I OVERVIEW

Australia has a long history of merger and acquisition activity, and consequently, the debt financing of these acquisitions is a well-trodden path for lenders and borrowers alike. Traditionally, the senior debt financing of acquisitions in Australia has been the domain of the banks, international and domestic, with the local 'Big Four' banks often taking lead roles in relation to the arranging and underwriting of these facilities. However, consistent with the European experience, the market has recently borne witness to the emergence and proliferation of non-bank, institutional lenders.

Typically, an Australian acquisition finance package will feature an amortising term loan A, together with a bullet term loan B, to fund the acquisition of the target group. These facilities will generally be accompanied by a pari passu revolving facility that is designed to meet the target's working capital or contingent instrument needs, or both, post-acquisition. Capital expenditure or acquisition facilities are often also included as required (generally on a committed basis). Subordinated debt provided by specialised institutions (usually in the form of mezzanine loans or local capital markets products) also often features where the acquisition is of a sufficient size. Recently, there has been a trend for mezzanine funding to be provided at a level above the bank group at a holdco level. This enables sponsors and senior lenders to avoid much of the complexity that comes from having this subordinated debt provided at (or just above) the level of the senior debt. As a general rule, loan documentation in the Australian market is relatively standardised, thus enabling loans to be drafted, priced and syndicated to a wide pool of financiers.

From a market perspective, there was an increase in activity experienced by the local syndicated loan market in the 2017 calendar year, with Australian syndicated lending reaching US$81.9 billion from 201 transactions, an 8.8 per cent rise from the same period in 2016.2 Despite a strong start to 2018,3 a significantly softer third quarter (year on year) has meant that Australian syndicated lending decreased by 1.4 per cent over the first nine months of 2018 relative to the same period in 2017 (US$60 billion from 131 deals).4 This decrease can be attributed to a softer than usual start to the 2018/19 financial year and the impact of various macroeconomic factors. Borrowers in the financial sector have continued to dominate the Australian syndicated loans market, accounting for 38.9 per cent of all borrowings.5

Growth in the infrastructure sector is expected to continue, with this year seeing the privatisation of a 51 per cent stake in the WestConnex freeway project by the New South Wales government as well as the privatisation of the Victorian Land Titles and Registry office. These sales form part of a broader government strategy of asset privatisation. The completed and planned privatisations will unlock significant capacity within each respective state to invest into new transport and social infrastructure projects, which in turn, promise to generate additional deal flow.

Australia is still seen as a positive environment for domestic and offshore buyers who are being driven by different reasons to deal, with Australia's climate of low interest rates, low inflation and a competitive currency (relative to other global currencies).6 This has increasingly placed sponsors in a competitive sale process with the potential to be 'priced out', although sponsors continue to hold their own against foreign corporations with deep pockets. Consequently, given the strength of the balance sheets of these corporations, the impact on more traditional debt-financed transactions remains to be seen.

Renewable energy project financings are expected to continue to drive growth in the utilities sector with recent notable transactions including the Murra Wind Farm's A$320 million, five-year project financing to support the development of a wind farm in Victoria and Bulgana Green Power Hub's wind farm project securing A$235 million in project financing.7

Growth in A$ Term Loan B facilities (TLB) and stretched senior (or 'institutional') loans has also continued with the popularity of such facilities reflecting the preference for facilities that do not involve potentially expensive currency fluctuations or hedging. This trend is reflected with Australian Technology Innovators Pty Ltd's A$350 million TLB raising in late 2017, the first stand-alone domestic TLB deal for a corporate borrower that is both Australian-dollar denominated and also governed by Australian law.

In addition to the institutional lenders, foreign banks have a growing appetite for funding investments into Australian industries. This is demonstrated by China Merchants becoming the first Chinese bank to lead the financing of a leveraged buyout in Australia, winning a sole mandate on an A$400 million loan for the acquisition of Real Pet Food Co.8 M&A activity in Australia had a strong year in 2017, with a 55 per cent rise in announced deals compared to the previous year.9 The bulk of M&A activity, and accordingly acquisition debt financing, has been firmly rooted in the 'mid-market' sector (which comprises deals valued between A$10 million and A$250 million), accounting for 77 per cent of total deals in 2017.10 It is expected that the current low interest rate environment will continue to draw M&A-related financing activity to the local market led strongly by service-based sectors.

