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What a Lender Needs to Know: Key Loan Document Terms in a Time of Crisis
By David Morse
This is a two-part series. Part 2 will be published tomorrow.
As circumstances are moving rapidly, companies and their lenders are dealing with unprecedented times. While companies try to determine the full impact of the current economic tailspin on their businesses, lenders are looking to understand their risks and how they can respond to them.
The credit agreement sets out the rules of the road for the relationship between a company and its lenders. In the list of credit agreement provisions set out below we attempt to provide a map for the secured lender for navigating those rules, anticipating where there may be bumps or wrong turns and providing some guidance for where a lender may go in the credit agreement to determine its path when confronted with a borrower in distress.
Material Adverse Effect
In the past week there has been a lot written and even more discussed about the concepts of a “material adverse change” (“MAC”) or “material adverse effect” (“MAE”), that wind their way through almost all credit agreements. The volume of commentary being quite natural given the dramatic turn for businesses in today’s environment.
Let’s try to break it down in a functional manner—at least to the extent that the uncertainties of the law permit—to try to answer the question that inquiring minds want to know: What is a Material Adverse Effect?
Event of Default or Condition Precedent?
Before we get there--does the credit agreement include an independent event of default as a result of a “material adverse effect” to the business? Most middle-market and upper-middle market transactions will not, but some middle-market and many lower-middle market transactions will. In the middle market and in larger transactions, while there will not typically be an independent default there will be a representation by the company that no “Material Adverse Effect” has occurred since a specific date, usually the date of the last audited financial statements received by the agent or lender prior to the execution of the credit agreement. What does this mean? This means that the standard condition precedent to the making of loans that all representations be true and correct as of the date of the making of the loan will not be satisfied if the business has in fact experienced a Material Adverse Effect. Therefore, the lenders will not be obligated to make a requested loan, that is, there will be a “draw stop”.
Elements of “Material Adverse Effect”
In either case, how does a lender know if there has been a “Material Adverse Effect”—and so there is either an event of default (if there is an independent default based on it) or the lender is not obligated to make a loan? The answer starts with looking at the definition of the term in the particular credit agreement. The definitions are generally very similar. Most of the time the definition includes some version of the following:
• a material adverse effect in the business, operations, results of operations, assets, liabilities or financial condition of the borrowers and guarantors, taken as a whole,
• a material impairment of the ability of the borrowers and guarantors to perform their obligations under the loan documents or of the ability of the lenders to enforce the debt or realize on the collateral, or
• a material impairment of the enforceability or priority of liens of the lenders with respect to the collateral.
Sometimes, besides referring to a material adverse effect on the business, assets, liabilities, etc., the definition will also refer to an adverse effect on the “prospects” of the borrower, which can be helpful to the lender in considering the future performance of the borrower. More often, “prospects” will not be included, which means that the material adverse effect on the business must have actually occurred—and not be an effect that is expected to occur. Sometimes in specific provisions there may be a reference to an event that has an MAE or “could reasonably be expected to have an MAE”, but that does not usually appear in the condition precedent to borrowing. Even in those cases where there may be a reference to “prospects” in the definition, as discussed below in more detail, a lender will want to be cautious.
While the answer starts with the definition, it does not end there. The definition does not include any objective, clear criteria that a lender can point to. The definition just does not define “material”.
Since the term “material” is not defined, we have to turn to any case law that there may be in providing guidance as to how it might be understood, particularly in the context of the circumstances of the specific borrower at the time. Unfortunately, at least as to conditions precedent to the making of loans or an event of default under a credit facility, there is not much to go by. However, there are a series of cases interpreting a “Material Adverse Effect” in the context of acquisitions that it could be expected a court would look to. These are cases where the buyer tried to back out of an acquisition when one of the conditions to the buyer’s obligation to close was the absence of a material adverse effect on the target business.
When you look at these cases a couple of general themes are clear. First, it is very difficult to “prove” an MAE, a point made by the fact that at least in Delaware no court had found that there was an MAE until the 2018 decision in Akorn, Inc. v. Fresenius Kabi A.G.1; Second, to support the finding of an MAE requires an intensive and cogent factual analysis of key objective indicators of business performance: sales, margins, EBITDA, operating revenue, etc. Given these requirements, before relying on an MAE for any purpose, the lender needs to be certain it can make the case.
In looking for an MAE, the case law refers to three aspects of the adverse change to the business that will be considered:
• the duration of the change,
• the magnitude of the change, and
• the relationship of the change to the purpose of the transaction.
In a 2013 case in England, Grupo Hotelero Urvasco SA v. Carey Value Added SL2, the English High Court also said that the material change cannot include circumstances or events which were known to the lender at the time the agreement was made.
In terms of duration, the material adverse effect must be “durationally-significant.” In the leading case of In re IBP S'Holders Litig. v. Tyson Foods 3, the Court said that a “blip” in earnings does not constitute an MAE and the effect should substantially threaten the overall earnings potential of the target in a “durationally-significant manner.” In Hexion Specialty Chems., Inc. v. Huntsman Corp.4, the Court noted that for a significant decline in earnings to constitute a material adverse effect, poor earnings results must be expected to persist significantly into the future.
