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General Chapters: 1 Documenting Securitisations in Leveraged Finance Transactio

General Chapters: 1 Documenting Securitisations in Leveraged Finance Transactions – Dan Maze & James Burnett, Latham & Watkins LLP 1 2 CLOs: An Expanding Platform – Craig Stein & Paul N. Watterson, Jr., Schulte Roth & Zabel LLP 7 3 US Taxation of Non-US Investors in Securitisation Transactions – David Z. Nirenberg, Ashurst LLP 12 4 Debt Trading: A Practical Guide for Buyers and Sellers – Paul Severs & Lucy Oddy, Berwin Leighton Paisner LLP 24 5 Cliffhanger: The CMBS Refinancing Challenge – Stuart Axford & Colin Tan, Kaye Scholer LLP 30 www.ICLG.co.uk Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations. Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720 The International Comparative Legal Guide to: Securitisation 2013 Continued Overleaf Contributing Editor Mark Nicolaides, Latham & Watkins LLP Account Managers Beth Bassett, Dror Levy, Maria Lopez, Florjan Osmani, Oliver Smith, Rory Smith Sales Support Manager Toni Wyatt Sub Editor Beatriz Arroyo Fiona Canning Editor Suzie Kidd Senior Editor Penny Smale Group Consulting Editor Alan Falach Group Publisher Richard Firth Published by Global Legal Group Ltd. 59 Tanner Street London SE1 3PL, UK Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 Email: info@glgroup.co.uk URL: www.glgroup.co.uk GLG Cover Design F&F Studio Design GLG Cover Image Source iStock Photo Printed by Ashford Colour Press Ltd. April 2013 Copyright © 2013 Global Legal Group Ltd. All rights reserved No photocopying ISBN 978-1-908070-58-6 ISSN 1745-7661 Strategic Partners Country Question and Answer Chapters: 6 Argentina Estudio Beccar Varela: Damián F. Beccar Varela & Roberto A. Fortunati 34 7 Australia King & Wood Mallesons: Anne-Marie Neagle & Ian Edmonds-Wilson 44 8 Austria Fellner Wratzfeld & Partners: Markus Fellner 54 9 Brazil Levy & Salomão Advogados: Ana Cecília Giorgi Manente & Fernando de Azevedo Peraçoli 63 10 Canada Torys LLP: Michael Feldman & Jim Hong 73 11 Chile Bofill Mir & Álvarez Jana Abogados: Octavio Bofill Genzsch & Daniela Buscaglia Llanos 83 12 China King & Wood Mallesons: Roy Zhang & Ma Feng 92 13 Czech Republic TGC Corporate Lawyers: Jana Střížová & Andrea Majerčíková 104 14 Denmark Accura Advokatpartnerselskab: Kim Toftgaard & Christian Sahlertz 113 15 England & Wales Weil, Gotshal & Manges: Rupert Wall & Jacky Kelly 123 16 France Freshfields Bruckhaus Deringer LLP: Hervé Touraine & Laureen Gauriot 135 17 Germany Cleary Gottlieb Steen & Hamilton LLP: Werner Meier & Michael Kern 146 18 Greece KG Law Firm: Christina Papanikolopoulou & Athina Diamanti 160 19 Hong Kong King & Wood Mallesons: Paul McBride & Michael Capsalis 169 20 India Dave & Girish & Co.: Mona Bhide 180 21 Ireland A&L Goodbody: Peter Walker & Jack Sheehy 190 22 Israel Caspi & Co.: Norman Menachem Feder & Oded Bejarano 201 23 Italy Chiomenti Studio Legale: Francesco Ago & Gregorio Consoli 211 24 Japan Nishimura & Asahi: Hajime Ueno 221 25 Luxembourg Bonn & Schmitt: Alex Schmitt & Andreas Heinzmann 234 26 Mexico Cervantes Sainz, S.C.: Diego Martínez Rueda-Chapital 245 27 Morocco Benzakour Law Firm: Rachid Benzakour 254 28 Netherlands Loyens & Loeff N.V.: Mariëtte van 't Westeinde & Jan Bart Schober 262 29 Norway Advokatfirmaet Thommessen AS: Berit Stokke & Sigve Braaten 275 30 Panama Patton, Moreno & Asvat: Ivette Elisa Martínez Saenz & Ana Isabel Díaz Vallejo 284 31 Poland TGC Corporate Lawyers: Marcin Gruszko & Grzegorz Witczak 294 32 Portugal Vieira de Almeida & Associados: Paula Gomes Freire & Benedita Aires 304 33 Saudi Arabia King & Spalding LLP: Nabil A. Issa 316 34 Scotland Brodies LLP: Bruce Stephen & Marion MacInnes 324 35 Slovakia TGC Corporate Lawyers: Kristína Drábiková & Soňa Pindešová 333 The International Comparative Legal Guide to: Securitisation 2013 EDITORIAL Welcome to the sixth edition of The International Comparative Legal Guide to: Securitisation. This guide provides the international practitioner and in-house counsel with a comprehensive worldwide legal analysis of the laws and regulations of securitisation. It is divided into two main sections: Five general chapters. These are designed to provide readers with a comprehensive overview of key securitisation issues, particularly from the perspective of a multi-jurisdictional transaction. Country question and answer chapters. These provide a broad overview of common issues in securitisation laws and regulations in 36 jurisdictions. All chapters are written by leading securitisation lawyers and industry specialists