Restructuring the next wave of cov-lite debt - With cov-lite financings at record highs, debt holders will need to be proactive in maximising ...

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Restructuring the next wave of cov-lite debt - With cov-lite financings at record highs, debt holders will need to be proactive in maximising ...
Restructuring the next
wave of cov-lite debt
With cov-lite financings at record highs, debt holders will
need to be proactive in maximising recoveries
Will the last person leaving
please turn out the lites?
Cov-lite loans can leave lenders with limited restructuring options, but creative lenders will
still find ways to bring debtors to the table, partners Ian Wallace and Christian Pilkington
of global law firm White & Case LLP explain

R
          ecent data shows that                   of conditions in 2005 – 2007                                      ‘early warning system’ for lenders,
          investor protection in loan             immediately prior to the credit crunch.                           enabling them to initiate restructuring
          documents has fallen to its             The current raft of loans lack even the                           discussions before the debtor’s
lowest point ever. And yet, leveraged             basic financial covenant protection                               business irretrievably declines. The
loans continue to be issued with no or            that existed in the mid-2000s.                                    absence of meaningful covenants
minimal covenants, and considerably               These covenants were key leverage                                 in recent deals greatly restricts
reduced protections for lenders                   points for lenders in a number of                                 lenders’ ability to compel a borrower
generally. The bond market is in a
similar position, with ever-weakening
                                                  restructurings in 2008 – 2010. So
                                                  what will happen if there is some sort
                                                                                                  72%               to take action when its business
                                                                                                                    hits the rocks. To make matters
                                                                                             of restructurings in
terms for bondholders.                            of forced market correction, and a         2008 – 2010 were       worse, lenders’ ability to exit the
   Market conditions remain relatively            substantial number of these cov-lite         triggered by an      loan has become restricted, due
                                                                                             actual or potential
benign from a debtor’s perspective,               loans become distressed?                    covenant breach       to the increasing use of blacklists,
so the issuance of cov-lite loans                    Historically, financial covenants                              whitelists and tighter consent rights
                                                                                              Source: European
continues—in many ways reminiscent                have been viewed as a form of                                     on transfers.
                                                                                                restructuring
                                                                                               report ‘Default,        When this happens, what options
                                                                                              Restructuring and     do lenders have? Are they simply
                                                                                                Recoveries in
                                                                                                2008 – 2010’,       left in limbo, unable to mitigate their
     Figure 1. Post-credit crunch restructuring triggers                                          Debtwire          losses, waiting for the inevitable
                                                                                                                    default on the repayment date while
                                                                                                                    the borrower’s business deteriorates?
                                                                                                                    Or are there options that lenders

                      11%                                                                                           may be able to turn to in order to
                                                                                                                    encourage earlier restructuring
                                                                                                                    discussions, even in the absence
                                                                 Potential covenant breach
                                                                                                                    of covenant default?
          17%                                 42%                Actual covenant breach
                                                                Tight liquidity/
                                                                Payment default
                                                                 Potential covenant breach
                                                                 & tight liquidity

                    30%
                                                                                             The current raft of loans lack even
       Source: European restructuring report ‘Default, Restructuring and Recoveries in
                                                                                             the basic financial covenant protection
       2008 – 2010’, Debtwire                                                                that existed in the mid-2000s

