Articles by author
Tacking: what further advances since 2002?
In this article, the authors consider issues of interest to the syndicated loan market in the context of the “tacking of further advances” to existing lending secured by registered land, or mortgages of registered land, in light of s 49 of the Land Registration Act 2002, developments in jurisprudence on the topic, and the work of the Law Commission. The authors are indebted to Mr Trevor Moore, for his article in this journal entitled ‘Real Estate as Security following The Land Registration Act 2002’ (2004) 2 JIBFL 56, upon which this work builds. This work assesses developments since that date and addresses problems arising in the modern loan market where; syndicate lenders make further advances directly to the borrower under ancillary facilities/RCFs; where loan agreements state that the obligation to make a further advance does not apply for so long as there is an un-remedied breach of covenant; how the concept of the “agreed maximum amount” operates under facilities where there are incremental loans and up-tiering transactions; and how the absence of a robust intercreditor agreement with a subsequent chargee can expose the “senior” lenders to US-style “lender-on-lender” violence.
31 JUL 2024Re-imagining the phrase “pursuant to the Finance Document” and considering the ICA’s wide power to restrain junior challenge
In this article, the authors consider the judgment in Re Arboretum Devon (RLH) [2021] EWHC 1047 (Ch) and question the judge’s finding that the borrower’s obligation to “repay” arising by reason of a restitutionary claim in unjust enrichment constituted a “Secured Liability” arising “in accordance with” the transaction and was therefore secured.
1 JUL 2021
