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In the December 2016 edition of Butterworths Journal of International Banking and Financial Law, Anne Cathrine Ingerslev, associate and Nick Benham, partner at Davis Polk & Wardwell look at all-asset security on leveraged financings.
The English security package on a leveraged financing is generally comprehensive, reflecting the flexible regime for granting security under English law as compared to many continental European jurisdictions. Security is typically granted by way of a single security document (debenture) which creates fixed and floating security over all, or almost all, of the charging company’s assets. However, more recently, the all-asset feature of the debenture has been increasingly challenged on financings which provide for certain assets to be excluded from the security package. The purpose of this article is not to pass judgement on the concept of “excluded assets”, which is in itself neither good nor bad – there may be sound (as well as unsound) legal or commercial reasons to exclude certain assets from the security package. The key message is that market participants should take note of the “excluded assets”, and watch out for related potential pitfalls, to make sure that the position set out in the debenture reflects the commercial deal that the parties expect.
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