The first half of 2018 has also seen an increase in public-to-private transactions, involving private sponsors making investments in listed businesses. This can be attributed to a perception that listed targets are becoming more accessible to sponsors, a lower number of privately run auction processes compared to previous years and increased confidence following a resurgence of public M&A activity since the end of 2017. CDH Investment's acquisition of Sirtex Medical Ltd and Oaktree's/Boardrider's acquisition of Billabong International provide noteworthy examples of recent public-to-private transactions.11

II REGULATORY AND TAX MATTERS

i Regulation of foreign investments in Australia

The Australian Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) and its associated regulations (administered by the Foreign Investment Review Board (FIRB)) regulate the making of investments by foreign persons in Australian companies and assets (and in some cases offshore companies with the requisite Australian connection).

Under FATA, a 'significant action' is one that the treasurer has the power to block or unwind (or impose conditions about the way in which it will be implemented) if he or she considers the transaction to be contrary to the national interest. Notifying a significant action and obtaining a statement of no objection cuts off this power. A subset of significant actions called 'notifiable actions' must be notified – failure to do so is an offence under the law.

One common type of notifiable action is where a foreign investor is looking to acquire a 'substantial interest' being 20 per cent or more of an Australian entity with total assets of more than A$261 million (indexed annually). Separate value thresholds apply for these kinds of acquisitions by non-government investors based in the US, New Zealand, South Korea, Japan, Chile, Singapore and China (currently A$1.134 billion for acquisitions in non-sensitive businesses12).

Another notifiable action is where a 'foreign government investor' (defined as an entity that is at least 20 per cent owned by foreign governments, their agencies or instrumentalities or other foreign government investors from one country, or at least 40 per cent-owned by foreign governments, their agencies or instrumentalities or other foreign government investors from multiple countries) is seeking to obtain an interest (directly or indirectly) of 10 per cent or more in an Australian entity or business (5 per cent if the acquirer has entered into a legal arrangement relating to its business and the Australian entity or business and any percentage if the acquirer is in a position to influence or participate in the central management and control of, or the policy of, the Australian entity or business (such as appointing a director)). This typically affects state-owned enterprises, sovereign wealth funds and public pension funds, or investment funds where these kinds of entities are investors. It is also important to note that (contrary to the statutory regime applying to most investors) an offshore transaction in which the acquirer is a foreign government investor can be caught as a notifiable action if the foreign target has any Australian business (other than where the Australian assets are less than 5 per cent of the target's global assets are worth less than A$55 million and are not assets of a sensitive business).

Other notifiable actions include an acquisition of Australian land above the relevant threshold (the threshold varies depending on who the acquirer is and the type of land being acquired, noting that foreign government investors, vacant commercial land and residential land all have A$0 thresholds); an acquisition of (generally) 10 per cent or more of an Australian agribusiness with an investment value above A$57 million (indexed annually);13 an acquisition of at least 5 per cent of an Australian media business, regardless of value; an acquisition by a foreign government investor of a legal or equitable interest in a tenement; an acquisition by a foreign government investor of an interest of at least 10 per cent in the securities in a mining, production or exploration entity; and the starting of a new business in Australia by a foreign government investor.

Other kinds of transactions that are not notifiable actions may still be caught as 'significant actions'. Although notification of these transactions is not mandatory, foreign investors frequently choose to notify these transactions and obtain approval in order to cut off the treasurer's powers. The most common transactions that are caught are purchases of Australian businesses (i.e., asset sales) with total assets of more than A$261 million (indexed annually) and offshore transactions where the foreign target has Australian assets (including shares in an Australian subsidiary) of more than A$261 million (indexed annually). Again, investors based in certain treaty countries are in some cases subject to different thresholds.

While FIRB approval is principally a matter of concern from an M&A perspective (where ownership in the shares or assets are actually being transferred), it is also relevant in a debt finance context given that 'obtaining an interest' also extends to the grant of a security interest over such shares or assets or the enforcement of such security.

In a finance context, there is an exception from this requirement if the interest is either held by way of a security or acquired by way of enforcement of a security, solely for the purpose of a money-lending agreement. This applies to persons whose ordinary business includes the lending of money (which is deliberately broad enough to capture institutions that are not authorised deposit-taking institutions (ADIs) and also captures a subsidiary or holding company of such a lender, a security trustee or agent, and a receiver or receiver and manager of an entity that holds or acquires the interest. This exception also applies to a 'foreign government investor', although in respect of an interest acquired by way of enforcement of a security, a foreign government investor is restricted in the amount of time it can hold an asset (12 months in the case of an ADI and six months in the case of a non-ADI, unless the foreign government investor is making a genuine attempt to sell the assets acquired by way of enforcement). It should be noted that the money-lending exception has more limited application where the security is over residential land.

