Programme Agenda

Wednesday 9th September 2009

8:30  Coffee

9:00  Chair’s Opening Remarks

Richard De Lacy QC, 3 Stone Buildings; Chair, Accountancy Investigation and Disciplinary Board

9:15  Advising Directors of Insolvent Companies

Graeme Levy, Partner in the Finance Group and Head of Restructuring & Insolvency, Olswang

  • Role and responsibilities of legal advisors in assisting directors to make the most effective choices for all parties in an insolvency scenario
  • The dynamics within different stakeholder groups
    • differing interests and expected outcomes
    • managing conflicts of interest
    • intercompany issues
  • Wrongful trading: the legal framework and practical issues that directors need to take into account to avoid misconduct
  • Preferences and undervalue: outline of the issues and the practical impact 
  • Funding of ongoing trading and potential risks for directors
  • Exit routes: survival or cessation?

10:45         Morning Refreshments

11:00         How to Use COMI as an Effective Cross Border Insolvency Tool

Adam Al-attar, Barrister, 3-4 South Square, Gray's Inn

Owen Claxton-Ingham, Senior Manager, Business Recovery Services, PWC

  • An overview of the legal and jurisdictional issues that arise due to the different corporate and insolvency laws applied across Europe
  • Council Regulation 1346/2000 on insolvency proceedings: an overview of three principal issues -- jurisdiction, choice of law and recognition
  • Overcoming the challenging issues of cross-border insolvency where the insolvent debtor has assets and creditors in more than one jurisdiction
  • Secondary proceedings - the advantages and disadvantages
  • Which assets are caught by competing procedures?
  • Assessing the different elements and stages involved in utilising COMI
  • Jurisdiction: an outline of the triggers for opening main insolvency and secondary proceedings -- COMI and establishment
  • Recognition: an outline of the effects of opening main insolvency proceedings and the recognition of judgments in those proceedings
  • COMI and cross border: when you can COMI into the UK and what has been successful to date?
  • Practical cross border restructuring case study examples
    • how to stay secondary proceedings to facilitate a sale and distribution in main insolvency proceedings
    • how to thwart secondary proceedings which threaten a cross border restructuring
    • how to use secondary proceedings to facilitate an effective cross border distribution

12:00         Networking Lunch

1:30  Examining the Anatomy of an Intercreditor Agreement

Peter Clark, Director, Babson Capital Europe

  • Why have an intercreditor agreement?
  • Anatomy of an intercreditor agreement
    • controls on different classes of creditor
    • standstills, payment blocks and turnover
    • deemed consents 
  • The new LMA intercreditor agreement
  • The importance of the specific: local law and commercial issues
  • Intercreditors in the context of a restructuring
  • Commonly encountered problems
    • need for separate consents
    • release mechanisms
    • dissenting or “hold out” creditors
    • diverse creditor classes, cross-holdings and CDS
  • Using COMI and formal insolvency processes (including “pre-packs”, Schemes and CVAs)
  • Practical issues regarding implementation
    • liquidity
    • valuation
    • “credit bidding”
    • use of Newco structures
    • equity and management related issues
    • change of control issues
  • Building consensus: the importance of dialogue to achieving a successful result

2:30     Afternoon Refreshments

2:45  Advising on Defeating Retention of Title Creditors’ Claims

Nick Moser, Partner, Taylor Wessing

  • Retention of title: how does it work?
  • Why is retention of title significant in different types of lending?
  • What is the impact on insolvency strategy?
  • Understanding the implications of paragraphs 43 and 44 of schedule B1 of the Insolvency Act
  • Double ROT - traps for the unwary - understanding it and finding ways to minimise the risk
  • Strategies for defeating ROT creditor claims - tricks of the trade
  • Advising ROT claimants - how best to approach an insolvency situation
  • Examining recent cases: CKE Engineering and Music Zone

4:00  A Step-by-Step Guide to Procedures for Taking Security

Andrew Evans, Partner, Field Fisher Waterhouse LLP 

  • Review of security documentation
    • ensuring formalities are complied with
    • conducting due execution
    • securing the correct obligations
    • conditions that must exist -- precedent/subsequent
    • the registration/perfection process including the following examples: company charges, charges over land, ships and aircraft, exceptions
    • priority/subordination of security interests
  • Potential areas of vulnerability
    • transactions made at an undervalue
    • voidable preference
    • avoidance of floating charges
    • other grounds (financial assistance, undue influence and lack of corporate benefit)
  • Obtaining additional security
    • practicalities
    • potential areas of vulnerability
  • Using covenant for further assurance
  • What can you do with a share charge?
    • functions (security and control)
    • fixed v floating charge (Spectrum Plus)
    • financial Collateral Arrangements (No.2) Regulations 2003
  • Additional concerns for listed companies
    • directors giving security over shares
    • penalties

5:00  Closing Remarks of the Chair and Summer School Adjourns Day Two