Distressed Loan Workouts: How Equity Cure Rights Work, Negotiating Loan Restructuring and Forbearance Agreements

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Distressed Loan Workouts: How Equity Cure Rights Work, Negotiating Loan Restructuring and Forbearance Agreements Curing and Addressing Financial Covenant Breaches From Lender and Borrower Perspectives THURSDAY, AUGUST 18, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Vanessa G. Spiro, Partner, K&L Gates, Pittsburgh Bukola Mabadeje, Attorney, Buchalter Nemer, San Francisco The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Distressed Loan Workouts A Strafford Webinar Bukola Mabadeje Buchalter Nemer San Francisco bmabadeje@buchalter.com August 18,

6 I. How Equity Cure Rights Work What is it? The equity cure is a provision in credit agreements which permits the borrower to receive into the company, equity capital in most cases, or subordinated intercompany debt in other instances and to apply the proceeds in such a way as to bolster certain financial metrics, with the result that the borrower is able to avoid a covenant default. The provision gives the borrower one more alternative where it may otherwise have been forced to seek a loan modification, waiver, forbearance, or worse, face acceleration of the debt. 6

7 I. How Equity Cure Rights Work cont. Who and Why? The equity cure provision is found in sponsor or investor backed deals, where EBITDA is typically an essential metric in financial covenant calculations. While mostly requested by the sponsor because it provides a lifeline where default and its attendant consequences would have been the result, for the lender, it signals the sponsor or investor s commitment to the company. 7

8 I. How Equity Cure Rights Work cont. A brief note on EBITDA EBITDA (Earnings before interest, taxes depreciation and amortization) is arrived at by adding back to Net Income the interest, taxes, depreciation and amortization expenses which had been subtracted in arriving at Net Income. Adjusted EBITDA is a variant of EBITDA and includes additional add-backs to Net Income of certain other expenses which are considered onetime or unique. EBITDA (and Adjusted EBITDA) is used to measure profitability or cash flow. 8

9 I. How Equity Cure Rights Work cont. More on EBITDA EBITDA is used in calculating financial ratios related to debt covenants e.g. Fixed Charge Coverage Ratio which measures the company s ability to service its non-operating expenses and is calculated by dividing EBITDA by Fixed Charges (e.g. amortizing principal payments + interest + leases), expressed as a ratio. Leverage Ratio which measures the company s ability to meet its obligations to the lender (or all its lenders) and is calculated by dividing EBITDA by funded debt, expressed as a ratio. 9

10 I. How Equity Cure Rights Work cont. Finally, on EBITDA Typically, equity capital does not increase a company s revenue, but is instead featured on the balance sheet as owner s or shareholder s equity, with no corresponding entry on the income statement. The equity cure, contrary to standard accounting, allows the company to recognize the additional equity capital as income thereby increasing EBITDA. 10

11 I. How Equity Cure Rights Work cont. Negotiating the Equity Cure Application of Proceeds The additional capital (in the form of equity or subordinated debt) may be added to EBITDA or used to reduce indebtedness. Lender would prefer that the additional capital is used to reduce the indebtedness. Why? Borrower would prefer to add the additional capital to EBITDA. Why? Example: Borrower achieves a leverage ratio of 3:1 when the maximum required is 2:1, with debt of $12MM and EBITDA of $4MM. In order to achieve 2:1, sponsor can either add $2MM to EBITDA or reduce indebtedness by $4MM. Both will result in compliance, but sponsor needs less when equity capital is added to EBITDA. 11

12 I. How Equity Cure Rights Work cont. Negotiating the Equity Cure cont. Amount of Capital How much capital is the sponsor/investor allowed to contribute to the borrower? Lender would prefer to limit the amount of capital to the amount required to cure the default. Why? Borrower may want to over-cure i.e. inject more capital than is required to cure the default. Why? 12

13 I. How Equity Cure Rights Work cont. Negotiating the Equity Cure cont. Timing and Frequency The lender would typically impose a cut-off period within which the sponsor may provide the additional capital, such period usually linked to the covenant test date and any applicable cure periods. There is also a limit to the number of times the equity cure may be used. Lender tighter time frames; limited frequency. Why? Borrower looser time frames; fewer controls on frequency. Why? 13

14 I. How Equity Cure Rights Work cont. Negotiating the Equity Cure cont. Source and type of Equity If the intention of the lender is to have the new capital improve the financial health of the borrowing entities in a syndicated facility, and not merely cure a covenant default, it may be worthwhile to identify sources of capital in order to prevent round tripping. See Strategic Value Master Fund Ltd v Ideal Standard International Acquisition S.A.R.L &ORS [2011] EWHC 171 (Ch). Capital could also come in the form of subordinated debt, or ordinary or preferred equity. What is Lender preference? What is Borrower preference? 14

15 I. How Equity Cure Rights Work cont. Tie-in Provisions Mandatory prepayment provisions: Excess Cash flow sweep Issuance of Debt/Equity Negative Covenants; Restricted Payments Events of Default and Cure Periods Pricing Grid 15