Where the acquisition is not politically sensitive, these approvals are generally provided as a matter of course, although the need for FIRB approval should be considered where security is being granted over material Australian entities.

It should also be noted that other government approvals can also be required to take security over certain types of assets (such as mining and resource interests) that are subject to separate regulation.

ii Interest withholding tax

Interest withholding tax (IWT) of 10 per cent applies on gross payments of interest (or payments in the nature of interest) made by Australian borrowers to non-resident lenders (except where the lender is acting through an Australian permanent establishment or where other exceptions apply). IWT is a final tax and can be reduced (including to zero) by domestic exemptions and the operation of Australia's network of double tax agreements (DTAs).

Under DTAs with Finland, France, Germany, Japan, New Zealand, Norway, South Africa, Switzerland, the United Kingdom and the United States, there is no IWT for interest derived by a financial institution unrelated to the borrower (subject to certain exceptions).

Under Australian domestic law, IWT may also be exempt where the debt satisfies the 'public offer' exemption (contained in Section 128F of the Income Tax Assessment Act 1936 (Cth)). Once the debt satisfies the public offer exemption, it is typically more marketable as an incoming lender remains entitled to the benefits of the exemption from IWT (subject to certain criteria being met). Broadly, the public offer exemption applies where an Australian company publicly offers debt via one of several prescribed means, including (most commonly):

  1. the debt instrument is offered to at least 10 persons, each of whom is carrying on a business of providing finance, or investing or dealing in securities in the course of operating in financial markets, and is not known or suspected by the borrower to be associates of one another or of the borrower; or
  2. the debt instrument is offered to the public in electronic form that is used by financial markets for dealing in debentures or debt instruments.

Syndicated facility agreements can only meet the public offer test where the borrower or borrowers will have access to at least A$100 million at the time of first loan (among other criteria).

An IWT exemption will not apply where the issuer (or arranger acting as agent for the issuer) knew or had reasonable grounds to suspect that the debt instrument will be acquired by an offshore associate of the Australian borrower, unless the associate acquired it in the capacity of a dealer, manager or underwriter.

IWT relief also applies to certain foreign pension funds and sovereign funds. Under an exposure draft released by the Australian government (as at August 2018), it has been proposed that the IWT exemption will apply to foreign pension and sovereign funds with portfolio-like interests, being interests in an entity that are less than 10 per cent of total ownership interests (on an associate-inclusive basis) and do not carry an ability to influence the entity's decision-making.

iii Thin capitalisation

Australia has a thin-capitalisation regime that can operate to deny income tax deductions for interest expenditure on overly geared Australian groups that have debt deductions over the de minimis threshold of A$2 million for an income year. There are three methods to calculate the maximum allowable debt of a taxpayer. Most Australian borrowers will rely on the safe harbour, which in broad terms allows for Australian assets to be funded by up to 60 per cent debt. In the context of an acquisition, these provisions allow for the funding of acquired goodwill.

In addition, there is an arm's-length debt test, which broadly allows Australian groups to be debt-funded up to the maximum amount a third-party lender would be willing to lend. Although this test has not typically been used (as it is an annual test, and, therefore, is contingent on the prevailing debt markets year on year), taxpayers are increasingly adopting this approach. Another test, the worldwide gearing test, allows an entity to gear its Australian operations, in certain circumstances by reference to the level of its worldwide group.

III SECURITY AND GUARANTEES

i Common security packages

The Personal Property Securities Act 2009 (Cth) (PPSA) sets out the principles applicable to the grant and perfection of security interests in Australia, principles that should be relatively familiar to anyone who has had experience in a common law jurisdiction.

The PPSA introduced a uniform concept of a 'security interest' to cover all existing concepts of security interests, including certain mortgages, charges, pledges and liens. It applies primarily to security interests in personal property that arise from a consensual transaction that, in substance, secures payment or performance of an obligation. It also applies to certain categories of deemed security interests, so that like transactions will be treated alike. 'Personal property' is broadly defined and essentially includes all property other than land, fixtures and buildings attached to land, water rights and certain statutory licences.

In a typical domestic secured lending scenario, security is most commonly taken by the relevant security providers entering into a general security deed (the local equivalent of a debenture). Such an instrument can attach to 'personal property' (both tangible and intangible) and operates in a similar way to a debenture or security agreement. Accordingly, all-asset security can be obtained from corporate grantors simply and effectively.

