coverage ratio (“AD-

SCR”) ■ Loan/Bond Life cover ■ Project Life cover ■ Using the Buffer test





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Advanced Negotiation Issues in M&ADate: 24 May 2018, 17 Sept 2018, 29 Oct 2018


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Course Overview

This programme is aimed at those with a working knowledge of the M&A process. It focuses on negotiating the key commercial aspects of the transaction which impact value for both buyer and seller and on creating the right framework and strategy for enhancing value to the seller or retaining value for the buyer.

The simplistic view of M&A is that it is a bilateral process between buyers and sellers. Experienced practitioners understand it is an organic process, which involves multilateral negotiations between buyers/sellers on the one hand, and their respective advisers on the other hand. Additionally, there are critical negotiating issues that arise, in parallel, between the parties, their own advisers and between the advisors themselves (e.g. accountants debating the completion accounts, lawyers debating warranties in the SPA). To complicate matters, there are significant differences in approach between different types of sellers and buyers. For example corporates have a different agenda to PE firms whilst owner/managers, who invariably lack experience in M&A, often represent the biggest challenge. Last, the seller’s management can also have a malign influence on the sale process which requires delicate handling.

The programme is divided into two parts. The first part focuses on the soft negotiating issues which are common to smaller deals but less relevant in larger auctions. The second part focuses on the technical or commercial aspects where the real value can be gained or lost. These include the completion mechanisms (completion accounts and locked box), the offer structure (e.g. cash free-debt free and working capital adjustment), structuring the consideration, handling management and value leakage through the warranties, disclosure and indemnities.

Finally, warranty insurance, long seen as an expensive and cosmetic solution, is experiencing rapid acceptance in Europe and, increasingly, has emerged as a powerful negotiating tool. Last, the programme reviews various solutions to closing the “value gap” between the parties and the pros and cons of the various methods of achieving this.

Please note that this course covers some aspects that are also covered on the Sale & Purchase Agreements course although the focus in this programme is on commercial aspects as opposed to a more legalistic approach in the SPA course.

General guidelines for effective negotiating ■ 5 Key issues everyone should remember in

negotiating M&A ■ Why price isn’t everything (10 aspects af-

fecting the value) ■ The value matrix – building blocks of the

price ■ Reconciling price vs. value (strategy) –

what to look for ■ Three step approach to focus the negotia-

tions & avoid being side-tracked ■ The art of making concessions … how and

why they can help ■ 8 common mistakes in negotiating the deal

(& how to avoid them)

Tactics for managing the advisors in the deal

■ Managing and choosing your advisors ■ Tips for handling your lawyers (and theirs) ■ Getting the best from the accountants ■ Managing the other party’s advisors

Managing the buyer and the sellers ■ Key differences in approach between corporate

buyers and PE firms ■ The “duty to negotiate in good faith”

• What it means in Europe and civil jurisdic-tions

• Key risk areas & how to mitigate them• Position in the UK (it’s not a liar’s charter)

■ Buying from corporate sellers • The agency cost issue & how it affects the

deal• Who is really running the deal?

■ Dealing with owner/ managers• The psychology of buying from owner/man-

agers


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Advanced Negotiation Issues in M&AContinued

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• How to overcome problems with (inex-perienced) advisors/lawyers

• How to differentiate your offer ... & close the deal

• Dealing with multiple sellers• Specific problems when buying minori-

ty/majority stakes

Managing conflicts with managers (who are not the owners) ■ Identifying the two major potential areas

of conflict and value erosion ■ Hijacking or sabotaging the deal – the 3

scenarios and strategies for managing them• Sweetheart deals - “typical” terms• Problem areas and how to mitigate

them (in advance)• Other strategies for handing recalcitrant

management ■ Managing the flow of information

• Interaction with seller liability?• Reverse warranties & side letters – do

they work?• Tactics for minimising seller’s risk

Structuring the Offer – impact on value & price ■ The basic Offer structure – cash free, debt

free & working capital/net asset value ad-justment

■ Analysis of the five key value drivers / are-as for due diligence & value• Cash, debt, working capital, capex and

EBITDA/cash run rate ■ Problematic areas and how to extract value

• The “trapped cash” problem• What is “debt”?

“Working capital” – why and how it matters ■ Two different approaches to completion:

Locked box vs Completion Accounts• How they can add / destroy value• When to use them and when to avoid

them – decision tree• Key areas for negotiation

CASE: Identifying the key aspects affecting the reconciliation from Enterprise to Equity Value; techniques for estimating average and normalised working capital

Value Leakage: Reps, Warranties, Disclosure & Indemnities

■ Reps and warranties – what’s the difference & why it matters?

■ Warranties - what are the main areas of risk ■ Disclosure – general tactics

• Dangers of too aggressive disclosure• Using disclosure to identify / mitigate risk

■ Indemnities - caps and collars ■ Tactics for limiting liability and value leakage

• Survival / time to assert claims & carve-outs

• Liability caps / baskets, de minimis & de maximis

Warranty Insurance … a powerful negotiating tool ■ Rapid evolution of the market in Europe ■ Seller vs buyer policies – key differences, pric-

ing and typical terms ■ Interaction with the warranties ■ How buy-side policies can help the seller ■ Where sell-side policies can provide leverage

Bridging the “Value Gap” on price ■ Cash - how much cash is too much? ■ Shares (listed)

• Use and application• Problems areas: market price, caps & col-

lars• Other pitfalls & how to avoid them

■ Vendor loans• Use and application• Pros and cons for sellers and buyers

■ Contingent value rights … undervalued tool ■ Stub equity – when to use it and why ■ Anti-embarrassment ... what is reasonable? ■ Consultancy agreements - Where and how

they can help ■ Earn-outs – a tool for value arbitrage

• Anatomy of an earn-out• Key negotiation issues• Typical pitfalls for buyer• Typical pitfalls for seller

CASE: Identifying the key issues in a tricky disposal, discussing how best to negotiate these with the other side and deriving the optimum deal structure in order to resolve the key issues to the benefit of both buyer & seller


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The New UK Corporate Governance Code 2019 Date: 27 Sep 2018


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On 5th December 2018, following the government’s corporate governance reform proposals, the Financial Reporting Council (FRC) published a revised UK Corporate Governance Code for consultation. The consultation will close on 28th February 2018. The FRC plans to publish the final revised Code by July 2018, with the new Code applying to reporting periods falling after January 2019. The proposed new Code is substantially different in both content and structure, addressing the government’s recommendations and other hot topics in the corporate governance debate such as diversity and board culture.

The objectives of the Code review and consultation are:

■ to “shorten and sharpen” the Code; ■ to put more emphasis on the long-term

success of a company instead of “reaction-ary risk management” as consequence of corporate scandals;

■ seek more effective reporting on section 172 Companies Act 2006 (the duty of direc-tors to promote the success of the company with a background of “enlightened share-holder value”); and

■ put the focus of the Code back onto the Principles as opposed to a “tick-box” ap-proach to the Provisions.

As was anticipated, the new Code focuses on corporate culture, stakeholder engagement, long-term decision-making, remuneration committees and diversity.

The FRC is also consulting on updated guidance on board effectiveness and will be consulting on their Stewardship Code following the Code consultation.

This course will consider: ■ The backdrop to the new Code ■ The implementation of the other aspects of

the Government’s Corporate Governance reform

■ How the current Code and the new Code compare

■ Key areas of change e.g. remuneration and stakeholder voice.

■ Supporting FRC guidance and other related guidance, e.g. published by the Investment

Association.

Once the new Code has been finalised, we will revise this course outline accordingly. However, given the tight timescale between publication and applicability, we are marketing this essential update course ahead of time.



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Tax Issues Affecting MBOs26 Sep 2018

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Location: London Price: £350 +VAT Membership Price: £280 + VAT

This course is intended to give those involved in MBO transactions an understanding of the taxation traps and planning opportunities that the tax legislation produces. The course will look at issues for the target business, those providing funding and, in particular, the management team. The potential charges under the employment-related securities legislation are particularly important for the latter.

As well as explaining the tax rules, importance compliance aspects, such as obtaining (where possible) HMRC clearance in advance of the transaction, will be discussed.

Tax issues affecting the target business ■ Acquisition of trade and assets or shares

in target? ■ Possible tax charges if target company

acquired ■ Preserving trading losses

• Problems caused by anti-avoidance rules

Taxation of Venture Capitalist/ Private Equity Funding ■ Tax treatment of debt and equity ■ Problems with “stranded interest” ■ Taxation of share buy-backs ■ Taxation of share sales

The tax treatment of managers’ shares ■ Interest on money borrowed to buy

shares ■ Capital gains treatment on eventual sale ■ Availability of relief under Enterprise In-

vestment Scheme and Seed EIS ■ Potential income tax charges under em-

ployment-related securities legislation ■ Complying with the conditions in the

memorandum of understanding between BVCA and Inland Revenue

Structuring ratchets to avoid income tax charges on the manager shares Using EMI options to recruit, retain and incentivise key staff ■ Qualifying companies ■ Conditions to be satisfied by employees ■ Exercise conditions, forfeiture, restric-

tions ■ Disqualifying events



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Corporate Restructuring - Tax Issues25 Sep 2018

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Location: London Price: £350 +VAT Membership Price: £280 + VAT

This course introduces delegates to the strategies that might need to be adopted where the split of a company is required in preparation for a business sale (either to the management or to third parties), or prior to a flotation.

Other reasons for the demerger or reconstruction can include: ■ to resolve a dispute between shareholders wishing to go their separate ways ■ to protect a group’s trading company status ■ to facilitate succession planning ■ to bring real estate currently held within a company into the personal ownership of the share-

holders

The course will also look at share buy-backs, which can be used to buy out a retiring or dissentient shareholder.

It is desirable (but not essential) that delegates have a sound understanding of the basic principles of company and shareholder taxation.

Hiving down the target trade ■ Tax reliefs available on a transfer of trade

within a group ■ Protecting losses when transferring the

target trade into a “clean” Newco ■ Capital gains implications

• Including use of the substantial share-holding exemption

■ Stamp duty land tax implications ■ Key cases and problem areas

Demergers ■ Statutory demergers, Liquidation demerg-

ers and capital reduction demergers• Circumstances when each is appropri-

ate• Capital gains implications• Stamp duty implications• Clearance procedures and problem

areas• Practical examples and case studies

Share buy-backs ■ Using the purchase of own shares rules to

buy out shareholders ■ Conditions to obtain CGT treatment ■ Problem areas ■ Why a buy-out is often preferable in suc-

cession planning• Case study


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High Yield Bonds - Market UpdateDate: 21 Sep 2018


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With over €114 billion of High Yield Bond issuance in 2017, issuers took full advantage of the balmy, borrower friendly conditions to further erode covenant protection. Investors are increasingly concerned over these developments but may often be unaware of the myriad of subtle ways in which lawyers can corrode the covenant protection. This is magnified by the lengthy and complex nature of bond documentation and the short turn-around times which leave investors with scant time to get to grips with the minutiae of the various carve-outs. The “J Crew trapdoor” is an excellent example where the sponsor used a loophole in the Indenture to transfer IP outside the Restricted Group.

This update reviews the current key trends and developments in the high yield bond market using current market data from Debt Explained.

■ Overview: key trends in the last 6 months ■ Leverage Risk

• Flexible ratio ralculations• Complex definitions• Aggressive add-backs• Impact on lenders/ investors• Advantages to issuers• Different applications for inclusion of

pro forma cost savings & synergies across ratios

• Expansion of flexibility typically allowed for “limited condition acquisitions”

• Certain types of debt excluded from “leverage” or “secured” leverage ratio

• Narrower numerators in senior secured leverage ratios

• Increasing basket flexibility ■ What about EBITDA

• Review of other EBITDA add-backs• Uncapped EBITDA add-backs and pro

forma adjustments: cost savings and synergies

■ Value Loss• Loosening on Dividends

■ Ratio capped restricted payments basket ■ Upfront “Free and Clear” Credit in the CNI

Build-Up Basket• Asset sales that allow immediate pay-

ment of dividends• Affiliate transactions – dilution of con-

trols

■ Dilution and subordination• Increase in the number of naskets ca-

pable of being secured on collateral• Reclassification of permitted liens and

permitted collateral liens

■ Redemption• Ratings or ratio based “portability”

change of control exemptions• Dilution of equity clawbacks • Special optional redemption during the

non-call period• The “J Crew Trapdoor”


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Advanced Business & Contract LawIn-House or via Live Webinar

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Course Overview

This course complements and can equally be standalone to the Essentials of Business & Contract Law for Managers. It focuses on key elements in the management of a contract, negotiation, pre emptive steps, and clauses related to potential claims.

It covers sample clauses, negotiation points, drafting exercises, contract management, including potential claims, particularly through the contract.

It will look at delay, such as liquidated damages and retention of title of goods, monies due and proceeds of sale. In addition, contractual remedies through warranties, guarantees and/or indemnities.

There are specific sessions covering contract management to prevent and anticipate potential claims, how to exclude and /or limit liability, ending contracts, looking at the various ways to resolve disputes including the increasingly used route of a alternative dispute resolution such as mediation.

It informs participants who include, contract managers and officers, legal advisers and consultants, commercial directors, finance directors and controllers, business development managers, how to minimise contract risk and have a competitive edge over their counterparts.

It enables attendees to draft tighter provisions and ensure greater protection for their stakeholders.

There will be class discussions and drafting exercises to consolidate the lecture and workshop experience. Participants will leave with the updated knowledge, enhanced confidence and an understanding of contracts essential to deal with the most important aspects of commercial contract law.

Delay - Liquidated Damages and Penalties ■ When are they used ■ Practical remedy ■ Distinction from indemnities, incentive pay-

ments ■ Approach of English law ■ Penalties ■ Service credits and service level agreements ■ Recognizing a penalty ■ Can a single sum be payable for any breach ■ ParkingEye Limited v Beavis (ParkingEye)

(2015) ■ Makdessi v Cavendish Square Holdings

(2015)

Quality of Goods and Services - Warranties, Guarantees & Indemnities ■ Context ■ Warranties ■ Guarantees ■ Time is of the essence ■ Third party rights

■ Differences between Guarantees and Indem-nities

■ Variation of main agreement

Contract Management and Potential Claims ■ Pro – active management of commercial risks ■ Risk mitigation ■ Consequence clauses ■ Passing risk ■ Post contract negotiations ■ Evidence collection ■ Record keeping ■ Elements requiring pro – active management ■ Obligations clauses ■ If you are not able to satisfy your obligations ■ Contract completion

Possession is 9/10ths of the Law - Retention of Title ■ Definition ■ Purpose ■ Legal background ■ Basic clause ■ All monies clause


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Advanced Business & Contract LawContinued...

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■ Mixed goods clause ■ Proceeds of sale clause ■ Pointers to drafting

Seeking to Avoid Liability - Exclusion of Damages ■ What is an exclusion clause? ■ Distinction from limitation of liability

clause ■ Identification of exclusion clauses ■ Incorporation ■ Interpretation ■ Legislation ■ Unfair Contract Terms Act ■ Liability for death or personal injury ■ Test of reasonableness ■ Judge’s approach to exclusion clauses

Ending it All - Termination & Variation ■ Default clause ■ Termination rights ■ Termination – choice ■ Ways in which contracts end ■ Important to agree ■ Appropriate duration ■ Termination rights ■ Post termination ■ Clauses surviving termination ■ Material breach ■ Acceptable excuses for breach ■ Variation clause

Minimising Legal Liability - Limitation of Damages ■ Purpose of damages ■ Types of loss ■ Measure of damages

■ Damages -limits ■ Key cases ■ Principles restricting damages ■ Direct ■ Loss of profits ■ Indirect ■ Consequential ■ Recent cases

Sorting It All Out - Choice of Law and Dispute Resolution ■ Dispute resolution provisions ■ Choice of law – selection ■ Choice of jurisdiction – considerations ■ Arbitration – agreement ■ Drafting arbitration clauses – recommended

components ■ Pathological arbitration clauses ■ Drafting ADR clauses ■ Mediation ■ Conciliation ■ Expert determination ■ Recognition and enforcement of arbitration

awards and judgments


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Advanced Negotiation Issues in International Commercial Agreements

In-House or via Live Webinar

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Course Overview

The course is specifically designed for those working on international business contracts. It highlights the key legal and commercial issues to identify, address and resolve to create successful and sustainable transactions with minimal risk.

Equally it will assist those already operating internationally to deal with the increasingly complex aspects of working internationally highlighted by Brexit and resultant uncertainty for international business.

It will address the unique nature of international negotiations, set out how different nationalities make decisions to enable participants to influence and persuade their counterparts more effectively.

It will look at the options that businesses have to enter or expand their current interests by setting out the different vehicles for to do business and the advantages and disadvantages of each with the effect of helping participants to select their strategy.

Drilling down into agreements it will cover the key areas that populate negotiations – agency, distribution, franchising, joint venture, intellectual property, contractualguarantees, penalties, confidentiality, termination, duties and obligations of the parties, which law to choose to govern the agreement and the most cost effective way to resolve any disputes.

This course is designed for those working in international business and are involved in negotiating and drafting cross border business agreements to enable them to master the skills for successful transactions.

It will highlight key areas of international negotiations - differences and their options for resolution. Differences of laws and concepts between countries and their laws as well as practice drafting of contractual clauses.

It covers common clauses and key principles of international agreements, different types of agreements in international business and key clauses.

The agreements it covers are agency, distribution and franchising and joint ventures (including a checklist and sample agreement).

Specific areas highlighted include contractual guarantees, intellectual property, choice of law and dispute resolution. In addition international comparative law around best and reasonable endeavours, confidentiality, penalties and termination.

Who should attend ■ In-house legal counsel ■ Managing directors ■ Finance directors and financial controllers ■ Contract managers/officers ■ Legal advisors and consultants ■ Project financiers ■ Legal counselors - commercial contracts ■ Business development managers


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Advanced Negotiation Issues in International Commercial Agreements

Introduction

Key Issues in International Agreements ■ Common Law v Civil Law ■ Effective contract negotiation ■ Binding contracts ■ Letters of Intent ■ Pre contract documents – pointers ■ Emails ■ Chains of liability ■ Intention to be legally bound ■ Types of Commercial agreement ■ Contract signatures ■ Termination ■ Remedies

Cross Cultural Negotiations ■ The impact of culture in international agree-

ments ■ Mapping Cultures ■ How successful deal makers conduct inter-

national negotiations ■ Decision making in different cultures ■ Effective intercultural communication

Agency, Distribution and Franchising Agreements ■ Introduction ■ Distinctions between them ■ Benefits and advantages ■ Agency – types of agency relationship ■ Agency – key issues ■ Distribution agreements ■ Agency v Distribution ■ Franchising – Key features ■ Factors influencing choice of vehicle

Case Study of company going international

Key IP law issues in international contracts ■ Licence grant ■ Ownership of new IP internally and exter-

nally generated ■ Joint ownership ■ Collaboration issues ■ Improvements ■ Grant backs

Contractual Guarantees with Sample Clauses ■ Types ■ Why do they go wrong ■ Parent company guarantee ■ Types of promise ■ Group and subsidiary companies ■ Subsidiary exposure ■ Contracts of guarantee

■ Liability of surety ■ Indulgence clauses ■ Duration/continuing nature ■ Assignment ■ Novation ■ Governing law

Key Clauses – Different Comparative Interpretations ■ Interpretation ■ Best efforts and reasonable endeavours ■ Confidentiality ■ Penalty ■ Assignment ■ Termination

International Joint Ventures with Sample Agreement and Mini Case Study ■ Sharing of risk and investment ■ Relevant laws ■ Memorandum of Understanding ■ Articles of Association ■ Shareholder’s agreement ■ Ancillary agreements ■ Employees ■ Finance ■ Protection of minority interests ■ Transfers and pre emption rights ■ Deadlock ■ Termination

Choice of Law, Jurisdiction, ADR and Disputes ■ How to choose the governing law and juris-

diction ■ Selecting the forum ■ Impact of international treaties and enforce-

ment ■ Use of arbitration ■ Alternatives – mediation

Drafting and Understanding Boilerplate Clauses, Sample Clauses and Pointers to Drafting ■ Assignment and sub contracting ■ Conflicts of language ■ Costs ■ Counterparts ■ Entire agreement ■ Insolvency and bankruptcy ■ Communication notices ■ Publicity ■ Set off ■ Severance ■ Time of the essence ■ Waiver

Clinic


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Business Development PlanningIn-House or via Live Webinar

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Course Overview

The workshop will be tailored to meet the needs of a legal practice.

This workshop covers every aspect of Business Development Planning. It is highly interactive, concentrates on relationship building and above all reminds delegates to act professionally throughout the sales and business development process. The desired outcome is a relationship with transactions rather than a transaction based relationship.

Understanding Client Relationships

■ What sort of relationship do you wish to have with your clients?

■ What sort of relationship do they want with you?

■ Matching the two objectives to have a clear strategy

Case Study/Exercise to Suit

Setting Objectives for Business Development

■ Setting clear objectives on the scope of de-velopment you wish to embark on

■ Hunting versus farming ■ Appreciating customer requirements ■ Techniques required for understanding cus-

tomer needs ■ New or existing products. ■ Communication style ■ What method of communication works best


The Business Development Process

■ Identifying needs ■ Setting objectives ■ Setting priorities ■ Appreciating customer requirements ■ Presenting tailored solutions ■ Handling objections ■ Negotiating Win / Win deals ■ Closing confidently ■ Post call activity ■ Identifying the importance of each stage of

the process.


