Index to Legal Principles in Banking and Structured Finance, 2nd Editon

A

Accessory security

trusts, and, 13.19

After-acquired property

security, and, 7.4

Agency

loan agreements, and, 2.15–2.16

syndicated loans, and

agent's obligations, 9.16–9.17

agent's rights, 9.15

exculpation, 9.18–9.19

indemnity, 9..20

introduction, 9.14

trusts, and, 13.9

Agency structures

trusts, and, 13.21

Alternative interest rates

loan agreements, and, 2.13–2.14

Applicable law

financial collateral, and, 8.17–8.18

Appropriation

financial collateral, and, 8.16

guarantees, and, 5.7

Assignment

choses in action, and

'absolute', 6.9

'any debt or other legal ting in action', 6.6–6.7

'by writing under hand of', 6.8

enforcement, 6.15

equities, 6.13–6.14

introduction, 6.5

notice to the debtor, 6.10–6.12

priorities, 6.13–6.14

statutory requirements, 6.8

loan agreements, and, 2.134

syndicated loans, and

generally, 9.21–9.22

restrictions, 9.24

standing offer, 9.23

Avals

bills of exchange, and, 3.10

B

Bank accounts

assignment of choses in action, and, 6.18

financial collateral, and, 8.5

Bearer bonds

(see And see Bonds)

generally, 4.3

Benefit of agreement

generally, 10.4

novation, 10.7

Bills of exchange

avals, 3.10

definition, 3.3

effect, 3.11

financial collateral, and, 8.4

forfaiting, 3.10

indorsements without recourse, 3.10

introduction, 3.1–3.2

meaning, 3.3

negotiability by custom,. 3.9

negotiable instruments, and, 3.7

promissory notes, and, 3.7

recourse to drawee, 3.5–3.6

transfer, 3.4

Bona fide purchasers

security, and, 7.18–7.19

Bonds

bearer bonds, 4.3

bondholder's rights, 4.11

CDOs, 4.7

clearance systems, and, 4.3–4.4

collateralised debt obligations, 4.7

conclusions, 4.12–4.14

features, 4.2

fiscal agent structure

bondholder's rights, 4.11

generally, 4.9

global bonds

generally, 4.4

introduction, 4.3

guarantees

(see And see Guarantees)

conclusion, 5.30–5.31

incidents of suretyship, 5.15–5.18

introduction, 5.1

objectives, 5.2–5.8

payment, 5.9–5.14

voluntary arrangements, 5.29

waiver of defences, 5.19–5.23

high yield bonds, 4.7

introduction, 4.1

issuers

generally, 4.7

medium-term notes, 4.8

revolving facility, 4.8

loan agreements, and, 2.2

medium-term notes, 4.8

negotiable instruments, and, 4.13

offering memorandum, 4.5

offers to the public, 4.5

prospectus liability, 4.5–4.6

registered bonds, 4.3

revolving facility notes, 4.8

securitisation, 4.7

syndicated loans, and, 4.2

third party rights, 4.13

trading, 4.3–4.4

trustee structure

bondholder's rights, 4.11

generally, 4.10

types, 4.3

underwriters

generally, 4.7

medium-term notes, 4.8

revolving facility, 4.8

C

Case law

loan agreements, and, 2.19–2.23

Cash

financial collateral, and, 8.4

Certainty

trusts, and, 13.8

Chargebacks

security, and, 7.19

Charges

(see And see Security)

book debts, on, 7.15–7.16

financial collateral, and, 8.11

fixed/floating distinction, 7.9–7.11

generally, 7.2–7.6

legal/equitable distinction, 7.7–7.8

registrability, 7.12–7.16

sale and purchase agreements, 7.17

Cheques

bills of exchange, and, 3.1–3.2

Choice of law

loan agreements, and, 2.17–2.18

Choses in action

assignability, 6.16–6.17

bank accounts, 6.18

conclusions, 6.19

debts, 6.3

definition, 6.2

equitable assignment, 6.4

equities, 6.13–6.14

introduction, 6.1

legal assignment

'absolute', 6.9

'any debt or other legal ting in action', 6.6–6.7

'by writing under hand of', 6.8

enforcement, 6.15

equities, 6.13–6.14

introduction, 6.5

notice to the debtor, 6.10–6.12

priorities, 6.13–6.14

statutory requirements, 6.8

meaning, 6.2

non-assignable rights, 6.16

priorities, 6.13–6.14

terms of art, 6.4

types, 6.