In an acquisition context, the general security deed is often supplemented, where necessary, by a specific security deed over the shares of an Australian target (i.e., a share mortgage) granted by its special purpose vehicle or offshore parent. This is often a necessary part of the security structuring where restrictions on the provision of financial assistance (dealt with further below) mean that direct target security cannot be obtained on closing the acquisition. In each case, these security interests are supported by corporate guarantees, which are typically documented in the credit agreement.

To ensure priority and perfection, each of these security interests must be registered on the Personal Property Securities Register (PPSR), created under the PPSA, within 20 business days of the date of the creation of the security interest. While not mandatory, registration ensures that the security interest retains its priority against subsequently registered interests and that it remains effective in the event of the insolvency of a corporate security provider.

It is possible (and advisable) for lenders to search the PPSR to determine whether there are any prior security interests registered against the relevant entities in the structure (including the Australian-domiciled holding companies and targets, together with any offshore parents of these entities).

Security can be granted over real property (both freehold and leasehold) by way of a registered real property mortgage. Such security is only generally sought where the real property in question has operational or economic significance. Unlike security interests that are dealt with under the PPSA, the grant of security over real property is dealt with on a state-by-state basis. However, from a practical perspective, there are few fundamental differences between the regimes in the various states. As with PPSR searches, the relevant land registries can, and should, be searched to determine what encumbrances or restrictions on title have been registered against the relevant property.

ii Issues with the grant of security

Financial assistance

Section 260A of the Corporations Act 2001 (Cth) (Corporations Act) imposes restrictions on companies providing financial assistance for the acquisition of their, or their holding companies', shares. Financial assistance includes not only the grant of security, but also the provision of guarantees (among other things). While a transaction that breaches this restriction is not invalid, any person involved in the contravention of this provision is guilty of a civil offence. This liability can theoretically extend to the lenders.

The general prohibition on the provision of financial assistance is subject to certain exceptions. The most commonly utilised exception is the 'whitewash' process, which enables the shareholders of the company to approve the proposed financial assistance.

Given that an acquisition financing will invariably involve the grant of target security, the financial assistance rules are particularly relevant to this form of financing. For this reason, security over Australian target entities is generally granted within an agreed period post-closing (typically no less than 30 days). That said, this restriction does not impact the grant of security by any Australian incorporated special purpose holding company, or any offshore parent over its shares in an Australian-domiciled entity, which can be provided in a more timely fashion.

Corporate benefit

Under Australian law, directors owe a number of duties to the companies to which they have been appointed. These duties are enshrined in the Corporations Act, as well as arising under general law, and include a fiduciary duty to act in good faith in the best interests of the company. In a secured lending context, these duties often come under scrutiny in circumstances where a subsidiary is asked to guarantee the debts of its parent. Where the party obtaining the benefit of a guarantee or security knows or ought to know that the directors have not acted in the best interests of the company in providing such credit support, the guarantee or security will be voidable against that party. These obligations are often viewed in light of Section 187 of the Corporations Act, which enables a company to adopt a provision in its constitution enabling it to act in the best interests of its holding company (and in so doing, will be deemed to be acting in the best interests of the company itself).

Stamp duty

Mortgage duty is no longer payable in any Australian jurisdiction.

iii Australian insolvency regime and its impact on the grant of security

The Australian insolvency regime is codified in the Corporations Act and its associated regulations, and contains a number of provisions that can potentially affect a creditor of an Australian entity.

Under Australian law, transactions will only be vulnerable to challenge when a company does, in fact, enter into liquidation. Division 2 of Part 5.7B of the Corporations Act provides that a liquidator has the ability to bring an application to the court to declare certain transactions void. While an administrator is required, in its statutory report to creditors, to identify potential voidable transactions that may be recoverable by liquidator (if appointed), the administrator does not have standing to challenge these transactions.

There are several types of transactions that can be found to be voidable:

  1. unreasonable director-related transactions;
  2. unfair preferences;
  3. uncommercial transactions;
  4. transactions entered into to defeat, delay or interfere with the rights of any or all creditors on a winding up; and
  5. unfair loans.

Transactions in categories (b), (c) and (d) will only be voidable where they are also found to be 'insolvent transactions', that is transactions that occurred while the company was cash-flow insolvent, or contributed to the company becoming cash-flow insolvent.