Enhancements

■ Identifying the FAB elements of products. ■ Using FAB to match the needs gathered from

customers ■ Enhancing the Sales Presentations ■ Presenting at the right stage. ■ Using the customer’s own words. ■ Preparation ■ Knowing the target market ■ Gathering the content ■ The 10/80/10 rule for structuring the pres-

entation ■ Achieving a well-structured presentation ■ Delivering a presentation


Handling Potential Objections

■ Identifying frequently encountered objections. ■ The pre-emption of objections. ■ Developing appropriate responses. ■ Handling Price Objections ■ Selling on value not price ■ Win/Win Negotiations ■ Identification of your bottom line. ■ Fact-finding to establish points for negotia-

tion. ■ Trading concessions. ■ Negotiation simulation



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Corporate Governance - Issues, Updates & DevelopmentsIn-House or via Live Webinar

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■Course Overview

“The UK has long been regarded as a world-leader in corporate governance, combining high standards with low burdens and flexibility” according to the Corporate Governance Green Paper published on 29th November 2016. In Theresa May’s introduction to this Paper, she states: “in recent years, the behaviour of a limited few has damaged the reputation of the many. It is clear something has to change.” She was of course referring to recent corporate scandals such as the BHS administration and the Sports Direct employment practices.

This paper is the latest in a long line of corporate governance reforms. In addition, recent legislation such as the Modern Slavery Act 2015, the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017 and the Reporting on Payment Practices and Performance Regulations 2017 together with increasing consumer focus on Corporate Responsibility has put further pressure on corporate governance transparency.

This course covers all aspects of corporate governance from the familiar to the new, including updates on the government’s corporate governance reform proposals as well as some new legislation on the horizon.

Participants will:

■ Get to grips with the evolution of corporate governance ■ Learn about the features of corporate governance that are applicable to all companies ■ Discover corporate governance issues for larger companies and how different laws relate ■ Explore the rules for trading companies: the premium listed main market and AIM ■ Gain an understanding of the guidelines for quoted companies ■ Get to grips with the financial reporting council’s UK code of corporate governance

This interactive one day course will provide a comprehensive overview of all aspects of UK corporate governance, including:

Briefly: the evolution of corporate governance

■ From Cadbury to Kay: the reports that shaped UK corporate governance

■ Reasons for corporate governance continu-ing as a hot topic

■ Current proposals for further regulation

Corporate Governance applicable to all companies, whether private, public, trading, large or small

■ Directors’ Duties and conflicts ■ Company procedure:

• Board Meetings• Shareholder Approval• Articles of Association and Shareholders’

Agreements ■ Protection of minority interests through de-

rivative and unfair prejudice claims ■ Directors’ remuneration ■ Company accounts and narrative reporting

(including recent changes from the Non Fi-nancial Reporting Directives)

■ Corporate crime: deferred prosecution agree-ments, Fraud Act, Bribery Act and the new ‘failure to prevent tax evasion’ offence

Corporate Governance issues for larger companies

■ The Institute of Directors’ Code of Corporate Governance for Unlisted Companies

■ Corporate Social Responsibility (CSR or CR) ■ Slavery & Human Trafficking Statements pur-

suant to the Modern Slavery Act 2015:• Current requirement as to statement on

company website• Proposals to extend to annual narrative

reporting• Recent proposals on amendments to this

area of law from the Joint House of Com-mons and House of Lords Committee

■ NEW: The Equality Act 2010 (Gender Pay Gap Information) Regulations 2017• The gender pay gap reporting requirement

(annual snapshot)• Overview of how to calculate gender pay

and bonus gaps• Issues with calculation, scope of employ-

ers/employees etc.


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Corporate Governance - Issues, Updates & DevelopmentsContinued...

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■ NEW: The duty to report on invoice pay-ment practices pursuant to the Reporting on Payment Practices and Performance Regulations 2017

■ Aspirational compliance with listed compa-ny corporate governance

Stock Exchange companies (Premium listed Main Market and AIM)

■ The Listing Rules and how the FCA enforces breaches of the rules

■ The Quoted Companies Alliance Guidelines ■ The Financial Reporting Council’s UK Code

of Corporate Governance:• The comply or explain approach and link

with the Listing Rules• Structure of the Code• Examples of breach

■ Investor Guidelines (IA, PIRC, ABI, PLSA) ■ AGM practice ■ Advisory and binding votes on director re-

muneration under the Companies Act 2006 ■ Gender and ethnic diversity initiatives ■ Market Abuse Regulation overview

Other recent trends and future developments

■ Corporate Governance reform: ■ government proposals ■ New EU Shareholder Rights Directive ■ New EU Prospectus Regulation

Course Materials

The course is structured around a series of exercises and real-life case studies. Delegates will receive a copy of the slides, detailed course notes and reference material as well as case study materials (subject to copyright restrictions).


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Corporation Tax: Update

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Course Overview

This course provides a summary of corporation tax, with particular emphasis on recent developments including those in Finance Act 2016. We also look at recent cases from the courts and tribunals, and at guidance produced by HMRC.

The course views the subject from a practical perspective for company accountants, and for accountants in practice who advise companies. The subject is illustrated by many worked examples.

This perspective is firmly rooted in the legislation which is quoted throughout the accompanying notes

Introduction ■ Scope, brief history and sources of law and

guidance ■ Rates, including recent changes and new rate for

restitution interest ■ Residence of companies

Basic calculation of tax ■ Accounting periods ■ Identifying different sources of income ■ Role of accounting standards ■ Definition of profits, and calculation of adjusted

profits ■ Marginal relief for pre-1 April 2015 profits, and

augmented profits Trading income ■ Whether a company is trading ■ When a trade commences and ceases ■ What expenses are tax-deductible ■ Valuation of stock and work in progress ■ Post-cessation receipts ■ Loss relief, including newly introduced restric-

tions Capital allowances ■ Different types of allowance, including annual

investment allowance ■ Summary of capital allowance calculations ■ Plant and machinery ■ Cars ■ Features integral to a building ■ Intangible assets (including Finance Act 2016

changes) Particular types of company ■ Close companies ■ Research and development, including patent box ■ Charities and voluntary bodies ■ Brief notes on specific provisions for charities, oil

companies, shipping and others Extracting profits from companies ■ Consideration of salaries, dividend, rent, loans

etc. ■ Substantial shareholding exemption

Groups of companies ■ Structure and group relief ■ Consortium relief ■ Transfer pricing

■ Reconstructions and amalgamations Other sources of income ■ Loan relationships ■ Investment income ■ Property income ■ Chargeable gains

Administration ■ Self-assessment, and directors’ responsibilities ■ Filing returns ■ HMRC powers of enquiry ■ Due date and penalties ■ Relationship with Companies House filing ■ Payment of tax, including quarterly instalments for

larger companies ■ Liquidation of companies

Tax planning and avoidance ■ Current position with regard to tax avoidance ■ DOTAS, GAAR, TAAR and other anti-avoidance

measures ■ Funding through tax-advantages schemes of EIS,

SEIS and VCT ■ Tax-advantaged schemes of investment by employ-

ees Other provisions ■ Annual tax on enveloped dwellings ■ Construction Industry Scheme ■ Apprenticeship levy ■ Miscellaneous matters


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Cybercrime and Financial ServicesIn-House or via Live Webinar

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Course Overview

Participants will:

■ Understand the impact of cybercrime and how it threatens the financial services industry ■ Master the key laws regarding computer misuse and fraud as well as the impact of the USA PA-

TRIOT Act ■ Be aware of how IT, physical and socially engineered methods are used to commit or facilitate

cybercrime ■ Gain a familiarity with the major fraud typologies used by cyber criminals ■ Get to grips with the key security methods used to prevent cybercrime and learn what you can

do to ensure that they are effective

Introduction

■ The annual cost of cybercrime ■ What is cybercrime / cyber-attack?

• Botnets• Denial of service• Device theft• Hacking• Malicious code• Malicious insiders• Phishing, vishing and social engineering• Privilege escalation• Web-based attacks• Zero day vulnerabilities

■ Costs and impacts• Consumer impacts• Impacts on firms

■ Effects on the financial services industry as a whole• Costs to industry• Regulatory impacts

Mini case study: A right royal hack

The legal framework

■ Computer Misuse Act • Section 1 offences (as amended)• Jurisdiction issues

■ Fraud Act 2006• Section 2,3 and 4 offences• Secondary offences

■ USA PATRIOT Act ■ Potential related offences

• Market Abuse• Money Laundering• Terrorist Finances• Theft• Bribery

Case study and team exercise

■ The theft of an identity:

• The team will place themselves in the role of identity fraudster and plan to create a fake identity for use for online fraud.

• What method will the team use to create this identity and to avoid detection?

Criminal behaviours

■ Organised crime ■ Opportunistic crime ■ Internal risks ■ Fraud typologies

• The Levy report• Emerging typologies

■ Scam risks• Accomplice / illicit behaviour scams • Bogus products and services• Business targeted scams• Gambling scams• Identity Frauds• Investment frauds• Money making scams• Technological scams

■ Cyber risks• Cyber attacks• Cyber extortion

Countermeasures

■ Behavioural controls• Social Media Safety• Email Compliance• Hardware and Software Safety • USB Security• Remote Working Compliance• Escalation• Safe Surfing

■ Behavioural economics• Heuristic learning• Biases


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Cybercrime and Financial ServicesContinued...

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Mini case study: Your comedy character name

■ IT Countermeasures• Physical perimeter• Data perimeter• IT perimeter

Mitigation and prevention

■ Data journey• Risk analysis• Risk touch points• Mitigations• Management information• Escalation

■ The role of identity confirmation• DPA process• Weaknesses• The role of due diligence

■ The role of training• Identify• Classify• Escalate

■ Reporting requirements• FCA• ICO• New European requirements

Learning and future mitigation

■ Root cause analysis ■ Governance structures

• Committees• 3 lines of defence• Monitoring and assurance

Case study and team exercise

■ The has been a significant data breach at your firm, discus with the team what steps you would take to determine:• What has occurred?• What offences have been committed?• What controls have been breached?• What further investigations should be con-

sidered?• To whom you may need to report the

breach?

Summary

■ Learning summary ■ Further learning opportunities ■ Summary of case studies


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Drafting Commercial Contracts In-House or via Live Webinar

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This intensive course will take the participant through the key steps in drafting successful commercial contracts to minimize legal and commercial risk in contracts. Most disputes are about the interpretation of a contract term. Disputes can be expensive, damage commercial relations and take up valuable management time, this course is designed to avoid potential disputes.

You will be taken through the structure of a contract, then the drafting process by introducing you to a framework that will be easy to adopt from the course onwards; also, how to analyse the meaning and impact of yours and counter party’s contract clauses.

You will be taken through the steps of what is needed to have binding enforceable contract, and the way in which terms are categorized, such as express and implied terms, that is those terms that the law says are a part of the contract even though you did not insert them.

Sharing draft clauses and pointers to drafting you will be taken through critical and significant clauses that form a part of all commercial contracts, including the limitation and exclusion of damages, the regularly misunderstood and wrongly drafted warranties and indemnities. Unless they are drafted carefully to certain rules they may not provide the remedies you think they do.

The course will look at commonly used terminology such as ‘Best Endeavours’ and ‘Reasonable Endeavours’ the duty they create and how to bring a contract to an end – the different options in your control and those beyond your control such as Force Majeure and Frustration.

Participants will be taken through key boilerplate terms with sample clauses and pointers to drafting to ensure that contracts are effectively performed and that rights and obligations are clear and effective to pre – empt disputes and minimize risk.

Throughout the course the group will practice the drafting of clauses with feedback and coaching by the facilitator.

Who should attend ■ In-house legal counsel ■ Private practice lawyers ■ Contract managers ■ Legal advisors and consultants ■ Commercial Directors ■ Legal support ■ Finance directors and financial controllers ■ Managing directors ■ Business development managers

Introduction and Structure ■ Interpreting contract terms ■ Common law and civil law – differences -

impact on drafting ■ The authority of case-law ■ Certainty and clarity ■ Context of a contract ■ Rules of interpretation ■ Common terms and phrases ■ Special and technical meanings ■ Courts ‘canons of construction’

■ Mapping the commercial deal for the contract – examples

■ Tailor made contract ■ Standard forms

The Drafting Process ■ 6 W’s list ■ Key stages of the drafting process ■ Figures and formulae ■ Arnold v Britton ■ Execution formalities ■ Key issues to check for execution - checklist


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Drafting Commercial Contracts Continued...

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Forming a Contract ■ Creating a binding and enforceable agree-

ment ■ Offer ■ Acceptance ■ Consideration ■ Intention to create legal relations ■ Certainty ■ Capacity ■ Formalities ■ Deeds

The terms of the contract ■ Express Terms ■ Oral Statements ■ Written Terms ■ Parol Evidence Rule ■ Implied Terms

• By law• By custom and usage• By Statute – Sale of Goods Act, Unfair

Contract Terms Act

Limitation and Exclusion of Damages ■ Indirect and consequential loss ■ Loss of profit ■ Excluding and limiting claims ■ Caps on liability ■ Positioning of clause ■ The special test for exclusion clauses ■ Checklist for Limitation and Exclusion claus-

es

Drafting exercise ■ Split into groups and draft limitation clauses

Drafting Warranties and Indemnities - Sample and Checklist ■ Warranty ■ Guarantees ■ Indemnities ■ Trigger event ■ Losses covered by indemnity ■ Limitations ■ Conduct of third party claims ■ Representations ■ Best endeavours ■ Reasonable endeavours

Workshop – Participants will divide into groups and clarify the distinctions between these contractual remedies and the significant impact on drafting.

Termination, Force Majeure, ■ Triggers ■ Process ■ Consequences ■ Effect on other rights

■ Breach of contract ■ Force Majeure ■ Drafting a termination clause – checklist ■ Drafting a Force Majeure clause – checklist

Boilerplate Clauses ■ Why you should not “cut and paste” ■ Agency/Partnership ■ Assignment and sub-contracting ■ Conflicts of language ■ Costs ■ Counterparts ■ Entire agreement ■ Insolvency and bankruptcy ■ Communication notices ■ Publicity ■ Set off ■ Severance clause ■ Time of the essence ■ Waiver

Drafting exerciseSplit into groups and draft clauses

Clinic

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Financial Reporting Requirements in Investment Circulars


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From 1 July 2012, the Prospectus Rules are being updated and, amongst other changes, it will be possible for companies making rights issues and smaller companies on AIM and the Official List to reduce the financial disclosures they have to make in the public documents.

This course looks at the full and “proportionate” financial disclosures required in public documents. It examines the financial reporting requirements of the Prospectus Rules and ESMA/CESR’s recommendations for AIM and the Official List companies.

The course both covers the public reporting assignments on historical financial information, profit forecasts and pro forma financial information, and also looks at the situations where private reporting assignments and comfort letters are given.

The course should be attended by those involved in Reporting Accountants’ work on Investment Circulars and those responsible for preparing financial information for the circulars.

Changes in markets and regulation ■ Market development ■ The Official List, AIM and PLUS ■ Categories of Official List: Premium and

Standard ■ CESR/ESMA ■ SIRs

Prospectus/AIM Admission Document

■ Prospectus requirements ■ Financial information and Accountants’ Re-

ports ■ AIM and PLUS document requirements ■

Premium, Standard and AIM – Key financial issues ■ Superequivalent requirements ■ Eligibility for new listing ■ Class tests and Class 1 Circulars ■ Reverse takeovers ■ Related parties ■ Role of Sponsor and NOMAD ■ Comparison of financial reporting: Premi-

um, Standard and AIM ■ UK Standard Listing as alternative to AIM?

Accountants’ reports in Investment Circulars ■ Procedures for all engagements

• SIR 1000• Ethical Standard for Reporting Account-

ants and APB guidance ■ Historical financial information

• Full and proportionate disclosure• Full disclosure for prospectus/AIM admis-

sion document• Complex histories• GAAP required• Omissions • CESR recommendations• Companies and issues qualifying for propor-

tionate disclosure• Proportionate disclosure for pre-emptive

issues• Proportionate disclosure for SMEs and

Small Caps• AIM carve outs• SIR 2000 • Examples in prospectuses and AIM admis-

sion documents

■ Profit forecasts or estimates• When required• SIR 3000

■ Pro forma financial information• When required• SIR 4000

■ Other Investment Circulars• PLUS circulars• Class 1 circulars• Takeover documents•

Comfort letters in connection with investment circulars ■ Working capital ■ Capitalisation and indebtedness statement ■ Financial reporting procedures and consulta-

tion ■ Other financial information in circular ■ Significant changes and bring down ■ SAS 72 type comfort


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Fraud & Financial Services

Course Overview

With the introduction of the Criminal Finances Bill in 2017, firms will need to ensure that they have in place appropriate procedures to ensure they do not facilitate tax evasion. Tax evasion is a fraudulent act.

Depending on the nature of their fraud risks, most regulated firms will already have provision in place for the prevention and investigation of fraud. However, the methods used by fraudsters are constantly evolving. This has led to the UK legal framework placing an increasing burden upon firms to prevent certain common financial crimes.

This course provides a refresher on the provisions of both the Theft Act 1968 and the Fraud Act 2006 before linking these events with the wider risks faced by firms including, reporting requirements, data security and identity theft and the corporate offences firms may commit when targeted by fraudsters.

It also looks at financial crime investigation as well as the pitfalls faced by firms when they attempt to prevent, detect, investigate and report fraud, theft and tax evasion.

Why fraudsters target financial services firms ■ The fraud “marketplace” ■ External fraud

• Sources of external fraud• Subversion• Physical acts• Collusion

■ Internal fraud• Sources of internal fraud• Internal corruption• External corruption• Facilitation and graft• Collusion

■ The fraud triangle• Opportunity• Pressure• Rationalisation

■ Fraud methodologies• The Levy report• Private sector fraud• Public sector fraud• Recent developments in fraud ty-

pologies ■ Distance selling risk ■ Identity manipulation and theft ■ Social media manipulation ■ Links to organised crime and terror-

ism

The legal framework ■ Theft Act 1968

• Section 1, 8, 9 and 10 offences• Secondary offences

■ Fraud Act 2006• Section 2,3 and 4 offences• Secondary offences

■ Proceeds of Crime Act 2002

• Section 327, 328 and 329 offences• Secondary offences

■ Terrorism Act 2000• Section 15, 16, 17 and 18 offences• Secondary offences

■ The coming of corporate offences• Data Protection Act 1998• Bribery Act 2010• Criminal Finances Bill 2017• General Date Protection Regulation

Case study and team exercise ■ The training group will be presented

with a series of events and asked to analyse them to determine:• What types of methodologies may

have been deployed against the victims of the events?

• What offences may have occurred?

Detection and prevention ■ Product journey

• Risk analysis• Risk touch points• Mitigations• Management information• Escalation

■ The role of identity confirmation• DPA process• Weaknesses• The role of due diligence

■ The role of training• Identify• Classify• Escalate

■ Layered security ■ Victim typologies ■ Perpetrator typologies ■ Profiling ■ Transaction monitoring


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■ Automation ■ Management information ■ Communication

Investigation and reporting ■ Information gathering ■ Identifying suspects ■ Vulnerable persons’ risk ■ Record keeping ■ The role of law enforcement ■ PEACE model of interviewing

• The role and use of the caution• The role and use of recording• The role and use of notetaking

■ Knowledge and Suspicion• Police and Criminal Evidence Act • R v Da Silva• Objective test

■ File preparation ■ Reporting ■ Criminal property ■ Preserving evidence

Learning and future mitigation ■ Root cause analysis

• The 5 whys?• FME analysis• Ishikawa (fishbone) analysis• Operational risk model of firm

goverance ■ Governance structures

• Committees• 3 lines of defence• Monitoring and assurance

Case study and team exercise ■ In a two part exercise the group

will be asked to consider:• In the previous exercise,

what controls may have been breached or bypassed.

■ The group will be issued with details from an investigation file. They will be asked to consider they will be asked to consider:• What has occurred?• What offences have been com-

mitted?• What controls have been

breached?• What further investigations

should be considered?• What initial conclusions can be

drawn as to the root cause of the events.

Summary ■ Learning summary ■ Further learning opportunities ■ Summary of case studie


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IPO Training


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Course Overview

Listing a company on a stock exchange via an Initial Public Offer (or “flotation”) is a complex, time consuming and strategically important corporate activity.

While not being the only option available to achieve an exit from their investment by shareholders, it remains a popular and desirable objective for many.

However, the choice to gain admission for the trading of a company’s shares on a stock exchange involves extensive work on accounting, legal, and governance issues. Anticipation of the ongoing obligations of companies, post IPO, is also an important element of preparation.

The course covers the practical aspects of preparation needed for a successful IPO, both in terms of the documentary requirements and the roles and responsibilities of the various advisers involved in the process.

The possible changes to its board of directors and to its accounts by the applicant company are also discussed, together with the need to fulfil “ongoing obligations” post IPO.