1   White & Case
The current market:
                                                                                                                                                          A self-fulfilling prophecy?
    Figure 2. The share of covenant-lite leveraged loan issuance has                                                                                      Inevitably, the preponderance of
    reached record highs                                                                                                                                  cov-lite debt has led many
                                                                                                                                                          commentators to draw analogies
                                                                                                                                                          with 2008. In its November 2018
    Share of covenant-lite leveraged loan issuance globally and in the UK
                                                                                                                                                          Financial Stability Report, the Bank of
                                                                                                                                      Percent of flow     England has raised concerns about the
                                                                                                                                                 100      loosening of underwriting standards
              Global                                                                                                                                 90   in the leveraged loan market, and has
              United Kingdom                                                                                                                         80   specifically compared the current
                                                                                                                                                     70   leverage lending market with the US
                                                                                                                                                          subprime mortgage market of 2006.
                                                                                                                                                     60
                                                                                                                                                             The percentage of cov-lite loans
                                                                                                                                                     50
                                                                                                                                                          has reached record highs in 2018
                                                                                                                                                     40
                                                                                                                                                          (see Fig. 2), and the average leverage
                                                                                                                                                     30   of issuers has reached pre-crisis levels
                                                                                                                                                     20   and could potentially rise even higher
                                                                                                                                                     10   (see Fig. 3).
                                                                                                                                                     0
                                                                                                                                                          When is leverage not leverage?
     2001    02    03    04    05     06    07     08    09     10        11        12        13        14        15        16        17        18
                                                                                                                                                          One of the increasing market trends
                                                                                                                                                          recently has been the use of EBITDA
    Source: Financial Stability Report, November 2018, Bank of England
                                                                                                                                                          adjustments when the loan is written
                                                                                                                                                          that assume future improvements
                                                                                                                                                          in earnings. These ‘add-backs’ could
                                                                                                                                                          result in substantial overstatement of
                                                                                                                                                          EBITDA and, as a result, substantial
    Figure 3. The average leverage of issuers has reached pre-crisis levels                                                                               understatement of leverage. Fig. 3
    and could be even higher than reported                                                                                                                shows very clearly the potential impact
                                                                                                                                                          on leverage, if some or all of the add-
    Average leverage of global and UK issuers for new leveraged loans*                                                                                    backs are not, in fact, realised. The
                                                                                                                                                          leverage of issuers of cov-lite loans
                                                                                                         Average gross debt to EBITDA
             Average global leverage
                                                                                                                                                          suddenly appears far higher, potentially
                                                                                                                                   8x
             Average UK leverage                                                                                                                          already exceeding pre-crisis levels.
             Range of potential leverage**                                                                                                           7x      The EBITDA add-backs also have
                                                                                                                                                          a couple of additional key effects.
                                                                                                                                                     6x   One is potentially to permit transfer of
                                                                                                                                                          assets from the borrower group or the
                                                                                                                                                     5x
                                                                                                                                                          incurrence of new debt or security, at
                                                                                                                                                     4x   a time when the ‘real’ EBITDA of the
                                                                                                                                                          group would not support it. Another
                                                                                                                                                     3x   effect—when there is a maintenance
                                                                                                                                                          covenant—is to delay the time when a
                                                                                                                                                     0x
      2002    03    04    05     06    07     08    09     10        11        12        13        14        15        16        17        18             covenant breach could occur, potentially
                                                                                                                                                          resulting in a default occurring under
    *    Granular data on add-backs only available from 2015                                                                                              the loan before the lenders are aware
    **   The greater the proportion of add-backs which are not realised, the higher the actual leverage will be relative                                  of the borrower group’s distress. When
         to the reported leverage. The top range assumes none of the add-backs are realised. The bottom of the range                                      combined with the other weaknesses
         assumes all of the add-backs are realised.
                                                                                                                                                          in debt documentation, the Bank of
    Sources:                                                                                                                                              England’s comparison between the
    Covenant Review, LCD, an offering of S&P Global Market Intelligence and Bank calculations.                                                            leveraged loan market and the US
    https://www.bankofengland.co.uk/-/media/boe/files/financial-stability-report/2018/november-2018.pdf                                                   subprime mortgage market in 2006
                                                                                                                                                          seems prescient.

2   White & Case
Figure 4. EBITDA add-backs in the European high yield bond market

    Research shows that EBITDA add-backs are becoming increasingly prevalent in the
    European high yield bond market
                                                                                                                            The remit of transfer
                                                                                     Percentage of European HY bond         restrictions has been
                                                                             89%
                                                                      81%
                                                                                     deals that provided for cost savings
                                                                                     and/or synergies to be included in     extended to cover
                                                                                     EBITDA or pro-forma adjustments
                                                                                                                            sub-participations,
                                                                        Percentage of European HY
                                                                                                                            preventing a bank
                                                               74%      bond deals that allowed cost                        from offloading its
                                                        66%             adjustments to be uncapped
                                                                        and without time limit                              exposure and control
    0%     10%      20%      30%     40%      50%       60%     70%       80%      90%     100%
                                                                                                                            while remaining
                                                                                                                            lender of record
                                                 2018         2017