'Co-extensiveness' principle

guarantees, and, 5.7

Collateralised debt obligations (CDOs)

bonds, and, 4.7

Common law mortgages

security, and, 7.5

Comfort letters

guarantees, and, 5.27

Consideration

generally, 1.3

part performance, 1.4

past consideration, 1.5

Continuing guarantees

(see And see Guarantees)

generally, 5.11–5.14

Continuing obligations

guarantees, and, 5.8

Contracts

consideration

generally, 1.3

part performance, 1.4

past consideration, 1.5

form, 1.2

freedom of contract, 1.2

guarantees, and, 5.3–5.5

intention, 1.7–1.8

introduction, 1.1

loan agreements, and

agency provisions, 2.15–2.16

circumstantial provisions, 2.9–2.11

dispute resolution, 2.17

generally, 2.2–2.3

illegality, 2.6–2.7

interbank provisions, 2.15–2.16

interest, 2.4–2.5

operational provisions, 2.12

protective provisions, 2.13

transferability, 2.14

objectivity, 1.7–1.8

offers to the world, 1.6

part performance, 1.4

past consideration, 1.5

third party rights, 1.9–1.13

trust deeds, and, 11.4–11.5

Contracts (Rights of Third Parties) Act 1999

assignees, 12.6–12.7

beneficiaries, 12.8–12.9

bonds, and, 4.13

conclusion, 12.21

construction of contracts context, and 10.11, 11.10–11.12, 15.1–15.5, 16.1

contracts, and, 1.9–1.13

contractual discretions, exercise of 11.13–11.14

crystallisation conditions, 12.12

enforcement, 12.3

excluded contracts, 12.15

freedom of contract, and, 12.20

introduction, 12.1

judicial reduction of claims, 12.14

key provisions, 12.17–12.19

loan agreements, and, 1.9–1.13

Nisshin Shipping decision, 12.5

protection for contracting parties, 12.13

supplementary provisions, 12.16

three-party model, 12.2

two-tier approach, 12.4

wrongful acceleration, and, 11.7

Covenants

loan agreements, and, 2.10

Covenants to pay

continuing guarantees, and, 5.11

limitation, and, 5.12

trusts, and, 13.18

Credit derivatives

alternative approach, 16.21

case study, 16.6–16.10

credit events, 16.3–16.4

dispute resolution, 16.13–16.17

introduction, 16.1–16.2

legal risk management, 16.18–16.20

publicly available information, 16.11–16.12

'sovereigns', 16.5

time limits, 16.16

Crystallisation conditions

third party rights, and, 12.12

D

Debentures

loan agreements, and, 2.2

Debts

assignment of choses in action, and, 6.3

Default events

loan agreements, and, 2.10

Default interest

loan agreements, and, 2.4–2.5

Demand guarantees

introduction, 15.9–15.11

standby letters of credit, and, 15.9–15.12

Derivatives

financial collateral, and, 8.2

Dispute resolution

credit derivatives, and, 16.13–16.17

loan agreements, and, 2.17

Documentary letters of credit

autonomous, 14.4

confimed credits, 14.9

deferred credits, 14.10

examination of documents, 14.13–14.16

fraud, 14.15

generally. 14.2

introduction, 14.1

irrevocable credits, 14.7

negotiable credits, 14.8

non-negotiable credits, 14.8

'pay or not to pay', 14.16

'red clause' credit, 14.12

revocable credits, 14.7

revolving credits, 14.12

sight credits, 14.10

strict compliance principle, 14.14

sui generis, 14.3

transferable credits, 14.11

types, 14.6–14.12

UCP (1993 Revision), 14.5

unconfirmed credits, 14.9

E

EC Regulation 44/2001

dispute resolution, and, 2.17

Equitable assignment

choses in action, and, 6.4

Equitable charges

security, and, 7.9–7.11

Equities

assignment of choses in action, and, 6.13–6.14

Equity

The core concept, 13.7

Events of default

loan agreements, and, 2.10

Exculpation

syndicated loans, and, 9.18–9.19

F

Financial collateral

applicable law, 8.17–8.18

appropriation, 8.16

bank accounts, 8.5

bills of exchange, and, 8.4

'cash', 8.4

charges, and, 8.11

definition

'credited to an account', 8.5

difficulties, 8.6

introduction, 8.4

derivatives, and, 8.2

disapplied provisions, 8.13–8.14

EC Directive, 8.1

'financial collateral arrangements'