Rationale for “Going Public”

■ Reasons in favour • Additional capital to expand• Part exit• Higher status

■ Reasons against• Loss of control• Expense

■ Alternatives to going public • Trade sale • Private equity

■ Available markets• London Stock Exchange

■ Standard listing ■ Premium listing

• Alternative Investment Market ■ Differences in regulation ■ Tax status

• ISDX (formerly Plus Markets) ■ “kindergarten” for small companies ■ Future prospects?

Review: IPO timetable. Describing the various elements, and their inter-relationship, that are required for the production of a prospectus together with the responsibilities of the different parties involved.

Market Requirements and the Investment Proposition

■ Generic Exchange requirements • Stability of business• Profit record• Working capital adequacy

■ Market and investor requirements • Lifecycle status of company and its prod-

ucts• Growth stock or utility?• USP and comparators

■ Valuation • EV / EBITDA• P / E• DCF

Finance and Accounting

■ The importance of adequate financial report-ing procedures

■ The long form report ■ Working capital adequacy and profit fore-

casts ■ Accounting policies : IFRS vs GAAP ■ Tax structuring ■ Employee remuneration / incentives

Review: The Long Form Report. Examining the issues and topics that are covered in a Long Form Report, leading to the production of the working capital adequacy


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statement and profit forecast.

Legal issues

■ General • Contract breaches • Current and impending litigation • Regulatory compliance

■ IPO-specific • Prospectus responsibility• Directors and officers, remuneration • Related party transactions • Risk factors • Verification

Review: Recent prospectuses, reviewing the different elements of content and presentation used by different companies.

Governance

■ Director background checks ■ Appointment of non-executive directors ■ Internal audit and risk management ■ Legislation on corruption, sanctions, mon-

ey-laundering

Review: CalPers Core Corporate Governance Principles. Discussion of the key principles driving market and regulatory practice in respect of corporate governance.

Pricing and underwriting

■ Fixed price ■ Tender price ■ Bookbuilding ■ “Green Shoe” and price support ■ Offer for sale, placings, introductions ■ Fees

Exercise: Bookbuilding versus tender offer, deciding how and at what price shares will be allotted.

■ Methods of Flotation • • Offer for sale • Offer for subscription• Placings• Introductions • Reverse takeovers• Carve outs and demergers

■ On-going obligations • PDMRs and close periods• Significant transactions • Disclosure of price-sensitive informa-

tion

Disclosure of dealings and shareholdings



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Interviewing Skills


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Interviewing skills, which by definition include the ability to hold a powerful and skilful conversation, have long been recognised as essential to professional success and many a career has stalled, faltered or stagnated thanks to a lack of this skill. Contrary to urban myth, few of us are born with this skill, instead most have either practised or learned from mistakes.

This workshop has been designed to assist delegates to improve their interviewing skills in general and their conversational skills in particular leading to more effective interviews when working with, for and alongside others.

Interviewing – The Basics ■ Importance of interviewing skills ■ Identifying types of interviews ■ Understanding pre-employment testing ■ Success factors ■ Identifying success factors ■ Defining a job ■ Analysing and defining the culture ■ Success factors


Interviewing – The Basics ■ Communication styles ■ Conversational styles ■ The qualities of a successful interviewer/

communicator ■ Defining persuasion and influence ■ Self- belief, confidence & assertiveness ■ Communication flow ■ Framing conversations ■ Non-verbal communication ■ Inter-personal skills


Planning & Preparing ■ The PEACE Model ■ Identifying lead questions ■ Identifying sample lead questions ■ Planning an agenda ■ Customizing an interview ■ Preparing for an interview ■ Preparing the office ■ Ensuring privacy ■ Identifying personality styles


Handling and Conducting the Interviews ■ Handling an interview ■ Identifying types of candidates ■ Understanding the importance of silence ■ Conducting an interview ■ Opening the interview ■ Gathering information ■ Closing the interview ■ Taking notes


Interviewing – The Basics ■ Communication styles ■ Case Study/Exercise to Suit

The Outcome ■ Evaluating the interview ■ Identifying types of bias ■ Evaluating a the interviewee ■ Making a decision ■ Follow ups ■ Missing information


Following Up the Interview ■ Following up after an interview ■ Finding the appropriate outcome ■ Identifying steps to follow up ■ Understanding self-evaluation


Interviewing – Legal Requirements ■ Understanding and complying with any legal

constraints


END


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Islamic Banks – Functions and GovernanceIn-House or via Live Webinar

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Course Overview

This one day course analyses Islamic banks and other non-bank financial institutions that act according to Islamic principles.

We begin by examining Islamic finance in an institutional context, paying particular regard to their structure and external relationships.

Next we consider the products and services they provide, the accounting treatment of such products and services and the overall social utility of Islamic banks.

After lunch we look at governance issues, both from the perspective of a financial regulator and the Shari’ah (religious law).

The course concludes with two case studies: we examine two Islamic banks operating in London – one a retail bank, the other a wholesale bank – and compare their offerings and performance.

Session 1 ■ Islamic banks in context ■ the theoretical foundation of the institution-

alisation of Islamic finance ■ the historical development of Islamic bank-

ing ■ the core objectives of Islamic banking ■ the conceptual difficulty of banking without

riba ■ business models – the bank model versus

the non-bank model ■ business lines – retail banks versus whole-

sale/investment banks ■ surviving in a non-Islamic environment ■ the attitude of regulators – Muslim and

non-Muslim ■ competing alongside conventional banks ■ liquidity management issues

Session 2 ■ Functions ■ Products and Services

• deposits• trade finance• corporate finance• agriculture• consumer• treasury

■ Balance sheet• asset side• liability side• accounting peculiarities

■ Social utility• economic distinction?• qard (interest free loan)• charity

• zakat (religious tax)

Session 3 ■ Governance ■ Regulation

• capital adequacy• risk management• reporting & disclosure• central bank support

■ Shari’ah oversight• Shari’ah supervisory boards, their role and

purpose • Shari’ah compliance departments and advis-

ers• Shari’ah auditors• the view of English law on Shari’ah

■ Reputation management

Session 4

Case study I – Al Rayan Bank (retail)We chart the fortunes of the UK’s only high street Islamic bank

Case Study II – Gatehouse Bank (wholesale) We chart the fortunes of one of the City of London’s best known Islamic investment banks

Question & Answer session


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Islamic Finance – Debt Financing Techniques


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Course Overview

Debt financing is a controversial subject in Islamic finance as theoretically there are no recognised debt financing instruments in the classical law. Nonetheless, financiers have found Shari’ah-compliant ways to provide debt on a commercial basis and these techniques are explored in this one day course.

We begin by examining the philosophical basis that predicates all Islamic financial activity, and then look closely at purchase and resale, the partial forward contracts and leasing, and conclude by considering other types of situation in which indebtedness can arise.

Session 1 ■ Islamic debt in history and the

modern era• the Shari’ah, mu’amalat and

those who interpret it• Islamic economics and the role of

commercial activity• basic prohibited items and activi-

ties in Islamic finance • understanding riba and its conse-

quences• qard hasan, the “beautiful loan”

Session 2 ■ Sale & Purchase

• bai (sale)• murabaha (re-sale with a mark-

up)• how murabaha has evolved as a

financing concept• tawarruq – aka “commodity mu-

rabaha”• musawamah – how it differs from

murabaha

Session 3 ■ The partial forward contracts ■ Istisna’a

• what is it?

• it’s original purpose and modern day application

■ Bai salam• what is it?• t’s original purpose and modern

day application ■ The use of parallel contracts for Istis-

na’a and Bai salam

Session 4 ■ Leasing

• ijara• ijara – with title transfer (condi-

tional sale or hire purchase?)• how is ijara different to conven-

tional leasing?

CASE STUDY

■ what about Sukuk? ■ is it debt or equity?



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Islamic Finance – Events of Default: restructure or litigate?In House or via Live Webinar

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Course Overview

In an era where the “selling” process seems to be at the forefront of most minds, very few have stopped to think about what will happen if it all goes wrong. This one day never-before-offered” course in Islamic finance does just that.

It considers the nature of default in an Islamic context, what can be done about it and what actions should be taken or avoided when it happens. It explores the process of reaching amicable solutions and then looks at what will happen if they cannot be reached.

The day concludes with analysis of two major industry defaults – a sukuk product and an Islamic bank – and the practicalities of dealing them.

This course will be of enormous value to financiers working on remedial matters, litigation & dispute resolution lawyers, restructuring and insolvency practitioners everywhere.

Course Content

Session 1 ■ Introduction to default

• what exactly is a default?• different types of default• different types of defaulter • products• institutions• what typically happens upon default?• what is a standstill agreement?

■ Islamic guidance• Qur’an• Sunnah

■ Attitude of Governments• role of central banks, regulators and oth-

er public authorities • to intervene or not to intervene – and

how?• is emergency funding needed• how can it be given in an Islamic context?• “lender of last resort”?

■ Practical realities• workout frameworks• schemes of arrangement • creditor’s committees• keeping “interest” current• Islamic compliance?

■ Future necessities

Session 2 ■ Bankruptcy in Shari’ah

• what principles are invovled?• do people adhere to those principles?• what happens if they do not?

■ Consensual solutions• creditor perspectives

• competing financial, commercial and legal interests

• hedge funds and distressed debt buyers • negotiation techniques

■ Mediation and Arbitration ■ Litigation

• which forum?• cases on governing law• the danger of judicial recharacterisation• priority rankings upon insolvency and

winding-up

Session 3

Case Study – product default: the sukuk that couldn’t fail

We analyse the ramifications of the infamous Dubai World / Nakheel default that occurred in 2009 – the largest ever sukuk to get into difficulty.

Session 4

Case study – institutional default: the first Islamic bank in Chapter 11

We analyse the predicament of Arcapita Bank, a global Islamic bank, which ultimately filed for Chapter 11 bankruptcy protection in 2012 – the first ever Islamic bank to do so.



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Islamic Finance – Legal problems and their solutions

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Course Overview

This one day course is primarily aimed at practising lawyers, but may also be of benefit to others who deal with the structuring of transactions and products and/or prepare documents and negotiate them.

First we consider the essence of a business relationship in Shari’ah; how promises are made, received and acted upon.

Next we look at the wider framework in which such relationships are conducted and the hurdles that arise when rules contrary to Islamic requirements are encountered.

The third session focuses on common obstacles lawyers come-up against in practice and how they should try to navigate around these or avoid them altogether.

We end with a thorough examination of the modern-day murabaha contract. We consider its inherent deficiencies and how lawyers have attempted to overcome them.

Attendees will be invited to explain how they would attempt to deal themselves.

Session 1 ■ Islamic contract law

• mu’amalat (Islamic commercial law)• different types of promise• elements for a valid agreement• elements that will make an agreement

void• consequences of sahih (valid), batil (void)

and fasid (voidable)• practical considerations for lawyers when

drafting agreements

Session 2 ■ Governing laws and rules

• Shari’ah versus national law?• the reception of Shari’ah into secular

systems• the Beximco case• the Blom case• the Golden Belt case• the danger of judicial recharacterisation• conflicts with AAOIFI accountancy rules• managing default situations, when theory

and practice collides• priority rankings upon insolvency or wind-

ing-up• practical considerations for lawyers when

giving opinions

Session 3 ■ Common traps for lawyers and how to avoid

them• adversarial legal representation • caveat emptor• avoiding riba • dayn (debt) sales • inah (back-to-back) sales

• hiyal (ruses) • khiyar (options)• is ijara equivalent to lease?• is waqf equivalent to trust?• getting Shari’ah approval, what is in-

volved?• how is Islamic dispute resolution different?• are there alternatives to default interest?

Session 4 ■ The problem with murabaha

Used in more than 90% of Islamic financing transactions, yet fraught with legal difficulties. We will analyse the original intent behind murabaha and how it is used by financiers in the modern era.

We will examine the inherent conflict faced by lawyers who are required to uphold the spirit of Islamic law (which demands that tangible risks exist in all trades) versus a desire to minimise risk (which invariably a lawyer’s professional obligations will demand).

Attendees will be set a series of problems and asked to indicate which are acceptable or otherwise – and why.

• the tradition• the evolution• modern practice• deferred payment• remembering the fundamentals• risk elimination exercise• analysing outcomes


In House or via Live Webinar


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Islamic Finance – Real Estate: The Halal WayIn House or via Live Webinar

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Course Overview

This one day course will be of enormous value to real estate practitioners who are doing business with the Muslim world or those who want to break-into the Shari’ah-compliant real estate market.

Real estate, especially UK real estate, continues to hold a fascination for many Islamic banks and institutions and high net worth investors.

We take attendees through all aspects of the Shari’ah-compliant market with particular focus on what is permissible and what is not. We also look at commonly employed structuring techniques as well as typical problematic matters that arise in practice and their solutions.

Our objective is to equip attendees with the knowledge they need to know to engage with Islamic real estate practitioners with confidence.

Session 1 ■ Everybody loves real estate

• state of the market• retail sector• commercial sector• what type of property is of interest to

Islamic financiers? ■ What conventional activities are permissible?

• sale & purchase• leasing• mortgaging & foreclosing

■ Can real estate be financed?• characterising “finance”• characterising “real estate” • prohibited assets and activities• prohibited types of money

Session 2 ■ Riba is not allowed, but:

• what is riba?• what alternatives are there to riba?• bai, ijara, shirkah

■ What is the opinion on:• rahn (pledge)• kafalah (guarantee)

■ What about co-investment?• the de minimis rules• segregation• cleansing• typical co-investment structure

■ What about hotels?

CASE STUDY – holiday resort development in the Arab Gulf

Session 3 ■ The evolution of UK retail financing tech-

niques ■ Murabaha (re-sale with mark-up)

• pros and cons ■ Ijara (lease)

• pros and cons ■ Diminishing musharaka (gradual ownership)

• pros and cons ■ Issues that arise, include:

• pricing• insurance• agency

■ Tawarruq (aka “commodity murabaha”) • is it the easy way to finance everything?• is it morally reprehensible?

Session 4 ■ Documenting the deal

• the lawyer’s preparation• legal issues to look out for• getting Shari’ah approval • ensuring Shari’ah compliance

Case study – financing of a leasehold interest in West London



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Islamic Finance - The Sukuk Revolution


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Course Overview

This one day course covers everything the attendee needs to know about sukuk – the Islamic equivalent to a bond (and more) – which has taken the financial world by storm in a space of less than fifteen years.

We cover the subject from both a theoretical and practical perspective, looking at the legal rules underpinning the product (including its structuring) and its actual issuance in the capital markets and all the implications that arise from that. We also take time to consider the numerous controversial aspects and likely future developments.

Our course trainer is a practising lawyer who has managed probably more sovereign sukuk issues in the Gulf region that any other lawyer.

Session 1 - Getting started ■ Origins

• Arabic / Mediterranean ■ Terminology

• is it a product or a process? ■ Standard Definitions

• AAOIFI• Practical

■ Conceptual• key elements• how is sukuk different to conventional

bond? ■ Uses

• fund raising• syndication• sub-participation• securitisation• market making• treasury

■ Historical • participation certificates

■ Market • issuers, who are they? • purchasers, who are they?• other participants?

Session 2 - How it’s done ■ Purposes of fund raising

• sovereigns• corporates• banks

■ Why Sukuk instead of conventional bonds?• religion• reputational• aspirational• cost

■ Sukuk Structures• murabaha (re-sale at a mark-up)• ijara (lease)• shirkah (PLS investment)• wakala (agency)• hybrid

■ AAOIFI view ■ Marketing Spin

• “green” sukuk• “asset light” sukuk

■ Business Realities

• the coveted fatwa

Session 3 - The Issuance Process

CASE STUDY – a sovereign ijara sukuk issued in international markets

■ originator, who should it be? ■ selection of arrangers and their mandate ■ underwriting, different options available ■ indicative pricing ■ benchmarking mid-swaps ■ selection of issuer and considerations involved ■ preparation of the prospectus / offering mem-

orandum ■ preparation of the transactional documents ■ originators authorisation ■ market watching, critical for price and timing ■ establishment of SPV for issuer ■ selection of trustee ■ selection of administrator ■ selection of paying agent ■ due diligence meeting ■ finalisation of documentation ■ fatwa (Shari’ah opinion) ■ capital market authorisations ■ rating agencies ■ roadshow & book building ■ final pricing ■ execution of documents ■ lodging of global certificate ■ drawdown due diligence ■ flow of funds ■ listing on recognised exchange

Session 4 - Problems and criticisms ■ asset backed or asset based? ■ correlation between purchase monies and un-

derlining trades? ■ fixed returns and fixed resale prices? ■ tradability ■ enforcement ■ use of proceeds

Future Prospects



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Legal Due DiligenceIn-House or via Live Webinar

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Course Overview

This course covers the practices and procedures involved in legal due diligence in corporate finance transactions. This includes issues relevant to M&A transactions.

The areas of legal risk, which may arise, and the documents which should be reviewed, will be considered.

Participants will identify the key issues to be considered in reviewing legal due diligence information.

The course will enable delegates to:

■ Understand the purpose and limitations of legal due diligence ■ Identify the key issues which may arise ■ Conduct a legal due diligence exercise in an organised and efficient manner ■ Understand the different perspectives of the parties to the transaction in relation to legal due

diligence

Introduction

■ What is due diligence? ■ The objective of due diligence ■ In which situations Is due diligence needed ■ Common problems associated with diligence ■ Common errors made by the purchaser dur-

ing the due diligence investigation ■ Compatibility with investment objectives

Planning due diligence

■ Risk assessment and scope ■ Time and cost ■ Staffing ■ Management and analysis

Conducting due diligence

■ Preliminary due diligence ■ Approaching the target ■ Requesting data ■ Misleading information

Constructing the checklist

■ Design ■ Industry-specific matters

Due diligence from a legal point of view

■ General legal issues ■ Ownership and capital structure ■ Management ■ Products and services ■ Debt and banking

R&D and technology considerations


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Persons of Significant Control Registers: What Charities Need to Know


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The Small Business, Enterprise and Employment Act 2015 (SBEEA) received Royal Assent on 26th March 2015 and the majority of its provisions are now in force. The aim of the SBEEA is to enhance ownership transparency of UK companies and increase trust in the UK as a place to do business. In addition, as part of the Government’s Red Tape Challenge, the SBEEA has made changes aimed at simplifying filing for small businesses and improving the accuracy of information on public registers at Companies House.The most significant aspect of the SBEEA is the new requirement for all UK companies (with some limited exceptions) to create and maintain a register of persons of significant control (PSCs).As of 6th April 2016, all UK companies were required to create a PSC Register documenting who are their PSCs or, if the identity or full information of the PSCs is not yet known, to commence investigations.

From 30th June, UK companies will be required to update a public PSC register at Companies House in the new Confirmation Statements which are replacing the Annual Return. It is a criminal offence not to comply with these new provisions.

What is a PSC? In very basic terms it is a shareholder who owns over 25% of a UK company. However, there are “5 Specified Conditions” including anyone who “holds the right to exercise, or actually exercises significant influence or control over Company Y”. It is this aspect of the legislation which is causing the most concern and difficulty for companies looking to establish who their PSCs are. Note also that there is a proactive obligation on PSCs themselves to notify companies.

This course covers all the essential elements companies and their advisers need to know but in addition takes a look at the regime from the charity sector’s perspective, looking at the impact on the four main charitable structures: companies limited by guarantee, CIOs, unincorporated associations and trusts. What are the obligations of these entities? Do they need to create and maintain PSC Registers? Could they be on PSCs Registers themselves?

■ Reasons for the SBEEA changes; ■ A very brief summary of the key corporate

law changes under the SBEEA, including:• Changes to the definition of shadow direc-

tors• Abolition of corporate directors• Director and Registered Office disputes• Abolition of bearer shares;

■ PSC Registers:• How to identify PSCs under the “5 Speci-

fied Conditions”• Exceptions• How to determine direct and indirect inter-

ests• Statutory Guidance on the 4th Condition

(Persons of Significant Control)• Non-Statutory Guidance• The PSC Regulations• Which PSCs are registrable• What information needs to go on the PSC

Register• Obligations on PSCs; and

■ Analysis of the PSC regime from the per-

spective of companies limited by guarantee, charitable incorporated organisations, unincor-porated associations and trusts, considering the following questions:• Which entities must create and maintain a

PSC Register?• What about trading subsidiaries?• Could a charity’s CEO be a PSC?• How does the regime impact trusts? • Could settlors, protectors or beneficiaries of

trusts be PSCs?• Are bare trusts and discretionary trusts

dealt with differently? ■ What other entities are covered/not covered. ■ Numerous corporate structure charts showing

where there are potentially registrable PSCs or RLEs (Relevant Legal Entities).

■ Insights from recent Companies House events attended by the speaker.

■ Likely similar developments in Europe due to implementation of the Fourth Money Launder-ing Directive.

■ The new Companies House filing rules (the replacement of the Annual Return with the Confirmation Statement and the option for


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■ private companies to hold their registers at Companies House).

As part of the course, you will be provided with a “Practical Steps” guide for companies, an example of a PSC Register and corporate structure charts demonstrating which individuals and which legal entities should appear on a company’s register.

This course is essential for anyone wishing to gain an overview of the extensive (and somewhat unwieldy) legislation, statutory guidance, non-statutory guidance and regulations and especially for those involved with charities or advising charities.