    Source: Debt Explained Market Update ‘Aggressive Terms in European High Yield 2018’, 22 January 2019

                                                                                                                            Other debtor-friendly
                                                                                                                            amendments to loan
New ‘cov-lite’ raises                                                                                                       documentation
                                                                            to 40%—a relatively ‘loose’ trigger
lender concerns                                                                                                             Extension of transfer restrictions
                                                                            potentially open to manipulation by
It seems clear that these EBITDA add-                                       a debtor that can time its cashflows            One advantage that lenders had in
backs, and their ability to water down                                      to avoid springing the covenant in              2008 was that they were able to
leverage protection and obfuscate the                                       the first place.                                exit the loans they were holding.
availability of incurrence baskets, are                                        Even when maintenance covenants              This flexibility for par lenders to
a potential problem for lenders in any
upcoming downturn. However, they                        89%                 do remain, the standards applicable
                                                                            to equity cures have loosened over
                                                                                                                            trade out enabled these original
                                                                                                                            lenders to focus on larger problems,
are not the only terms in the latest                of European HY          recent years. It is now common not              which in many cases included their
wave of cov-lite loans and bonds that             bond deals in 2018        to include restrictions on the number           own balance sheets, and allowed
                                                    provided for cost
could be of concern to lenders in                    savings and/or         of cures or the amount by which                 distressed debt investors to buy
future distressed scenarios.                         synergies to be        a breach can be cured. It is also               in at a substantial discount and
                                                  included in EBITDA
   The start of 2018 had seen the                     or pro-forma          becoming increasingly common for                effect a more ‘root and branch’
occasional deal with the more                         adjustments           the cure to be used in prepayment of            restructuring. While a number of
traditional three or four maintenance                 Source: Debt          outstanding RCF commitments, which              ‘zombie’ companies did continue for
covenants, albeit without ratio-                    Explained Market        removes the future application of the           some time, there would arguably
                                                   Update: Aggressive
based debt incurrence restrictions.                                         springing leverage covenant.                    have been many more if par lenders,
                                                   Terms in European
However, by Q4 2018, all of the                      High Yield 2018,          The same trends can be                       with an understandable desire to limit
syndicated European leveraged loan                  22 January 2019         observed in the European high yield             substantial impairments to their loan
deals were cov-loose (with one or                                           market—a sector that traditionally              portfolios, had not been able to trade
two maintenance covenants, or just                                          offers far less covenant protection             out, and focused instead on ‘amend
leverage maintenance) or cov-lite (with                                     than loans anyway—as high yield                 and extend’ short-term solutions.
only a springing leverage covenant).                                        bond issuers have continued to                     In contrast to the pre-credit crunch
The Debt Explained European                                                 achieve favourable terms in their               position, all of the newly issued
Leveraged Loan Market Update                                                documentation. EBITDA add-backs                 European syndicated leveraged loans
Q4 2018 reported that more than 80%                                         have been equally prevalent in high             in Q4 2018 contained a ‘whitelist’
of deals fell into the cov-lite category.                                   yield deals, and both the Restricted            of permitted transferees, and an
Most commonly in 2018, the springing                                        Payments basket and the covenants               ever-increasing number contained
leverage covenant would only apply                                          on Affiliate Transactions have become           both a whitelist and a ‘blacklist’ of
when the RCF in the deal is drawn                                           increasingly more aggressive.                   prohibited transferees. Over time, the

