The course focuses on the content and terminology of example loan documents and their intended consequences. The types of loan, the structure of a loan agreement and the types of security are explained.
Important danger areas are highlighted (from the points of view of both the lender and the borrower) in order that they may be appropriately provided for.
Participants will gain a clear understanding of the objectives of the parties and the key the points for consideration. The normal negotiating compromises are illustrated in respect of specific clauses.
The Type of Loan Will Determine its Use
- Committed or Uncommitted Facility – when is the bank obliged to lend?
- Overdraft – is it repayable on demand?
- Term Loan – precise terms for repayment
- Revolving Credit Facility – minimum & maximum periods, amounts, notice & tranches
- Roll-Over – is it automatic or will it be prevented by a technicality?
- Limitations on transferability – Bilateral, Club or Syndicate loans
- Syndicated Facility – arrangers, syndicate members, underwriters & lead managers
- Administrative Agent & Security Trustee- duties & liabilities
- Ideal Objective of the Lender – repayment on the due dates with no trouble & no risk
- Ideal Objective of the Borrower – don’t call me, I’ll call you
- Negotiating Result? – changes with the state of the capital markets
Structure of a Loan Agreement
- The Loan Market Association – source of lender friendly documents
- Recommended Standard Clauses – operating, monitoring & boilerplate clauses
- Negotiating an LMA Agreement – soft and hard provisions
- The Use of a Term Sheet – what is it for and is it legally binding?
- The Purpose of the Loan – the use of funds is determined by a wide or narrow definition
- Conditions of Utilisation & Drawdown – the utilisation request & conditions precedent
- Costs – commitment fee, margin, LIBOR & mandatory cost (MLA formula)
- Interest Periods – the selection notice & the calculation of business days
- Representations & Warranties – how they differ from a sale & purchase agreement
- Covenants – financial, non-financial & information covenants & a negative pledge
- Permitted Security Interests – preservation of commercial flexibility
- Events of Default – what they are, what the lender can do & how they can be diluted
- Grace Periods – extra time usually permitted by the lender
- Cross-Default – an early warning for the lender, possibly commercially damaging
- MAC Clause – a sledgehammer for use in a wide or narrow context
- Qualifying a MAC clause – negotiating subjectivity, reasonableness and materiality
- Acceleration Clause – a lender’s right rapidly to terminate the loan
- Other Events of Default – e.g. change of control & illegality
- Material Adverse Effect – what does it mean & how is it defined?
Types of Security
- Possession: Actual or Constructive? – pledges & liens
- Ownership – mortgages & a bone fide purchaser for value without notice
- Rights – fixed charges, floating charges & crystallisation
- Guarantees & Indemnities – guarantor’s rights & lender’s protective clauses
- Comfort Letters – the purpose and effect of a non legally binding document
- Debentures – charge the core assets of the business
- Charge the Book Debts – Brumark & Spectrum
- Intellectual Property, Plant & Machinery, Subsidiaries, Goodwill – secure the lot
- Further Assurance Clause – lender’s power retrospectively to perfect the security
- Power of Attorney – an essential safeguard if a relationship breaks down
Reviewing the Document
- Lender’s Principal Concerns – check that six areas have been fully covered
- Three Stages of Protection – before drawdown, after drawdown & termination
- Borrower’s Principal Concerns – assess certainty of outcome & control of the business
- Redraft any LMA Standard Clauses – the first draft will not be borrower friendly
- Legal Opinion – only a statement that the job has been completed with due diligence?
- Lender’s & Borrower’s Final Check Before Signature – has the wood obscured the trees?
Barrister and Stockbroker
Roger Baden-Powell qualified as a barrister and joined Joseph Sebag & Co., London stockbrokers, as a property and insurance analyst. In 1978, he became a partner of the firm and was appointed head of equity research and a Member of the London Stock Exchange. Whilst with the firm, he was seconded for two years as the London Stock Exchange Representative to the Executive of the City Panel on Take-overs and Mergers.
Corporate Adviser and Investment Manager
From 1981-1987, he was a partner of Baden-Powell, Chilcott & Co., a City of London based corporate finance and investment management firm. Corporate finance activities included advice on acquisitions and mergers and general financial, commercial and legal advice. The firm also owned minority interests in an insurance broking company and an advertising agency.
From 1988-95, he was with Bank Mees & Hope NV, a Dutch merchant bank (a subsidiary of ABN-Amro) and, in 1991, was appointed CEO of the bank’s UK corporate finance and investment management subsidiaries and executive chairman of the bank’s UK private client stockbrokers, Shaw & Co..
Corporate Adviser and Trainer
Since 1996, he has been a director of Baden-Powell Associates Limited (BPAL), corporate advisers. In 2002, he distilled his experience of corporate deals into 16 one-day courses which he has now presented over 700 times in and around Europe … sometimes as far away as Moscow, Riyadh and Johannesburg. Approximately 7,500 accountants, lawyers, corporate advisers, bankers and business owners have attended his one-day courses over 98% of whom have said, in their written testimonials, that his practical and commercial emphasis on examples of real deals was a very effective learning format. In 2017, he videoed his most popular courses which are now available as the "Corporate Advisers’ MasterClass"(130 videos with 33 hours of training).