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Private Company Sales in the U.S and UK


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Oscar Wilde is reputed to have said “England and America are two countries separated by the same language”. The same could be said of the differences in the M&A process. This course contrasts the market-based customs and practices of US and UK custom with respect to the M&A process and some of the key legal differences in relation to the sale and purchase of shares of private companies together with some references to related agreements. Whilst the practices and customs that apply to U.S. deals are largely the same across the Continental U.S. (and Canada to some extent), the U.S. is a federal system and there are differences in law and practice between the various states. In this context, references to U.S. law largely refer to New York law, and (where relevant) to Delaware law with some references to Californian law.

Globalization and the influence of the European Union means that, despite civil law dominating Eu-rope, many of the practices and customs in relation to M&A are broadly similar in the UK and Europe law, so reference is made to civil law systems where these differ from English law (e.g. re duty to negotiate in good faith).

The programme does not attempt to offer a linear approach and contrast all the key differences in all customs and practices (e.g. Locked Box remains much rarer in the U.S. than Europe), but simply those where law and practice differs significantly.

This course was originally developed for a U.S. investment bank looking to provide their staff with a sound basis on the legal aspects as well as the commercial customs in M&A deals in the U.S. and Europe. In this context it will appeal to lawyers, corporate finance advisors, bankers, accountants and corporates looking in M&A or related activities.

General matters ■ U.S. is a Federal system – so different states

have different approaches• The Big Three - NY law, Delaware, Califor-

nia ■ Terminology - key differences ■ Formalities – key differences ■ General principles of interpretation

• U.S. law• English law• European law

■ What types of Efforts/ Endeavours• English law (review of relevant case law)• NY law (review of relevant case law)• California• Impact on the deal

■ Negligence • English law - Gross negligence and willful

misconduct• NY law – ordinary & gross negligence and

willful misconduct• Duty to negotiate in good faith (review of

relevant cases) ӹEnglish law ӹNY law ӹEuropean approach

■ Damages & Liquidated damages & Penalty clauses• English law approach • Historical position• Cavendish Square case • Lessons and implications from Cavendish

Square• NY law approach

■ Approach to CPs – English law vs NY• Passage of risk - – English law vs NY

Exclusivity Agreements vs No shop No talk ■ UK approach – Exclusivity agreements gen-

erally ■ U.S. approach

• No Shop• No Talk• Gemini vs Ameripark – Lessons from the

case Heads of Agreement ■ English law

• Key requirements• The “essential” terms• The “subject to contract” trap

■ NY law• Type 1 – the 4 key factors per Vacold v

Cerami • Type 2 – the 5 key factors

■ California law• Key requirements

■ Delaware law• Summary of current position• Lessons from the SIGA case • How to avoid the pitfalls

Representations ■ General difference between English law vs

U.S. (NY) approach re “representations and


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Private Company Sales in the U.S and UK

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■ warranties”• Representations in English law• Representations in U.S. (is it that differ-

ent?) ■ Non-contractual representations and waiver

of liability for fraud - three key clauses• Entire Agreement• Non-reliance• Exclusive remedies

■ Approach under English law & key cases (e.g. Witter, Grimstead)

■ Position in NY (Danann and Grumman cas-es)

■ Position in Delaware (ABRY case)Warranties & Indemnities – U.S. vs English law ■ Scope of Representations & Warranties gen-

erally - U.S. vs UK ■ Quantification of damages for breach of

warranty/representation ■ Buyer’s Knowledge & materiality ■ Materiality “scrapes” (U.S.)

• Defined• Application• Ramifications• Seller v Buyer arguments

■ Potential liability – FSA vs Rule 10b-5 (Se-curities Exchange Act)• Key aspects for Rule 10b-5

■ Indemnities• Approach in England• Approach in U.S.

Limitations on liability ■ UK approach

Value as is and value as warrantedWarranty insurance

■ U.S. approachGreat use of Escrow: key negotiation issues for the

parties ■ Four potential problem areas (U.S.) – FBAR

Regs., Definitions, HYC, Domicile ■ Procedures for release of funds ■ How many escrow accounts ■ Dispute Resolution – UK vs U.S.

Disclosure - Practice in U.S vs UK ■ General differences in approach to due dili-

gence ■ General vs Specific disclosures ■ Disclosure bundle and disclosure of the data

room ■ Scope of specific disclosures - effectively

disclosed against ALL warranties, cross-ref-erencing

■ Disclosure qualifies all vs specific warranties ■ Buyer’s knowledge

• Standard in England vs U.S approach ■ Sandbagging and Anti-sandbagging

• Three approaches• U.S. case law• UK approach and case law

Split Signing / Completion MAC/MAE clauses ■ Completion conditions generally – U.S. vs

UK ■ Financing conditions generally

• UK• U.S. SunGard issues - “Typical” require-

ments• Other aspects – reverse transaction fees,

specific performance ■ Repetition of warranties/representations at

Financial close / Completion ■ Different approaches in the U.S. - warran-

ties true “in all material respects” or MAC standard

■ Approach in UK ■ MAC/MAE clauses

• Position in UK• Position in U.S. generally

ӹDifferent approaches - part of “Termina-tion” clause vs Stand-alone clause ӹReview of U.S. MAC clauses ӹPosition in Delaware (review of cases) ӹPosition in NY (review of Inkeepers Trust case)

Other matters ■ Stockholder Representative Agreements ■ Hart-Scott-Rodino


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Private Equity FundsIn-House or via Live Webinar

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Private Equity Funds is an intensive one-day interactive executive education course tailored specifically to the private equity sector. The course is designed for those who are new to working in the private equity industry, either with fund managers or with institutional investors, and for accountants, lawyers and other professional advisors who wish to gain an understanding of private equity funds. This introductory course provides a commercial overview into the structure of private equity funds, the fund raising process, marketing private equity funds, fund terms and conditions and private equity as an asset class, including the performance of private equity funds.

Key Learning OutcomesAttendees of this one-day course should gain an understanding of the typical structure of a private equity fund, how funds are raised, the essential ingredients of a private placement memorandum, how funds are marketed, how private equity returns are measured and how private equity funds compare to other asset classes. This practical and commercial focused fundamentals course is taught through a combination of talks, group discussion and case study exercises.

Global trends in the private equity industry: ■ Origins of private equity ■ Types of private equity ■ Investment risk and return ■ Growth and evolution of the industry, includ-

ing fund raising and investments data

Key players and their roles: ■ General partners and limited partners ■ Placement agents, fund of funds and gate-

keepers The limited partnership model: ■ The typical GP / LP model and relationship ■ Methods of investing in private equity funds ■ Deal by deal and pledge funds, evergreen

funds, listed vehicles, co-investment and direct investment

■ Fund of funds

Fund strategies: ■ Stage, sector, geographic focus ■ Fund and investment size ■ Group exercise on fund strategy ■ What LPs look for in a GP

Fund raising process: ■ Fund raising timeline ■ Private placement memoranda ■ Track record ■ Deal flow ■ Group exercise on example fund PPM, includ-

ing track record ■ Marketing private equity funds, including firm

competitor analysis and marketing activity matrix

■ Case study on firm and fund strategy

■ Brexit implications, including passporting

Fund terms and conditions: ■ Limited partnership agreement; deeds of

adherence ■ Carried interest, distribution waterfall, hurdle

rates ■ Management fees ■ Keyman clauses ■ Investment restrictions ■ Conflicts of interest ■ Advisory boards ■ Investor relations ■ Fund due diligence ■ Group discussion on fund due diligence ■ Group review of limited partnership agree-

ment

Marketing private equity firms and funds: ■ Firm and competitor analysis, including

SWOTs ■ Group discussion on SWOTs using example

fund PPM ■ Developing a marketing strategy ■ Case study on fund strategy ■ Marketing activity matrix

Private equity as an asset class: ■ Pros and cons of investing in private equity ■ Current issues in private equity, including

fund terms and regulatory issues ■ Regulation of private equity, including FCA,

Walker Review, AIFMD ■ Private equity investor asset allocation ■ Measuring private equity returns ■ Risk and diversification in private equity


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Repo and Securities LendingIn-House or via Live Webinar

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This Repo and Securities Lending course provides full coverage of the important aspects of repo trading and the pertinent issues involved in Securities Lending. It is relevant for in-house lawyers and private practice lawyers alike as well as bankers and repo traders involved in anything from the day to day business as usual plain vanilla repos to the more complex heavily negotiated repo trades involving structured securities or unusual assets. This course will also be relevant to the Operations and Documentation teams involved in repo transactions from time to time, structurers, compliance personnel as well as accountants who advise clients on repo trades.

The first part of this course sets the scene by giving an introduction to repos; the development of the repo market in Europe, the legal and economic characteristics of repos, the definitions and terminology ‘jargon’ that is commonly used in the repo market and the uses and benefits of repos. We then go through the various types of repo products in the market and discuss the risks, mitigants and distinguishing characteristics of repos.

The second part of the course covers the architecture of the GMRA documentation framework. Here we will go through the key provisions of the GMRA and discuss topical issues relating to and affecting the repo market. We will go on to discuss the 3 levels of activity in the repo market followed by a detailed step by step analysis of how a repo trade is negotiated and executed. We then cover the pertinent issues in the regulation of the repo market in Europe.

The third part of the course will cover an overview of Securities Lending; what it is, the reasons for it, the parties involved in it and the advantages and disadvantages for using it. We will discuss the legal structure and the various risks involved in Securities Lending. We will then go on to analyse the GMSLA documentation and the key provisions. We will undertake an analysis of the relevant case law in this area following which we will discuss the regulations effecting Securities Lending and the upcoming regulatory changes and considerations to be aware of. We will specifically discuss the much talked about Securities Financing Transactions Regulation (SFTR), its requirements and the timeline.

Please note that the sections on regulations are subject to change depending on the time of the year this training course is delivered as per the regulations and guidance that are published from time to time.

Complimentary materials including content filled presentation slides, the GMRA and relevant articles will be provided to all participants.


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Repo and Securities LendingContinued...

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INTRODUCTION: REPO OVERVIEW

The Legal and Economic Characteristics of Repos

■ Definition of a Repo ■ “True Sale” title transfer ■ Rehypothecation ■ Enforcement ■ Substitution ■ Similarities to Secured Loans ■ Cashflows ■ Definitions and Terminology (Jargon):

• Haircuts• Income• Manufactured Payments• Repo Rates• Pricing Rates

■ Fungibility issues ■ Uses of Repos:

• 4 basic functions: ■ Secured Financing ■ Covering Long or Short positions ■ Monetary Policy Instruments ■ Creating Leverage ■ Types of Securities used in Repos:

• Government bonds• High grade bonds• Credit Repos

■ Participants in the Repo Market• Buyer’s side• Seller’s side

■ Types of Repos and similar transactions ■ Distinguishing Characteristics of Repos ■ Risks in a Repo

• Counterparty credit risks• Collateral risks• Transferability• Collateral Management• Legal Certainty

■ Mitigation of Counterparty Credit Risks• Margin Ratio• Margin Collateral• Set off

REPO DOCUMENTATION

Introduction

■ Architecture of the GMRA documentation• Versions• Annexes• Confirmation• Market Protocols and Guidelines

■ 2011 GMRA Protocol ■ ICMA ERC Guide July 2015 ■ Securities Borrowing and Lending Code of

Guidance ■ ESMA Guidelines on repo and reverse repo

agreements for UCIT Funds ■ Reasons for the GMRA

• Recharacterisation risks• Margining• Event of Default Procedures• Netting Rights• Basel III Capital Requirements• Operational Benefits• Harmonisation• Use in Structured Transactions• Legal Opinions

The GMRA

■ Key Obligations under the GMRA• Initial Exchange• Income Payments• Payment/delivery of Margin• Final Exchange

■ Key Provisions and Considerations:• Collateral Selection• Events of Default

■ Consequences of Failure to Deliver:• at start of a repo • at end of a repo

■ Standard Events of Default ■ Default Notices ■ Close-out: 3 stages ■ Valuation Procedures ■ Consequential Losses ■ Negative Repo Rates

• Definition• Circumstances when this occurs• Problems caused

■ Repo Rate Indices• STOXX GC Pooling Indices• The GCF Repo Index• Gov PX• The RepoFunds Rate• The Repo Overnight Index Average (RONIA)

■ Accounting Treatment of Repos • Balance sheet treatment not aligned with

legal form• Lehman Brothers’ Repo 105 and MF Global

under US GAAP• IFRS

■ Short-selling• What is it?• Essential functions• Risks of short-selling• Uncovered short-selling and market abuse• EU Short Selling Regulations

■ Shadow Banking ■ The Central Clearing Counterparties (CCPs)

• The functions of the CCPs• Benefits of using CCPs• The Principal CCPs in Europe• Repo trading systems





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■ Pro-cyclicality ■ CSD Regulation (CSDR)

• Application• Exemptions• Benefits

Levels of Activity in the European Repo Market

■ Trading – How repos are trades are negotiat-ed and executed • Direct trading• Automated Trades• ATSs• The ATSs operating in Europe

■ Clearing – Netting by repo parties• Uncleared trades• Bilaterally cleared trades• Multilaterally cleared trades

■ Collateral Management – Delivery and Main-tenance• Bilateral• Tri-party

Step by Step Process of How a Repo Trade is Done

■ Establish identity of counterparty – Legal Entity Identifier (LEI)

■ Establish whether parties dealing as principal or agent

■ Key economic terms and post-trade checks ■ How to quote repo rate ■ How to work out Purchase Price – dirty price

inclusive of haircut ■ Fixing Purchase and Repurchase Dates

• For non-forward repos• For forward repos

■ Allocating collateral and agreeing pricing ■ Negotiating rights of substitution ■ Interest rates and charges on late payments ■ Post-trade verification process ■ Confirmation ■ Affirmation ■ Recommended Delivery Size ■ Partial Delivery – Exercising Mini-Close Outs ■ Dealing with Negative Repo Rate issues ■ Interest on Cash Margin ■ Calculating Floating-Rate Repo Interest

• Method 1 – Ultimate Day Crystallisation• Method 2 – Penultimate Day Crystallisation

■ Calculating Open Repo Interest ■ Margining:

• Fixing Haircut• Calculating Margin Calls• Calculating Transaction Exposure• The Price used to Value Collateral

• Margin Thresholds• Deadlines for Margin Calls and Delivery• Applying Haircuts to Margin Securities• Interest Payments on Cash Margin

REGULATION OF THE REPO MARKET IN EUROPE

■ EU Financial Collateral Directive ■ Short Selling Regulations ■ EMIR ■ CSDR (Central Securities Depositories Regula-

tion) ■ MiFID II ■ TARGET-2 Securities (T2S)

SECURITIES LENDING OVERVIEW

■ What is Securities Lending? ■ Reasons for Securities Lending ■ The Parties Involved ■ Legal Structure

• Initial Exchange• Mark to market/top-up• Title Transfers• Voting Rights

■ Risks• Legal Risks

■ Capacity ■ Netting/Set-off Opinions ■ Recharacterisation ■ Governing Law and Insolvency Laws

• Regulatory Risks• Credit Risks• Market Risks

SECURITIES LENDING DOCUMENTATION

■ The ISLA ■ The Global Master Securities Lending Agree-

ment (GMSLA) – versions ■ Industry Guidances:

• SLRC – Securities Borrowing & Lending Code of Guidance

• ISLA EU Agency Lending Best Practice Paper• UK Agency Lending Code of Guidance• Checklists for Lenders

■ Architecture of the GMSLA documentation ■ Benefits of using a GMSLA ■ Key Provisions

• Initial Exchange• Manufactured Payments• Marking to market of Collateral• Events of default• Representations and warranties





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REGULATION OF THE SECURITIES LENDING MARKET IN EUROPE

■ The Stock Exchange Rules ■ RAO under FSMA ■ The Disclosure and Transparency Rules ■ Financial Collateral Arrangements ■ Shadow Banking concerns

THE SECURITIES FINANCING TRANSACTIONS REGULATION (SFTR)

■ Scope of the SFTR ■ Exemptions from the SFTR ■ Definition of SFTs ■ Key Requirements of the SFTR

• The Reporting Obligation• Trade Repository Registration and Super-

vision• Investor Transparency• Periodical Information To Be Provided• Rehypothecation

■ Administrative Sanctions and Measures





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Restructuring, Turnarounds & Schemes of ArrangementIn-House or via Live Webinar

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Course Overview

Restructuring covers a broad range of situations which many firms in Europe will experience at some stage. There are often occasions when the group’s financial performance goes unrewarded by the markets and the sum-of-the parts is greater than the whole (the classic Racal /Vodafone demerger) and this leads to the need to consider a restructuring in order to enhance shareholder value. On other occasions, a restructuring is necessitated by strategic issues (BA/ Go). Thirdly, restructurings take place because a group is in financial difficulties and the implementation of the transaction is intended to achieve a “turnaround” in the group’s fortunes.

Restructuring (or reorganisation – the terms are often used interchangeably) can be effected in a wide variety of ways: both formally, in court, or less formally, out-of-court. Additionally there are a wide range of methods in which this can be effected but in Europe, unlike the USA, much of the restructuring is done informally.

One of the tools which is assuming increasing importance not only in the UK but also in Europe and further afield is the scheme of arrangement procedure under the UK Companies Act. Despite this, schemes are been used increasingly by non-UK firms to restructure firms in Germany (Rodenstock, Telecolumbus, PrimaCom), Spain (Cortefiel, Metrovacesa, Re La Seda de Barcelona), Italy (Seat), Holland / Bulgaria (Vivacom) and even the Gulf (GIC) and the recent landmark Vietnam (Vinashin) case.

Although some jurisdictions have sought to implement similar legislation (e.g. Spain), the lack of precedents coupled with the enormous flexibility offered by schemes, makes it likely that, for the medium term, UK schemes will retain their attractions to foreign firms.

This programme reviews the key issues of schemes and their use and application together with the problem areas (for example, class and value).

Last, the programme, covers restructuring in a turnaround situation, as that often involves issues not relevant in happier circumstances. In particular it provides a template of the four key issues to consider.

Restructuring

■ Restructuring vs reorganisations ■ Ten tips for restructuring professionals ■ Reasons for restructuring &/or reorganiza-

tions• Financial / operational difficulties• M&A• Unlock or enhance value • Other reasons – strategic, regulatory, tax,

efficiency ■ Internal reorganisations – specific issues

• The valuation conundrum (review of rele-vant cases law)

Demergers

■ Demergers generally - six good reasons for demerging • Review of selected examples (Cookson,

Punch Taverns, Anglo American, BT, BAT)•

■ Types of demergers & demerger procedures• Direct dividend• Indirect or three-cornered demerger• Indirect or three-cornered reduction of

capital• Scheme of arrangement

■ Liquidation scheme under §110 of the Insol-vency Act (UK only)


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• Overview – use and application• Typical structure• Pros & cons

■ Factors affecting choice of demerger meth-od & structure

Restructuring the equity

■ What are the options? ■ Spin-offs vs split –off vs carve-outs ■ Review of the epic Vodafone / Racal de-

merger – how 2 + 2 = 6! ■ Specific situations

• IPO• Sale of subsidiary

■ Using schemes for public take-overs• Take-overs & squeeze-out• Dealing with foreign shareholders

■ Key considerations• How much should be sold & how much

kept• How much new vs old money• What about the debt (BT / O2)

Schemes of arrangement generally

■ What is a scheme of arrangement? ■ Use and application of schemes

• Restructuring & cram-downs• Reorganisations• M&A• Demergers• Squeeze-outs / dealing with minorities• Return of capital• Aspects affecting loans – amend & ex-

tend (Barcelona de Seda, Cortefiel) ■ Requirements for schemes & problem areas

• Who can implement a scheme?• What’s in a class?• The voting thresholds• Fair treatment and the lessons from the

Assenagon case• Lessons from IMO Carwash (Bluebrook)

case re valuation

Schemes of arrangement – International application (foreign companies)

■ The international dimension – recognition of Schemes for foreign companies

■ Use of schemes for non UK companies ■ Recent examples

• German Schemes - Rodenstock, Teleco-lumbus, PrimaCom

• Vivacom / Bulgarian Telecom Scheme (Holland / Bulgaria)

• Other cases - Seat (Italy), GIC (Kuwait)• Vinashin and why it may be a game

changer

Turnarounds

■ The 3 phases of decline and fall ■ Smoke signals of declining performance ■ Warning signs of financial distress ■ Red alert – signs of a financial crisis ■ There are only 3 options in financial distress!

Fix, Sell, Shut ■ A template for managing a crisis: the 4 key

issues ■ Key issues for main players (especially when

the firm enters the “zone of insolvency’)• Existing management – should they stay

or go?• New management – are they required and

what to look for?• What about secured lenders – any more

support?• What about the other creditors?

■ Who else has leverage & how to handle them?

■ What about a chief restructuring officer – help or hindrance?

■ What’s the cash burn-rate?


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Senior Syndicated Leveraged Loans; Negotiating Issues & Trends


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This programme is aimed at professionals involved in syndicated high-yield (leveraged) loans used by both Sponsored and Corporate borrowers.

Historically, bonds were structured mainly as junior debt in the European high yield market whereas the recent trend has seen them used increasingly used as senior debt together with senior loans and/or super-senior RCFs in bifurcated pari Loan / Bond structures.

