A basic introduction to lending and secured finance in United Kingdom (England & Wales)

All questions

Overview

i Market situations

2021 was a busy yr for the EMEA mortgage markets as the specter of the covid-19 pandemic started to recede, permitting companies to restart transactions that had paused because of the pandemic, or benefit from alternatives that had emerged, alongside extra basic refinancing exercise.

The rise in event-driven financings was extra muted than anticipated within the first half of the yr, with refinancings dominating; nevertheless, in the direction of the tip of the yr M&A exercise picked up. Good liquidity and customarily beneficial situations for debtors, coupled with a rise of abroad and personal fairness funding, had been the primary drivers for the rise in exercise. The direct lending markets additionally noticed vital ranges of exercise, with non-public credit score funds transferring out of the midmarket to focus on bigger transactions over €1 billion (both alone or as a part of a membership), because of a document yr for fundraising.

Key themes in 2021 remained the transition from LIBOR to risk-free-rates (RFRs), a course of that’s now largely full for many LIBOR tenors and currencies, though some work stays to be executed in relation to some currencies, particularly US greenback transactions (see additional Part II.i). Setting, social and governance (ESG) transactions additionally continued to dominate in 2021, with company refinancings particularly specializing in the inclusion of ESG mechanics. Nevertheless, ESG concerns have gotten extra widespread within the leveraged and event-driven markets as nicely. ESG mortgage debt could also be structured as a sustainability-linked mortgage, which hyperlinks the pricing of a facility to ESG aims with out directing the usage of proceeds to these aims, or a inexperienced or social mortgage, which restricts the usage of proceeds to specific inexperienced or social aims (sustainability-linked loans are probably the most generally seen all through all markets).

ii Market contributors and documentary developments

A mix of contributors stay lively within the English-law mortgage market. Conventional banks proceed to play an vital and lively position within the mortgage market, and stay dominant in investment-grade lending. In different sectors, significantly within the leveraged, actual property and infrastructure finance markets, various credit score suppliers comparable to direct lending funds and institutional buyers (collateralised mortgage obligations (CLOs), finance and insurance coverage corporations, hedge, high-yield and distressed funds, and mortgage mutual funds) are extra distinguished.

Most English-law syndicated mortgage transactions use the Mortgage Market Affiliation (LMA) beneficial kinds as a place to begin for negotiations. Along with varied varieties of facility agreements and ancillary documentation for the investment-grade market (the Funding Grade Agreements) and leveraged lending (the Leveraged Finance Documentation), the LMA assortment contains a number of templates for extra specialist merchandise, together with actual property finance, creating markets lending and pre-export finance. The LMA has up to date nearly all of its documentation to mirror the transition from LIBOR to RFRs.

The LMA doesn’t keep template phrases for inexperienced or environmental, social and governance (ESG)-linked loans, however has printed a wide range of rules and steering for each inexperienced, social and sustainability-linked loans, and may be very lively within the growth of the standardisation of the market. ESG-linked lending is anticipated to stay an vital space of focus over the approaching yr.

These subjects and associated documentation are mentioned in Part II.

Authorized and regulatory developments

Managing the regular circulation of authorized and regulatory adjustments stays an ongoing problem for mortgage market contributors. A number of the subjects outlined beneath have been a characteristic of mortgage documentation discussions for a while. In some circumstances, adequate consensus has emerged to allow them to be addressed within the LMA templates, leaving solely factors of element to be negotiated. The place there stay diverging views, the contractual therapy should be agreed on a transaction-by-transaction foundation.