and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editor, Mark Nicolaides of Latham & Watkins LLP, for his invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.co.uk. Alan Falach LL.M. Group Consulting Editor Global Legal Group Alan.Falach@glgroup.co.uk Country Question and Answer Chapters: 36 Spain Uría Menéndez Abogados, S.L.P.: Ramiro Rivera Romero & Jorge Martín Sainz 342 37 Switzerland Pestalozzi Attorneys at Law Ltd: Oliver Widmer & Urs Klöti 356 38 Taiwan Lee and Li, Attorneys-at-Law: Hsin-Lan Hsu & Mark Yu 368 39 Trinidad & Tobago J.D. Sellier + Co.: William David Clarke & Donna-Marie Johnson 379 40 UAE King & Spalding LLP: Rizwan H. Kanji 389 41 USA Latham & Watkins LLP: Lawrence Safran & Kevin T. Fingeret 397 WWW.ICLG.CO.UK ICLG TO: SECURITISATION 2013 Chapter 1 Latham & Watkins LLP Documenting Securitisations in Leveraged Finance Transactions Introduction Including a receivables securitisation tranche when financing (and refinancing) highly leveraged businesses that generate trade receivables has become popular for several reasons. First and foremost, securitisation financings can generally be obtained at a much lower overall cost to the corporate group. Second, securitisation financings typically do not impose as extensive a package of operational restrictions on the group compared with those found in leveraged finance facility agreements. Finally, many companies engaged in securitisation transactions claim that it helps them improve the efficiency of their underlying business by focussing management attention on the actual performance of customer relationships (e.g. invoice payment speed and volume of post-sale adjustments). In leveraged finance facility agreements and high yield bond indentures, affirmative and negative covenants restrict the operations of the borrower/issuer and all or certain of its significant (i.e. “restricted”) subsidiaries in a complex and wide-ranging manner. This chapter discusses the manner in which such covenants would need to be modified in order for a borrower/issuer to be able to enter into a receivables securitisation without needing to obtain specific lender or bondholder consent (which is often a costly and challenging process). Although this chapter describes one set of modifications, there are, of course, various means of achieving the same objectives and the transaction documentation must be analysed carefully in each case to determine what exactly is required. This chapter also discusses some of the key negotiating issues involved in negotiating and documenting such covenant modifications. Once appropriate covenant carve-outs permitting a trade receivables securitisation have been agreed, the securitisation itself can then be structured and documented. Each of the country chapters in the latter part of this guide provides a summary of the issues involved in executing a securitisation in that country. Typical Transaction Structure Trade receivables are non-interest bearing corporate obligations typically payable up to 90 days following invoicing. They arise following the delivery of goods or the rendering of services by a company to its customers. As long as a receivable is legally enforceable and not subject to set-off, and satisfies certain other eligibility criteria specific to each transaction, the company to which the receivable is owing can raise financing against it. One popular form of receivables financing, asset-based lending (ABL), is structured as a loan to a company secured by the receivables. ABL transactions, although popular, have the drawback of exposing ABL lenders to all of the risks of the borrowing company’s business – risks which may lead to the company’s insolvency and (at least) delays in repayment of the ABL lenders. An alternative form of receivables financing, discussed below, is a “securitisation” of the receivables. A securitisation involves the outright sale of receivables by a company to a special purpose vehicle (SPV), usually a company but also possibly a partnership or other legal entity. The purchase price of receivables will generally equal the face amount of the receivables minus, in most cases, a small discount to cover expected losses on the purchased receivables and financing and other costs of the SPV. The purchase price will typically be paid in two parts: a non-refundable cash component paid at the time of purchase with financing provided to the SPV by senior lenders or commercial paper investors, and a deferred component payable out of collections on the receivables. In some jurisdictions the deferred component may need to be paid up uploads/Finance/ securitisation-2013-guide.pdf