These developments have intensified pressure on syndicated lenders to adopt a more borrower-friendly approach than is advocated by the relevant Loan Market Association precedents. Borrowers have become increasingly frustrated by the conflicts between the flexibility offered by incurrence-based bond covenants and the more restrictive maintenance-based loan covenants. This conflict is driving convergence between these products and has accelerated the migration of terms from bonds to loans and vice versa.

Well known examples of the former include cov-lite loans and debt buy backs but more recent areas include covenant release/loosening on I-Grade rating and greater flexibility in the use of the various permitted baskets (including reclassification and splitting).

The recent Orange deal introduced a more alarming (and little noticed) innovation which, if adopted in loans, could allow Midco permitted payments to service debt.

This programme will look at the current trends and developments in syndicated loans and will draw on data and analysis from DebtXplained's Representative Loan Terms Database (www.debtxplained.com).

The database is a unique tool that has already changed the way that sell-side practitioners pitch for mandates and keep abreast of market trends. It tracks over 400 terms of loan documentation on a non-confidential basis allowing the users to precisely understand what is "market" for all significant negotiating points of a deal at any given time.

This information has never been available to the market before and gives borrowers, bankers, lawyers and advisors unprecedented knowledge of the current trends and practices in the Loans Market and Loan Terms.

Part 1: Deal & Loan structure, changes to the Parties & Buybacks

Scope of the Loan ■ Concept and composition of the “Covenant

(Restricted) Group” ■ Issues re Dormant subsidiaries – why they

matter ■ Issues re Joint Ventures ■ Dealing with Acquired firms

Debt buy-backs ■ Buybacks provisions – present or silent,

permitted? ■ Conditions permitting debt buybacks ■ Affiliate debt buyback methods ■ Investor buyback - restrictive conditions

The Lenders, changes to the Lenders & relevant thresholds ■ Key voting thresholds & why they matter ■ Super-Majority lenders – typical thresholds ■ Matters requiring Unanimous consent ■ Facility Change/Structural Adjustment ■ Treatment of Hedge parties ■ Ability to transfer - Consent vs Consultation

Methods ■ Carve-outs from Restricted transfer ■ Minimum transfer sizes

Part 2: Key “Permitted” definitions & Additional facilities


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Permitted Acquisitions ■ What is “Permitted” ■ Aspects re the Baskets ■ Additional restrictions: ■ Impact on financial covenants – pro forma

synergies?

Permitted Disposals ■ What types of transactions are affected /

carved-out ■ Which Group companies affected ■ Aspects re the Baskets ■ Carve-out for non-obligors

Permitted Financial Indebtedness ■ Scope - Financial Indebtedness defined (typi-

cal exclusions) ■ Issues re the Baskets – General & other bas-

kets • Size and availability• Automatic increase in Basket• Carry forward and Carry back (rare)

Accordion Facilities ■ Availability ■ Which Facilities are affected (RCF, New, M&A) ■ Committed at signing ■ Existing lenders right of 1st refusal ■ Lender consent requirements ■ Specified purpose (Capex, Restructuring, JVs) ■ Cap on Additional facilities

Basket erosion ■ Reclassification of baskets ■ Splitting of deals over baskets

Part 3: Interest & Yield Protection & Availability

Debt Service ■ Interest and default interest periods ■ Libor floors ■ Margin and margin ratchets

• Increased costs - Basel 2 and 3 (silent, included, carver-out, one/both)

■ Interaction with Financial covenants ■ Specific issues for Revolving Credit Facilities

(“RCFs”) ■ Clean-downs re RCFs, Ancillary Outstandings,

LCs ■ Clean-down amount ■ Periods fixed – Annual, Borrower’s election ■ Periods - timing, one or more ■ Cashless rollovers – why they matter ■ Problems with Headroom

Part 4: Exit, Acceleration and Prepayments (Sweeps)

Change of Control ■ Pre and Post IPO ■ Change in ownership chain ■ Various thresholds that apply – voting con-

trol ■ Sale of all or substantially all of the assets of

the Group – single or series

Mandatory Repayments (Cash Sweeps) ■ Disposal proceeds

• What is a “Disposal”• Baskets to sale proceeds• Annual - individual deal amount• Annual basket carve-out• Excluded Disposal proceeds

■ Acquisition Proceeds• What are “Acquisition Proceeds”• Excluded Acquisition proceeds• Basket annual and individual

■ Insurance Proceeds• Excluded Insurance Proceeds• Basket – annual or per deal• Retention periods

■ Listing Proceeds• Does Listing trigger full repayment• Does covenant grid cover repayment• Application of IPO proceeds – leverage

grid?• Application of retained funds• Potential tests that can be used • Relevant period

Excess Cash ■ Excess Cashflow defined ■ Excess Cashflow – typical deductions ■ De minimis basket ■ Use of Retained Excess Cash flow

Voluntary Prepayment, Trapped Cash & illegality ■ Can Borrower prepay voluntarily ■ Are there minimum / max. amounts ■ Circumstances when Borrower can avoid

mandatory prepayment• Tax - Trapped Cash (amounts)

■ Impact of illegality lender’s commitment ■ Prepayment Fees and Order

• Prepayment fees• Does Borrower have option to vary pre-

payment order• Can borrower prepay next four TLA amor-

tisations• Designated prepayment order






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Part 5: Dividends, Share Redemption and Subordinated Debt Payments

Limitation on Dividends and Share Redemption ■ What types of distributions / redemptions

are covered• Investor equity related payments e.g.

dividends / distribution • Management or advisory fee • Retirement of share capital• Redemption, repurchase or similar pay-

ment in respect of any of share capital• Share premium reserves

■ Exceptions• Permitted Payments • Permitted Transactions

Permitted Payments ■ What payments are permitted

• Basket carve outs – amounts, caps, car-ry forward/back

• Payments in re Equity & equity substi-tutes , Management/monitoring fees

• Subordinated debt ■ Basket carve outs – conditions precedent ■ Basket Carve-out categories ■ Restrictions on source of cash to fund

sponsor distributions ■ The “Orange” issue – permitted payments

to service debt from Midco

Part 6: Covenants & Undertakings & Events of Default

Covenant Overview ■ Covenants generally

• Function• Covenants in Loans vs Covenants in

Bonds ■ Covenant Suspension/Loosening

• Triggers - Qualified Listing and/or I- Grade Rating

• Available to Borrower• Scope of covenants affected

■ Material event reporting - scope ■ Access Rights for Lenders

• Triggers for Access rights – EoD, Agent “suspects” EoD

Financial covenants and Equity cures ■ The main covenants per the LMA

• Cash flow cover• Leverage• Interest cover

• Capex restrictions ■ Equity cures

• Current market practice• Cures in practice• Recent case law

General Undertakings ■ Permitted Security Basket

• Amount• Availability• Automatic increase in basket

■ Permitted Guarantees & carve-outs ■ The Guarantor Coverage Test

• Core carve-outs sought by Sponsors• Other exceptions sought by Sponsors

Default and Events of Default ■ Default vs Event of Default ■ Grace periods ■ Sensitive EoDs ■ Cross default to financial Indebtedness

• Cross-default defined• Sponsor friendly exclusions

MAC / MAE clause ■ Arguments for and against inclusion ■ Objective or subjective test ■ Impact of “Reasonably Likely” ■ Scope of MAE clause

• Security / Security Documents• Finance documents• Business, operations or financial condition

of the Group





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Stress ManagementIn-House or via Live Webinar

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Stress is a condition that is often difficult to recognise until it has actually taken hold. In a modern workplace everything can appear to be stressful but clearly some experiences are more stressful than others. This one day workshop helps delegates examine the circumstances in which stress can arise and specifically to identify the warning signs at an early stage. This will enable the creation of a strategy for dealing with them and in addition will help to manage the sometimes conflicting needs of others.

What is Stress?

■ Why we feel stress ■ Major stressors ■ The difference between constructive and

destructive stress ■ Symptoms and results of negative stress ■ What stress costs organisations and its peo-

ple


Stress in the Workplace

■ What contributes to workplace pressures? ■ The usual causes ■ The impact of stress on personal perfor-

mance ■ Maintaining an effective work/life balance


Managing Stress in the Workplace

■ Moving from reactive to proactive ■ Working to priorities when everything is

urgent ■ Managing conflicting demands from more

than one person


Managing Stress Caused by Time Constraints

■ Prioritising ■ Managing your time effectively ■ Managing your “in-tray” ■ Saying No assertively ■ Delegating effectively


Managing Stress Caused by Conflict

■ Managing your own emotions ■ Effectively handling the behaviour of others


Managing Stress In Others

■ Recognising the signs of stress in others ■ Stress as a source of energy – turning anxiety

into positive feelings ■ Passive, aggressive and assertive behaviour ■ Developing self-assertiveness – taking greater

control ■ Self-motivation – maintaining your motivation


Dealing With Your Own Stress

■ Self-motivation – maintaining your motivation ■ Cultivating resilience ■ Relaxation techniques ■ Managing conflicting needs more effectively ■ Developing a personal action plan ■ Work / life balance ■ Diet, exercise, relationships, leisure


END


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Syndicated (Leveraged)TLB & Yankee loans


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The syndicated loan market and high yield bond markets continue their “race to the bottom”. The continued inflows of liquidity from existing and new sources, coupled with the resurrection of the CLO market, continues to create intense competition between these two, historically different forms of finance. The main upshot has been the continuing, if not accelerating, convergence between the terms for loans and high yield bonds.

The convergence is being driven both on the buy and the sell-side; first, U.S. based Private Equity funds in Europe have been keen synchronise their (pari loan/bond) capital structures, by aligning the terms of their loans more closely with their bonds particular in the larger deals which include both term loans and bonds (e.g. Kirk Beauty /Douglas where the bonds were flexed down to accommodate larger TLBs).

The more borrower-friendly-incurrence covenants in bonds are also not unimportant for these borrowers; second, an increasing number of U.S. credit funds who have tapped into the European market and they too are keen to synchronise their documentation. The more liquid secondary loan market in the U.S. means these lenders are more relaxed about the absence of financial-maintenance covenants since their protection comes from the ability to trade when borrowers are in or near distress.

One further source of impetus has been the opening of high yield bond markets in Europe to mid-cap issuers with bonds now in the 200 million mark (and lower q.v. Wagamama £150m) increasingly common. In this context, the markets have seen smaller deals, of this size, increasingly arranged on a syndicated basis.

These developments also explain the increasing incidence of documentation being drafted according to NY State law which, through no co-incidence also tend to mirror the terminology used in high yield bond indentures. The trend towards using NY law is supported by data from DebtXplained which indicates that, in 2014, nearly half of all TLB Yankee loans were subject to New York state law and this trend seems to be accelerating in 2015.

This seminar examines the typical terms of syndicated loans in the current market and compares the key differences between LMA-based senior facilities and NY style documentation.

Background & basics ■ Review of the funding landscape ■ Impact on loan documentation ■ Increasing use of NY-style loans vs tradi-

tional LMA – where, who and why? ■ How and why do they differ ■ Incurrence covenants vs maintenance cove-

nants – does it matter?

Key concepts ■ The Restricted Group

• Inclusions and exclusions• Approach used in high yield bonds & why

it matters

• Re-designation of subsidiaries to and from the Restricted Group

• Typical requirements ■ Material subsidiaries

• What constitutes at material subsidiary – market approach to the threshold %

• The various tests: EBITDA and other ap-proaches

• Relevance and application in the SFA• Date and manner of determination- Certif-

icate (LMA vs market approach) ■ Permitted baskets generally

• Hard & soft caps• Soft caps – EBITDA, Total Assets, Total


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• Revenues, mix n’match • Review of data from DebtXplained• Other restrictions

Permitted Acquisitions ■ Permitted Acquisitions – LMA approach vs

Yankee loans ■ Hard capped baskets – lifetime or annual

limit ■ Approved acquisition ratio – incidence

• Typical tests & thresholds ■ Treatment of pro-forma synergies

• Can management add synergies to the test

• What synergies qualify, time limits? ■ Third party / Independent certification

• Due diligence requirement

Debt incurrence / Incremental facilities ■ Main sources of additional debt incurrence ■ Typical exclusions; Refinancing debt etc ■ Purposes & limitations for incurring addi-

tional debt; M&A, Capex ■ Prohibition & Ratio Debt Basket

• Ratio based approach ■ Permitted debt / carve-out baskets – typi-

cal examples, and controls• General debt basket• Acquired debt basket (no obligation to

discharge)• Acquisition finance debt basket• Attributable debt / Finance leases / PMO

debt basket• Other baskets • Availability to non-guarantor restricted

subsidiaries (capped vs uncapped?) ■ Reclassification of debt between baskets

and the Ratio Debt basket• Debt reclassification among permitted

debt baskets (excluding/including credit facility) and ratio debt basket

• Ability to split an amount or transaction between different baskets or exceptions

• Other aggressive approaches (e.g. auto-matic reclassification between baskets)

■ Incremental Facilities• Incidence in deals• Hard vs soft caps• Controls on soft caps• Other restrictions – yields, tenor etc

Restricted Payments / Distributions (to Shareholders) ■ LMA vs TLB approach compared ■ Application – dividends, subordinated debt

■ Restricted Payment General baskets• Basis of calculation – hard vs soft caps• Hard caps – lifetime vs annual limits• Soft caps approach – CNI etc• Source of payments – Available Amount,

Cumulative Credit, other• Other requirements

■ Leverage basket• Typical leverage ratios (q.v. Debtxplained)• Additions/Source of proceeds available

■ Other conditions

Collateral & Liens ■ LMA approach vs TLB approach to “Permitted”

lien baskets ■ Availability of general and other baskets ■ Hard vs soft “grower” permitted lien baskets ■ Carve-outs for Non-Guarantor Restricted sub-

sidiaries ■ Guarantor Coverage Test – LMA vs. Yankee

loans compared

Mandatory prepayments (Cash sweeps) ■ Borrower friendly post Excess Cashflow

Sweep deductions ■ No mandatory prepayment waiver right ■ Borrower friendly post Excess Cashflow

Sweep deductions ■ Carve-out baskets from disposal proceeds not

required for making mandatory prepayments if ratings conditions met

■ All or some of mandatory prepayment cate-gories can be applied pro rata to prepay other pari passu debt

■ Absence of mandatory prepayment using insurance proceeds

■ Lender prepayment waiver right only if Bor-rower elects

■ Mandatory prepayment de minimis and thresholds include a great of hard cap and EBITDA soft cap

Margins, MFN & sunset provisions ■ Trends in LIBOR/Euribor floors ■ Matters affecting the floor ■ MFN provisions – scope

• Margins – yield vs all-in yield; pricing dif-ferentials

• Other terms and conditions ■ Sunset provisions

• Incidence and typical periods – US vs Eu-ropean approach

• Governing law ■ Absence of margin ratchets

• Rationale and incidence (funds!)





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Syndicated (Leveraged)TLB & Yankee loansContinued...

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■ Fixed rate deals

Financial maintenance covenants ■ Review of current market approach: Tradi-

tional vs Cov-lose vs Cov-lite ■ “Springing” leverage covenants


■ Aggressive add-backs to EBITDA• Synergies and other add-backs• Additional requirements and time limits




• Introduction of minimum EBITDA cove-nant

• Maintenance covenants tested at great-er intervals

Transfer provisions & Portability/ Change of control ■ What type of transactions qualify

• Consent vs Consultation • Carve-outs• Other restrictions e.g. minimum transfer

sizes ■ Portability

• Ratings test• Ratio - Leverage or Enterprise value

ratio ■ Timing periods/limits & Frequency ■ Additional requirements

Voting thresholds & Amendments (LMA vs US approach specific thresholds; how and why they matter) ■ Majority lenders - thresholds & typical

matters ■ Super-majority - thresholds & typical mat-

ters ■ Unanimous consent - Typical matters ■ Snooze you lose – timing ■ Yank the bank ■ Structural adjustments

• Major vs minor vs payables• Requirements - each Lender directly

and/or adversely affected

Sanction & anti-corruption provisions ■ US OFAC vs EU Blocking Statute [Reg

2271/96]– reconciling the irreconcilable?• Summary of provisions

■ Use of proceeds ■ The range of options

• Due diligence• Limitations on the scope • Side letters – when to use them• Consequences of a breach

■ Solutions in practice

Summary of deal outliers ■ Incremental Facility yield cap applies only for

the first 12 months of signing / closing (“sun-set” provision)

■ Option for each Lender to cancel and acceler-ate upon a Change of Control and/or sale of substantially all assets

■ Permitted Payment basket based on Annual-ised EBITDA

■ HYB-style “Designated Non-Cash Considera-tion” concept in Asset Disposals (English law SFA)

■ All Permitted Disposals subject to a pro forma total leverage test




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Venture CapitalIn-House or via Live Webinar

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An Introduction to Venture Capital Deals is a one day interactive executive education course tailored specifically to the venture capital industry.

It is aimed at investment executives who are relatively new to venture capital, those who are working ancillary to the investment role, entrepreneurs seeking to raise venture capital finance and accountants, lawyers and other professionals who wish to gain a fundamental understanding of the venture capital investment process.

The course covers the entire investment process from originating deals, evaluating business propositions and valuing and structuring deals, through due diligence and deal execution, the negotiation of term sheets, monitoring and adding value to exiting deals via a trade sale or IPO. The course is highly practical, involving interactive case studies, group exercises and discussions.

Key Learning OutcomesAttendees of this one day course should gain an understanding of the current trends and issues in the venture capital industry, how to appraise a business proposition, how to arrive at the valuation and required equity stake for a venture capital investment, how to negotiate a venture capital deal, including the principal clauses included in a term sheet, how venture capital firms go about monitoring deals and conducting portfolio reviews, how they seek to add value to an investment and how they seek exits via trade sales and stock market flotations.

Attendees will have the opportunity to review investment propositions, negotiate a VC term sheet and review investment portfolios through practical case studies, group exercises and group discussion.

This course will cover the following areas:

Global trends in the venture capital industry

The structure of venture capital funds ■ The GP – LP fund structure ■ Different strategies for VC funds: stage,

sector and geographic focus ■ Theme approach to VC investment ■ Fund strategy exercise

Investment risk and returnCase study on eBay

Business proposition: ■ Key components of business plan for VC

investment ■ Business model ■ Initial appraisal of business plan ■ Porters 5 Forces analysis and traps to avoid

with business proposals ■ Exercise on investment appraisal using Por-

ters 5 Forces ■ Non-disclosure agreements

The venture capital investment process: ■ Sourcing deals ■ Structuring VC deals ■ Valuation methods ■ Types of financing structure: ordinary

shares, preference shares, A ordinary shares ■ Worked example on structuring a deal ■ Terms included in a typical VC term sheet ■ Negotiating a term sheet ■ Group exercise on term sheet negotiation ■ Carrying our internal and external due dili-

gence ■ Investment decision process in VC firms ■ Group exercise on the rejection or pursual of

a VC deal ■ Syndicating deals with other VCs

The post-investment process: ■ Monitoring the performance of investments ■ Portfolio reviews ■ Group exercise on VC fund investments track

record ■ Methods of adding value to an investment ■ Case study on adding value

Current topics and issues in venture capital: ■ Sector focus, including current “hot” areas

for investment ■ Technology clusters, including Silicon Valley

and UK tech hot spots ■ University spinouts ■ Differences in approach between UK/Europe-

an and US VC firms ■ Wider environmental and ecosystem factors

impacting on venture capital

Other Alternative forms of early stage finance: ■ Corporate venture capital ■ Crowdfunding and business angels ■ EIS, SEIS and Venture Capital Trusts

Exiting from a VC deal: ■ Trade sales ■ IPOs ■ Secondary deals ■ Group exercise on issues in exiting from a VC

deal via an IPO


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Warranties, Indemnities, Guarantees, RepresentationsEntire Agreement Clauses & Distinctions


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Location: London Standard Price: £*** +VAT Membership : £*** +VAT

This programme is focussed on lawyers and non-lawyers alike, any practitioner in business transactions, whether in commerce or finance, both from the UK and abroad.

Participants will look at distinctions between each, their different use and interpretations between jurisdictions. Where overlap and confusion may creep into transactions and expected outcome.

They are used in commercial, infrastructure, IT, construction, property, M & A, joint venture and other transactions. In addition they are symbiotic with due diligence in its many forms whether buying a business, share or asset purchase. They are routes to minimising the risk in a transaction.

Each type manages risk at different levels and the course will assist you in which to select to protect you or your clients’ interests.

Increasingly they have all become the subject of claims and therefore court cases. The course will look at key cases and the impact for lawyers and non-lawyers for negotiations, drafting and transactions.

The course will look at key cases as to the scope of a warranty, Betfairs v Sutherland, what is meant by ‘full and fair disclosure’ Levison, Daniel Reeds, New Hearts and Infiniteland v Artisan, , prior knowledge Eurocopy, warranties v representations and a damages Sycamore v Bidco.

During the course participants will look at case studies, sample clauses and receive checklists to assist them with dealing with joint ventures a following the course.

