Structuring Intercreditor Agreements in Split Collateral

Structuring Intercreditor Agreements in Split Collateral Lien Structures Between ABL and Term LendersNavigating Collateral Pool, Priority of Rights, Access to Collateral, Standstill Period, and Waterfall Provisions

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TUESDAY, OCTOBER 2, 2018

Presenting a live 90-minute webinar with interactive Q&A

Jennifer B. Hildebrandt, Partner, Corporate Department, Paul Hastings, Los Angeles

Christopher G. Ross, Of Counsel, Paul Hastings, New York

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STRUCTURING INTERCREDITOR

AGREEMENTS IN SPLIT COLLATERAL

TRANSACTIONS

Presented by Jennifer B. Hildebrandt and Christopher Ross

Tuesday, October 2, 2018

6AGENDA

1. Overview of Split Collateral Transactions

and Comparison to Other Intercreditor

Arrangements

2. Loan Document Provisions

3. Other Issues to Consider

4. Q & A

7

PART 1: OVERVIEW OF SPLIT COLLATERAL

TRANSACTIONS AND COMPARISON TO OTHER

INTERCREDITOR ARRANGEMENTS

8WHAT IS A SPLIT COLLATERAL TRANSACTION?

▪ Two separate credit facilities, each often secured by a lien on the

same collateral

▪ An Intercreditor Agreement provides that one credit facility is secured by

a first priority lien on one pool of assets and the other credit facility is

secured by a first priority lien on a different pool of assets (and each

facility is usually secured by a second priority lien on its non-priority

collateral)

▪ An Intercreditor Agreement governs other rights and obligations of each

group of lenders in relation to the other group of lenders

▪ Typically used when one of the credit facilities is an ABL credit facility

▪ ABL priority collateral = working capital assets (accounts receivable and inventory)

▪ Term loan priority collateral = often intellectual property, real estate, equipment, and equity interests

▪ But note the ABL priority collateral needs to include all borrowing base assets (e.g. if equipment is included in the borrowing base, it needs to be ABL priority collateral)

9OTHER INTERCREDITOR ARRANGEMENTS

1. First Lien/Second Lien (Intercreditor Agreement)

2. Senior/Mezzanine (Subordination Agreement)

3. Unitranche (Agreement Among Lenders (usually))

Notes:

(i) This is not an exclusive list of all types of intercreditor arrangements

(ii) These arrangements are not mutually exclusive

10COMPARISON OF INTERCREDITOR ARRANGEMENTS

10

Feature First Lien/Second Lien Split Collateral Senior/Mezzanine Unitranche

1. Structure/

Documentation

2 sets of documents 2 sets of documents 2 sets of documents 1 set of documents

2. Liens/Collateral 2 sets of liens on 1 pool of

collateral

-2 sets of liens on 2 pools of collateral

-Pool #1: often A/R and inventory

-Pool #2: often equipment, intellectual

property, stock , real estate, equity

interests

Senior debt is usually secured

Mezzanine debt can be secured

or unsecured

1 lien on 1 pool of collateral

3. Debt

Subordination

No No Yes for both unsecured

mezzanine facilities and secured

mezzanine facilities

A waterfall upon triggering events that

generally applies proceeds of collateral

and payments to first out lenders “first” and

last out lenders “last”. There are

exceptions

4. Lien

Subordination

Yes Yes Only if the mezzanine debt is

secured

See above response relative to waterfall

feature

5. Debt Caps Yes for 1st Lien.

Sometimes for 2nd Lien

Yes for the ABL facility

Sometimes for the term loan facility

Yes on senior debt

Sometimes for mezzanine debt

Generally yes

6. Exercise of

Remedies/

Standstill

Period

Yes – for 2nd Lien (120 days

to 180 days)

Yes. Sometimes it is permanent and

sometimes it is limited to a certain

number of days (120 days to 180 days)

