Presenting a live 90-minute webinar with interactive Q&A Structuring Term Loan B Transactions: Combining High Yield Financing With Conventional Bank Loans TUESDAY, MARCH 27, 2018 1pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Jeff Norton, Partner, Dechert, New York Scott M. Zimmerman, Partner, Dechert, New York Bridget K. Marsh, Executive Vice President - Deputy General Counsel, The Loan Syndications and Trading Association, New York The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 1.
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Structuring Term Loan B Transactions: Combining High Yield Financing with Conventional Bank Loans & First Out/Last Out Structures Jeff Norton, Dechert, LLP jeff.norton@dechert.com Scott Zimmerman, Dechert LLP scott.zimmerman@dechert.com Bridget K. Marsh, Loan Syndication and Trading Association bmarsh@lsta.org March 2018
Agenda 1. Introduction 2. Basic Structure 3. Typical Covenants 4. Term Loan B Escrow Funding 5. First Out/Last Out Structures 6
1. Introduction 7
Primary Market for Highly Leveraged Loans Was Dominated by Banks 100% 90% 80% 70% 60% 50% 40% 30% 20% 10% 0% Bank Share vs. Nonbank Share 199419951996199719981999200020012002200320042005200620072008200920102011201220132014201520162017 Banks & Sec. Firms Non-banks (institutional investors and finance companies) Source: S&P/LCD 8
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Billions (USD) US Corporate Lending Quadruples in 20 Years $3,000 I-Grade Leveraged Other $2,500 $2,000 $1,500 $1,000 $500 $- Source: Thomson Reuters LPC 9
Jan-06 Jun-06 Nov-06 Apr-07 Sep-07 Feb-08 Jul-08 Dec-08 May-09 Oct-09 Mar-10 Aug-10 Jan-11 Jun-11 Nov-11 Apr-12 Sep-12 Feb-13 Jul-13 Dec-13 May-14 Oct-14 Mar-15 Aug-15 Jan-16 Jun-16 Nov-16 Apr-17 Sep-17 Issuance ($ Bils.) Institutional Tranches Account for the Majority of Leveraged Lending Volume 180 160 140 120 100 80 60 40 20 Pro rata Institutional 0 Source: Thomson Reuters LPC 10
1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 Billions US Secondary Loan Market Emerges in the 90s and Continues to Grow $700 Annual Loan Trading Volume $600 $500 $400 $300 $200 $100 $0 Source: LSTA 11
Term Loan B (TLB) TLB is a bullet maturity term loan with covenant light features TLBs are a preferred financing for most institutional sponsors, due to flexibility they allow in the capital structure and operations TLBs are an alternative or stop-gap to high yield bond ( HYB ) issuance for public borrowers, and a HYB-like hybrid for private borrowers, but without public reporting or securities law risk Primarily used for acquisitions, recapitalizations, refinancings and leveraged dividends No uniform standard of TLB terms, but a lot of commonality in features TLBs can be done as First Lien/Second Lien, Unitranche, Stand Alone or with Attached Revolver and/or TLA 12
Term Loan B vs Term Loan A Term Loan B No or minimal (1%) amortization Pricing higher than attached Revolver Tenor 5-7 years Secured Incremental facilities usually built in Covenant Light Term Loan A Amortizing quarterly usually 5-20% per year increasing closer to maturity Pricing usually same as attached Revolver Tenor 3-6 years Can be Secured or Unsecured Typically no incremental facility provisions Covenant traditional Many have no financial maintenance covenants One or more financial maintenance covenants Can be subordinated to revolver or other term tranches Typically not subordinated, would be scheduled to be repaid first over attached TLB 13
Term Loan B vs High Yield Bond TLB Firm underwriting amount, pricing & closing date commitment Secured HYB Amounts, pricing and closing dependent on market conditions Unsecured (US), Secured (Europe) No minimum deal size 5-7 year tenor 7-10 year tenor Issuance must be at least $100-150 million Generally lower pricing (floating rate) and fees (particularly if secured) Senior/secured Call protection is more limited; soft calls are common Control over investor group Amendments and modifications are easier to manage require lender voting No public reporting or securities law risk Generally higher pricing (fixed rate) and fees (particularly if subordinated) Generally unsecured/subordinated Call protection is higher and more fixed; makewhole is common Debt is freely tradable Amendments and modifications are difficult and expensive require consent solicitations Public reporting and securities law compliance is required 14
HYB Features that TLB Borrowers and Sponsors Want No or minimal amortization, limited mandatory prepayment events More flexible, self-adjusting covenants Relaxed defaults Ability to retire debt at market price (rather than at par) Ability to make significant corporate and capital changes without amendment acquisitions, dispositions, additional debt, IPOs, etc. Consistency of terms across financings (and, for sponsors, across portfolio companies) 15