Introduction ■ Definitions ■ Contrast ■ Distinguishing warranties and indemnities ■ Does a guarantee vary the agreement ■ Recent cases ■ Letter of Comfort v Guarantee

Warranties ■ Allocating risk ■ Difference between a Warranty and an

Indemnity ■ Providing a warranty ■ Key pointers ■ Third parties ■ Security ■ Remedies for breach ■ Damages for breach of warranty

Indemnities ■ Definition – examples ■ 6 types of indemnity clauses

■ Indemnity or warranty ■ Indemnity or guarantee ■ Guarantors consent to alterations ■ “Hold Harmless” ■ Drafting indemnities ■ Your giving ■ Your receiving ■ Duration of liability ■ Key cases - Tullow v Heritage [2014] ■ Contra proferentum ■ Extending indemnities

Guarantees ■ Fundamental elements including Golden

Ocean v Salgaocar Mining [2012] ■ Pointers for drafting ■ Drafting pitfalls ■ Guarantor’s rights ■ Distinction between performance bonds

and guarantees ■ “All monies” guarantee ■ Anti – discharge provisions


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Warranties, Indemnities, Guarantees, RepresentationsEntire Agreement Clauses & Distinctions

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■ Guarantee or Indemnity Associated Ports v Ferryways [2009]

Representations ■ Differences between Representations and

Warranties ■ Innocent misrepresentation ■ Negligent misrepresentation ■ Negligent misstatement ■ Fraudulent misrepresentation ■ Fraudulent misstatement (tort of deceit) ■ Misrepresentation Claims

‘Entire Agreement’ Clause ■ Key elements ■ Rectification ■ Court’s approach Surgicraft v Parardigm

[2010] ■ Practical considerations ■ Pointers for Sellers ■ Pointers for purchasers

Warranty Claims – Key Cases ■ Scope and nature of the warranty ■ Betfairs v Sutherland ■ Full and fair disclosure ■ Levison v Farin ■ Daniel reeds ■ Infinite land v Artisan ■ Sycamore Bidco v Breslin ■ Prior knowledge ■ Eurocopy ■ Pointers for buyers ■ Pointers for sellers

Clinic & Questions


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Yankee Loans Course


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Yankee loans (or TLBs as they are also known) refer to senior syndicated facilities provided to European borrowers which, initially, were sold to mainly U.S. based investors or were governed by New York law and drafted in line with U.S.style credit documentation.

Yankee loans have experience strong growth in Europe over the last 18 months for a variety of reasons. First, an increasing number of European borrowers (most recently Altice) have sought to take advantage of the more borrower-friendly terms offered by these loans; second, the globalisation of the debt markets (particularly in leveraged finance) has seen an increasing number of U.S. credit funds tap into the higher yields available from European borrowers (although this spread has narrowed); third, U.S. based Private Equity funds in Europe have been keen synchronise their pari loan/bond capital structures, by aligning the terms of their loans more closely with their bonds.

This latter trend has been particularly influential in terms of driving convergence of loan documentation towards incurrence-base high yield covenants and finally, both the U.S based PE firms and U.S. investors understandably prefer more familiar U.S. style credit documentation since this affords them better understanding of the key terms and conditions in the loan both at the time of investment and in terms on on-going monitoring. The trend towards using NY law is supported by data from DebtXplained which indicates that, in 2014, nearly half of all Yankee loans were subject to New York state law and this trend seems to be accelerating in 2015.

The greater willingness on the part of U.S. investors to accept bond-style covenants (and thus lower lender protection) has been motivated by two drivers; first, their aversion to reinvestment risk (which explains their preference for bullet structures and antipathy to cash sweeps) and second, their greater focus on liquidity. The depth of the U.S. loan market means these lenders are willing to trade less investor protection in exchange for the liquidity, specifically the ability to trade out prior to distress. The approach of U.S. Investors means that Yankee loans mimic many of the features found in high yield bonds with the same advantages even if these loans are drafted under English law. Specific examples include; reduced financial-maintenance covenants (e.g. either cov-loose or cov-lite seen in Ceva Sante Animale and more recent deals) together with greater flexibility across a wide range of corporate actions particularly the ability to incur and secure additional debt (via bond-style ratio debt baskets and carve-outs baskets for debt incurrence), the ability to sell assets together with flexibility in dealing with the proceeds, bond-style approach to permitted payments (using restricted payment baskets with carve-outs) and, more recently, greater flexibility on exceptions to mandatory prepayments.

This seminar examines the typical terms of Yankee loans in the current market and how they differ from traditional European LMA-based senior facilities together with the trends driving these developments.

Background & basics ■ Key market drivers and players ■ The different approach of U.S. to European

investors ■ The role and influence of High Yield Bonds

on loans ■ Incurrence covenants vs maintenance cov-

enants – does it matter? ■ Documentation: LMA vs LSTA

The Restricted Group ■ Approach used in high yield bonds & why it

matters ■ Application to Yankee loans ■ Re-designation of subsidiaries to and from

the restricted Group ■ Typical requirements

“Permitted” Acquisitions ■ Permitted Acquisitions – LMA approach vs

Yankee loans


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Yankee Loans CourseContinued...

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■ Typical requirements for Permitted Acquisi-tions

■ Compliance with financial ratios • Hard and soft (grower basket) caps• Typical ratios used• Treatment of pro-forma synergies

■ Other requirements• Third party / Independent certification• Due diligence

Debt incurrence & margins ■ Main sources of additional debt incurrence ■ Prohibition & Ratio Debt Basket

• Ratio based approach ■ Potential carve-out baskets – typical exam-

ples & terms• Credit Facility basket - hard vs soft caps• General basket -- hard vs. soft caps• Acquired debt - hard vs. soft caps & oth-

er limitations• Other baskets (PMOs etc.) –

■ Reclassification of debt between baskets and the Ratio Debt basket• Specific inclusions and exclusions

■ Incremental facilities ■ Absence of margin ratchets

Restricted Payments ■ Prohibition - coverage ■ Proviso – main conditions

• Ability to incur debt• Aggregate Caps

■ Calculating the Restricted Payments basket• Ratio based approach• Additions to the basket

■ Carve-out baskets to the Restricted pay-ments

Collateral & Liens ■ LMA approach ■ TLB approach to “Permitted” lien baskets ■ Availability of general and other baskets ■ Ratio based lien baskets ■ Carve-outs for Non-Guarantor Restricted

subsidiaries ■ Use of “grower” permitted lien baskets ■ Ability to secure additional ratio-based debt

on a pari passu or junior basis ■ Distinction between securing debt on Col-

lateral or on non-Collateral ■ Guarantor Coverage Test – LMA vs. Yankee

loans compared

Mandatory prepayments (Cash sweeps) ■ Borrower friendly post Excess Cashflow

Sweep deductions

■ No mandatory prepayment waiver right ■ Borrower friendly post Excess Cashflow

Sweep deductions ■ Carve-out baskets from disposal proceeds not

required for making mandatory prepayments if ratings conditions met

■ All or some of mandatory prepayment cate-gories can be applied pro rata to prepay other pari passu debt

■ Absence of mandatory prepayment using insurance proceeds

Financial maintenance covenants ■ Review of current market approach: Tradi-

tional vs Cov-lose vs Cov-lite ■ Cov-loose – what does it mean and which

ratio are used ■ Cov-lite – does it really mean no covenants? ■ “Springing” leverage covenants


■ Aggressive add-backs to EBITDA• Synergies and other add-backs• Additional requirements and time limits




• Introduction of minimum EBITDA covenant• Maintenance covenants tested at greater

intervals

Portability & Change of control and Transfer provisions ■ What type of transactions qualify ■ Typical exemptions

• Leverage ratio • Enterprise value ratio

■ Timing periods/limits & Frequency ■ Additional requirements

Voting thresholds ■ LMA vs US approach specific thresholds; how

and why they matter• Majority lenders• Super-majority• Unanimous consent• Snooze you lose



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Debt Restructuring: For Lawyers


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Course Overview

In an increasingly volatile and uncertain business climate, the need for successful debt restructuring has become a recurring issue for financiers, during the second decade of the 21st Century. Protecting the ongoing financial exposure of bankers and financiers, is itself a central theme of the successful restructuring of problem loans and the help that lawyers bring to bankers in structuring and drafting the correct legal documentation for the restructuring process, is therefore a key element of the success of debt restructuring programme.

This course has been designed for legal experts who provide legal advisory services to bankers and other financiers with a specific emphasis on the restructuring of problem loans. During the day’s programme the delegates will review the various different types of restructuring that are currently used in the UK, European and International markets.

The attendees will be separated into project teams and through a series of interactive workshops will apply the theory of debt restructuring covered over the day’s training, to solve case study problems. The programme will culminate in the preparation and presentation of the key legal aspects of a restructured case study. As the course will only last one day the delegates will be required to review and prepare pre course work which will be applied during the course, particularly during the last session.

The course will be delivered by a debt restructuring banking expert and will provide the attendees an overview of problem loan resolution from the prospective of the financier. This will allow the attendees to improve their understanding of the aims of their banking clients in debt restructuring and therefore to improve their ability to properly satisfy their clients’ needs.

By the end of this course participants will understand: ■ The principal aims and challenges faced in financing problem loans ■ Understand the key methods that can be applied to successfully restructured debt facili-

ties ■ Review international methods of debt restructuring ■ Understand the different key legal drivers that can be applied to debt restructuring and

debt recovery in the UK and the EU. ■ Alternative debt restructuring methods currently applied in business ■ An organised framework for effective debt restructuring ■ The application of different contracts and agreements between parties participating in the

restructuring process. ■ The role and requirement of an independent business review as part of the restructuring

process. ■ Key aspects of the loan documentation including the role and importance of security and

guarantees.

Session 1Overview of Debt Restructuring – principal drivers for a successful restructuring process ■ Non-performing loans and the challenges

faced by bankers ■ Review of common reasons for company

default and the creation of non performing loans

■ The aims of the banker in corporate recov-

ery and restructuring ■ Differences in corporate recovery and debt

restructuring ■ Debt restructuring versus debt rescheduling ■ Understanding the personal behaviour of

defaulting clients ■ International guidance on dealing with dif-

ferent types of problem loan. ■ Different types of restructuring methods


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Case study – Analysis of different cases of problem loans and restructuring case studies – Ineos, Pizza Inn

Session 2Insolvency and Restructuring regulation ■ Administration ■ Receivership ■ Liquidation ■ Automatic stay in administration ■ Different rescue procedures ■ Cram down of creditors ■ Position and rights of management ■ Personal liability of directors ■ Ranking and claims of creditors ■ Time limits of filing claims ■ Comparison of Insolvency regulation in the

United Kingdom, the European Union and the USA.

Case study – The participants will analyse the case study of an international problem loan and its resolution through international courts.

Session 3The applied debt restructuring process – how to avoid extend and pretend ■ International advice on developing the

required restructuring process ■ Deciding whether to leave the borrower in

collateral possession ■ Application of the Butler Matrix ■ The IFC framework for problem loan reso-

lution ■ Introduction to Standstill Agreements ■ The need for and negotiating the Standstill

Agreement ■ Fairness and equality ■ The position of directors under Standstill

Agreements ■ Cooperation between creditors ■ Majority decision making under the Stand-

still ■ Use and application of Steering Commit-

tees

Case study – Application of the Butler and IFC frameworks. and the negotiation of Standstill Agreements referring to an international case study.

Session 4Security and negotiation - the restructuring process ■ The independent business review and its

importance in debt restructuring

■ Company Voluntary Agreements ■ Pre-packs and White Knights ■ Mediation and the London Approach ■ Restructuring documentation checklist ■ Frequently found problems with legal docu-

mentation ■ Structuring the restructured loan security ■ Security checklist ■ Other liabilities checklist ■ Notice letters and use ■ Guarantees, completion agreements and

comfort letters ■ Loan document issues checklist ■ Insurance policies checklist ■ Waivers checklist ■ Covenants checklist ■ Absolute priority rule

Final Case study – The delegates will use a UK based corporate case study that was provided for pre course reading to prepare the principal terms and conditions of the restructuring loan documentation. Delegates in their project teams will present their recommendations to the rest of the group.

What our clients are saying about the course

“A very clear and ongoing explanation provided by the presenter”

“A lot of practical information, details and interesting cases”

“The presentation and explanation are very good, the subject matter is covered

as hoped and very good”



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Leveraged Buyouts - The LBO Course for Lawyers


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The private equity model operates on a different paradigm from traditional corporate investors in terms of its aim and objectives, the structures it employs, the manner in which it approaches an investment and its sophisticated approach to capital structuring, the management incentives and last, the use of laminated (senior and junior debt) or bifurcated (pari loan / bond) debt financing.

This is an intensive one day programme designed to cover all the major areas relevant to the deal so as to provide attendees with a toolkit to understand the LBO process, the key issues from the perspective of all the major players’ PE, management and the various providers of finance.

The PE market is dynamic so the course will provide an historical perspective together with the current trends and issues relevant in the market.

The course is relevant those in PE or professionals involved either directly or indirectly in private equity. Matters are approached from a pan-European perspective.

LBOs: Value creation model, structuring issues & structuring parameters ■ The traditional PE value creation model ■ New value creation model ■ Structuring issues

• Ranking• Collateral / Security • Tax issues

■ Structuring parameters - creating an ap-propriate financial structure (overview)• Percentage senior, junior and equity in

debt capital structure• EBITDA multiples• Target returns for PE & Mezz Funds

■ The 3 main stages of a PE deal & relevant agreements: overview, scope & purpose• The Sale & Purchase Agreement• Loan Agreements• Security documents• Management’s Service agreements• The Shareholder’s / investment agree-

ment

Case Study: Deriving the source and uses of funds; target equity returns of the PE fund and Management

Financing: summary of application, key terms, conditions and pricing ■ Spectrum of financing instruments in LBOs ■ Senior loans

• Alphabet notes• RCF• Capex facilities

■ Mezzanine debt

• Warranted & warrantless ■ High Yield Notes (FRNs and Fixed)

• Senior Secured Notes• Senior Notes• Second Lien Notes• PIK Notes

■ Equity financing – typical structures and coupons

■ Vendor NotesCase Study: Deriving the target equity returns of the PE fund and Management

The Lender’s perspective ■ Lender’s approach to credit decision ■ Overview of loan documentation and im-

pact on deal/restructuring ■ The four deal scenarios ■ Key financial and other covenants

• Negative pledge• Summary of main financial covenants /

ratiosCase Study: Analysing & “right-sizing” the capital structure to identify the optimum funding instruments and funding structure

The Private Equity firm’s perspective ■ Typical objectives & required market re-

turns ■ Typical fund structures ■ Assessing the investment – the 5 key crite-

ria ■ Division of the spoils – typical terms

(what’s market?)• Hurdle / preferred return


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• Carried interest (European vs US ap-proach)

■ Equity ratchets

Management issues ■ Multifaceted role and duties of manage-

ment• Issues vis-à-vis role as Director, Em-

ployee, Shareholder, Warrantor ■ Critical issues in the Investment agree-

ment• Good vs. Bad leaver• Management warranties

■ Critical issues in the Service agreement• Restraints• Termination

Pulling it all together ■ Structuring the deal – the first take ■ How much debt can or should be used ■ Equity second

• Who goes first – PE or Management• Deciding who gets what• Ratchets

■ Evaluating the structure – does it work?



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Trade Finance for LawyersIn-House or via Live Webinar

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This one day seminar, aimed at lawyers and non-bankers, provides and insight into trade finance practices and related risks.

After attending the course participants will be able to explain to their clients the benefits of using Incoterms, as well as detail the different methods of providing finance and their key characteristics.

They will also be able to assist with identifying and structuring the appropriate trade solutions for customers, assess various risks to both the bank and the client in international trade transactions and explain and identify ways of mitigating that risk.

Incoterms 2010: ■ The purpose of Incoterms ■ The 11 Incoterms ■ How Incoterms affect the documents that

exporters must produce

Key characteristics of Commercial & Financial Documents ■ Invoices ■ Transport Documents ■ Insurance Policy/Certificate ■ Understanding the use of Bills of Ex-

change and Promissory Notes

Documentary Collections ■ Parties and responsibilities ■ Uniform Rules for Collection 522

Introduction to UCP 600 ■ Purpose ■ Structure ■ Articles

Instructions to issue/amend Letters of Credit ■ The importance of the application form

(legal issues) ■ Workability of the credit

Examination of documents ■ International Standard Banking Practice

ISBP 681 ■ Key elements of the main articles of UCP

600 ■ Processing non-compliant documents as

issuing bank ■ Processing non-compliant documents as

Nominated/Confirming Bank ■ Risks arising from non-adherence to UCP

600 & ISBP 681

Related issues ■ Assignment of Proceeds under Letters of

Credit

Specialised Letters or Credit ■ Transferable ■ Back-to-Back ■ Red Clause Credits ■ Revolving & Reinstatement Credits ■ Evergreen Credits ■ Standby

Contract Guarantees ■ Types ■ Risks ■ Security ■ URDG 758


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Structuring & Documentation Issues in Project Finance

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Course Overview

Project financing is at heart a form of secured lending albeit one which offers a unique set of challenges to all stakeholders. The obvious risks are amplified by high levels of gearing and limited or non-recourse nature typical of project financing.

A subtler, but often under-appreciated, risk arises from the multi-dimensional nature of the project finance which flows from the myriad of parties required to design, finance, approve, complete and operate the project. This aspect elevates the importance of the legal/contractual framework a factor acknowledged by S&P which has defined project finance as “a group of agreements and contracts between lenders, project sponsors, and other interested parties that creates a form of business organization that will issue a finite amount of debt on inception; will operate in a focused line of business; and will ask that lenders look only to a specific asset to generate cash flow as the sole source of principal and interest payments and collateral.

This programme is aimed at Lawyers and other professionals who are involved in project finance and infrastructure deals and who need to understand the core principles, key legal issues and techniques encountered in structuring robust project financings.

The programme focuses on the major commercial and legal issues that arise in the key legal documents that weld the project together as well as other critical aspects that encompass most if not all these agreements; for example, choosing the most appropriate Legal Structure/Vehicle for the project; assessing the integrity of the legal environment of the deal (e.g. Host country and Governing Law).

Bankability – overview of the main ■ What makes a project Bankable? ■ Market risk ■ Completion risk – 3 main aspects ■ Operating risks ■ Supply risk ■ Forex / Currency risk ■ Financing risk – interest rate risk & availabil-

ity (syndication) risk ■ Political risk ■ Force majeure risks – 4 kinds ■ Legal risk ■ Environmental risk

Key Structuring Principles & Issues ■ Creating a Non-recourse structure ■ Tax issues

• Group tax relief & Consortium* relief• Thin Cap rules• Transfer pricing issues• Withholding taxes

■ Subordination & what it is and why it mat-ters• Contractual vs. Structural

Choosing the Ownership & Project structures ■ The rationale for using an SPV ■ SPV vehicle types – pros, cons and risks

• Company• Partnerships • General • Limited• Unincorporated Joint Ventures

■ Review of the Contractual/ Project Framework ■ Review of various types of Project Delivery

methods • DBFM, BOOT, BOT, BOO, BLT• Leasing structures: Leveraged, Captive etc

Generic Issues in Documentation ■ Governing Law “clause” for the main con-

tracts - Finance, Construction, Operation• Rationale for inclusion• The Rome Convention

■ Jurisdiction “clause”• Rationale and importance • Liquidated Damages• General issues• Rules against Penalties - (q.v. M&J Poly



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• mers -v- Imerys Minerals)• Recent developments (q.v. Azimut-Ben-

etti v Healey 2010) ■ Force Majeure

• Key risks in Drafting• Poor/no definition - no recognised

meaning in English law ■ Dispute Resolution Generally

• Arbitration• Using Experts

The Project Agreement: key issues ■ 2 main types – Off-take Agreement or

Concession Agreement ■ Off-take Agreements

• Take-or-Pay vs. Take-and-Pay • Take-or-Pay penalty risk (q.v. M&J Poly-

mers -v- Imerys Minerals)• Other types: Long-term sales agree-

ments, Spot sales ■ Concession Agreements

• Typical sectors and examples• Structure• Key risks• Risky sectors – “Real” Toll Roads, Waste

Plants

Senior Facilities Agreement (SFA) & Term sheet ■ Debt Service

• Margin and margin ratchets ■ Specific issues for Revolving Credit Facili-

ties (“RCFs”) & Working Capital• Aspects relating to RCFs – clean-downs• Problems with Headroom

■ Key financial covenants – application, pros & cons• ADSCR• Loan / Bond Life• Project Life• Difficult issues (historic vs forward look-

ing, treatment of cash & cash reserves) ■ MAC clauses

• When they might matter• Borrower’s vs lender’s approach

Collateral/Security & Guarantees & Credit support

• Collateral• Typical assets subject to Security • Defensive security and the benefit of

the Negative Pledge

• Offensive Security ■ Guarantees vs Guarantees Indemnities

• Why they matter• Key issues - enforceability

■ Letters of Credit• Distinguished from Bonds and Guaran-

tees ■ Typical problem areas (formalities) ■ Bonds generally

• Tender / bid bond• Advance payment bond• Performance bond• Retention and maintenance retention

bonds

Hot issues for Sponsors (Techniques for boosting IRR & limiting exposure) ■ The Sponsor’s main aim - Improving the

Flow to Equity• Timing of Equity Injection• Using equity bridges

■ Optimizing the “Equity” structure• Subordination

■ Distributions to the Sponsor – Distribution lockouts

■ Cash and Cash sweeps – impact on Lever-age/ covenants

■ Issues re the various Control/Reserve / Escrow Accounts – Debt Service, Mainte-nance

■ Techniques for getting flexibility in the Loan Agreement• Cure rights• The Security Principles

Joint Venture / Shareholders issues ■ Main approaches to protection of minority

interests• Shareholder Agreements vs Articles of

Association – pros & cons ■ Board issues ■ Pre-emption issues & why they matter ■ Information rights ■ Exit, Termination & Deadlock

• Drag & Tag rights• Deadlock- Russian Roulette etc• Valuation on Exit – problems with “Fair

Value

Construction contracts ■ Key risk in Construction phase ■ Risk Allocating through the contract type





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• Fixed-price vs Cost-plus• EPC-Turnkey (fixed price)• P&C only

■ Risk mitigation techniques• Liquidated damages• Performance Bonds• Warranties• Contingency reserves (split between

debt & equity?)• Insurance• Step-in rights – collateral warranties or

schedule of third party rights ■ Issues with sub-contractors ■ Application of The Construction 1996 and

LDEDC Act 2009

Operating & maintenance ■ Key risks

• Operating efficiency• O&M increase – routine & major O&M• Market demand / Pricing• Input availability• Force majeure

Risk mitigation techniques• Take-or-pay agreement• Put-or-Pay agreements• Pass-through / Tolling agreements• Debt Service Reserves• Cash traps• Insurance

What Redcliffe’s clients are saying about the course;

“Experience of presenter and real life examples”

“Well structured and very open forum allowing dialogue on key queries”





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Negotiation Skills for Lawyers In-House or via Live Webinar

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Lawyers negotiate all day, regardless of whether they are involved in a formal negotiation. In fact, we all negotiate in both our professional and personal lives: that is the nature of social interaction.