charges, 8.11

introduction, 8.7

mortgages, 8.11

'security financial collateral arrangement', 8.9–8.10

'title transfer financial collateral arrangement', 8.8

insolvency provisions, 8.14

introduction, 8.1

legal uncertainty, 8.12

meaning, 8.4–8.6

mortgages, and, 8.11

'non-natural persons', 8.1

postscript, 8.19

'promissory notes', and, 8.4

re-hypothecation, 8.15

repos, and, 8.2

statutory basis, 8.1

stock lending, and, 8.2

trade receivables, 8.5

wholesale markets, 8.2

Financial conditions

loan agreements, and, 2.10

Financial instruments

financial collateral, and, 8.4

Fiscal agent structure

bondholder's rights, 4.11

generally, 4.9

Fixed charges

(see And see Security)

generally, 7.9–7.11

Floating charges

(see And see Security)

generally, 7.9–7.11

Forfaiting

bills of exchange, and, 3.10

Fraud

documentary letters of credit, and, 14.15

Freedom of contract

generally, 1.2

third party rights, and, 12.20

G

Global bonds

(see And see Bonds)

generally, 4.4

introduction, 4.3

Guarantees

appropriation, 5.7

'co-extensiveness' principle, 5.7

comfort letters, and, 5.27

conclusion, 5.30–5.31

continuing arrangements, 5.11–5.14

continuing obligations, 5.8

contract, 5.3–5.5

incidents of suretyship

introduction, 5.15

marshalling, 5.18

subrogation, 5.16

suspense accounts, 5.17

indulgence, 5.20

insurance contracts, and, 5.25–5.26

introduction, 5.1

marshalling, 5.18

nature, 5.3–5.5

'new account' provision, 5.7

objectives

appropriation, 5.7

continuing obligations, 5.8

introduction, 5.2

status, 5.3–5.5

third party will pay, 5.6

parent company guarantees, 5.11–5.14

payment

continuing guarantees, 5.11–5.14

introduction, 5.9

specific debts, 5.10

third party, by, 5.6

performance bonds, and, 5.28

rule in Clayton's Case, 5.7

specific debts, 5.10

status, 5.3–5.5

subrogation, 5.16

suspense accounts, 5.17

third parties' role, 5.6

time to pay, 5.20

variation of principal contract, 5.21–5.23

voluntary arrangements, 5.29

waiver of defences

indulgence, 5.20

introduction, 5.19

time to pay, 5.20

variation of principal contract, 5.21–5.23

H

High yield bonds

(see And see Bonds)

generally, 4.

I

Illegality

loan agreements, and

generally, 2.6–2.7

protective provisions, 2.13

Increased costs

loan agreements, and, 2.13

Indemnity

syndicated loans, and, 9..20

Indorsements without recourse

bills of exchange, and, 3.10

Indulgence

guarantees, and, 5.20

Insolvency

financial collateral, and, 8.14

Insurance contracts

guarantees, and, 5.25–5.26

Interbank provisions

loan agreements, and, 2.15–2.16

syndicated loans, and

instructing group's powers, 9.8–9.9

introduction, 9.7

minority protection, 9.12

reasonableness of lenders acts, 9.10–9.11

sharing clause, 9.13

Intention

contracts, and, 1.7–1.8

Interest

loan agreements, and, 2.4–2.5

Issuers

bonds, and

generally, 4.7

medium-term notes, 4.8

revolving facility, 4.8

J

Jurisdiction clause

loan agreements, and, 2.17

L

Legal assignment of choses in action

'absolute', 6.9

'any debt or other legal ting in action', 6.6–6.7

'by writing under hand of', 6.8

enforcement, 6.15

equities, 6.13–6.14

introduction, 6.5

notice to the debtor, 6.10–6.12

priorities, 6.13–6.14

statutory requirements, 6.8

Legal charges

(see And see Security)

generally, 7.7–7.8

Legal mortgages

(see And see Security)

generally, 7.5

Legal personality

treaty organisations, and, 2.20

Legal uncertainty

financial collateral, and, 8.12

Less developed countries

syndicated loans, and, 9.5

Letters of credit

documentary

autonomy, 14.4

confimed credits, 14.9

deferred credits, 14.10

examination of documents, 14.13–14.16

fraud, 14.15

generally. 14.2

introduction, 14.1

irrevocable credits, 14.7

negotiable credits, 14.8

non-negotiable credits, 14.8

'pay or not to pay', 14.16

'red clause' credit, 14.12

revocable credits, 14.7

revolving credits, 14.12

sight credits, 14.10

strict compliance principle, 14.14

structure, 14.2

sui generis, 14.3

transferable credits, 14.11

types, 14.6–14.12

UCP (1993 Revision), 14.5

unconfirmed credits, 14.9

introduction, 14.1

standby letters

autonomy, 15.15

background, 15.7–15.8

compliance, 15.14

consideration, 15.13

demand guarantees, 15.9–15.12

introduction, 15.6

postscript, 15.16–15.17

Sirius International decision, 15.1–15.5

types, 14.1

LMA agreements

(see And see Loan agreements)