Each type of voidable transaction has different criteria and must have occurred during certain time periods prior to administration or liquidation. The relevant time period is generally longer if the transaction involves a related party.

An unfair preference arises in circumstances where an unsecured creditor receives a greater amount than would have been received if the creditor had been required to prove for it in the winding-up of the relevant company, whereas transactions have been held to be 'uncommercial' where an objective bystander in the company's circumstances would not have entered into it.

In addition, the court has the power to determine a loan to be 'unfair' (and, therefore, voidable) if the terms of the loan (specifically the interest and charges) could not be considered to be commercially reasonable (i.e., they are 'extortionate'). In practice, this provision has been seldom used, and the courts in Australia are reluctant to intervene unless the commercial terms greatly deviate from typical market terms (taking into account the financial situation of the company).

Upon the finding of a voidable transaction a court may make a number of orders, including orders directing a person to transfer the property that was the subject of the impugned transaction back to the company in liquidation and orders directing a person to pay to the company in liquidation an amount that fairly represents the benefit received under the impugned transaction.

iv Recent reforms to the Australian insolvency regime

With effect from 1 July 2018, reforms to the Australian insolvency regime14 impose an automatic stay on the enforcement of ipso facto clauses15 in certain contracts entered into on or after that date.

The automatic stay will apply where one of the following insolvency events occurs in relation to a company:

  1. voluntary administration;
  2. a receiver or controller is appointed over the whole or substantially the whole of the company's assets;
  3. the company announces, applies for or becomes subject to a scheme of arrangement in order to avoid a winding up; or
  4. the appointment of a liquidator immediately following an administration or a scheme of arrangement.

The automatic stay will not apply retrospectively (i.e., for agreements entered into prior to the new provisions coming into force). Relevantly, the automatic stay does not apply to other types of contractual defaults – for example, if the company has failed to meet its payment or other performance obligations under the relevant agreement.

The length of the automatic stay depends on which formal insolvency process applies to the company as follows (subject to a court order extending the stay):

  1. scheme of arrangement: the stay will end within three months of the announcement, or where an application is made within that three months, when the application is withdrawn or dismissed by the court or when the scheme ends or the company is wound up;
  2. receivership or managing controllership: the stay will end when the receiver's or managing controller's control ends; and
  3. voluntary administration: the stay will end on the later of when the administration ends or the company is wound up.

Importantly, the automatic stay does not apply once, or if, a company executes a deed of company arrangement (DOCA). The automatic stay ends when the 'administration ends', that is when a DOCA is executed by the company and the deed administrator. Accordingly, if a company does execute a DOCA and needs the protection of the automatic stay, then subject to limited exceptions, it will need to obtain court orders.

The scope of the automatic stay, specifically what contract types, rights and self-executing provisions are excluded by the automatic stay are set out in the legislation.16 Relevantly, syndicated loans (and derivatives) are excluded from the operation of the automatic stay and rights under those contracts will remain available to the parties should a trigger event occur. Accordingly, the impact of these changes on acquisition financings (which contemplate a customary security package) is likely to be minimal.

In addition, it is worth noting that the automatic stay does not prevent secured creditors from appointing a receiver during the decision period pursuant to Section 441A of the Corporations Act (if they have security over the whole or substantially the whole of the company's property) or enforcing security interests over perishable goods or prevent secured creditors or receivers from continuing enforcement action that commenced before the administration.

IV PRIORITY OF CLAIMS

i Priority of claims on insolvency

Generally, unsecured claims in Australia will rank equally on a pari passu basis. Section 555 of Corporations Act provides that, unless the Corporations Act provides otherwise, all debts and claims in a winding-up rank equally, and if the property of the company is insufficient to meet them in full, such claims will be paid proportionately.

There are a number of exceptions to this general proposition (see Section 556 of the Corporations Act), including:

  1. expenses properly incurred by a liquidator or administrator in preserving or realising property of the company, or in carrying on the company's business (as well as other costs and amounts owed to them); and
  2. employee entitlements.

Sitting outside this regime are secured creditors, who will have priority over unsecured creditors. The security granted in their favour will entitle them to priority for payment of amounts outstanding from the proceeds and realisations of assets subject to such security interests. There is one exception to this, which is that employee entitlements have a statutory priority to the proceeds of assets subject to a circulating security interest (formerly, a floating charge) on realisation by a receiver or liquidator to the extent that the property of the company is insufficient to meet these amounts.

ii Subordination and the enforceability of intercreditor arrangements

Contractual subordination is a well-accepted tenet of secured lending in Australia; accordingly, intercreditor arrangements are commonly used in Australia to contractually clarify the relationship between two or more classes of creditor (including shareholder lenders and hedging counterparties).