Yes. Sometimes it is permanent

and sometimes it is limited to a

certain number of days

-Yes for the last out lenders

-Sometimes a brief standstill will also apply

for the first out lenders

-Sometimes the standstill for one of the

tranches (e.g., the first out lenders) is

indefinite until a triggering event has

occurred

7. Amendments

and Waivers

Operate independently (short

list of exceptions)

Operate independently (short list of

exceptions)

Operate independently (short list

of exceptions)

A variety of voting constructs

8. Buyout Right Yes. Typically, 2nd lien has a

buyout right in club deals

Yes. Typically, the term loan lenders

have a buyout right in club deals

Sometimes the mezzanine

lenders will have a buyout right

Yes. Last out lenders have a buyout right.

Sometimes first out lenders have a buyout

right

9. Bankruptcy

Provisions

Yes Yes Sometimes. If so, very limited if

the mezzanine facility is

unsecured

Generally yes, though some agreements

have very limited bankruptcy provisions

11LIEN SUBORDINATION VS. PAYMENT SUBORDINATION

1. Lien Subordination:

▪ What is it? Junior lien lenders agree that (i) their lien on shared collateral is

“junior to” the lien of the senior lien lenders on such shared collateral; and

(ii) the lien of the senior lien lenders on shared collateral is “senior to” the

lien of the junior lien lenders on such shared collateral

▪ When does lien subordination become payment subordination?

▪ Absolute priority rule vs. relative priority rule

▪ Disallowed post-petition interest

▪ Turnover provisions

▪ Restrictions on voluntary and/or mandatory prepayments to the second

lien lenders and payment blockages

11

12LIEN SUBORDINATION VS. PAYMENT SUBORDINATION

(CONT.)

2. Payment Subordination:

▪ Typically accomplished by contract

▪ Subordinated lenders agree that (i) the debt owing to the subordinated lenders is “subordinated” to the debt owing to the senior secured lenders, and (ii) the debt owing to the senior secured lenders has “priority” over the debt owing to the subordinated lenders

▪ The terms “subordination” and “priority” in a contract are not self-defining and imply little about the relationship between the senior secured lenders and the subordinated lenders. The Subordination Agreement must set forth with specificity the terms of the subordination

Split collateral transactions typically do not involve payment subordination

12

13COMMON PROVISIONS IN A SPLIT COLLATERAL

INTERCREDITOR AGREEMENT

1. Defining Priority Collateral Pools

2. Agreement Regarding Lien Priorities; Waterfall and Turnover

3. Tracing

4. Debt Caps

5. Remedies Standstill

6. Access Provisions

7. Lien Release Provisions

8. Allocation of Proceeds in Mixed Collateral Sale

9. Amendments

10. Bankruptcy Provisions

11. Purchase Option

14DEFINING PRIORITY COLLATERAL POOLS

▪ Each credit facility is often secured by a lien on the same collateral

▪ ABL Priority Collateral – Typically:▪ Receivables (with a carve-out for receivables that are identifiable proceeds of term loan priority

collateral)

▪ Inventory

▪ Chattel paper, instruments, general intangibles, documents of title, letter of credit rights and commercial tort claims to the extent relating to, governing or evidencing receivables or inventory

▪ Cash and deposit accounts (carve-out for deposit accounts containing solely term loan priority collateral)

▪ All proceeds of the foregoing

▪ The ABL priority collateral needs to include all borrowing base assets

▪ Term Loan Priority Collateral -- Everything else, sometimes with certain exceptions

▪ Issues to consider --▪ Section 552 of the Bankruptcy Code

▪ Limiting receivables that are ABL priority collateral to those arising from sale of inventory or provision of services?