i Transition from LIBOR

From 1 January 2022, publication of 24 LIBOR settings ceased; going ahead, solely six ‘artificial’ sterling and yen LIBOR settings can be found at some point of 2022, and 5 US greenback LIBOR settings can be found till mid-2023. Nevertheless, these remaining settings are supposed for legacy use solely. All new loans ought to now reference the suitable RFR from day one (together with all new US greenback loans), and, for sterling and most different LIBOR currencies, the LMA’s templates for RFR lending are actually extensively used available in the market, with documentation accessible for each investment-grade and leveraged transactions. Whereas the transition has been profitable to this point, there may be nonetheless some work to be executed regarding some currencies, most notably US greenback transactions, the place there a variety of choices nonetheless accessible and market consensus has but to emerge. Additionally it is value noting that the transition to RFRs from non-LIBOR benchmarks is now gaining momentum, with the Canadian Greenback Supplied Charge (CDOR) prone to be the following price to transition.

ii Sustainable finance

Sustainable affect investing is a vital driver for a lot of monetary establishments, which, over the previous few years, has fuelled a rise in ESG-linked lending. Sustainable or ESG loans look to align phrases to the borrower’s efficiency towards an agreed set of ESG-related efficiency targets. For instance, the margin on an ESG facility could modify relying on whether or not these targets are met (upwards or downwards). An impartial opinion supplier is usually engaged by the borrower to confirm whether or not these targets have been glad.

That is to be contrasted with ‘inexperienced’ or ‘social’ lending, which focuses on the usage of proceeds, with a requirement that they’re used to put money into inexperienced or social tasks inside pre-agreed parameters. Verification can also be required for inexperienced and social loans, to evaluate the deserves of the actual undertaking for which the funding is meant.

To help the event and standardisation of the sustainable lending market, the LMA (along side the Asia Pacific Mortgage Market Affiliation (APLMA) and the Loans Settlement and Buying and selling Affiliation (LSTA)) has produced the next paperwork:

1. the Inexperienced Mortgage Ideas (GLP), printed in 2018, comprising voluntary beneficial tips that search to advertise consistency and integrity within the growth of the inexperienced mortgage market by clarifying the factors for which a mortgage could also be categorised as ‘inexperienced’. To assist consistency with the inexperienced bond market, the GLP construct on and seek advice from the Inexperienced Bond Ideas printed by the Worldwide Capital Markets Affiliation (ICMA);
2. the Sustainability Linked Mortgage Ideas (SLLP), printed in 2019, which offer a framework for lending to incentivise the borrower’s achievement of predetermined sustainability efficiency targets (SPTs). Equally to the GLPs, the SLLPs are supposed to advertise consistency inside the sustainability-linked market, overlaying subjects comparable to setting the SPTs in addition to reporting and evaluation of the borrower’s efficiency towards these SPTs; and
3. most not too long ago, in 2021, the Social Mortgage Ideas (the SLP) had been printed, which offer a framework for market requirements and steering for social loans, the place the proceeds of the mortgage are used for predetermined social tasks, constructing on the Social Bond Ideas printed by the ICMA. The SLPs cowl subjects comparable to the usage of proceeds and strategy of analysis and choice of social tasks, along with steering on the monitoring and reporting on the undertaking and proceeds of the mortgage.

Alongside every set of rules, the LMA has additionally printed steering notes to help interpretation of the rules available in the market overlaying issues comparable to, for instance, steering for firm advisers in relation to ESG disclosure in leveraged transactions. Most not too long ago, at first of 2022, the LMA has printed steering on the exterior evaluation and verification course of. The LMA continues to take a really lively position within the growth of the market, offering common updates to the rules and steering to mirror creating market observe.

Sustainability-linked financing particularly continued to develop within the UK all through 2021, each within the context of investment-grade company working capital amenities and, more and more, within the leveraged mortgage market (together with some event-driven financings). As talked about above, sustainability-linked loans include ESG-related SPTs, sometimes known as key efficiency indicators (KPIs), chosen by the borrower. KPIs could relate to, for instance, reductions in emissions or range targets inside the borrower group. Relying on whether or not or not the KPI targets are achieved by the borrower, the margin will modify upwards or downwards. As well as, the lenders will often anticipate ongoing info on the borrower’s efficiency in relation to the KPIs through the lifetime of the mortgage. This reporting will be offered both by the borrower or by an exterior opinion supplier appointed by the borrower. To clean the method, a number of of the lenders could act as a sustainability coordinator to help with negotiating the KPIs and liaising with the borrower on behalf of the lenders on ESG-related issues. The sustainability coordinator is not going to, nevertheless, assume any fiduciary duties to the remainder of the syndicate. Negotiations typically concentrate on the setting of the KPIs, along with the character and extent of the reporting and verification of the borrower’s efficiency.