3
remit of transfer restrictions has been
extended to cover sub-participations
as well, preventing a bank from                                         Voting thresholds
offloading its exposure and control                                     One key change to loan documentation is the lower thresholds for
while remaining lender of record.                                       majority lender and super majority lender definitions. These have been
   When borrower consent is                                             watered down to New York law bond levels, with more than half of
required, an overwhelming majority                                      all loan deals setting the ‘Majority Lender’ level at 50.1%, in contrast
of deals provide that the consent
requirement only falls away in the
                                                   85 %                 to the traditional 66 2 /3% requirement. The ‘Super Majority Lender’
                                                                        threshold has survived a little more intact, with thresholds mostly in
                                              of all leveraged          the region of 80%.
event of a payment or insolvency              loans in the UK              The threshold for ‘non-major’ changes in the European high
default. Fewer than 30% of European           were cov-lite by
                                              the end of 2018           yield bond market was already a simple majority (more than 50%
leveraged loans in 2018 had a consent                                   of outstanding bonds). However, as Debt Explained reported in
right that was disapplied on any other       Source: Leveraged          “Voting Thresholds: When Security is not so Super”, it is the ‘super
event of default.                            Data & Commentary
                                              unit of S&P Global
                                                                        majority’ threshold for release of collateral and/or security that has
                                             Market Intelligence        been reduced—in this case to 66 2 /3% of holders—in the majority
Prevalence of ‘light touch’
                                                                        of 2018 deals. This is in contrast to the more traditional 90% or 100%
security packages
                                                                        required for other ‘Super Majority’ decisions, which continue in the
Historically, lenders have expected                                     European high yield bond market.
share and asset security—and                                               This change to documentation is a double-edged sword. It is clearly
                                                                        useful for lenders to be able to avoid holdouts—and the unnecessary
subsidiary guarantees—from all
                                                                        loss of value to those lenders holding out—when agreeing changes
material group companies, but
                                                                        to the documents, or a more extensive restructuring of the debt.
recent years have seen a number                                         Equally, though, lower voting thresholds make it easier for a debtor
of limitations or exclusions to the                                     to push through amendments that might have been more difficult to
lenders’ security package being                                         achieve previously.
introduced. This can encompass
the exclusion of certain jurisdictions

     Figure 5. Summary of changes in loan document protections over time

      Loan document
                                           2003                                    2007                                      2019
      protections

      Existence of          Prevalent – both maintenance and       Both maintenance and incurrence          Few maintenance covenants; most
      covenants             incurrence                             covenants, but subject to                deals just with incurrence covenants
                                                                   substantial relaxation and reset
                                                                   during 2008 – 2010

      Strength of           Strong – acted as effective early      Still effective – relaxation in equity   Loose/lite – lots of flexibility,
      covenants             warning system                         cure rules and many covenant resets      especially around calculation of
                                                                   after the credit crunch                  EBITDA. Difficult to actually calculate
                                                                                                            leverage of business

      Security              Strong – substantial share and         Strong – little meaningful change        Weakening – more reliance on
      package               asset security, and guarantees from    from 2003                                share security and single point of
                            material group companies                                                        enforcement. Less asset security and
                                                                                                            fewer guarantees

      Transfer              Strong – no blacklists/whitelists.     Strong – little meaningful change        Weak – prevalence of blacklists and
      restrictions          Sometimes no borrower consent; if      from 2003; if any change, lenders’       whitelists. Stronger borrower consent
                            it existed, fell away on default       position stronger on transfer            rights; often don’t fall away until
                                                                                                            payment default

                                          Strong                                 Weakening                                   Weak