▪ Receivables that are proceeds of Term Loan Priority Collateral

▪ Tax refunds

▪ Business interruption insurance

▪ Intercompany loans

▪ Deposit accounts and securities accounts

15AGREEMENT REGARDING LIEN PRIORITIES;

WATERFALL AND TURNOVER

▪ Priorities:

▪ The lien on ABL priority collateral that secures the ABL facility will be senior to and have priority over the lien on the ABL priority collateral that secures the term facility

▪ The lien on term loan priority collateral that secures the term facility will be senior to and have priority over the lien on term loan priority collateral that secures the ABLfacility

▪ Waterfall Provision:

▪ Provision wherein the (i) proceeds of the ABL priority collateral are distributed first, to the ABL debt (sometimes up to a cap) and second, to the term loan debt (sometimes up to a cap); and (ii) the proceeds of the term loan priority collateral are distributed first, to the term loan debt (sometimes up to a cap), and second to the ABL debt (sometimes up to a cap)

▪ Turn over Provision: Provision to ensure that the non-priority lienholder will turn over to the priority lienholder any proceeds of its non-priority collateral that it receives▪ These provisions should not apply to payments

▪ Some turn over provisions only apply in connection with exercise of remedies in violation of the Intercreditor Agreement

16TRACING

• What are tracing provisions?

• Significance of tracing provisions

• Sample tracing provisions below:

Prior to an issuance of any Enforcement Notice by a Claimholder (unless a bankruptcy or insolvency ABL Default or Term Loan Default then exists), any proceeds of Collateral obtained in accordance with the terms of the ABLDocuments and the Term Loan Documents, whether or not deposited under control agreements, which are used by any Grantor to acquire other property which is Collateral shall not (solely as between the Claimholders) be treated as Proceeds of Collateral for purposes of determining the relative priorities in the Collateral which was so acquired. In addition, unless and until the Payment in Full of ABL Priority Debt occurs, Term Loan Agent hereby consents to the application, prior to the receipt by ABL Agent of an Enforcement Notice issued by Term Loan Agent, of cash or other proceeds of Collateral, deposited under deposit account control agreements to the repayment of ABL Debt pursuant to the ABL Documents.

Each ABL Collateral Agent, on behalf of itself and the ABL Claimholders represented by it, and each Fixed Asset Collateral Agent, on behalf of itself and the Fixed Asset Claimholders represented by it, agrees that each such Person shall cooperate in good faith to identify the proceeds of the ABL Priority Collateral and the Fixed Asset Priority Collateral, as the case may be (it being agreed that all funds deposited under Account Agreements (other than a Fixed Asset Priority Proceeds Account) and then applied to the ABL Obligations shall be ABL Priority Collateral unless such ABL Collateral Agent (i) has actual knowledge to the contrary prior to the application thereof to the ABL Obligations or (ii) has been notified by the Fixed Asset Collateral Agent to the contrary at any time before or within sixty (60) days of the application thereof to the ABL Obligations, in which case, such ABL Collateral Agent shall, to the extent not prohibited by law, turn over to the Fixed Asset Collateral Agent an amount equal to that portion of such funds constituting Fixed Asset Priority Collateral or proceeds thereof (other than proceeds of the use, rental, lease, or license of Fixed Asset Priority Collateral (other than Intellectual Property and/or Real Estate Assets)) from the next proceeds of ABL Priority Collateral deposited under Account Agreements (and the Grantors hereby authorize and direct the ABLCollateral Agents to pay over to the Designated Fixed Asset Collateral Agent all such amounts as required hereunder)).

17DEBT CAPS

▪ There are 3 approaches to debt caps in split collateral transactions:

(i) No debt cap on the ABL facility. No debt cap on the term loan facility

(ii) Debt cap imposed on the ABL facility. No debt cap on the term loan facility

(iii) Debt cap imposed on the ABL facility. Debt cap imposed on the term loan facility

▪ If there are debt caps, they are subject to negotiation. Considerations include:

• Principal amount of term loan made on closing date

• Revolver commitments vs. the lesser of (i) revolver commitments; and (ii) borrowing base in most recent borrowing base certificate received by Agent (or, perhaps, gross borrowing base)

• Inadvertent overadvances

• A cushion (typically 10% to 20%)

