Clint M. Hanni Partner Corporate Section of the Business Services Group

Transcription

1 How to Negotiate Effectively with Your to Restructure a Loan PRESENTED BY: Clint M. Hanni Partner Corporate Section of the Business Services Group May 26, :30 a.m. 1 p.m. Stoel Rives LLP One Utah Center

2 How to Negotiate Effectively with Your to Restructure a Loan

3 Roll Back the Calendar

4 The Economic Outlook in 2007 In 2003, interest rates reached a 45-year low. During , the world economy grew at the strongest rate in 30 years. The IMF s World Economic Outlook predicted that strong world-wide economic growth would continue at least through the end of Average US home prices rose 125% from 1997 to 2006, with 40% of the rise occurring from 2003 to US Gross Domestic Product grew at 5.4% rate in DJIA peaked at 14,198 on October 11, How to Negotiate Effectively with Your to Restructure a Loan

5 June 1, 2007 Typical Loan Terms: $10,000,000 revolving loan 3 year maturity Quarterly interest payments Voluntary prepayments of principal without penalty All outstanding principal due at maturity Balloon Payment

6 2007

7 2008 Subprime Debt Crisis

8 Subprime Debt Crisis Effect on Economy in General Caused by a dramatic increase in subprime mortgage foreclosures as interest rates on adjustable rate mortgages reset at higher rates. Securities backed by subprime mortgages lost much of their value. Caused a dramatic decline in the capital of banks and other financial institutions that invested in the subprime mortgages. s stop lending. By September 2008, average US home prices dropped by 20% from peak in mid Between June 2007 and September 2008, average American lost 25% of net worth (with more losses to come) resulting in dramatic reduction in consumer spending. Lehman Brothers failed in September DJIA dropped from its peak of 14,198 on October 11, 2007 to a low of 6,469 on March 9, 2009, a loss of 54%. How to Negotiate Effectively with Your to Restructure a Loan

9 2008 Subprime Debt Crisis

10 Effect on Economy: March 2008 S&P 500 corporate earnings growth rate 25% October 2008 S&P 500 corporate earnings growth rate -8% March 2009 S&P 500 corporate earnings growth rate -15% Subprime Debt Crisis March 2008 US unemployment rate of 4.8% November 2009 US unemployment rate of 10.1% September 2008 consumer spending has largest decline in 7 years

11 2010 Economic Forecast Most economists forecast a modest recovery. Third Quarter 2009 (adjusted) annual GDP growth rate 2.2%. Fourth Quarter 2009 (unadjusted) annual GDP growth rate 5.7%, mostly driven by stimulus spending. This number will likely be revised downward. Soaring commercial mortgage delinquency rate resulting in tightened standards for commercial real estate loans.

12 Loan Due June 1, 2010 Balloon Payment

13 What Should the Borrower Do?

14 Keep the in the Loop L P

15 Keep the in the Loop Give the (advance) notice of material changes that would be expected to impact cash flow and net earnings For example: Loss of a material contract Material increase in cost of raw materials Material drop in market price of outputs Anticipated material drop in demand for outputs Threats of material litigation Anticipated material breaches of contracts by the Company or counterparties Public companies: Disclosures to bankers are generally OK because they owe a duty of trust or confidence to the Company consult with counsel. How to Negotiate Effectively with Your to Restructure a Loan

16 Don t Wait Until a Disaster Happens to Call the

17 Benefits of Open and Prompt Communication Creates trust on the part of the. Lowers the s perceived risk of loss on the loan. Increases the Company s credibility. Increases the likelihood that the will grant concessions. Gives the the flexibility to deal with the loan in a way that might not be possible at a later time. Decreases the likelihood that the will overreact and take immediate defensive action to protect its position and hurt the Company. Decreases the s tendency to seek strict enforcement of the loan documents.

18 Loan Secured by: Accounts and Inventory will be receiving periodic status reports on AR and inventory. Accounts and Inventory will be less likely will be less likely to be caught by surprise if business conditions change.

19 Loan Secured by: Equipment Intellectual Property Patent may not be receiving period status reports on collateral. will generally know less about business conditions and outlook. Company should be more proactive about open and prompt communication with the.

20 Don t Keep Secrets from the Creates mistrust and suspicion on the part of the. Increases the s fear of the unknown. Increases the s perceived risk of loss on the loan. Decreases the Company s credibility.

21 Poor Communication Is the Enemy A C M E Denies the the flexibility to deal with the loan in a way beneficial to the Company. Increases the likelihood that the will assume the worst, react negatively and take irreversible action to protect its position and hurt the Company. Increases the s tendency to seek strict enforcement of the loan documents.