iii Pension Schemes Act 2021

Outlined profit (DB) pension liabilities have obtained renewed focus in company and financing transactions for the reason that enactment of the Pensions Schemes Act 2021 (PSA). The PSA is meant to strengthen the powers of the UK Pensions Regulator to intervene in company actions that threaten DB pension scheme advantages and recoveries (known as the ‘ethical hazard’ regime).

The ‘ethical hazard’ regime was launched by the Pensions Act 2004, which granted powers to the Pensions Regulator to guard the place of DB pension schemes by requiring employers to offer extra assist to schemes in sure circumstances. These powers permit the Pensions Regulator to concern contribution notices (CNs) and monetary assist instructions (FSDs) to both the scheme employer or an individual ‘related or linked’² with the scheme employer. FSDs are extra basic in nature and allow the UK Pensions Regulator to require employers to offer extra monetary assist for the pension scheme’s obligations the place the Regulator believes it’s cheap to take action. CNs concentrate on particular actions (or failures to behave) which have negatively affected the DB pension scheme.

To concern a CN underneath the Pensions Act 2004, the Pensions Regulator needs to be of the (cheap) opinion that certainly one of two assessments have been met: (1) the goal of the CN will need to have been a celebration to, or ‘knowingly assisted’ in, a deliberate act or failure to behave, the primary goal of which was to forestall restoration of a DB pension scheme debt; or (2) the goal’s act or failure to behave has ‘detrimentally affected in a cloth means’ the chance of accrued DB pension scheme advantages being obtained. Defences can be found if (in abstract) the goal of the CN can present that it thought-about the DB pension scheme and took cheap steps to mitigate the impact of the act. A voluntary clearance process can also be accessible, whereby the UK Pensions Regulator can affirm that it might not be cheap to concern a CN or FSD.

As well as, the Pensions Act 2004 launched a collection of ‘notifiable occasions’, supposed as an early warning system for the Pensions Regulator of the incidence of occasions referring to both the DB pension scheme or the scheme employer, which can affect on the DB pension scheme as a creditor. Examples embody a breach by the employer of financing covenants and sure adjustments of management, with non-compliance probably triggering fines or being thought-about as a floor for issuance of a CN or each. If an occasion happens, it should be notified in writing to the UK Pensions Regulator as quickly as moderately practicable.

In relation to the above, the PSA introduces the next key adjustments:

1. new grounds for issuing CNS: Two new assessments have been launched to permit the UK Pensions Regulator to concern CNs, the ’employer insolvency’ take a look at, and the ’employer sources take a look at’. Each these new assessments look to the power of the DB pension scheme employer (quite than the scheme itself), specializing in the impact the proposed act can have on the employer’s sources or on the employer’s hypothetical insolvency within the context of the potential restoration by the DB pension scheme as a creditor. These new assessments develop the circumstances wherein CNs will be issued and are prone to be simpler for the UK Pensions Regulator to implement;
2. new prison and civil offences: One of many extra controversial parts of the PSA is the prison offences it introduces. Two new prison offences now apply to assist implement the ethical hazard regime, each of which may apply to any ‘individual’, together with people (comparable to administrators), no matter whether or not that individual has any connection to, or affiliation with, the DB pension scheme or its employer: (1) conduct that leads to avoidance of employer debt to a DB pension scheme, the place the individual supposed that that is the end result; and (2) conduct that detrimentally impacts in a cloth means the chance of accrued DB pension scheme advantages being obtained the place the individual knew or should have identified that this is able to be consequence. Defences can be found, if the individual had a ‘cheap excuse’ for his or her actions: the UK Pensions Regulator has printed steering on the way it plans to train its new powers and what’s going to represent a ‘cheap excuse’. Conviction underneath these offences may end up in as much as seven years imprisonment or limitless fines, or each. It’s value noting that there aren’t any particular exceptions to those offences for lenders or financing transactions the place there’s a DB pension scheme inside the group; and
3. new notifiable occasions: There are two new classes of notifiable occasion launched by the PSA: (1) the sale of a cloth proportion of the enterprise or property of a scheme employer in respect of which a call in precept has been reached; and (2) the granting of safety on indebtedness which has precedence over the DB pension scheme. If a notifiable occasion happens, the trustees or managers or the employer of the scheme are obliged to inform the UK Pensions Regulator as quickly as moderately practicable upon changing into conscious of the notifiable occasion. The PSA introduces an extra notification requirement, requiring a discover and assertion to be given to the UK Pensions Regulator that units out the implications for the scheme in relation to sure employer company occasions and the way any dangers to the DB pension scheme are to be mitigated. That is supposed to offer the UK Pensions Regulator and DB pension scheme trustees higher involvement at an earlier stage. A brand new monetary penalty for breach of those obligations of up £1million is launched, together with growth of the prevailing prison liabilities.

Because the 2004 Act has been in drive, DB scheme points have routinely shaped a part of the due diligence and credit score threat evaluation for financing transactions, along with liaising with the scheme trustees (the place applicable) to find out the extent of any extra assist required to mitigate the affect of the transaction on the scheme. Whereas due diligence performs a key position in assessing the existence of any precise or potential DB scheme liabilities, contractual protections, by means of representations or undertakings concerning the existence of and liabilities related to a DB scheme, along with undertakings referring to compliance with the DB scheme obligations and provision of knowledge to the lenders are additionally usually seen. For some transactions, receipt of a CN or FSD could set off an occasion of default, or acquiring clearance from the Pensions Regulator could also be a situation precedent.

The adjustments launched by the PSA are prone to end in an elevated concentrate on the above provisions and the structuring of financing preparations. These concerned in restructuring transactions are prone to pay significantly shut consideration to the PSA’s new provisions: early engagement with pension trustees and detailed preparation {and professional} recommendation will all be required to minimise the chance of potential legal responsibility.

iv Nationwide Safety and Funding Act 2021

The Nationwide Safety and Funding Act 2021 (NSIA) got here into drive in January 2022. The NSIA permits the federal government to intervene in enterprise transactions in specified sectors, together with acquisitions and the grant of safety, which could moderately elevate nationwide safety issues. Acquisitions in these ‘delicate’ sectors designated within the NSIA require clearance from the UK authorities to proceed, which is able to must be factored into the provide timetable. Transactions exterior these designated sectors can also be affected. There’s additionally a voluntary clearance process that could be adopted in circumstances the place there may be concern that the transaction may very well be ‘referred to as in’ by the UK authorities pursuant to the phrases of the PSA after the occasion.

The place a transaction falls inside the scope of the NSIA, acquiring clearance will must be factored into the proposed timetable. Lenders could request particular contractual protections, comparable to making clearance a situation precedent to funding.

Outlook and conclusions

The rise in exercise seen on the finish of the 2021 had been anticipated to proceed in 2022, buoyed by good liquidity within the markets and comparatively benign borrowing situations. Nevertheless, the invasion of Ukraine by Russia has solid vital doubt on this, with the fallout because the world offers its ramifications prone to deliver continued volatility to all markets, and so it’s troublesome to foretell with any certainty what the implications for financing transactions will probably be.

When it comes to authorized and regulatory points, whereas the transition from LIBOR is nearing an finish, the market will proceed to concentrate on reaching a consensus in relation to US greenback transactions and the transition of non-LIBOR currencies. The expansion in ESG lending is predicted to proceed, throughout the funding grade and leveraged markets, for each working capital and event-driven financings.