16 I. How Equity Cure Rights Work cont. Sample Clause Equity Cure Right. In the event that the Borrower fails to comply with the requirements of any financial covenant set forth in Section [ ] [Senior Leverage Ratio] and (b) Section [ ] [Fixed Charge Coverage Ratio], until the tenth day after delivery of the related Compliance Certificate, Parent shall have the right to issue equity interests for cash or otherwise receive cash contributions to the capital of Parent, and, in each case, to contribute any such cash to the capital of Borrower, and apply the amount of the proceeds thereof to increase Adjusted EBITDA with respect to such applicable quarter (the "Cure Right"); provided that (a) such proceeds are actually received by Borrower no later than ten days after the date on which financial statements are required to be delivered with respect to such fiscal quarter hereunder, (b) such proceeds shall at a minimum, cover the aggregate amount necessary to cure (by addition to Adjusted EBITDA) (the "Cure Amount") such Event of Default under Section [ ] for such period, (c) the Cure Right shall not be exercised more than three times during the term of the Term Loan, nor for any two successive compliance test dates, and (d) at Borrower s election, such proceeds may be applied to prepay the Term Loan. If, after giving effect to the foregoing pro forma adjustment (but not, for the avoidance of doubt, giving pro forma effect to any repayment of Indebtedness in connection therewith), the Borrower is in compliance with the financial covenants set forth in Sections [ ], the Borrower shall be deemed to have satisfied the requirements of such Sections as of the relevant date of determination with the same effect as though there had been no failure to comply on such date, and the applicable breach or default of such Sections [ ] that had occurred shall be deemed cured for purposes of this Agreement. The parties hereby acknowledge that this Section may not be relied on for purposes of calculating any financial ratios other than as applicable to Sections [ ] and shall not result in any adjustment to any amounts other than the amount of the Adjusted EBITDA referred to in the immediately preceding sentence. 16

17 II. Post-default Alternatives Notice of Default Waiver Forbearance Loan Modification Refinance Acceleration 17

18 Distressed Loan Workouts August 18, 2016 Vanessa G. Spiro K&L Gates LLP Pittsburgh/New York Copyright 2014 by K&L Gates LLP. All rights reserved. This presentation is for informational purposes only. Nothing herein is intended or should be construed as legal advice or a legal opinion applicable to any particular set of facts or to any individual s or entity s general or specific circumstances

19 III. FORBEARANCE AGREEMENTS a. Purpose b. Common terms and provisions Acknowledgement of obligations outstanding, lien reaffirmations Identify all outstanding defaults Length and terms of forbearance period klgates.com 19

20 III. FORBEARANCE AGREEMENTS (CONT.) c. Other terms and provisions to consider Fees Increase interest rate Additional collateral, guarantees, other structural changes to improve creditors position Release of claims klgates.com 20

21 III. FORBEARANCE AGREEMENTS (CONT.) d. Collective Action: what percentage of lenders in syndicated deals is necessary to enter into forbearance agreement Certain sacred rights, such as repayment at maturity, receipt of interest at agreed rates and on agreed dates, considered protected. Lender rights vs collective lender action. In private loan market, the trend is for courts to uphold collective action after event of default even if it affects sacred rights. In Delphia Corp. No (Bankr. S.D.N.Y. December 1, 2008) (Forbearance agreement that had the practical effect of extending out the final maturity date did not require unanimity) klgates.com 21

22 III. FORBEARANCE AGREEMENTS (CONT.) In bond market, the current trend is to adhere to perceived intent of the Trust Indenture Act ( TIA ) Section 319(b). Recent cases of Marblegate Asset Management LLC v Education Management Corp., 75 F. Supp. 3d 592 (S.D.N.Y. 2014) and Meehancombs Global Credit Opportunities Funds v. Ceasars Entertainment Corp., 80 F. Supp. 3d 507 (S.D.N.Y. 2015) in both, out of court restructurings that did not technically amend the payment terms in the underlying indentures but that had the effect of precluding the individual lender s right to repayment, were held to violate TIA Section 319(b), which provides that the right of any holder to receive payment of principal and interest on or after the dates expressed in the indenture or to institute suit for the enforcement of any such payment shall not be impaired or affected without the consent of such holder. More to come on this topic as the cases are on appeal. klgates.com 22

23 III. FORBEARANCE AGREEMENTS (CONT.) e. Confidentiality Agreements/Non-Disclosure Agreements Creditors may receive material non-public information and be restricted from trading in the debt and/or securities of the company or its affiliates for the duration of the agreement. In re Washington Mutual, Inc. 461 B.R. 200 (Bankr. D. Del. 2011) klgates.com 23

24 III. FORBEARANCE AGREEMENTS (CONT.) f. Legal Risks Constructive Fraudulent Conveyance (Section 548 of the Bankruptcy Code) Preferential Transfer Risk Equitable Subordination g. Interpharm, Inc. v. Wells Fargo Bank, National Association, 655 F.3d 136 (2011) klgates.com 24

25 IV. RESTRUCTURING SUPPORT AGREEMENTS a. Purpose b. Parties c. Typical provisions, considerations d. Timing of lock up negotiations - pre or post petition e. Confidentiality/NDAs considerations also apply klgates.com 25

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