                                                                                                                                                      4
altogether, for example, not                                                                                any blacklists or whitelists in the
requiring security to be granted                                                                            documentation. Those amendments
where it is particularly expensive or                                                                       would enable lenders who want or
cumbersome to do so.                                                                                        need to exit the loan to do so, and
   Both security and upstream                                                                               enable activist distressed investors
guarantees can be restricted when          Lenders need to understand the                                   to become involved.
there are issues relating to financial     debtor’s business, and be aware                                     Early engagement, and taking a
assistance, corporate benefit, thin                                                                         constructive and creative approach,
capitalisation, etc.—issues that arise
                                           of the key commercial and legal                                  will be the key to maximising future
under the laws of certain Western          pressure points available to them                                recoveries. While human nature is
European jurisdictions, and beyond.
However, the market trend is to
                                           as leverage                                                      to defer difficult conversations until
                                                                                                            strictly necessary, getting a seat
introduce further exclusions, with                                                                          at the table with the borrower and/
the asset-level security limited only                                                                       or its private equity sponsor, rather
to ‘material’ assets of the borrower                                                                        than simply sitting there waiting
group, or even for lenders to rely                                                                          for the doomsday scenario, is the
simply on share pledges over the key                                                                        best approach.
companies in the group—as a single                                                                             Improving the documents at this
                                           Carrot and stick: New money/waivers
point of enforcement—and do not                                                                             relatively early stage can enable a
                                           in return for resetting documents
take asset-level security at all.                                                                           ‘two-stage’ restructuring to take
   While these measures were               Improving weaknesses in existing                                 place, with the credit improvements
introduced to provide operational          documentation is a priority. A clear                             instituted in the first stage, allowing
flexibility for the borrower group, the    example is if the borrower group                                 a sensible and collaborative
limitations to the security package—       needs any formal consents under                                  restructuring to be put in place,
and ability for the borrower group to      the documents, or if there is a                                  if needed, at a later date.
require the release of such security—      new money requirement. In those
                                                                                                            Pressure on directors
clearly carry risks for lenders in the     circumstances, lenders should seek
eventual enforcement, and have the         to reinstate covenants, relax transfer                           One of the most well-trodden paths
potential to reduce recoveries in a        restrictions and restore as much                                 by lenders seeking engagement
worst-case insolvency scenario.            lender power to the documents as                                 with a reluctant borrower is putting
                                           possible, as the quid pro quo for                                pressure on the borrower’s board
Lenders still have options                 acceding to the borrower’s request.                              of directors, and reminding board
There seems to be no indication that       Given that such opportunities are                                members of their duties.
investors will stop making finance         by no means guaranteed—due to                                       Directors’ duties vary materially
available on these terms, unless there     the inherent lack of protection in the                           by jurisdiction, but many local laws
is some external economic or political     documents—it is critical that lenders                            have some form of trigger, ranging
trigger with an impact akin to the         seek to be proactive and organised.                              from the requirement for directors to
collapse of the US subprime market in                                                                       act in the interests of the company’s
                                           Two-stage restructurings
2007. At some stage, lenders will                                                                           creditors, rather than its shareholders,
have to address the documentary            While the balance of power has                                   when in the ‘zone of insolvency’
inadequacies of these loans. What will     shifted under the debt documentation,                            in England or compared to the
they be able to do?                        it is still open to lenders to approach                          compulsory insolvency filing rules
   Given the weaknesses in debt            borrowers with constructive                                      that exist in Germany. Equally, it may
documentation, there are clear             proposals prior to a default. For                                be possible to take advantage of the
limitations on lenders’ rights under the   example, lenders could offer new                                 differing rules on directors’ duties
loans. The biggest risk is that lenders    money, a payment holiday or even            $452bn               across jurisdictions of companies
are unaware—or are aware but unable        specific sector expertise, in return for     in new cov-lite
                                                                                                            in the borrower group, to put more
to take any action—until a borrower        improved credit support, an equity            issuance was       pressure on the directors of certain
defaults on a payment due under the        injection or revised loan terms that       added to the global   guarantors. In particular, a reminder
                                                                                        market in 2018
debt. At that point in time, any           provide earlier triggers. It would also                          of the directors’ personal liability,
anticipated recovery will have been        be worthwhile for lenders seeking          Source: Leveraged     if applicable—civil and criminal,
                                                                                      Data & Commentary
dramatically reduced. But it’s not all     to improve liquidity in the loan to         unit of S&P Global
                                                                                                            depending on jurisdiction and the
doom and gloom, and lenders still          remove or soften the borrower’s            Market Intelligence   action being taken—will inevitably
have options.                              veto on transfers, and remove                                    have a more substantial impact.

                                                                                                              Restructuring the next wave of cov-lite debt   5
agreement are so ‘lite’ that they
                                                                                                            do not trigger a default—it may be
                                                                                                            worth exploring the ambit of the MAC
                                                                                                            clause. It may be possible, at least for
                                                                                                            the purposes of seeking engagement
Early engagement with borrowers, coupled with lenders’                                                      with the borrower group, to consider
                                                                                                            its usefulness, even if the lender
constructive and creative approach, is the key to maximising                                                group would still prefer not to call
future recoveries                                                                                           a default on the basis of a MAC
                                                                                                            clause alone.
                                                                                                            With no ‘early warning systems’,
                                                                                                            lenders need to be proactive
   It would also be sensible for any       insolvency may be more palatable                                 While some commentators disagree
reminder of directors’ duties to be        for lenders rather than, for example,                            on whether the market should be