2. Basic Structure 16
Typical TLB Facility Structure Firm underwriting amount, with pricing and closing date commitment; 5-7 year term Secured and guaranteed by all subsidiaries to extent practical Covenant-lite: deal has only one or no financial covenants - Most common structure is no financial maintenance covenants for TLB - If there is a revolving facility, it usually has a springing leverage ratio covenant (for the benefit of revolving lenders only, and only when the facility is drawn above an agreed % of utilization), with 25-35% headroom to sponsor projections and an equity cure - Waiver and modification of springing leverage ratio covenant by more than 50% of revolving lenders only Some US investors require 1% annual amortization (paid quarterly) Pricing on both facilities is a floating rate, based on a margin above LIBOR (or base rate), commonly with a floor (usually for TLB only) and adjusting based on a leverage or ratings grid Term loan usually issued with OID (1-2%), combination of OID and LIBOR floor gives some fixed income attributes Term loan and revolving facilities are typically pari passu in right of payment and priority of liens 6-12 month 1% soft call (repricing protection) 17
Typical TLB Facility Structure (continued) Pre-approved but not committed incremental facility and refinancing/extension options Covenant package approaches: - bank covenants with high yield modifications (incurrence tests, builder baskets) - high yield covenants imported directly Defaults follow typical US bank default package but generally higher thresholds, acceleration and enforcement are by joint majority (other than for springing financial covenant applicable to revolving facility only) Amendments and modifications by more than 50% of all facilities, with most sacred rights limited to affected lenders only (with the ability to work around dissenters), amend and extend mechanics Unrestricted Subsidiary concept In sponsor-backed deals, terms are often pre-agreed by reference to a sponsor precedent 18
Typical TLB Facility Structure Guaranty & Collateral Package Upstream and cross-stream guarantees are easily obtainable from US entities that are solvent There are no financial assistance/trapped cash restrictions in the US (so a target may secure debt of its parent, which was incurred to acquire the shares/assets of that target) Security over all US personal property is obtained relatively easy subject to some significant exceptions (real estate, vehicles, certain accounts) - UCC filings, possession of tangible collateral (stock certificates), intellectual property filings In most US deals, the senior secured position is easy to obtain on day one over the US creditor group through guarantees, pledges and UCC filings Guaranty and collateral issues outside the US are not uniform, more complicated and subject to material restrictions (which may result in the need to review covenant baskets) HYB: generally unsecured in the US and subordinated to specified senior debt with same guarantor coverage; in Europe much more likely to be largest piece of the capital structure so senior secured 19
3. Typical Covenants 20
Revolver Springing Financial Covenant Customarily, a leverage covenant based on Net Debt to EBITDA Net Debt EBITDA - based on total debt, senior debt or senior secured debt (negotiated) - netting of some or all unrestricted cash (capped vs. uncapped is negotiated) - pro forma cost savings, synergies, optimization adjustments for acquisitions, dispositions, reorganizations - allows certain adjustments as projected by borrower (modified Reg S-X standard) - component adjustments capped (usually a % of total EBITDA) unless Reg S-X compliant Tested quarterly only if revolver is drawn over a certain % (20-40% or more) of total revolving commitments; typically with undrawn letters of credit up to a certain amount excluded - Allows borrower the ability to repay and redraw around quarter end to avoid testing covenant For benefit of revolving lenders only, but if revolving lenders accelerate upon a financial covenant default, then TLB lenders have the right to accelerate Equity cures becoming standardized More a liquidity test than a leverage test 21
Covenant Flexibility 3 main tools for covenant flexibility: - Incurrence Tests - Adjusting Baskets - Basket Builders Many covenants use a combination of all 3 tools: general rule for borrowers is to use incurrence test first for permitted actions and baskets last (keep powder dry) 13