However, legal negotiation is a unique creature. Lawyers act as agents not principals in negotiations, requiring a specific skill set. Both law firms and in-house counsel can’t afford not to impress their clients with their negotiating expertise. Understanding the skills required for a legal negotiation requires an in-depth understanding of our role in the process.

What is our role as lawyers? Clients don’t just want us to ‘translate’ an agreed commercial position into legal documentation… our legal expertise is a given. In addition, they expect us to understand their underlying motives, their business environment, the short and long-term consequences of any one deal, their relationships with the other parties, when to revert to them (and when not to)… the list goes on and provides the backdrop to how negotiations should be conducted.

Legal negotiations also differ in that they are contentious or non-contentious. In contentious negotiations, the outcome is not completely within the negotiating parties’ control as the lawyers must bear in mind the court process and the court’s likely attitude to how negotiations have been conducted. In transactional matters, there is more potential for the parties to have shared interests. There is also greater scope in non-contentious discussions to change the negotiating party. The seller of a business could, in theory, find another purchaser.

Due to the multiple business stakeholders involved in a transaction, it is also often a challenge to discover who is really driving the transaction terms. Does the board of directors have a different perception to the one director you receive instructions from on a daily basis? Is the procurement department adversely affecting this negotiation in the interests of consistency? A lawyer’s role involves mediating between these stakeholders and assessing the nuanced motives of the other side’s stakeholders. Clients expect lawyers to be holistic and cognisant of the need to bring other stakeholders along in the process.

This one day course, run by an ex-corporate finance solicitor, directly addresses the issues at the core of legal negotiation by asking delegates to consider 3 central questions:

■ Who are the people involved? ■ What are the problems (and how do we solve them)? ■ How do I effectively prepare?

Part 1 (Understanding People/ Human Dynamics)

This focuses on understanding your own effectiveness as a negotiator, assessing your client’s needs and trying to get to the heart of your opponent’s motivations.Participants will consider: ■ the myriad of stakeholders’ interests (for

example: commercial lead, procurement, IT, line management, board of directors,

other workstreams…) ■ the specific challenges for internal and ex-

ternal counsel ■ how to manage internal conflicts:

• who is the ‘true’ client? • do you need to facilitate clearer internal

agreement? ■ the role of lawyer as project manager ■ the role that Procurement have to play:

• recognition that they may have their own agenda (and have their own performance metrics)


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• recognition that the procurement agen-da might not be entirely aligned with your other client stakeholders

■ the importance of a communication strat-egy:• how are you going to communicate the

right amount of detail to the right peo-ple at the right time, through appropri-ate channels

• striking a balance between lengthy de-bate and alienating stakeholders.

In terms of individual skills, it is well recognised within the learning and development industry and social science that skills are learnt through practice and self-evaluation.

To that end, participants will: ■ evaluate their own and others’ negotiating

experiences ■ analyse attitudes, styles and personalities

within negotiation ■ consider essential verbal and non-verbal

communication skills ■ practice listening and questioning tech-

niques ■ consider the differences between and

challenges inherent in different types of negotiation setting:• telephone • email• face-to-face

■ assess how and why tactics and gambits are being employed by opponents

■ consider how to deal with difficulties, such as:• difficult people• emotive subject matter• deadlock

Part 2 (Solving Problems).

Recognising that the issues to be decided upon should be separated from the personalities involved is the first step. Next comes working out possible solutions to the issues at hand and being prepared to adapt to changes and new information.

Participants will: ■ discuss positional and principled nego-

tiation theories (Fisher & Ury’s Getting To Yes and Getting Past No, the Harvard Negotiation Project and Dr C Karass, amongst others)

■ explore how to find mutually satisfactory

solutions, or, if this is not possible, explore how to create persuasive arguments which will influence stakeholders

■ develop lateral thinking skills

Part 3 (Preparing to Negotiate).

Abraham Lincoln once said “if I had eight hours to chop down a tree, I’d spend six sharpening my axe”. Part 3 emphasises the importance of effective preparation for effective negotiation.

In teams, participants will: ■ consider the importance of factoring in time

to develop strategies with the client(s) ■ recognise that decisions often need to be

made in real time in negotiations: what are you empowered to agree?

■ prepare for a negotiation using a detailed legal scenario and preparation grid

■ Identify:• ZoPAs• BATNAs• walkaways• underlying interests

■ develop legal and negotiation strategies ■ practice negotiation ■ reflect on the effectiveness of the strategies

employed


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Persons of Significant Control Registers: What Private Equity Funds need to know

In-house or via Live Webinar

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The Small Business, Enterprise and Employment Act 2015 (SBEEA) received Royal Assent on 26th March 2015 and the majority of its provisions are now in force. The aim of the SBEEA is to enhance ownership transparency of UK companies and Limited Liability Partnerships as well as increasing trust in the UK as a place to do business. In addition, as part of the Government’s Red Tape Challenge, the SBEEA has made changes aimed at simplifying filing for small businesses and improving the accuracy of information on public registers at Companies House.

The most significant aspect of the SBEEA is the new requirement for all UK companies (with some limited exceptions) to create and maintain a register of persons of significant control (PSCs).As of 6th April 2016, all UK companies and LLPs were required to create a PSC Register documenting who are their PSCs or, if the identity or full information of the PSCs is not yet known, to commence investigations.

From 30th June, UK companies and LLPs will be required to update a public PSC register at Companies House in the new Confirmation Statements which are replacing the Annual Return. It is a criminal offence not to comply with these new provisions.

What is a PSC? In very basic terms it is a shareholder who owns over 25% of a UK company or, in relation to an LLP, it is a member entitled to share in over 25% of the surplus assets of the LLP on a winding up. However, there are “5 Specified Conditions” including anyone who “holds the right to exercise, or actually exercises significant influence or control” over the company or LLP. It is this aspect of the legislation which is causing the most concern and difficulty for companies/LLPs looking to establish who their PSCs are. Note also that there is a proactive obligation on PSCs themselves to notify.

In addition, the legislation requires companies to ‘look through’ non-legal entities such as trusts, partnerships and limited partnerships to find persons who have the right to exercise or actually exercise significant influence or control over the trust/partnership/limited partnership. This clearly has implications for the usual corporate structures employed by private equity funds as typically they will include limited partnerships and general partner LLPs.

■ Reasons for the SBEEA changes; ■ A brief summary of the key corporate law

changes under the SBEEA, including: •Changes to the definition of shadow direc-tors •Abolition of corporate directors •Director and registered office disputes •Abolition of bearer shares;

■ PSC Registers:• How to identify PSCs of companies and

LLPs under the “5 Specified Conditions”• Exceptions• How to determine direct and indirect in-

terests• Statutory Guidance on the 4th Condition

(Persons of Significant Control)• Non-Statutory Guidance• The PSC Regulations• Which PSCs are registrable• What information needs to go on the PSC

Register• Obligations on PSCs; and

■ Analysis of the PSC regime from the per-spective of typical private equity structures, considering the following questions:• Which entities must create and maintain a

PSC Register?• How does Condition 5 work in relation to

Trusts and Limited Partnerships?• Can Limited Partners be PSCs?• Who could be a PSC in relation to a Limited

Partnership? • Who could be a PSC in relation to a Limited

Liability Partnership?• Can lenders be PSCs?

■ Private equity structure charts showing where there are potentially registrable PSCs or RLEs (Relevant Legal Entities).

■ Insights from recent Companies House events attended by the speaker.• Likely similar developments in Europe due

to implementation of the Fourth Money Laundering Directive.



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Directors - The Good, The Bad and The Ugly


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This one-day course in two sessions is aimed at those wishing to develop an understanding of all aspects of being a private company director, from the positives to the warning signs and consequences of difficulties. It will be particularly useful for corporate and litigation lawyers, company secretaries advising directors and directors themselves. The day uses a realistic case study and recent case law examples (such as Dickinson v NAL (2017)) to explore how directors should run private companies and what happens when they get it wrong.

Uniquely, the sessions are run by two different experts to give delegates the benefit of differing perspectives.

Participants will: ■ Be introduced to the Directors duties andhow the duties should be considered when making

decisions ■ Have explained to them how to make decisions when a company is in financial difficulty ■ Get to grips with the range of other responsibilities attaching to directors ■ Be introduced to what constitutes “ Unfit” conduct ■ Get an overview of the new Compensation Order regime ■ Have explained to them the new Insolvency Practitioner reporting on directors requirements

and what this means for directors

AM: How should directors make decisions?

This session includes:

■ Board meeting best practice ■ Directors duties:

• the statutory duties explained• other non-statutory duties• transactional vs situational conflicts• how the duties should be considered

when making decisions ■ Active and passive directors’ responsibilities ■ Transactions with directors:

• Substantial property transactions• Loans• Service contracts

■ Dealing with conflicts ■ Making decisions when a company is in fi-

nancial difficulty:• The central s.172 duty• Wrongful/fraudulent trading• The range of possible liability

■ The range of other responsibilities attaching to directors, for example:• company accounts• health & safety• employment law• competition law

• fraud• bribery

■ What shareholders can do to hold directors to account

■ Possible reliefs and protections for direc-tors

PM: What happens when directors get it wrong?

The most likely outcome is disqualification for ‘unfitness’ in the context of corporate insolvency.

This session explores what unfitness means: who can seek a disqualification order and how directors are prosecuted. In addition, other areas of potential liability for the errant director are considered, notably wrongful trading and misfeasance. We shall also look at proactive steps that can be taken to avoid potential action. The session will include:

■ An analysis of what constitutes “ Unfit” conduct

■ Practice and Procedure in the disqualifica


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■ tion arena:• likely length of disqualification• exceptions• the Insolvency Service approach to en-

forcement ■ Consequences of Disqualification Orders or

Undertakings ■ The new Compensation Order regime:

• what does this mean• difficulties

■ Wrongful trading: • what needs to be proven• recent case law

■ Misfeasance and other breaches of duty ■ Recent case law developments ■ Tips and tactics on how to prevent liability ■ The new Insolvency Practitioner reporting

on directors requirements and what this means for directors.

These areas are particularly topical given recent changes in the whole field of insolvency law (pursuant to the Small Business Enterprise and Employment Act 2015 implementing legislation).


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FATCA - The Important Provisions & Practical ComplianceIn-House or via Live Webinar

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Course OverviewThe 1st Module

This is designed to provide a basic understanding of the important aspects of The Foreign Account Tax Compliance Act (FATCA) provisions and the impact it has on the contracts entered into by various financial institutions in the current market. Such provisions will of course vary from institution to institution and from transaction to transaction depending on the nature and type of transaction hence this course seeks to discuss the most common provisions currently in use in today’s market.

Initially we will set the scene by going through the background of the underlying US legislation from which FATCA emerges followed by the core elements of the FATCA provisions. We will then cover the obligations imposed by FATCA in particular the withholding tax obligation.

We will then go through the key terms defined in the legislation such as withholdable payments, sale or disposition, the exceptions and pass through payments. We will cover in detail the types of entities affected by FATCA by discussing the definitions of Foreign Financial Institutions (FFIs) and Non-Financial Foreign Entity (NFFE). We will discuss the financial account, the grandfathered obligations and the concept of material modifications from the FATCA perspective.

We will then move on to cover the various models of Intergovernmental Agreements (IGAs) and the timeline for implementation of FATCA. Finally we will go through the typical FATCA representations and warranties and the tax gross up obligation clauses. We will also cover the definition of “Affiliates” and finish off with a questions and comments session.

The 2nd Module

This will cover the practical compliance and financial reporting aspects in the UK relating to FATCA.

We will discuss the implementation of FATCA in the UK and the UK/US IGA. We will then cover the 4 main obligations of the Reporting Financial Institutions and what information is required to be reported. We discuss the consequences of non-compliance and for avoidance. We go through the key differences between the FATCA regime and the CRS.

We then go into detail on submitting a FATCA Return and discuss the HMRC’s guidance’s on registration and reporting.

This course is relevant for in-house lawyers and private practice lawyers alike and bankers involved in structured finance, from the documentation teams to the structurers. This course will also be of relevance to financial institutions such as asset managers, portfolio managers, hedge funds and investors involved in structured finance documentation.

1ST MODULE – THE IMPORTANT PROVISIONS

Introduction and Scope

What is FATCA? ■ Background ■ Core Elements of the FATCA Provisions ■ FATCA Impositions ■ The Withholding Tax Obligation ■ Withholding Agents ■ How Are Entities Affected

• Foreign Financial Institutions (FFIs)• Non-Financial Foreign Entities (NFFEs)

The Key Terms ■ Withholdable Payments ■ Definition of ‘US Source FDAP Income’ ■ Definition of ‘Sale Or Other Disposition’ ■ Exceptions ■ Pass thru payments ■ Financial Account

Grandfathered Obligations ■ Pre-existing Obligations ■ Material Amendments

Intergovernmental Agreements (IGAs) ■ Model 1 IGA ■ Model 2 IGA


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■ Current IGAs

Timeline for Implementation

Common FATCA Provisions ■ Tax Gross Up Obligations ■ Tax Indemnity ■ Increased Costs ■ Agent Replacement ■ Information Sharing ■ Representations and Warranties ■ Post-Brexit Withholding Concerns

Loan Agreements and FATCA ■ Points to bear in mind ■ Payments subject to FATCA ■ Standard LMA Clauses ■ Brexit Implications

2ND MODULE – PRACTICAL COMPLIANCE

Implementation of FATCA ■ Background ■ Framework of UK/US IGA & UK Regula-

tions ■ Who it applies to ■ Reporting and Non-Reporting Financial

Institutions ■ 5 Categories of Financial Accounts and

Exemptions

4 Main Obligations of Reporting Financial Institutions ■ Registration with IRS – Reporting Format

for Registration ■ Reporting Structure ■ Reporting Thresholds

■ Due Diligence• Pre 30 June 2014• post 1 July 2014

Information To Be Reported ■ Global Intermediary Identification Number

(GIIN) ■ Taxpayer identification number (TIN)

• Year 2015 onwards• Year 2016 onwards

■ NFFEs and Passive NFFEs

Submitting FATCA Return ■ HMRC’s Registration Guidance

• Exchange of information ■ Existing Users ■ New Users

• Completing Registration ■ HMRC’s Reporting Guidance

• Overview of Automatic Exchange of Infor-mation (AEOI) Reporting Process

• Creating an AEOI Return for FIs ■ Online questions ■ Accountholder types ■ Accountholder details and number ■ Account types


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Transfer PricingIn-House or via Live Webinar

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This course is intended for those who need to understand transfer pricing. The course is particularly relevant for companies that have branches or companies in different countries that trade with each other. Even if there is no intention to use an international structure to avoid tax, transfer pricing is still a relevant factor to ensure compliance with regulations.

The course is set in the context of current international tax agreements with regards to reporting and compliance with anti-avoidance provisions.

Various forms of transfer pricing are considered, including thin capitalisation and similar financial arrangements. We look at reporting requirements, obtaining agreements with HMRC and how to appeal against a decision.

Introduction and brief history ■ General principle of transfer pricing ■ Current government and international policy ■ Scope of transfer pricing ■ General legal principles ■ Application in relation to securities, loans and

guarantees

UK transfer pricing rules ■ Who is within the scope of the rules? ■ Definition of small and medium-sized compa-

nies ■ Scope of exemption for small and medi-

um-sized entities ■ Issues of residence and non-qualifying territo-

ries ■ Transactions within the scope of the rules ■ Nature of control, including linked enterprises

and indirect control ■ Provisions for partnerships and joint ventures ■ Control in relation to financing transactions ■ Thin capitalisation

General rules for transfer pricing ■ Compensating relief ■ Balancing payments ■ Matching loans and derivative instruments ■ Interaction with capital allowances ■ Application to interest-free loans

Self-assessment aspects ■ Keeping adequate records ■ Reporting transfer pricing

■ Justification of transfer prices ■ HMRC enquiries ■ Advance pricing agreements, with examples ■ Advance thin capitalisation agreements

Other aspects ■ Anti-avoidance provisions generally ■ Deduction and receipt schemes ■ Tax arbitrage ■ Appeals


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Business & Contract Law


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Contracts are critical for and interdependent with commercial relations in that they can enhance or destroy long held commercial relations invested in over time.

The course looks at what parties entering into a commercial transaction need to address and be aware of such as what is the effect of a pre contract document, do the parties have a binding or non binding contract. What specific clauses should be inserted for the context and nature of the transaction and how they are reflected in the contract documents.

The course recognises the commercial and legal problems that regularly arise during the life cycle of a contract. It covers the thorny issue of letters of intent, confidentiality, terms implied by law regardless of whether or not they are set out in the written terms.Coming to the end of the life cycle of a contract the programme focuses on contract terms to pay specific attention to such as best and reasonable endeavours, time is of the essence, force majeure, termination and jurisdiction.

During the course participants will look at case studies, sample documents and receive checklists to assist them during and after the course as they apply the learnings in their everyday work.

Introduction – Essentials of a Contract ■ What are the risks you want to cover? ■ Key considerations ■ Drafting ■ Effectively and easily reading a contract ■ Interpretation of contracts ■ Key legal considerations ■ Letters of Intent (LoI) and Memoranda of

Understanding (MoU’s) – Beware ■ ‘Subject to Contract’

Formation of Contract ■ What is a contract? ■ What do you need for binding and enforce-

able contract ■ 6 essentials to make a binding contract ■ Offer and Acceptance ■ Consideration ■ Certainty and Capacity ■ Intention to be legally bound ■ Formalities

Confidentiality Agreements with Sample Document ■ What is confidential information? ■ NDA/Confidentiality letters ■ Effectiveness ■ Remedies for breach – injunction or dam-

ages

Terms and Conditions ■ Express terms ■ Implied terms by statute ■ Implied terms by law and custom ■ Terms you did not realize were in your

contract ■ Standard terms – whose terms apply

■ Late Payment of Commercial Debts (Inter-est) Act 1998

How to Read A Contract & Interpretation ■ Purpose ■ Structure ■ Questions to ask ■ Interpretation of meaning ■ Drafting clauses ■ Amending clauses

Liability and Damages ■ Exclusion of liability ■ Limitation of Liability ■ Liquidated and Ascertained Damages (LAD’s)

Clauses ■ Remedies ■ Damages

Contract Terms to Pay Specific Attention To ■ Best and reasonable endeavours – the differ-

ence ■ Time is of the Essence ■ Entire agreement clauses ■ Force Majeure ■ Variation ■ Notices ■ Termination ■ Governing law ■ Execution of Contracts and Deeds – require-

ments for validity

Clinic ■ To discuss and resolve participants contrac-

tual questions

Case studies

Sample documents and checklists


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Advanced Negotiation Issues & Trends in Restructuring


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The course is aimed at lenders, sponsors, lawyers, accountants and other advisers involved in this sector, management and other professions (investment advisers) operating in the European environment who require a greater insight into the key issues which arise in financial restructurings. The course will also discuss briefly the potential impact of Brexit on existing and new documentation.

This course explores the negotiating levers which various parties can use to obtain a seat at the negotiating table together with the restructuring methods, solutions, techniques and tactics for managing all the players as well as the practical issues which will face parties in leveraged and unleveraged deals and, drawing on the trainer’s experience, offers a practical template on how to respond to the issues they are likely to face. The programme will also review the key points of the Draft EU Directive harmonising restructuring and insolvency matters published on 22nd November 2016.