                                                                                           12
coupled with an express reservation        material adverse change.                                         concerned about the prevalence of
of rights regarding any conduct of the                                                                      cov-lite debt, there can be no doubt
                                           Audit sign-off
group that the lenders or bondholders                                                     months            of the very substantial amount of debt
consider inappropriate or potentially      One clear red flag for lenders—and                               that has been written in recent years,
in breach of the debt documents.           potentially an event of default under                            with minimal ‘early warning systems’
                                                                                        A period of 12
Lenders should ensure that such            the debt documents—is the inability       months is considered   for its financiers.
reservation of rights is as robust         for any company in the borrower            the ‘foreseeable         Will these cov-lite issuances run
                                                                                      future’ for going-
as possible.                               group to achieve sign-off by its            concern sign-off     into trouble? It’s impossible to tell.
                                           auditors of its accounts, on a going-                            But with the issuance of cov-lite
Balance sheet insolvency test
                                           concern basis. A period of 12 months                             debt at record highs, and the average
(if applicable)
                                           is considered the ‘foreseeable future’                           issuers’ leverage at levels not seen
A number of jurisdictions, including the   for going-concern sign-off.                                      since before the financial crisis of
UK, have a balance sheet insolvency           While this is clearly out of the                              2007/08, a market correction is likely.
test in their legislation, along with      lenders’/noteholders’ control, they                              And when it happens, holders of
the more prevalent cashflow test. If       should be aware of the timing and                                cov-lite debt—whether bank debt
the liabilities of a company exceed        process. As it is management’s                                   or bonds—will need to be proactive
the value of its assets, the balance       responsibility in the first instance to                          to ensure that they maximise all
sheet test will deem that company          consider whether a going-concern                                 available recoveries.
insolvent. The laws of some                basis is appropriate, any pressure that                             In the years leading up to the
jurisdictions, particularly in Europe,     can therefore be brought by lenders/                             financial crisis—irrespective of
contain restrictions on the limitations    noteholders to show that the group                               the leverage in the system at the
on guarantees that can be given by a       will have cashflow issues and/or                                 time—lenders had the benefit of
company, based on the value of their       need to materially curtail operations                            the ‘early warning system’ of robust
assets. However, these rules do not        in the following year will inevitably                            financial covenants. These covenants
apply in all jurisdictions, which makes    put pressure on the borrower/issuer                              gave an indication of the troubles
balance sheet insolvency more likely.      group to engage.                                                 suffered by a distressed business and
   To some extent, this is a corollary                                                                      provided lenders with a clear route to
                                           MAC
to the directors’ duties, because                                                                           a ‘seat at the table’ in restructuring
directors’ duties only become              Material adverse change (MAC) or                                 negotiations. That benefit no longer
                                           material adverse effect (MAE) is the
relevant when a company is at least                                                                         exists in loan documentation.
                                           clause that no lender really wants
prospectively insolvent. If the borrower                                                                       Today’s lenders need to
                                           to rely on to assert a default. It is
group has companies in jurisdictions                                                                        understand the debtor’s
                                           notoriously difficult to prove what
with a balance sheet insolvency test, it                                                                    business, and be aware of the key
                                           is ‘material’ in terms of the impact
may be helpful to increase pressure. In                                                                     commercial and legal pressure
                                           of the event on the borrower group,
addition, the balance sheet insolvency     its ability to perform its financial                             points available to them as leverage.
test may be an event of default under      obligations or the effectiveness                                 Being proactive and organised will
the debt documents—in addition             of the lenders’ security package.                                be crucial if lenders are to overcome
to the ‘cashflow test’ of whether a        However, if there are no other events                            the documentary deficiencies and
company can pay its debts as they fall     of default available to lenders—not                              achieve meaningful restructurings
due. Default based on balance sheet        least because the covenants in the                               while avoiding material impairments.
                                                                                                                                                       LON0419084_010

6   White & Case
0

    Ian Wallace
    Partner, London
    T +44 207 532 2283
    E ian.wallace@whitecase.com

    Christian Pilkington
    Partner, London
    T +44 20 7532 1208
    E cpilkington@whitecase.com

    whitecase.com
    © 2019 White & Case LLP
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