This means that to rely on an MAE, a lender would have to be able to convincingly show that a current downturn in a business’ performance does not have any reasonable prospects of bouncing back. In the IBP case, the Delaware Court found that a 64% drop in quarterly earnings did not constitute a material adverse effect, because a major producer of beef suffered a large quarterly decline in performance primarily due to widely known cycles in the meat industry, exacerbated by a harsh winter. After the bad quarter and the onset of spring, the company performed more in line with its recent-year results.
In terms of the magnitude of the change, here is where some of the cases came out.
In the Hexion case, the court said that when evaluating the magnitude of a decline, a company’s performance generally should be evaluated against its results during the same quarter of the prior year, in order to minimize the effect of seasonal fluctuations. The Hexion Court declined to find an MAE where the seller’s 2007 EBITDA was only 3% below its 2006 EBITDA, and where according to its management forecasts, its 2008 EBITDA would be only 7% below its 2007 EBITDA or even using the buyer’s more conservative forecasts, the seller’s 2008 EBITDA would still be only 11% below its 2007 EBITDA.
By contrast in Genesco Inc. v. Finish Line Inc.5 , the Court noted that the target, Genesco, suffered a 61% decline in earnings for the second and third quarters of 2007 compared to the comparable quarters in prior years and there was no “rebound” in subsequent months. The Court found that this was a “material adverse effect,” but because it was a result of general economic conditions and the definition of the term “Material Adverse Effect” in the acquisition agreement carved out adverse effects as a result of general economic conditions, the buyer was not excused from closing.
In Akorn, the Court cited one treatise which noted that courts have considered decreases in profits in the 40% or higher range a material adverse effect and cited another case where the judge suggested that a decline in earnings of 50% over two consecutive quarters would likely be an MAE. Under the facts of Akorn, the Delaware Court found an MAE on the basis of declines in quarters measured against performance in the same quarter of the previous year of revenue of 29%, operating income of 89% and earnings per share of 105%--and declines of EBITDA of 86% and of adjusted EBITDA of 51%.
Burden of Proof, Lender Liability Risk and Reputation Risk
Given the fact-intensive nature of the case for the occurrence of a Material Adverse Effect, and the number of variables that affect whether or not a court might find that one has occurred, it is understandable that the concept is rarely used, and often when used, only in conjunction with other events of default. In failing to make a loan or in demanding repayment based on an MAE, the shadow of lender-liability claims looms large.
The lender will need to evaluate each situation carefully to determine a strategy that will lead to the best ultimate recovery, which will include not only assembling the data to be in a position to make the case that an MAE has occurred, but also taking into consideration the risk of at least a claim against the lender by the company as a consequence of the lender failing to fund, whether or not such claim might be successful. Part of understanding this risk includes considering which party bears the burden of proving the existence of an MAE, since that party will have the more difficult position. At least in the context of acquisition agreements where the buyer has not wanted to proceed, the courts have said that absent clear language to the contrary, the burden of proof with respect to a material adverse effect rests on the party seeking to excuse its performance under the contract, which in this case would be the lender. 6
Beyond the question of whether funding or not is more or less likely to lead to a successful recovery, the lender will need to consider the potential reputational damage to taking such action in the current environment and the signal that it will send to the market.
While there is a lot of discussion about the occurrence of a “Material Adverse Effect” or “Material Adverse Change”, there is also a representation in most credit agreements that the company is “solvent”. Since a condition to a borrowing under a revolving credit facility typically requires that all representations be true, if a borrower cannot make the representation that it is “solvent,” it may not be able to borrow.
Most often the concept of “solvent” is defined in the credit agreement to match the definitions in fraudulent transfer laws (now known as “voidable transfer” law) and corporate dividend laws. In some ways, like a “Material Adverse Effect,” understanding the definition of “Solvent” means considering the fraudulent transfer statutes and the case law applying them.
Just as a starting place, and to simplify, generally there are three types of “insolvency” in the applicable statutes:
• A balance-sheet test based on whether the sum of the borrower’s liabilities exceeds the sum of its assets at a “fair valuation”;
• A cash-flow test based on whether the borrower has incurred debts that are beyond the its ability to pay as such debts mature; and
• A capitalization test based on whether the borrower is engaged in a business or a transaction for which it has unreasonably small capital.
There is extensive case law interpreting and applying these concepts that would need to be considered as part of examining whether a borrower has ceased to be “solvent” as such term is defined in the credit agreement, but as events unfold, this may be another area for the lender to more closely exam, particularly in consultation with counsel familiar with how these tests are applied by the courts.
1 C.A. No. 2018-0300-JTL (Del. Ch. Oct. 1, 2018)
2  EWHC 1039 (Comm) (26 April 2013)
3 789 A.2d 14 (Del. Ch. 2001)
4 965 A.2d 715, 738 (Del. Ch. 2008)
5 2007 WL 4698244, at *19 (Tenn. Ch. Dec. 27, 2007)
6 See Hexion Specialty Chems., Inc. v. Huntsman Corp., 965 A.2d 715, 739 (Del. Ch. 2008)