■

Participants will:

■ Have explained to them the restructuring route map, examining the numerous steps and op-tions

■ Learn about how to get a seat at the negotiating table – tools and techniques ■ Consider schemes of arrangement – their relevance and how they work ■ Be taught about pre-packs and their use in the UK and elsewhere in Europe ■ Master restructuring techniques under U.S pathways ■ Get to grips with (i) debt for debt and (ii) debt for equity swaps ■ Gain an appreciation of issues specific to syndicated / laminated deals ■ Gain an understanding of the likely impact of Brexit ■ Be appraised of the importance of the draft EU Harmonisation Directive on Restructuring

Course Objectives


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Restructuring routemap: 6 steps, 10 options

■ The Restructuring route-map – 6 key steps ■ Ten key options for restructuring ■ Overview – Restructuring methods

• Out of court approach• Scheme of Arrangements generally• UK tools – Administration & CVAs (avail-

ability to non-UK firms)• Prepacks – availability in UK, the Conti-

nent • Chapter 11 (USA)

Getting a seat at the negotiating table – tools and techniques

■ Levers for Senior secured lenders (pre-de-fault & post default)

■ Levers for Junior secured lenders (pre-de-fault & post default)

■ Levers for unsecured junior lenders ■ Lessons from European Directories & other

key cases ■ Levers for unsecured (trade) creditors ■ Levers for equity holders (Management and

PE)

Valuation issues

■ Why valuation matters ■ Theoretical approach – why & where it’s

wrong ■ Landmark cases (IMO & Stabilus) where

they went wrong…and right ■ A more practical approach to valuation

Schemes of Arrangement

■ Jurisdiction – Application to foreign compa-nies/jurisdictions• Application to Foreign companies – Ger-

many (Rodenstock, Apcoa), Spain (Cor-tefiel), Holland (Magyar Telecom)

■ EU Judgements Regulation – founding juris-diction in England• Art 8 (how many creditors must be in

England) review of relevant cases• Art 25 (the English jurisdiction clause)

relevant cases on problem areas ■ Different types of creditor Schemes

• Secured Debt transfer (IMO)• Unsecured debt transfer (e.g. MyTravel,

Cattles)• Minorities scheme

■ Specific issues in Schemes

• Typical creditor groups• Can Schemes bind claims of secured cred-

itors?• Impact on Inter-creditor rights and obliga-

tions• Moratoria pending sanction of a scheme

(q.v. Vinashin)• Issue affecting “Class” – Collateral rights

vs interests • Who are the “Creditors” & what happens if

they wear two hats (relevant cases)• What about fees• Using the appropriate “Comparator”

Pre-packs, Administration and CVS – UK and Europe

■ Administration – general overview pros & cons

■ CVAs – general overview pros & cons ■ UK Pre-packs generally – use and abuse

• Operational pre-pack• Purpose of a pre-pack • Impact on key stakeholders

■ Availability in selected countries on the Con-tinent• France (Autodistribution case)• Netherlands (Schoeller Arca case)• Germany (Schutzschirmverfahren + Insol-

vency Plan)• Spain (Spanish Insolvency Act 2011)

Case Study: Review of McCarthy & Stone (Pre-packaged Administration & Schemes)

Restructuring under U.S pathways

■ Chapter 11 and Chapter 15• What is the gal of Chapter 11

■ Aspects of Chapter 11• General application and founding jurisdic-

tion• Procedure, Timing • Automatic stay - Worldwide impact (practi-

cal application)• Cherry picking contracts• §363 Asset Aales• DIP funding• Role of Management

■ The Chapter 11 Plan • Classes & voting (who votes who doesn’t)• Requirements for Craming-down

■ Cram–up• Rationale & application• Examples in practice

■ Other restructuring options in the U.S.• Pre-packs• Pre-arranged plan


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• Out-of-court workouts

Debt for Debt & Debt for Equity swaps – overview of key issues

■ Issues for new equity/debt• Shareholder protection• Information issues• Exit issues• Priority and ranking

■ Form of new & old money• Pay-in-Kind (PIK), Pay-if-you-Can

(PIYC), Pay-if-you-Want (PIYW)• Warrants• Preference shares• Convertibles• Equity (ranking, types)• Pension deficit 4 Equity swap (Uniq case)

■ Methods for calculating the amount of equi-ty / PIK

■ Credit bidding • Is it available under the Intercreditor

(2009 vs 2012) • The Stabilus position• Credit bidding in action

Issues specific to syndicated / laminated deals

■ Role of the Facility And Security Agent ■ Syndicate composition – who is in /out

(sub-participations) ■ Steering Committees – issues in formation ■ Standstills agreements – key terms, diffi-

cult issues

Impact of Brexit

■ COMI ■ Events of default ■ MAC clauses ■ Force majeure ■ Passporting issues ■ Governing Law and Jurisdiction

CASE: Calculating the equity warrants in distress; reviewing other recovery options; key issues for the lenders to consider post D4D or D4E

Draft EU Harmonisation Directive on Restructuring

■ Background ■ The three minimum key elements ■ Review of the Key principles ■ Relevance of Brexit


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Persons Of Significant Control RegistersIn-House or via Live Webinar

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PSC Registers were brought into being by the Small Business, Enterprise and Employment Act 2015 (SBEEA) to enhance ownership transparency of UK companies and increase trust in the UK as a place to do business.

As of 6th April 2016, all UK companies were required to create a PSC Register documenting who are their PSCs or, if the identity or full information of the PSCs is not yet known, to commence investigations. It is a criminal offence not to comply with these new provisions.

As of 30th June 2016, UK companies were required to update a public PSC register at Companies House in the Confirmation Statement which replaced the Annual Return. However, this system has now been replaced by ‘event-driven’ notification to Companies House.

18 months on and companies are still struggling with this new legislation with many getting it wrong.

What is a PSC? In very basic terms it is a shareholder who owns over 25% of a UK company. However, there are “5 Specified Conditions” including anyone who “holds the right to exercise, or actually exercises significant influence or control over Company Y”. It is this aspect of the legislation which is causing the most concern and difficulty for companies looking to establish who their PSCs are. Note also that there is a proactive obligation on PSCs themselves to notify companies.

If getting your head around the PSC regime was not difficult enough, from 26th June 2017, companies were required to update their registers on an event-driven basis and new entities have been brought into scope due to implementation of the Fourth Money Laundering Directive. The trainer has the latest position from Companies House on this and their approach to enforcement.

■ How to identify PSCs under the “5 Specified Conditions”

■ Exceptions ■ How to determine direct and indirect inter-

ests ■ Statutory Guidance on the 4th and 5th Con-

ditions ■ Non-Statutory Guidance ■ The PSC Regulations ■ Which PSCs are registrable ■ What information needs to go on the PSC

Register ■ Obligations on PSCs

■ Practical difficulties with the regime ■ What changed on 26 June 2017 and hori-

zon-scanning

This course is essential for anyone wishing to gain an overview of the extensive (and somewhat unwieldy) legislation, statutory guidance, non-statutory guidance and regulations together with some practical advice. The course is relevant to anyone involved with UK companies, whether they are in the UK or overseas.


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Secondary Equity Offerings - Structure & Regulation Update


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■Course Overview

This course looks at the way recent secondary equity offerings such as rights issues, open offers and placings have been undertaken on the London market and the regulations which apply to them. It also considers the advantages and disadvantages for the issuer of each type of offering.

In the last few years, the challenging conditions have led to developments in the structures for secondary equity offerings, with increased use of deep discount rights issues and cash box placings as well as the emergence of compensatory open offers, cornerstone investors and new underwriting procedures.

These structures are examined on the course together with the changes in listing and prospectus rules and pre-emption principles which have accompanied them and the further reviews which are underway.

Participants will:

■ Learn about the UK regulation for equity issues with an understanding of the Prospectus Rules and the Disclosure and Transparency Rules

■ Get to grips with the structures for UK equity offerings, in particular rights issues ■ Contrast rights issues with open offers ■ Get to grips with other potential structures for equity offerings, such as cash box placings ■ Appreciate the role of cornerstone investors ■ Understand the means of marketing shares, including internationally ■ Be taught about price setting mechanisms such as bookbuilding ■ Be introduced to the relevant legal agreements, such as underwriting and placing agreements ■ Learn which structure to use, e.g. fixed price vs. bookbuilding

Introduction

■ Current market trends

UK regulation for equity issues

■ Companies Acts and FSMA ■ Pre-Emption Group Statement of Principles

March 2015• Application of principles to companies/

issues• General disapplications• Financing acquisitions• Considerations for specific disapplications

■ Premium listing, Prospectus and Disclosure and Transparency Rules

■ Proposed changes to Prospectus Regime and Market Abuse Regulation

■ Structures for UK equity offerings ■ Rights issues

• Traditional and deep discount• Rise of fees• Rights Issue Fee Inquiry conclusions• OFT market study of equity underwriting

recommendations

• IMA Transaction Guidelines November 2014

• 2015 FCA market study of competition in investment banking market

• Shortened timetables ■ Open offers/ placings with clawback and

other placings ■ Recent structures

• Compensatory open offers• Cash box placings and rights/open offers• Other securities• Cornerstone investors

Means of marketing shares

■ Markets ■ Institutional and retail offerings ■ International tranches

• US issues ■ Pre-marketing and marketing


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Price setting mechanisms

■ Fixed price ■ Bookbuilding

• The process• Accelerated bookbuilding• “Red herring” prospectus• Allocation, “Greenshoe” and stabilisation

Legal agreements

■ Underwriting agreements• Recent issues

■ Placing agreements

Which structure to use

■ Rights vs. open offer vs. placing ■ Fixed price vs. bookbuilding

Secondary Equity Offerings - Structure & Regulation Update


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The AIM Game-How to list on AIM and What Happens Next?In-House or via Live Webinar

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AIM: “the most successful growth market in the world” (London Stock Exchange website) or ‘the Wild West’ of investment?

AIM, previously known as The Alternative Investment Market, was created to cater for the needs of smaller companies who could not meet the conditions for listing on the Main Market or preferred the less onerous regulation of the AIM Rules. Since its launch in 1995, over 3,650 companies have chosen to join AIM. However, in recent years AIM has seen a distinct lack of new issues and overall numbers have dropped below 1000.

Whilst the LSE agrees that the last couple of years have been difficult for the AIM market, it argues: “For a growth market like AIM, the ability of existing companies to come to the market for fresh funds is almost more important than the number of IPOs.”

This one-day course explores why companies opt for AIM as opposed to the Main Market, the process for floating under the AIM Rules and other legislation plus what life is like for an AIM listed company from a legal perspective.

The course is run by an ex-Clifford Chance and Gouldens corporate finance lawyer who during her career worked on a variety of Main Market and AIM listings.

The course will cover the following:

■ Reasons for choosing AIM ■ Conditions for admittance to AIM ■ How eligibility requirements compare with

the Main Market ■ Structuring Primary and Secondary share

issues on AIM ■ Prospectus and Admission Document re-

quirements under the Financial Services and Markets Act 2000 and the AIM Rules

■ The AIM Rules (as compared to aspects of the Listing, Prospectus, Disclosure and Transparency Rules)

■ Recent changes to the AIM Rules as a conse-quence of the Market Abuse Regulation

■ The role of the NOMAD (the Nominated Advisor) and Broker in advising a company quoted on AIM (and how this compares to the role of a Main Market Sponsor)

■ Corporate Governance regulation on AIM ■ Moving on from AIM to the Main Market ■ Practical examples of AIM successes and

failures ■ Likely future developments generally and as

a result of Brexit

Delegates will consider an AIM case study, taking an analytical look at key clauses from the relevant documentation relating to a float, placing and subsequent continuing obligations. Wherever possible, the usual negotiating positions of the parties will be highlighted together with the

regulatory requirements under the AIM Rules. Documentation reviewed will include the following:

■ Admission Document:• Form and layout• What needs to go in the cover pages• Rules governing the ‘front end’ (key infor-

mation, risk factors, business information and financials)

• ‘Back end’ requirements ■ Placing/Underwriting Agreement:

• Placing/underwriting obligations• Indemnity

■ NOMAD and Broker Agreement ■ Ancillary/supporting documentation, such as:

• Directors Duties’ memorandum• Responsibility Letters• Verification• Lock-up Agreements• Relationship Agreement

■ Regulatory announcements

Course notes will be provided together with exercises (and answers) relating to the topics discussed, useful web-links and a full list of documentation that may be required on an AIM float. Delegates may find it beneficial to bring a laptop or tablet to the course (although this is not essential).


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Share Capital


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Course Overview

As the title suggests, the course is a practical and interactive “How to” guide covering share capital procedures such as allotting shares or implementing buybacks (see full list below) as well as how to declare a dividend.

Throughout the course the trainer also poses the important question of whether and how defects in procedure can be fixed, recognising that often professionals are called in to advise when the legal procedures have not been adhered to. How to reduce the risk of director liability is also discussed in the context of recent case law.

This half-day course is designed for directors, company secretaries, lawyers, accountants or another business professionals working for or advising a company. It is suitable for all levels of experience as either an introduction or a refresher.

Participants will: ■ Be introduced to what is share capital and what is a share. ■ Get an overview of the concept of authorised share capital under the 1985 Companies Act and

the effect of its abolition ■ Have explained to them ther recent case law and what these cases tell us about directors’ liabil-

ities in relation to share capital procedures ■ Gain an understanding of which defective procedures can be ratified and which are void

■ What is share capital and what is a share ■ What is a share class ■ Common share classes (including preference

shares, growth shares, alphabet shares) ■ The concept of authorised share capital un-

der the 1985 Companies Act and the effect of its abolition

■ How to allot shares ■ Authority to allot and pre-emption rights on

allotment ■ The Doctrine of Maintenance of Share Capi-

tal and its effect on share capital procedures ■ An overview of how to alter share capital ■ Reduction of share capital ■ Redemption of shares ■ Purchase of own shares/ buybacks ■ Declaring a dividend:

• What is a dividend• The difference between final and interim

dividends• An analysis of what should go into board

minutes declaring a dividend ■ Which defective procedures can be ratified

and which are void ■ Recent case law and what these cases tell us

about directors’ liabilities in relation to share capital procedures

■ Subject to interest, some issues specific to

companies trading on UK stock exchanges.

The course materials include:

■ A full glossary of share capital terminology ■ Course Notes ■ Example shareholder resolutions relating to

share capital ■ Example minutes for an interim dividend ■ A schedule explaining the procedure for

share transfers (due to time constraints, share transfers are not discussed in any detail during this half-day course)

Note: this course does not cover the detailed tax or accounting aspects of share capital.


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Securitisation & Structured Products: Upcoming Regulatory ChangesIn-House or via Live Webinar

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Course Overview

This Structured Products & Upcoming Regulatory Changes course is designed to provide coverage of the important aspects of upcoming regulatory changes within the securitisation and structured products arena and the popular structured products in the market.

During the course, we will go through an exercise covering example scenarios whereby you may come across inside information. This could happen, for example, in the course of advising or dealing with clients or when you are working on documents, when you enter a meeting room or even if you overhear a conversation in the lift or see a document left on a printer. The new rules (“Market Abuse Regulation”) came into effect in July 2016 and carry both civil and criminal sanctions.

This course is relevant for in-house lawyers and private practice lawyers alike and bankers involved in structured finance, from the documentation teams, structurers, sales teams to compliance personnel monitoring such transactions as well as accountants who advise clients on structured finance transactions. This course will also be of relevance to asset managers, portfolio managers, hedge funds and investors such as wealth funds, pension’s funds, insurance companies looking to invest or be involved in structured products and securitisation.

The course sets the scene by giving you an introduction to Structured Products, the various types of transactions, the eligibility criteria and the role of the Portfolio Manager. The impact of the credit crisis on structured products is briefly discussed before moving on to the different types of Structured Products in detail.

We go through the different types of securitisation structures in the market and cover the pertinent issues to consider when undertaking due diligence of the underlying assets. We further cover the risk factors that are typically disclosed to investors and various regulatory considerations.

We undertake a detailed analysis of the multitude of key issues and features involved in and the variety of structures in Structured Products transactions. We cover CDOs, CLOs, CBOs, CLNs, CDSs, and CPPI transactions. We go through ABCP Conduit Programmes and repackaging programmes and transactions. We cover key legal issues, regulatory issues, documentation issues and timelines. We also touch on the various types of Structured Equity Derivatives Products, fund linked products and hybrid products.

An overview of the EU and US regulatory framework within which UK securitisations and Structured Products operate and a summary of the latest reforms of interest to structured finance lawyers is covered. We then focus on EU and US reforms having a direct impact on securitisation, CDO and CLO transactions including the ringfencing regime. We cover the risk retention requirements, credit ratings reforms and industry-led initiatives promoting transparency and disclosure.

Trained as a lawyer, the trainer has over 19 years experience in international banking and structured finance transactions, including real estate finance, loans, leverage finance, debt capital markets, securitisation, structured products, repos, derivatives and financial regulatory and compliance.

She has been actively involved in the creation of innovative award winning structured transactions and negotiating complex financings. She has advised global institutions such as Credit Suisse, Citigroup and Goldman Sachs and spent many years practicing law at Allen & Overy LLP, Linklaters and Sidley Austin Brown & Wood in multiple jurisdictions including London, New York, Hong Kong, Singapore etc.

She holds a Law LLB (Hons) degree from University College London and has worked in the Finance Know-how team at Clifford Chance. She is an author and now runs her own business advisory, training and legal consultancy.

Background of the trainer


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Introduction: Structured Products ■ Static Transactions ■ Revolving Transactions ■ Managed Transactions ■ Eligibility Criteria ■ The Role of a Portfolio Manager

• Standard of care• Recent case law: UBS AG (London

Branch) and another v Kommunale Was-serwerke Leipzig Gmbh; UBS Ltd v Depfa Bank plc; UBS AG (London Branch) v Landesbank Baden-Wurttemberg [2014] EWHC 3615 (Comm), [2014] All ER (D) 47 (Nov)

• The Removal of a Portfolio Manager ■ Cash vs Synthetic ■ Balance Sheet vs Arbitrage ■ Impact of the Credit Crisis

CDOs, CLOs and CBOs ■ Types of Portfolio ■ Structure and Key Features

• Static Cash CDO• Managed Arbitrage Cash CDO• Managed Arbitrage Synthetic CDO• Balance Sheet Synthetic CDO

■ Core Concepts • Overcollateralisation Tests• Interest Coverage Tests• When Tests Are Applied• Consequences of Breach• Priority of Payments of Notes – OC Tests

■ The CDO Timeline• Managed CDO Timeline• Warehousing Period• Ramp Up Period• Reinvestment Period• Amortisation Period

■ Capital Structure ■ Key Legal Issues

• Control of changes and waivers• Events of default/enforcement• Prospectus liability• Selection of Portfolio Manager

Asset backed Commercial Paper (ABCP) Conduit Programmes and SIVs ■ Structure of ABCP Conduit ■ Types of guarantees ■ Structure of SIVs ■ Key Features and Differences between SIVs

and ABCP conduits ■ Differences between SIV vs CDO

Credit Linked Notes (CLNs) ■ Key Features and Structure ■ Types of CLNs

• Single name• Linear Basket• Nth to Default Basket• Index Linked• Zero Coupon• Self Referencing

■ Key issues to consider in documentation ■ What happens on Credit Events

• Physical Settlement• Cash Settlement• Auction Settlement

■ EMIR Requirements for Clearing

Credit Default Swaps (CDSs) ■ Structure and Key Features ■ Benefits ■ Types:

• CDS on ABS• Basket CDS

■ Portfolio CDS ■ Nth to Default CDS

• Loan only CDS (LCDS) ■ Documentation

Constant Proportion Portfolio Insurance (CPPI) Transactions ■ Structure and Key Features

• Rebalancing• Static• Managed• Gap Risk• Cash out Event

■ Example ■ The Benefits ■ The Documentation

Structured Equity Derivatives Products ■ Equity Linked Notes

• Yield Enhancement • Principal Protected Structure

■ Equity Linked Deposits• Equity swaps and options combined• Example

■ Hedge Funds ■ Fund of funds ■ Fund Linked Notes ■ Convertible Bond Arbitrage – Credit Default

and Equity swaps combined

Repack Programmes ■ Basic Structure and Key Features ■ Benefits ■ Documentation

Securitisation & Structured Products: Upcoming Regulatory Changes






Course Content



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Course Overview

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Securitisation & Structured Products: Upcoming Regulatory ChangesContinued...

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Course Overview

■ Repackaging ABS for ECB repo eligibility

ORAL EXERCISE: Example scenarios relating to the Market Abuse Regulation (“MAR”) which aim to prevent abuse of inside information and carry both civil and criminal sanctions

EU & US Regulatory Issues and Upcoming Regulatory Changes ■ The Regulatory Bodies ■ Regulations relevant to Structured Products

involving Securities ■ Regulations relevant to Structured Products

involving Swaps ■ Other Regulations relevant to Structured

Products• MiFID II and MiFIR• PRIIPs• UCITs

■ Regulations relevant to Securitisations• The Basel II Framework• The EU Capital Requirements Regulation

(CRR)• Basel III and CRD IV• The Application of the Ringfencing Regime –

Part 9B FSMA 2000 ■ US Regulations

• Dodd-Frank Act ■ Derivatives in Structured Products ■ Risk Retention Requirements ■ Disclosure for Rating Agencies on ABS Prod-

ucts• The Volcker Rule• Foreign Account Tax Compliance Act (FAT-

CA)• US Securities Act of 1933

■ Rule 144A ■ Regulation S




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