Covenant Flexibility: Incurrence Tests Permit an action or define basket parameters based on satisfaction of a financial ratio test - Leverage Ratio (Net Debt/4Q EBITDA) - Interest or Fixed Charge Coverage Ratio (includes interest plus other fixed payments such as lease payments) (4Q EBITDA/Fixed Charges or Interest Expense) - Senior Secured Leverage Ratio used in Second Lien/High Yield Notes to set parameters of First Lien/Senior Secured Debt Basket 14
Covenant Flexibility: Adjusting Baskets Adjusting baskets define their parameters not by reference to a fixed $ amount but to a % of: - EBITDA - Total Assets (tangible and intangible book value) - Total Tangible Assets (PP&E book value) - Total Income Basket adjusts with growth and performance of the business and acquisitions and dispositions 15
Covenant Flexibility: Basket Builders Permitted Amount or Available Amount or similar defined term is a basket builder concept that can be used to increase set baskets Primarily used for Restricted Junior Payments (dividends and restricted investments) and declaration of Unrestricted Subsidiaries, it can be spread amongst a number of baskets Cumulative building calculation creates free cash or a wild card basket that can be used across multiple covenants (but no double counting) Basket builders allow the borrower to increase its capacity to take actions under those negative covenants, based on the availability of some or all of the following components (on a cumulative basis) - starter basket (stated $ or % of EBITDA/Assets amount, more common in large deals) - % of Excess Cash Flow not applied to prepay debt (or 50% of consolidated net income) - equity contributions (other than equity cure) - asset sale/insurance proceeds not yet reinvested or applied to prepay debt - other income/special events or items (negotiated) - other basket builders include caps by reference to a % of EBITDA or Assets 16
Indebtedness Covenant Indebtedness - multiple agreed baskets and categories (and Permitted Refinancings thereof), used only when ratio debt is unavailable - Ratio Debt: incurrence of additional debt is permitted: - if after giving effect thereto, the borrower would still be in compliance with a specified ratio (the incurrence ratio ), which may be a leverage ratio or a fixed charge interest coverage ratio (usually 2.00x) - subject to additional conditions, including no default, weighted average life, and no maturity until after the TLB maturity (91 days customary) - some deals have different incurrence ratios for secured and unsecured debt - some deals permit reclassification of basket debt to ratio debt essentially resetting the basket to zero when financial performance improves - some deals permit contribution indebtedness basket of 100-200% of contributed equity HYB: Fixed charge coverage ratio or interest coverage ratio for incurrence test common 26
Lien Covenant Liens - multiple agreed baskets and categories (and Permitted Refinancings thereof), used for customary items - general basket subject to stated maximum amount or % of total assets HYB: liens on senior debt permitted liens on other specified debt or in general, commonly permitted as long as springing pari passu lien for notes 27
Restricted Payment/Dividend Covenant Restricted Payments/Dividends - multiple agreed baskets and categories (on an annual or cumulative basis), used for customary items or when basket builder or general basket is unavailable - use of any basket builder is subject to additional conditions, including no default and compliance with an incurrence ratio and, in the case of a general basket, sometimes a stated maximum $ or % of EBITDA/Assets amounts 28
Investment/Acquisition Covenant Investments/Acquisitions - multiple agreed baskets and categories (on an annual or cumulative basis), used for customary items or when basket builder is unavailable - plus unlimited if funded with Permitted Equity and/or basket builder - Permitted Acquisitions are usually a separate category that is defined and subject to additional conditions, for good credits, commonly now limited to: - no default - same or similar line of business - acquired entities providing guaranties and collateral, if applicable - additional debt incurred for Permitted Acquisitions is allowed subject to leverage ratio compliance (or existing leverage ratio level not increasing as a result of such incurrence). Some deals use interest/fixed charge coverage for this test. HYB: common to have no restrictions on acquisitions into Restricted Subsidiary group 29
Disposition Covenant Dispositions - multiple agreed baskets and categories (on an annual or cumulative basis), used for customary items - subject to certain conditions, including: - a cash consideration threshold (75%) - fair market value - proceeds used for reinvestment or debt repayment (negotiated) 30
