Spotlight On Keepwells And Excluded Obligations

Law360, New York (April 10, 2013, 2:09 PM EDT) -- There has been considerable discussion in syndicated lending circles recently regarding how to account for a new swap “clearing requirement” that significantly impacts loan documentation and became enforceable on March 31, 2013. This article will focus on two particularly important means for lenders to address the clearing requirement in loan documentation so that the credit support of guarantors of swap obligations is maximized without risking the enforceability of the guarantees and collateral pledges provided in the loan documents: “keepwells” and excluding guarantee obligations of entities that are not “eligible contract participants”[1] (ECPs). We will also consider some other areas of loan...

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