Insights

Washington – January 3, 2022: Crowell & Moring elected 13 lawyers to the firm’s partnership, effective January 1, 2022. The firm also promoted seven to the position of senior counsel and 19 associates to the position of counsel. The new partners have been promoted from within the ranks of the firm’s London, New York, and Washington, D.C. offices and from across several practice groups, including Advertising & Media; Antitrust & Competition; Corporate; Energy; Environment & Natural Resources; Government Contracts; Health Care; Technology & Intellectual Property; International Dispute Resolution; Litigation; Mass Tort, Product, and Consumer Litigation; and Privacy & Cybersecurity.

New York – April 1, 2021: Crowell & Moring and Kibbe & Orbe have joined forces effective today to provide expanded service offerings to clients in the financial services industry.  Twenty-four lawyers from the storied financial law firm are now part of Crowell & Moring’s New York, London, and Washington, D.C. offices, including Jennifer Grady, managing partner and chair of the firm’s executive committee, who will co-chair Crowell & Moring’s Corporate practice; three founding partners, Jonathan Kibbe, William Orbe, and Michael D. Mann, and the managing partner of the London office, Andrew M. Martin.

In continuing with its efforts to promote greater liquidity and certainty in the U.S. secondary loan trading market, on July 21, 2023, The Loan Syndications and Trading Association, Inc. (the "LSTA") officially released a revised suite of secondary market loan trading forms, which revised forms are effective for LSTA trades entered into on or after such date. 

Participation agreements, in the form promulgated by The Loan Syndications and Trading Association, Inc. (LSTA), are widely regarded as dependable vehicles for conveying loan ownership interests from a lender to a participant as “true sales” in the United States.  But what if the underlying credit agreement describes the participation as a financing relationship between a lender, as debtor, and participant, as creditor?  The answer is unclear as a legal matter, and the existence of such language should give market participants pause if encountered in the loan origination or secondary trading contexts.

Settlement certainty is a required feature of any global credit market. The secondary loan market aspires to that goal; however, ensuring absolute certainty of settlement has proven elusive due to several reasons, including the complexity of the underlying loan product. There are no robust electronic settlement platforms, transfer documentation is negotiated between counterparties, definitions of “eligible assignee” vary by credit agreement, and borrower-generated confidential lists of disqualified lenders, pre-qualified “white-listed” lenders and ineligible competitors further confuse the overlapping sets of entities that can or cannot become members of the lending syndicate. Numerous consents to transfer a loan may be required, including consents from the borrower, the administrative agent, the letter of credit issuer and other interested parties. And even if these hurdles are overcome, transfers of loans may be arbitrarily “frozen” by a borrower or administrative agent during a lengthy reorganization or restructuring.