generally, 2.1, 9.2, 9.8, 9.15, 9.17

Loan agreements

agency provisions, 2.15–2.16

bonds, and, 2.2

case law, 2.19–2.23

circumstantial provisions, 2.9–2.11

contractual framework

generally, 2.2–2.3

illegality, 2.6–2.7

interest, 2.4–2.5

debentures, and, 2.2

default interest, 2.4–2.5

dispute resolution, 2.17

format

agency provisions, 2.15–2.16

circumstantial provisions, 2.9–2.11

dispute resolution, 2.17

interbank provisions, 2.15–2.16

introduction, 2.8

operational provisions, 2.12

protective provisions, 2.13

transferability, 2.14

guarantees

(see And see Guarantees)

conclusion, 5.30–5.31

incidents of suretyship, 5.15–5.18

introduction, 5.1

objectives, 5.2–5.8

payment, 5.9–5.14

voluntary arrangements, 5.29

waiver of defences, 5.19–5.23

illegality, 2.6–2.7

interbank provisions, 2.15–2.16

interest, 2.4–2.5

introduction, 2.1

operational provisions, 2.12

protective provisions, 2.13

transferability, 2.14

unenforceability, 2.6–2.7

M

Margin ratchet lending

case law, and, 2.21

Market disruption

loan agreements, and, 2.13

Marshalling

guarantees, and, 5.18

Matched funding

loan agreements, and, 2.13

Materially prejudicial acceleration

generally 11.3, 11.9

Medium-term notes

bonds, and, 4.8

Minority protection

syndicated loans, and, 9.12

Misrepresentations

loan agreements, and, 2.9

Mortgages

(see And see Security)

financial collateral, and, 8.11

generally, 7.5

N

Negotiability by custom

bills of exchange, and, 3.9

Negotiable instruments

bonds, and, 4.13

generally, 3.7

security, and, 7.6

'New account' provision

guarantees, and, 5.7

New York Convention 1958

dispute resolution, and, 2.17

Novation

syndicated loans, and, 9.21–9.22

transferability, and, 10.5–10.8

O

Offering memorandum

bonds, and, 4.5

Offers

bonds, and, 4.5

contracts, and, 1.6

P

Parallel debt

trusts, and, 13.20

Parent company

guarantees, and, 5.11–5.14

Part performance

contracts, and, 1.4

Participation certificates

transferability, and

generally, 10.11–10.13

other legal aspects, 10.14

Past consideration

contracts, and, 1.5

Payment

guarantees, and

continuing guarantees, 5.11–5.14

introduction, 5.9

specific debts, 5.10

third party, by, 5.6

Performance bonds

guarantees, and, 5.28

Perpetuities

security, and, 7.3

Pledges

security, and, 7.6

Priorities

assignment of choses in action, and, 6.13–6.14

Privity

contracts, and, 1.9–1.13

Promissory notes

financial collateral, and, 8.4

generally, 3.8

Prospectus liability

bonds, and, 4.5–4.6

Protective provisions

loan agreements, and, 2.13

R

Recourse

bills of exchange, and, 3.5–3.6

Registered bonds

(see And see Bonds)

generally, 4.3

Re-hypothecation,

financial collateral, and 8.15

Repos

financial collateral, and, 8.2

Representations

loan agreements, and, 2.9

Return on assets

syndicated loans, and, 9.4

Revolving facility notes

bonds, and, 4.8

Risk management

credit derivatives, and, 16.18–16.20

Rule against perpetuities

security, and, 7.3

Rule in Clayton's Case

guarantees, and, 5.7

S

Sale and purchase agreements

security, and, 7.17

Secondary market

transferability, and, 10.11–10.13

Securitisation

bonds, and, 4.7

transferability, and, 10.1

Security

after-acquired property, 7.4

bona fide purchasers, 7.18–7.19

book debts, and, 7.15–7.16

chargebacks, 7.19

charges

book debts, on, 7.15–7.16

fixed/floating distinction, 7.9–7.11

generally, 7.2–7.6

legal/equitable distinction, 7.7–7.8

registrability, 7.12–7.16

sale and purchase agreement, 7.17

common law mortgages, 7.5

delivery of negotiable instruments, 7.6

equitable charges, 7.9–7.11

financial collateral regulations

(see And see Financial collateral)

