Last Updated June 10, 2019

Law and Practice

Contributed By Walkers

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Walkers is a global firm with ten substantive offices around the world. Its transactions often involve Cayman Islands, British Virgin Islands, Bermuda, Jersey and/or Guernsey legal matters, and it provides an integrated service to clients across its offices, legal systems and time zones. The finance and capital markets group in Ireland comprises a team of 23, including two listing agents. The group also includes four tax-advisers (including two tax partners) who support a number of practice areas and 16 dedicated capital markets fee-earners who spend the vast majority of their time advising on debt capital markets activity. In addition, the team works with asset finance, corporate, real estate and investment funds teams on multi-disciplinary, cross-border mandates. It is one of the largest dedicated debt capital markets teams in Ireland. The firm was a founding member of the Irish Debt Securities Association (IDSA) and sits on the Executive Council and Legal, Tax, CSP and Listing Sub-committees.

The principal adviser in relation to an issuance of debt securities is typically the Arranger or Lead Manager (although not all deals will have an Arranger or Lead Manager). The Arranger/Lead Manager is typically an investment bank and is responsible for arranging the transaction. The Arranger may also act as placement agent (where the debt securities are being placed) or initial note-purchaser. The Arranger/Lead Manager is often responsible for selecting the other advisers and transaction parties in connection with the issuance and listing of debt securities, which include:

  • Issuer;
  • Trustee/Note Trustee/Security Trustee;
  • Registrar;
  • Account Bank;
  • Transfer Agent;
  • Paying Agent;
  • Corporate Services Provider (where the issuer is an SPV);
  • Listing Agent;
  • Auditors;
  • Hedging Providers (where applicable); and
  • Agents for service of process.

In collateralised loan obligation transactions, the following additional transaction parties will be seen:

  • Collateral Administrator;
  • Collateral Manager; and
  • Custodian.

In a typical asset-backed securities (receivables) deal, the following additional transaction parties will also be seen:

  • Cash Manager;
  • Seller; and
  • Servicer.

Arranger/Lead Manager: see 5.1 Advisers Appointed in Connection with the Issuance

Issuer: The role of an issuer in an asset-backed securities transaction is to create and issue the debt securities, to acquire/procure the acquisition of the underlying portfolio and to remit/procure the remittance of the proceeds/cashflows arising from the underlying portfolio to the holders of the debt securities in accordance with the contractual waterfall provisions that are typically contained in the underlying transaction documents. The role of an issuer will change depending on the nature of the transaction, for example the role of an issuer of asset-backed securities is different from that of the role of an issuer of straight debt securities.

Trustee: The role of the trustee is to enter into the various transaction documents as trustee for the holders of the debt securities and often, in the context of secured deals, to hold the transaction security for itself and for the benefit of the other secured parties (including the holders of the debt securities), although it should be noted that the note trustee and the security trustee are not always the same entity. The trustee is typically appointed under the terms of a trust deed. The trust deed typically contains a suite of restrictive covenants that restrict the actions that the issuer can take without the consent of the trustee. Trustees typically seek a direction from the holders of the debt securities before consenting to any matters that require trustee consent under the trust deed and/or the other transaction documents.

Registrar: the primary responsibility of the registrar is to maintain a register in respect of each class of debt securities (where there is more than one class of debt securities in issue). The requirements as to the form and content of the register are typically set out in the agency agreement and the terms and conditions of the debt securities. The register typically records details of the number of issued debt securities, their original and outstanding principal amounts, their date of issue and the holders of the debt securities. In addition, the register typically contains details of all cancellations and replacements of certificates representing the debt securities.

Account Bank: the primary responsibility of the account bank is to open and maintain the various transaction bank accounts of the issuer and to comply with the proper instructions of the issuer (and/or its authorised signatories) in terms of payments in and withdrawals from the transaction accounts.

Transfer Agent: the primary role of the transfer agent is to assist the issuer and the registrar with the transfer of debt securities.

Paying Agent: the principal role of a paying agent is to make payments on the debt securities in accordance with the instructions of the issuer (or any other person that the issuer may have authorised to instruct the paying agent from time to time). It is common to have a principal paying agent party to the transaction documents who can make payments under the debt securities via other paying agents located in different jurisdictions.

Corporate Services Provider: the primary role of the corporate services-provider is to incorporate, maintain and tend to the daily administrative and Irish legal and tax compliance requirements of the issuer. Corporate services-providers often provide Irish resident directors to sit on the board of the issuer. Corporate services-providers are also responsible for preparing the annual accounts of the issuer in conjunction with the issuer's auditors and the other transaction parties.

Listing Agent: the principal role of the listing agent is to assist the issuer with the admission of the debt securities to the relevant stock exchange and compliance with the issuer's continuing obligations following completion of the listing.

Auditors: the auditors of the issuer are responsible for auditing the annual accounts of the issuer on an annual basis.

Hedging Providers: the primary role of the hedging provider(s) is to assist the issuer with managing its currency risk and/or interest rate risk through derivative contracts.

Agent for Service of Process: where the underlying transaction documents are governed by the laws of a country other than the jurisdiction of incorporation of the issuer, it will often be necessary for the issuer (and certain of the other transaction parties) to appoint an agent to receive service of process in the jurisdiction of the governing law of the underlying transaction documents on the issuer's behalf. Most Irish corporate service-providers can provide this service through their network of satellite/affiliated offices.

(i) A debut issuance/listing

The roles of the advisers do not change significantly in a debut issuance or listing as compared to a repeat issuance or listing save that, for a debut issuance or listing, the roles of the advisers are likely to be more involved. For example in a debut issuance/or listing, the Arranger/Lead Manager will be more heavily involved/concerned with: 

•       determining the optimal structure for the issuance from a legal and tax perspective;

•       agreeing the offering document and suite of underlying transaction documents; and

•       preparing for the first roadshow and other activities to market the debt securities. 

Similarly the roles of, for example, the listing agent and the legal advisers will be more involved in terms of having a debut prospectus approved by the CBI and Euronext Dublin.

(ii) Made by a foreign company

No differences or additional advisers required.

(iii) a drawdown under an existing programme

No differences or additional advisers required.

Walkers Global

The Exchange,
George's Dock, IFSC,
Dublin 1,
Ireland

+353 1 470 6600

+353 1 470 6601

info@walkersglobal.com www.walkersglobal.com
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Authors



Walkers is a global firm with ten substantive offices around the world. Its transactions often involve Cayman Islands, British Virgin Islands, Bermuda, Jersey and/or Guernsey legal matters, and it provides an integrated service to clients across its offices, legal systems and time zones. The finance and capital markets group in Ireland comprises a team of 23, including two listing agents. The group also includes four tax-advisers (including two tax partners) who support a number of practice areas and 16 dedicated capital markets fee-earners who spend the vast majority of their time advising on debt capital markets activity. In addition, the team works with asset finance, corporate, real estate and investment funds teams on multi-disciplinary, cross-border mandates. It is one of the largest dedicated debt capital markets teams in Ireland. The firm was a founding member of the Irish Debt Securities Association (IDSA) and sits on the Executive Council and Legal, Tax, CSP and Listing Sub-committees.

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