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    Banking litigation update
    2012-07-19
    1. The 1992 ISDA Master Agreement: Court of Appeal provides clarity on payment obligations owed to insolvent counterparties

    Lomas v JFB Firth Rixson Inc [2012] EWCA Civ 419

    Filed under:
    United Kingdom, Banking, Derivatives, Insolvency & Restructuring, Litigation, Securitization & Structured Finance, Herbert Smith Freehills LLP, Debt, Default (finance)
    Authors:
    Damien Byrne Hill , Simon Clarke
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    "Pre-pack" administrations - issues and practical points for landlords
    2009-07-10

    This is the third of a series of four e-bulletins in relation to administrations and company voluntary arrangements (CVAs).

    Filed under:
    United Kingdom, Insolvency & Restructuring, Real Estate, Herbert Smith Freehills LLP, Unsecured debt, Injunction, Breach of contract, Landlord, Leasehold estate, Debt, Consent, Credit risk, Court of Appeal of England & Wales
    Authors:
    Stephen Gale , Gawain Moore
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    PE houses and pre-packs - will the Pensions Regulator act?
    2011-10-05

    The story of the restructuring of carpet-maker, Brintons has featured in the press recently, with emphasis on the role of Carlyle, one of the world's biggest private equity firms. The facts are similar to the Silentnight pre-pack which we featured in a previous bulletin. In each case, the Pensions Regulator is said to be considering using its anti-avoidance powers under the Pensions Act 2004 to compel senior debt holders to pay towards the deficit of the defined benefit pension scheme operated by the company.

    Filed under:
    United Kingdom, Corporate Finance/M&A, Employee Benefits & Pensions, Insolvency & Restructuring, Herbert Smith Freehills LLP, Unsecured debt, Private equity, Debt, Investment funds, Defined benefit pension plan, Unsecured creditor, Pension Protection Fund, Pensions Act 2004 (UK), The Pensions Regulator, Trustee
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton , Naveed Soomro
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Company voluntary arrangements: JJB Sports highlights a real alternative to administration
    2009-05-11

    Following the rejection of Stylo's proposed CVA earlier this year and the successful "unfair prejudice" challenge of Powerhouse's CVA in 2007, the recently approved CVA proposal put forward by JJB Sports, widely described by commentators as "ground-breaking", has generated significant interest in the CVA process and the use of a CVA to effect a solvent restructuring of a listed company without resorting to administration and a suspension of trading in its shares.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Herbert Smith Freehills LLP, Share (finance), Public company, Retail, Debt, Voting, Refinancing, Insolvency Act 1986 (UK)
    Authors:
    Kevin Pullen , Stephen Gale , Alastair Henderson
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Silentnight - sweet dreams for the pensions regulator
    2011-05-13

    The story of the Silentnight restructuring has featured in the press today. There have been calls for the Pensions Regulator to use its anti-avoidance powers under the Pensions Act 2004 to compel HIG Europe to pay more towards the considerable deficit of the Silentnight Pension Scheme, following the purchase of Silentnight out of administration by the private equity firm last Saturday. Earlier this year, Silentnight had failed to obtain the PPF's approval to a Creditors Voluntary Arrangement aimed at addressing its historic debt, including a pensions deficit of around £100m.

    Filed under:
    United Kingdom, Employee Benefits & Pensions, Insolvency & Restructuring, Herbert Smith Freehills LLP, Contractual term, Shareholder, Debtor, Unsecured debt, Debt, Pension Protection Fund, Pensions Act 2004 (UK), The Pensions Regulator, High Court of Justice, Trustee
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton , Naveed Soomro
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Insolvency update for retailers
    2008-02-11

    The retail sector and its suppliers operate at the sharp end of the economy and feel the impact of tighter consumer spending with more immediacy than most other sectors.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Retail, Board of directors, Debt, Supply chain, Liability (financial accounting), Legal burden of proof, Balance sheet, Cashflow, Insolvency Act 1986 (UK), High Court of Justice
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Scottish court rules that trustee claims are admissible in the winding up of an insolvent participating employer
    2011-02-01

    A claim by trustees against an insolvent participating employer (who has ceased to participate in the pension scheme) for its share of the scheme deficit is a contingent obligation at the date of winding up and is admissible in the winding-up. This follows the decision by the Outer House of the Court of Session in Scotland in Burton, Re Direction of Assets [2010] CSOH 174.

    Filed under:
    United Kingdom, Scotland, Employee Benefits & Pensions, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Share (finance), Shareholder, Debt, Liquidation, Trustee
    Authors:
    Ian Gault , Daniel Schaffer , Alison Brown , Roderick Morton
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP
    Business insolvency
    2007-01-11

    The Bankruptcy Law, applicable to FIEs and most other companies in China, will come into effect on 1 June 2007.

    The Bankruptcy Law sets out a dual test of insolvency: inability to pay debts as they fall due ("cash flow insolvency") and insufficient assets to pay off all debts ("balance sheet insolvency"). Either a debtor or a creditor may apply to the court for reorganization or liquidation of the debtor. Court assistance may also be sought to conciliate.

    Filed under:
    China, Insolvency & Restructuring, Herbert Smith Freehills LLP, Wage, Bankruptcy, Debtor, Debt, Liability (financial accounting), Liquidation, Balance sheet, Cashflow
    Location:
    China
    Firm:
    Herbert Smith Freehills LLP
    Middle East Exchange
    2010-10-29

    In last month's edition of Middle East Exchange,we looked at the risks for directors of UAE companies in financial difficulties. In this month's edition, we consider the position from the other side of the negotiating table, namely the risks for creditors when a UAE company faces financial difficulties.

    Filed under:
    United Arab Emirates, Insolvency & Restructuring, Litigation, Herbert Smith Freehills LLP, Confidentiality, Bankruptcy, Debt, Consent, Default (finance)
    Location:
    United Arab Emirates
    Firm:
    Herbert Smith Freehills LLP
    A breathing space for distressed companies: proposals for a statutory restructuring moratorium
    2010-08-26

    The Insolvency Service recently opened a consultation (the "Consultation") on its proposals for a restructuring moratorium. Under the proposals, eligible companies satisfying certain qualifying conditions would be able to apply to court for a moratorium to prevent creditor action (a "Moratorium"). The Moratorium is not intended to be an alternative to formal insolvency for companies that are already insolvent but is intended to support viable companies reach a compromise with their creditors.

    Filed under:
    United Kingdom, Insolvency & Restructuring, Herbert Smith Freehills LLP, Debt, Moratorium (law), Refinancing, Leverage (finance)
    Authors:
    Stephen Gale , Kevin Pullen , Laurence Elliott
    Location:
    United Kingdom
    Firm:
    Herbert Smith Freehills LLP

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