applicable law, 8.17–8.18

appropriation, 8.16

arrangements, 8.7–8.11

disapplied provisions, 8.13–8.14

financial collateral, 8.4–8.6

introduction, 8.1

legal uncertainty, 8.12

postscript, 8.19

re-hypothecation, 8.15

wholesale markets, 8.2–8.3

fixed charges, 7.9–7.11

floating charges, 7.9–7.11

introduction, 7.1

legal charges, 7.7–7.8

legal mortgages, 7.5

negotiable instruments, 7.6

pledges, 7.6

rule against perpetuities, 7.3

sale and purchase agreements, 7.17

shares, 7.5

trusts, and

generally, 13.17

structures, 13.18–13.19

trustees, 13.10–13.16

type, 7.2

introduction, 5.15

marshalling, 5.18

subrogation, 5.16

suspense accounts, 5.17

T

Taxes

loan agreements, and, 2.13

Third parties

guarantees, and, 5.6

Third party rights

assignees, 12.6–12.7

beneficiaries, 12.8–12.9

bonds, and, 4.13

conclusion, 12.21

contracts, and, 1.9–1.13

crystallisation conditions, 12.12

enforcement, 12.3

excluded contracts, 12.15

freedom of contract, and, 12.20

introduction, 12.1

judicial reduction of claims, 12.14

key provisions, 12.17–12.19

Nisshin Shipping decision, 12.5

protection for contracting parties, 12.13

supplementary provisions, 12.16

three-party model, 12.2

two-tier approach, 12.4

wrongful acceleration, and, 11.7

Time to pay

guarantees, and, 5.20

Trade receivables

financial collateral, and, 8.5

Trading

bonds, and, 4.3–4.4

Transferability

background, 10.2

benefit of agreement

generally, 10.4

novation, 10.7

bills of exchange, and, 3.4

future developments, 10.15–10.16

introduction, 10.1–10.3

loan agreements, and, 2.14

novation, 10.5–10.8

participation certificates (TPCs)

generally, 10.11–10.13

other legal aspects, 10.14

secondary market, in, 10.11–10.13

securitisation, and, 10.1

sub-participations, and, 9.20

syndicated loans, and,

Argo decision, 9.26–9.27

assignment, 9.21–9.22

background, 10.4

introduction, 9.20

novation, 9.21–9.22

other issues, 9.28

restrictions, 9.24

standing offer, 9.23

syndicated term loans, 10.2

transferabe loan certificates (TLCs)

generally, 10.9–10.10

other legal aspects, 10.14

Trust deeds

contracts, and, 11.4–11.5

unfair contract terms, and, 11.6–11.7

Trustee exemption clauses

wrongful acceleration, and, 11.6–11.8

Trustee structure

(see And see Bonds)

bondholder's rights, 4.11

generally, 4.10

Trustees

powers, 13.13

protections, 13.14–13.15

right to indemnity, 13.16

trustee exemption clauses, 11.4–11.7, 13.4–13.16

Trusts

accessory security, 13.19

agency, and, 13.9

agency structures, 13.21

certainty, 13.8

covenants to pay, 13.18

creation, 13.4–13.6, 13.8

introduction, 13.1

meaning, 13.2–13.3

parallel debt, 13.20

remedy for breach of trust, 13.13

security structures 13.18–13.19

security trustees

generally, 13.10–13.12

powers, 13.13

protections, 13.14–13.15

subordination, 13.11

taking security, 13.17

turnover trusts, 13.12

U

Underwriters

bonds, and

generally, 4.7

medium-term notes, 4.8

revolving facility, 4.8

Unenforceability

loan agreements, and, 2.6–2.7

V

Variation of principal contract

guarantees, and, 5.21–5.23

Voluntary guarantees

guarantees, and, 5.29

W

Waiver of defences

guarantees, and

indulgence, 5.20

introduction, 5.19

time to pay, 5.20

variation of principal contract, 5.21–5.23

Warranties

loan agreements, and, 2.9

Wednesbury unreasonableness

Discretions, and, 11.13–11.14

Wholesale markets

financial collateral, and, 8.2

Wrongful acceleration

Concord Trust decision, 11.13–11.20

introduction, 11.1

'materially prejudicial to the interests of the bondholders', 11.3

postscript, 11.21

subsequent application, 11.13–11.14

summons for directions, 11.2

third party rights, 11.7

trust deeds, 11.4–11.5

trustee exemption clauses, 11.6–11.8