Structural subordination is, however, less common (with a notable exception for holdco payment-in-kind instruments, which have been gaining popularity in recent times). Accordingly, second-lien structures are able to be accommodated relatively easily from a local perspective, as demonstrated by the second-lien facility in the recent DTZ acquisition financing (and subsequent incrementals) where the contractual subordination was documented via a New York law-governed intercreditor arrangement.

Unlike that contained in the Loan Market Association suite of documents, there is currently no market standard intercreditor in Australia. A set of intercreditor principles (primarily applicable to leveraged transactions) has been circulated within the market, although they have not been universally adopted. Accordingly, a number of the provisions that these principles attempted to standardise (e.g., drag rights, standstill periods, mezzanine information rights and release provisions) remain hotly contested.

V JURISDICTION

i Consent to jurisdiction

Australian courts will generally respect the submission of an Australian entity to the courts of another jurisdiction, provided the choice of jurisdiction was not entirely unconnected with the commercial realities of the proposed transaction (and that there are no public policy reasons to deny such a submission).

ii Enforceability of foreign judgments

In Australia, the enforcement of civil judgments obtained in foreign courts is generally covered by two regimes. The first is under the Foreign Judgments Act 1991 (Cth) (FJA), which applies to certain specified courts in prescribed jurisdictions. Where the relevant court is not prescribed by the FJA, the enforceability of the relevant judgment will be dealt with by common law principles.

The FJA provides a framework, based on registration, for civil judgments made in prescribed foreign courts to be enforceable in Australia. This regime applies to judgments made by certain courts in prescribed jurisdictions, for example, certain Swiss, French, Italian and UK courts. Under the FJA, a judgment creditor of a relevant foreign judgment may apply to an Australian court for that judgment to be registered any time within six years after the last judgment in the foreign court. The judgment may be registered if it is final and conclusive for a fixed sum of money (not being in respect of taxes, a fine or other penalty), and is enforceable by execution in the relevant foreign country. Registration gives the judgment the same force and effect as if the judgment originally had been given in the Australian registering court (subject to certain exceptions). Special rules are also applicable to the enforceability of New Zealand judgments. The registration may be set aside if the foreign court did not have the necessary jurisdiction over the judgment debtor, either because the judgment debtor did not reside or carry on business in the jurisdiction when the proceedings were brought or did not otherwise submit to the jurisdiction of the court.

However, in certain jurisdictions (such as the United States) where Australia does not have the benefit of a treaty that provides for the reciprocal recognition and enforcement of judgments in civil matters, there is no statutory recognition or statutory enforcement in Australia of any judgment obtained in a court in such a jurisdiction. Instead, a judgment made by a court of the relevant jurisdiction can only be enforced in Australia under the common law regime.

Under that regime, any final, conclusive and unsatisfied judgment of the relevant court that has the necessary jurisdiction over the judgment debtor is in personam (that is, it imposes a personal obligation on the defendant) and is for a definite sum of money (not being a sum in respect of taxes or other charges of a like nature or in respect of a fine or other penalty) will be enforceable by the judgment creditor against the judgment debtor by action in the Australian courts (without re-examination of the merits of the issues determined by the proceedings in the relevant court). There are some exceptions, including where the proceedings involved a denial of the principles of natural justice, or the judgment was obtained by fraud or some other vitiating factor.

In seeking to enforce a foreign judgment under either regime, a practical difficulty often encountered if the foreign proceeding was not defended is proving that the foreign court has the necessary jurisdiction over the judgment debtor. Where the debtor is a corporation, the applicant will need to show that the debtor carried on business within the jurisdiction of the foreign court, either by maintaining a branch office or by employing an agent with the authority to bind the company and to conduct business there on its behalf.

In respect of recognition of foreign insolvency judgments, Australia has enacted the UNCITRAL Model Law on Cross-Border Insolvency in the Cross-Border Insolvency Act 2008 (Cth). Australian courts recognise the jurisdiction of the relevant foreign court in which the 'centre of main interest' is located and generally cooperate with foreign courts and insolvency practitioners.