Unrestricted Subsidiaries Customary for HYBs, becoming common for TLBs Unrestricted Subsidiaries are: - not guarantors or pledgers - not subject to compliance with covenants or required to make mandatory prepayments - excluded from calculations (e.g. EBITDA and Excess Cash Flow) - ring-fenced from the credit group; transactions have to be arms-length Unrestricted Subsidiary designations are usually tied to the investment covenant, capped in size (often a $ and/or a % of EBITDA) and subject to other conditions, including no default Restrictions on frequency of designating Unrestricted Subsidiaries and designating Restricted Subsidiaries (negotiated, but often one re-designation per subsidiary) 31
Events of Default TLB: Follows typical US bank default package but generally higher thresholds; acceleration is by a majority Payment (5 days grace on interest; no grace for principal) HYB: defaults more limited, thresholds typically higher than bank debt; acceleration by trustee or 25% of holders Payment (30 days grace on interest; no grace for principal) Breach of negative covenants (no grace (but for equity cure)) Breach of other covenants (30 days grace after earlier of knowledge or notice from agent) Breach of Offer to Purchase undertakings (no grace) Breach of covenants (45-60 days grace after notice from Trustee or 25% of holders) Cross default to Material Debt Cross acceleration to Material Debt Judgments (non-appealable, above threshold, 60 days grace) Judgments (non-appealable, above threshold, 60 days grace) Insolvency Insolvency ERISA events (above threshold) Invalidity of loan documents, release of collateral Change of Control COC not a default but triggers offer to purchase at 101% Material failure of representations Not a default but court action for material misrepresentation/failure to disclose can be brought 32
6. Term Loan B Escrow Funding 33
Term Loan B Escrow Funding Escrow Funding used for acquisition financing in High Yield Market to have certainty of funds for: - deals with a long stop date (e.g. extended regulatory approvals) - secure funds at favourable pricing in a moving market Typical TLB approach to extended acquisition commitment period is pricing - usually an increasing ticking fee Some TLB Commitments for deals with long stop dates have started using escrow demand rights but actual escrows in this market are rare Advantages for Lenders with Escrow: - Commitment terminates upon funding in to escrow - Lenders receive full pricing and coupon from day one of funding - Broader syndication possible with funded debt vs undrawn commitment Disadvantages for Lenders with Escrow: - Restrictions of existing debt usually require borrower to be a shell company or unrestricted subsidiary of the buyer pending the acquisition - While interest on loan will accrue during escrow, lenders have to rely on over advance of funds for anticipated interest coverage and/or investment of funds to provide for payment of interest - Covenant protection limited during escrow, usually confined to borrower maintaining shell status and not pledging escrow 34
Term Loan B Escrow Funding Continued Bankruptcy concerns - Escrow agent insolvency: funds should not be part of the escrow agent s estate and escrow should continue - Escrow borrower insolvency: risk of escrow being recharacterized as a loan secured by the escrow and thus part of the estate - Best protection is to use independent escrow agent and bankruptcy remote SPV for escrow borrower 35
7. First Out/Last Out Structures 36
First Lien/Second Lien transactions vs. First Out/Last Out transactions Documentation first lien/second lien transactions are done on two separate sets of documents, whereas first out/last out transactions are on one set of documents (generally with an Agreement Among Lenders dealing with intercreditor issues). Liens in a first lien/second lien context, each set of lenders has their own liens with an intercreditor agreement governing their relative rights, whereas in a first out/last out transaction, one agent has a lien on behalf of all lenders. Priority of payment a majority of first lien/second lien intercreditor agreements deal solely with lien priorities and are silent as to payment priority (although in most cases, second lien facilities do not have amortization prior to maturity), whereas first out/last out agreements among lenders provide for payment priorities both pre-default (e.g. amortization, mandatory prepayments, etc.) and post-default (from proceeds of collateral). 37