• Accordions

• Bank product and hedge obligations

• DIP financings

▪ Indemnity obligations

▪ Post-petition interest and fees, even if disallowed in a bankruptcy, should be expressly included

▪ Debt caps apply to application of proceeds of collateral or in restrictions on amendments (sometimes both)

18REMEDIES STANDSTILL

▪ The ABL Agent typically has the right to immediately exercise remedies with respect to the ABL priority collateral

▪ The Term Loan Agent typically has the right to immediately exercise remedies with respect to the term loan priority collateral

▪ The ABL Agent is subject to a standstill with respect to the term loan priority collateral and the Term Loan Agent is subject to a standstill with respect to the ABL priority collateral▪ Sometimes the standstill is permanent and sometimes it is limited to a certain

number of days (usually180 days)

▪ Standstill periods do not preclude the non-priority lien creditor from exercising certain basic rights and remedies, including the filing of a proof of claim, taking action to protect or preserve its liens, the filing of responsive or defensive pleadings, exercising voting rights in a bankruptcy and bidding for collateral at a public or private sale

▪ Do standstill periods apply to commencement of an insolvency proceeding?

▪ Considerations regarding unsecured creditor remedies

19ACCESS PROVISIONS

▪ After the Term Loan Agent takes control of its priority lien collateral, it provides the ABL Agent:▪ access to the loan parties’ facilities for a period — usually 90 – 180 days — so that

the ABL Agent can complete inventory, examine books and records and conduct its own secured creditor remedies on the loan parties’ premises (and sometimes the Term Loan Agent will agree to defer delivery of possession of the premises to a purchaser thereof for the same period of time unless the purchaser agrees to be bound by the access provisions)

▪ a license to use intellectual property, such as trademarks, for the purpose of enforcing the ABL Agent’s security interest in any of its priority collateral, such as disposing of inventory with all applicable trademarks

▪ Access is rent and royalty-free, except for payment of out-of-pocket costs

▪ Indemnification for third-party liability

▪ Insurance

▪ Sale of term loan priority collateral during access period

▪ Access provisions are not in a first lien - second lien intercreditor agreement

20LIEN RELEASE PROVISIONS

▪ Neither Agent should have ability to compel other Agent’s

release of lien on priority collateral without consent

▪ There are “drag alongs” for release of non-priority lien by

Agent with priority lien

▪ Exercise of remedies conducted in a commercially reasonable

manner

▪ Dispositions permitted under the credit facilities (sometimes

absent an event of default under the facility secured by the non-

priority lien)

▪ Default dispositions (sometimes)

21APPLICATION OF PROCEEDS IN MIXED COLLATERAL

SALES

▪ What if disposition involves equity interests of a loan party who owns ABL priority collateral? Or, what if the disposition involves both ABLpriority collateral and term loan priority collateral?

▪ Some Intercreditor Agreements try to allocate the proceeds of mixed collateral dispositions

▪ Example: Proceeds allocated to the ABL priority collateral in an amount equal to the sum of:▪ the book value determined in accordance with GAAP of any ABL priority collateral

consisting of inventory that is the subject of such disposition

▪ the book value determined in accordance with GAAP of any ABL priority collateral consisting of accounts that are the subject of such disposition (or, in the case of a disposition of Equity Interests issued by a loan party, any ABL priority collateral consisting of accounts in which such loan party has an interest)

▪ the fair market value of all other ABL priority collateral that is the subject of such disposition

▪ Can help avoid disputes, but there is a danger of overvaluing or undervaluing particular priority collateral

22AMENDMENTS

▪ Split collateral transactions involve two sets of loan documents that

operate independently with their own voting regimes

▪ Intercreditor Agreements often contain a short list of amendment

restrictions

▪ Examples include:

▪ increasing the interest rate

▪ extending or shortening the maturity date

▪ increasing the principal amount of the debt in excess of cap

▪ changing payment dates or amortization amounts

▪ restricting the payment of the other debt to a greater degree

▪ changing advance rates, availability blocks or borrowing base that have

the effect of increasing availability

▪ Alternatively, the Intercreditor Agreement may provide that

amendment restrictions with respect to one set of loan documents

are limited to those that would violate the other loan documents

23BANKRUPTCY PROVISIONS

▪ Intercreditor Agreement provides that it is enforceable under the Bankruptcy Code

▪ DIP financing:

▪ DIP Financing with a priming lien on the ABL priority collateral provided or consented to by the ABL lenders subject to a cap and the satisfaction of certain conditions precedent is consented to by the term loan lenders

▪ Corresponding provision with respect to the term loan priority collateral in favor of the term loan lenders

▪ Adequate protection ▪ Replacement liens on post-petition collateral (with same priority)

▪ Other adequate protection ▪ Should Intercreditor Agreement bar the non-priority lenders from providing

DIP financing secured by priming liens on their non-priority collateral?

▪ Cash Collateral Use:

▪ ABL priority collateral more likely to generate cash collateral

▪ Term loan lenders typically pre-consent to ABL cash collateral use

▪ Term loan lenders receive replacement liens on post-petition collateral (with same priority)

24BANKRUPTCY PROVISIONS (CONT.)

▪ 363 sale:▪ Term loan lenders deemed to consent to 363 sale of ABL priority collateral

approved by the majority of the ABL debt, subject to the satisfaction of certain conditions

▪ Corresponding provision with respect to the term loan priority collateral in favor of the term loan lenders

▪ Automatic Stay and Adequate Protection:▪ Lenders have right to seek relief from automatic stay related to priority

collateral

▪ Lenders also have a right to seek adequate protection with respect to their priority collateral

▪ Do Lenders have a right to seek adequate protection from their non-priority collateral?

▪ Plans: ▪ Intercreditor Agreement often provides that ABL debt and term debt will be

separately classified in a plan

▪ Plan voting often not addressed

▪ Do turn over provisions in Intercreditor Agreement apply to distributions from a plan?

25PURCHASE OPTION

▪ Usually in favor of term loan lenders only

▪ Triggering events may include ABL payment default (including

acceleration and maturity), ABL termination of commitments,

Commencement of a bankruptcy proceeding, ABL exercise of

secured creditor remedies, ABL failure to fund revolving loans

for a certain period of time

▪ Purchase price is par (sometimes up to the debt cap, if any)

and typically includes cash collateralization of undrawn letters

of credit and bank product or hedge obligations

▪ Is the option open ended?

26

PART 2: LOAN DOCUMENT PROVISIONS

27LOAN DOCUMENT PROVISIONS

▪ Covenants▪ Affirmative and negative covenants are typically similar if term loan is

made pursuant to a credit agreement; differences include:

▪ ABL specific items in the ABL credit agreement

▪ Available amount baskets and/or grower baskets may be in term loan credit agreement and not ABL credit agreement

▪ Payment conditions tests may be in ABL credit agreement and not term loan credit agreement

▪ Financial covenants are typically different

▪ If split collateral transaction involves an ABL facility and an indenture, covenants will be different

▪ Cross-defaults▪ ABL is often cross-defaulted to term loan unless the term loan has

different financial covenants

▪ If term loan has different financial covenants, a long grace period may be imposed before a breach of the term loan financial covenant results in a default under the ABL

▪ Term loan is commonly cross-defaulted to ABL, but not always

28LOAN DOCUMENT PROVISIONS (CONT.)

▪ Optional prepayments of term debt?