VI ACQUISITIONS OF PUBLIC COMPANIES

The Australian corporations legislation (the Corporations Act) limits the manner in which a person can acquire voting securities in a listed Australian company or managed investment scheme, or an unlisted Australian company or managed investment scheme with more than 50 members, where this would cause that person's (or someone else's) voting power in the relevant entity to increase above 20 per cent or to increase (by any amount) from a starting point between 20 per cent and 90 per cent. There are two principal methods of acquiring control of an Australian publicly listed company or managed investment scheme: takeover bids or schemes of arrangement.

While there is no strict legal requirement for 'certain funds' financing, from a practical perspective, and owing to the increasing sophistication of both borrowers and lenders, financiers' commitments to fund are often provided on this basis (and indeed, this is desirable from an acquirer's perspective).

i Takeover bids

Chapter 6 of the Corporations Act provides the framework for takeover bids under Australian law. A takeover bid can be made on-market or off-market, and does not require the support of the target (i.e., a bid can be made on a 'hostile' or 'friendly' basis). For both on-market and off-market bids, a bidder must prepare and send to the target security holders a document (known as a 'bidder's statement') that includes details of the offer, information about the bidder and certain other prescribed information (e.g., in relation to the bidder's intentions). The target must respond by preparing and issuing a 'target's statement' including the target board's recommendation as to whether security holders should accept the offer, as well as any other material information.

An on-market bid is made through a broker and can only be used to acquire securities in a listed entity. On-market bids are far less common than off-market bids because they require the consideration to be 100 per cent cash and, importantly, cannot be subject to any conditions. Accordingly, it will often be the case that an on-market bid is not a viable option, for example, because the bidder requires regulatory approvals or other conditionality, or because the bidder's financing arrangements require security to be taken over the target's assets (which can only be assured in a 100 per cent ownership scenario).

An off-market bid essentially takes the form of a written offer to security holders to purchase all or a specified proportion of their securities. The consideration can take the form of cash, securities or a combination of the two. The offer must be open for acceptance for a period of not less than one month and not more than 12 months. All offers made under an off-market bid must be the same.

An off-market bid may be subject to any conditions the bidder chooses, other than conditions that are solely within the control of the bidder (or turn on the bidder's state of mind) and certain other prohibited conditions.

Typical conditions include those relating to the non-occurrence of certain statutorily prescribed events (including certain insolvency type events), the non-occurrence of a material adverse effect, the obtaining of any necessary regulatory approvals, the absence of any legal restraints or prohibitions to the acquisition completing, and the receipt of a minimum number of acceptances (usually 50 or 90 per cent, the latter corresponding to the threshold for the compulsory acquisition (or 'squeeze-out') of minorities).

Unlike the position in the United Kingdom, there is no legal requirement in Australia for 'certain funds' financing. However, the Corporations Act does prohibit persons from making an offer if they are unable, or are reckless as to whether they are able, to complete the offer. The Australian Takeovers Panel has separately indicated that it expects that where the bid is debt-funded, a bidder would have binding commitments from its lenders at the time of announcing its offer and would not declare its bid unconditional unless it is highly confident that it can draw down on these facilities (i.e., binding funding arrangements are documented in final form and commercially significant conditions precedent to draw down have been satisfied or there is no material risk such conditions precedent will not be satisfied).17

ii Schemes of arrangement

A scheme of arrangement is a court-approved arrangement entered into between a body (i.e., the target) and all, or a class, of its members. For a scheme to become binding on the target and its members (or the relevant class thereof), it must be approved by more than 50 per cent of members who vote on the scheme and those members must represent at least 75 per cent of the votes cast on the scheme. If these thresholds are met, the scheme is binding on all members (or all members in the relevant class), including those who vote against the scheme or do not vote at all. The test for identifying classes for the purposes of a scheme is that a class should include those persons whose rights are not so dissimilar as to make it impossible for them to consult together with a view to a 'common interest'. However, the recent decision in In the matter of Boart Longyear Limited (No. 2) [2017] NSWSC 1105, suggests that courts may be willing to stretch the boundaries of what would ordinarily be considered to be the composition of a class and, in doing so, may agree to put persons in the same class even where such persons appear to have objectively distinct interests.18

The typical operation of a scheme in the context of a control transaction is for the scheme to effect the transfer of target securities to the offeror in exchange for a specified consideration.

The consideration under a scheme can be structured such that security holders receive cash, securities or a combination of the two. There is more flexibility under a scheme with respect to the structure of the consideration as, unlike in a takeover bid, it is not necessary for all offers under a scheme to be the same, more easily facilitating differential treatment of security holders. Schemes can also be used to implement corporate restructures, demergers and debt-for-equity transactions.