Unitranche vs First/Second Lien Structure TLB First/Second Lien Single Credit Agreement, one term loan (AAL designated tranches) Two Credit Agreements with Second Lien cushioned off the First Lien Single blended interest rate (AAL allocates between risk tranches) Single Security Documents and Filings Separate Interest Rates Separate Security Documents and Filings AAL has both payment and lien subordination of Last Out Tranche Single Mandatory Payment mechanism (AAL waterfall splits between tranches) Intercreditor has lien subordinations but no payment subordination Separate Mandatory Prepayments with First Lien having first access to prepays Single voting mechanic (with AAL governing tranche voting) 2 Credit Agreements vote separately Enforcement governed by AAL (many similar concepts to 1 st /2 nd Lien Intercreditor) Borrower sometimes acknowledges AAL Enforcement governed by Intercreditor Borrower usually acknowledges Intercreditor 38
Advantages from Borrower perspective Ease of execution typically first out/last out transactions can be closed on a quicker timeline than a first lien/second lien or senior/mezzanine structure. Lower costs given that the company only has to negotiate one set of documents. Pricing generally closer to a first lien/second lien transaction and more favorable than a senior/mezzanine transaction. Easier compliance and administration when only dealing with one set of documents. - But not in every situation Agreement Among Lenders 39
Nature of First Out/Last Out structures No clear market. Transactions come in many different flavors and the terms vary greatly from transaction to transaction and from lender to lender. With one exception, agreements among lenders have not been tested in a bankruptcy court. - In re American Roads LLC 496 B.R. 727 lenders party to a unitranche facility in which they granted an agent the right to direct exercise of remedies objected to the actions of the agent. Recognizing the validity of the agreement among lenders as an enforceable intercreditor agreement in bankruptcy, the court found the lenders not to have standing in the case to object. 40
Key Definitions First Out Cap Amount Exercise of Remedies - Practical reality is that you need the Agent to take action Voting Rights Event/Waterfall Trigger Event (application of proceeds of collateral) - Payment Default - Bankruptcy - Financial covenant default - Acceleration/Exercise of remedies - Failure to deliver financial statements 41
Buy Out Right Very similar to buy out rights in First Lien/Second Lien transactions (e.g. how to deal with bank product obligations, letters of credit, prepayment penalties, etc.). Agreements vary as to whether there are reciprocal buy out rights for both First Out and Last Out. Last Out may exercise a buy out right so they can preserve the value of their last out position and control the exercise of remedies. Last Outs have a larger stake in maximizing value since they only get paid after the First Out. Last Out Lenders could also have a loan-to-own strategy. 42
Buy Out Right Buy Out Triggers - Payment Default - Bankruptcy/Insolvency Event - Acceleration - Exercise of Remedies - Failure of a tranche to vote in favor of an amendment or waiver 43
Right of First Refusal/Right of First Offer Right of First Refusal will create difficulty for lenders to sell out of their loans. Lender will need to go out to the public first. Right of First Offer is much better for the selling lender. Depending on the transaction and the relative bargaining power of the first out and last out lenders. Right of First Offer should be offered to Lenders in the same class first. Assignments are still subject to Credit Agreement limitations. 44
Exercise of Remedies Key provision determines who controls the exercise of remedies upon a default. - Practically the Agent will be holding the collateral and will be the party to control agreements and other collateral documentation. Conflict between First Out and Last Out interests - First Out wants to get paid out, but Last Out has greater interest in maximizing value. Standstill Periods Triggering events Changing of the guard concept should first out still control if they get paid down below a certain threshold? 45
Voting Agreement Typically, prior to a Voting Rights Event, Required Lenders control. - Often one class will be larger than the other, so they effectively will control. This often creates a tension in the negotiation. - One potential resolution where there are only two lenders is to have Required Lenders require more than 1 Lender. - Some AALs provide that Required First Out and Required Last Out lenders will be required for a Required Lender vote prior to a triggering event. - Some AALs allow one class to control other than in specific circumstances. 46
Voting Agreement After a Voting Rights Event, amendments may require both Required First Out and Required Last Out Lenders. Market used to be that Borrowers were blind to these arrangements. In the current market the Borrower typically reviews (and may acknowledge) the AAL. 47