▪ Varies from deal to deal:

▪ Often not restricted by ABL in large cap deals

▪ May be subject to payment conditions test based on excess availability

▪ Excess cash flow prepayments

▪ Often in term loan credit agreement and not restricted by the ABL

▪ Prepayments with asset sale proceeds and insurance proceeds

▪ Often in term loan credit agreement

▪ ABL should consider whether proceeds of dispositions of ABL priority collateral should be required to be used to pay down the ABL if the ABL is in cash dominion

29

PART 3: OTHER ISSUES TO CONSIDER

30OTHER ISSUES TO CONSIDER

Documentation Considerations:

▪ Borrowers are seeking to designate precedent documents to serve as the basis for terms, including the intercreditor terms

▪ The precedent document may not adequately deal with collateral issues in the deal at hand or agreed collateral splits

▪ The access provisions and mixed collateral sale provisions in the precedent document may not be appropriate for the deal at hand

▪ Borrowers are requesting more and more exclusions from collateral and limiting required perfection steps for certain types of assets

▪ Greater impact on term loan lenders

▪ Lenders in each credit facility will share in proceeds of such assets on a ratable basis to the extent they have unsecured deficiency claims


Certain Risks:

▪ The value of the fixed assets in a liquidation may

not be sufficient to cover the term debt unless the

term loan lenders are able to obtain a sale of the

company as a going concern

▪ ABL lenders need access rights and often license

rights to intellectual property in order to foreclose

on their ABL priority collateral

▪ Provisions are highly negotiated and complex and

may not be sufficient


Access, Use, and License Rights Related to Intellectual Property:

▪ Intellectual property is increasingly important in commerce

today and relevant in many, many transactions

▪ Ensuring adequate access, use, and license rights relating to

intellectual property is increasingly important and requires

specialized expertise

▪ Crafting adequate access, use, and license around intellectual

property assets requires a real understanding of what these

assets are in a given business and how they need to be used in

order to extract value in an exit scenario

▪ These provisions require attention and focus to bring them in line

with the level of sophistication of the intellectual property assets

in businesses today


Bankruptcy Considerations:

▪ There are few bankruptcy court decisions on split collateral Intercreditor Agreements. Split collateral intercreditor transactions are likely to result in increased negotiation and litigation over collateral valuations in the context of Section 363 sales and plan confirmations

▪ Recent decisions indicate a trend towards courts narrowly interpreting restrictions on junior lien creditors in IntercreditorAgreements

34

PART 4: Q & A

35

ATTORNEY BIOGRAPHIES

36

Jennifer B. Hildebrandt is a partner in the Corporate

practice of Paul Hastings and is based in the firm’s Los

Angeles office. Ms. Hildebrandt represents banks and

other lenders in commercial and corporate finance

matters, leveraged finance transactions (including

acquisition financings and recapitalizations), asset-

based finance transactions, multi-tranche and multi-lien

transactions, and restructurings. In particular, Ms.

Hildebrandt has extensive experience representing

lenders in two lien deals, split collateral transactions,

unitranche transactions, and bank-bond deals. In

addition, she has experience in various business

sectors including healthcare, information technology,

media, franchise, restaurants, casinos, manufacturing,

and vehicle and airline transportation, and in cross-

border transactions. Ms. Hildebrandt has been ranked

in Chambers USA (California Banking & Finance) from

2013 through 2017.

Partner, Corporate Department

515 South Flower Street

Twenty-Fifth Floor

Los Angeles, CA 90071

P: 1(213) 683-6208

F: 1(213) 996-3208

[email protected]

37ATTORNEY BIOGRAPHIES

▪ Christopher Ross is Of Counsel in the Corporate

practice of Paul Hastings and is based in the firm’s

New York office.

▪ His practice focuses on representing U.S. and foreign

financial institutions and corporations in leveraged

finance transactions, including acquisition financings,

syndicated lending, refinancings, recapitalizations,

asset-based and cash flow financings, first lien/second

lien facilities, and mezzanine debt facilities.

▪ Mr. Ross received his J.D. from Fordham University

School of Law in 2006 and his B.A. in Philosophy,

Politics, and Economics from Pomona College in

2000. He is admitted to the State Bar in New York.

Christopher G. Ross

Of Counsel, Corporate Department

200 Park Avenue

New York, NY 10166

P: 1(212) 318-6788

F: 1(212) 230-7788

[email protected]

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