A scheme of arrangement is essentially a target-driven process, with the target preparing the necessary security holder materials and seeking the necessary orders from the court. As such, a scheme requires the support of the target's directors and therefore is only a viable option in 'friendly' transactions.

There is no statutory requirement for 'certain funds'; however, as part of the court process, the offeror will be required to satisfy the court that it has sufficient funds to pay the scheme consideration and consummate the transaction. On a practical level, and in addition to giving the target's board comfort as to their ability to execute the transaction, this often results in offerors seeking certain funds funding from their financiers.

As with 'off-market' bids, schemes can be subject to conditions and it is common to see schemes being subject to the receipt of any necessary regulatory approvals, together with the non-occurrence of any material adverse effect with regards to the target. In addition, there are standard conditions relating to the necessary shareholder and court approvals.

VII OUTLOOK

Activity within the acquisition and leveraged finance space is expected to continue being driven by infrastructure deals and M&A activity, and we anticipate that the forces that will shape the next 12 months are likely to be market-orientated (rather than legislative).


Footnotes

1 John Schembri and David Kirkland are partners at Gilbert + Tobin. The authors would like to thank Alex Kauye, Deborah Johns, Peter Bowden, Anna Ryan, Muhunthan Kanagaratnam, Chris Merjane, Tina Chen and Johnathon Geagea for their assistance with the preparation of this chapter.

2 Source: Thomson Reuters, 'Global Syndicated Loans Review', Full Year 2017.

3 Source: Thomson Reuters, 'Global Syndicated Loans Review', First Half 2018.

4 Source: Thomson Reuters, 'Global Syndicated Loans Review', First Nine Months 2018.

5 ibid.

6 Source: Pitcher Partners, 'Dealmakers: Mid-Market M&A in Australia 2016'.

7 KPMG, Debt Market Update, Q1 2018.

8 KPMG, Debt Market Update, Q1 2018.

9 Source: Pitcher Partners, 'Dealmakers: Mid-Market M&A in Australia', 2018.

10 ibid.

11 Allens, 'Private Equity: Horizons 2018 Mid-Year Update'.

12 Sensitive businesses include media; telecommunications; transport; defence and military related industries and activities; encryption and securities technologies and communications systems; the extraction of uranium or plutonium; or the operation of nuclear facilities.

13 Non-government investors from certain treaty countries are subject to different thresholds.

14 These changes were introduced by the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth).

15 An ipso facto clause is a contractual clause that allows one party to enforce a contractual right, or terminate a contract, upon the occurrence of a particular event; usually upon insolvency or a formal insolvency appointment (for example, the appointment of a voluntary administrator).

16 These are contained in the Corporations (Stay on Enforcing Certain Rights) Regulations 2018 (the Regulations) and the Corporations (Stay on Enforcing Certain Rights) Declaration 2018 (the Declaration). The Regulations prescribe 42 types of contracts, agreements or arrangements that are excluded from the operation of the automatic stay, and rights in those kinds of arrangements remain available to the parties to those arrangements should a trigger event occur. Among the agreement types listed under the Regulations are, but are not limited to: (1) contracts, agreements or arrangements that are a licence or permit issued by federal, state or local government; (2) contracts, agreements or arrangements that are or are directly connected with derivatives and securities financing transactions; (3) contracts, agreements or arrangements for the underwriting of an issue or sale of, or under which a party is or may be liable to subscribe for securities, financial products, bonds, promissory notes or syndicated loans; and (4) contracts, agreement or arrangements that are or govern securities, financial products, bonds, promissory notes or syndicated loans. The Declaration declares 11 kinds of rights (including self-executing clauses that, when executed, provide those rights) as excluded from the operation of the automatic stay ,and those rights remain available to the parties should a trigger event occur. By way of illustration only, the kinds of rights excluded by the Declaration include, but are not limited to a right: (1) to terminate under a standstill or forbearance arrangement; (2) to change the priority in which amounts are to be paid under a contract, agreement or arrangement; and (3) of set off, combination of accounts or to net balances or other amounts.

17 Australian Takeovers Panel 'Guidance Note 14 – Funding arrangements'.

18 See In the matter of Boart Longyear Limited (No. 2) [2017] NSWSC 1105 and First Pacific Advisors LLC v. Boart Longyear Ltd [2017] NSWCA 116.