Voting Agreement Agreements may set forth certain negotiated rights which would require the vote of both classes of lenders. Agreements Among Lenders will also contain provisions to deal with the mechanics of the voting agreement in circumstances where the voting thresholds in the Agreement Among Lenders are different than as set forth in the definition of Required Lenders in the underlying credit agreement. 48
Voting Agreement Cross-over voting - If a lender in one tranche purchases loans in the other tranche, do they have a voting right with respect to that tranche? This would allow a lender to drive decisions in one tranche to benefit the other tranche. - Many AALs prohibit lenders from being cross over lenders. - Others allow lenders to cross over, but will limit the voting rights of cross over lenders in the tranche it crossed into until it owns in excess of a specified percentage of the class it crossed into. 49
Allocation of certain payments Deals with allocation of amortization payments, optional prepayments and mandatory prepayments. - There is no market rule for how payments are allocated among the First Out and Last Out Lenders. - Traditionally, all payments would be paid to the First Out until they are paid in full and Last Out will get nothing. - Some agreements provide for pro rata sharing prior to a triggering event, or prior to certain other events (e.g. leverage ratio falling below a specified threshold). 50
Allocation of certain payments Collateral Waterfall will provide that proceeds of collateral are applied to obligations owing to the First Out Lenders prior to the payment of any obligations owing to the Last Out Lenders. Interest allocations - Interest rate in the Credit Agreement will be a blended rate. - Historically, the AAL will allocate the interest split. In more current deals, often the interest split is covered directly in the Credit Agreement. - ASC 860 BDCs are required to continue to account for loans they have sold to other lenders as participations, unless certain conditions are met that make the transfer a sale. This could cause issues for a BDC (e.g. the sale is treated as a liability for purposes of the asset coverage test). - First Out Lenders typically paid at a rate similar to typical senior debt. - Last Out Lenders will be paid a higher margin as compensation for taking a greater risk. 51
Bankruptcy Provisions Some AALs include full blown bankruptcy provisions akin to First Lien/Second Lien deals. - These deal with who can provide a DIP, control over the plan and 363 transactions, relief from the stay and adequate protection identical to First Lien/Second Lien transactions. Others are silent on bankruptcy provisions and only address the relative payment priorities and exercise of remedies outside of bankruptcy. 52
Bankruptcy Issues Debtor in Possession Financing - who can provide DIP Loans is a highly negotiated issue. - If the Last Out Lenders provides a DIP and roll up their loans, they will effectively leapfrog the First Out Lenders. - Even without a roll up, the DIP provider will have greater control over the process as the DIP lender and can drive the process to benefit their prepetition loans. 53
Bankruptcy Issues Classification typically AALs provide that the First Out and Last Out will be treated as separate classes. This has not been tested in a bankruptcy court and it is unlikely that a bankruptcy court will agree to different classification. - Impacts whether the loans will be viewed as over- or under- secured, which affects how the court will treat the loans for post-petition interest, adequate protection and certain voting rights in bankruptcy, including the right to vote on a plan. - As a practical matter, for purposes of voting on a plan of reorganization, bankruptcy courts will likely treat them as one class, and many AALs have extensive provisions to treat the First Out and Last Out Loans as separate classes for purposes of voting in a bankruptcy. - If the First Out Loans and the Last Out Loans are treated as a separate class, 2/3 of the amount of each class and more than 50% in number would be needed to the extent such class would have the right to vote their claims. - If they are classified in the same class, the First Out Lenders will have the right to vote on the plan except to the extent that they receive the indubitable equivalent of the value of their claim. 54
Thank You For further information, visit our website at dechert.com. Dechert practices as a limited liability partnership or limited liability company other than in Dublin and Hong Kong. Dechert lawyers acted on the matters listed in this presentation either at Dechert or prior to joining the firm.