22 Multiple s

23 Multiple s/lenders Each /Lender will be worried that the other s/lenders are getting preferential treatment, for example: Increase in interest rate Additional fees Increase in principal amount of loan Moving up maturity date Additional collateral s with first priority will tend to jump on collateral first to protect their position. Danger when any one /Lender declares an event of default, it will become an event of default for each other /Lender. Consult counsel if a /Lender asks for preferential treatment. How to Negotiate Effectively with Your to Restructure a Loan

24 Multiple s: Keep Them All in the Loop

25 Multiple s/lenders Company should try to bring all s/lenders into the conversation. Encourage s/lenders to work together to formulate a comprehensive plan. Encourage the s/lenders to enter into an Intercreditor Agreement. Especially important when s/lenders have overlapping collateral. How to Negotiate Effectively with Your to Restructure a Loan

26 How s View the World Three Most Important Goals: 1. Keep the Loan in Performing Status 2. Continue to Receive at Least a Market Rate of Return on the Loan 3. Have a Realistic Exit Strategy for Full Repayment of the Loan

27 How s View the World Three Most Important Goals: 1. Keep the Loan in Performing Status All interest, principal and other payments are being made as required by the loan documents, including any modifications to the documents. No existing events of default. The loan is not severely undersecured: there is adequate collateral to support repayment of the loan.

28 How s View the World Three Most Important Goals: 2. Continue to Receive at Least a Market Rate of Return on the Loan The market rate of return will be based on the perceived risk of non- repayment of the loan. Market rates of interest generally go up for distressed loans. Market rate of interest is generally determined by a credit committee and not the loan officer handling the loan.

29 How s View the World Three Most Important Goals: 3. Have a Realistic Exit Strategy for Full Repayment of the Loan Based on reasonable (not overly optimistic) projections provided by the Company. The Exit Strategy may include refinancing of the loan by another.

30 How Do s Analyze Loans? Is the Company still fundamentally sound in the long run as a credit risk? Does the loan require a total restructuring or just a tweaking? Will the ultimately see a larger repayment on the loan by calling it now or by granting concessions? What concessions will the have to make to see successful repayment of the loan?

31 The May Require Increased Access to Company Data Accounts Receivable Reports Asset Valuations Weekly/Monthly Financials Monthly/Quarterly Projections Rent Rolls

32 The May Require Mandatory Prepayments of Principal A required payment of principal in addition to regularly scheduled principal payments under the loan. May be required on a monthly, quarterly or annual basis. May be a specific required amount (e.g., pay an additional $1,000,000 in principal amount on or before December 31st of each year). Or, may take the form of a cash sweep based on a formula for calculating excess cash generated from operations.

33 The May Require Payment of Extraordinary Revenue Revenue not in the ordinary course of business. Permitted sales of assets that will not be replaced. Permitted sales of stock in the Company to investors. Permitted sales of stock of subsidiaries. Insurance payments for any property loss to the extent not used to replace the property. Any other one-time payment received not in the ordinary course of business.

34 The May Require More Credit Support for the Loan Additional collateral Additional letters of credit Additional guarantees from the Company s parent or subsidiaries Additional personal guarantees from principals of the Company Additional infusion of investor capital Additional loans from other third parties (e.g., principals, investors)

35 The Company s Story: Most Important Elements Take responsibility for the loan problems Propose a solution

36 The Company s Story Should Address the Following: Is the Company still fundamentally sound in the long run as a credit risk? Does the loan require a total restructuring or just a tweaking? Will the ultimately see a larger repayment on the loan by calling it now or by granting concessions? What concessions will the have to make to see successful repayment of the loan?

37 Useful Tools For the Company to Use in Telling Its Story: Demonstrate that the proposed modifications to the loan will create little additional risk of nonpayment for the. Use hard data to back up arguments and projections. Don t become hostile to the.

38 Absolutely Critical: Carefully Analyze the Loan Documents Ineffective Security Agreement Loan Documents Ineffective UCC Financing Statement Course of Dealing Lender Liability Issues

39 Restructuring the Loan: What Are the Options? Amendment to Loan Agreement

40 Loan Restructuring Options Missed Interest Payments Missed Principal Payments Broken Financial Covenants Breached Representations and Warranties Other Defaults Remember: 1. Waive Past Defaults Compile a complete list of all outstanding defaults under the loan documents, no matter how trivial. All outstanding defaults should be explicitly waived in the amendment to the loan agreement.

41 Loan Restructuring Options June 1, 2010 June 1, Extend the Maturity Date This is an easy fix to help keep the loan in performing status. Most s will at least consider this as long as the maturity date has not already been extended. Benefit will result in lower monthly or quarterly payments. Doubling the maturity of a loan can cut monthly payments in half.

42 Loan Restructuring Options Fixed Charge Coverage Ratio > 1.50:1 1.40:1 3. Modify Financial Covenants Keeps the loan in performing status. Most banks are willing to consider loosening financial covenants if the Company can demonstrate a long-term uptrend in financial performance. Financial covenants can be loosened for a period of time to give the Company a breathing space, and then tightened. The may charge an additional fee in exchange for loosening a covenant.

43 Loan Restructuring Options No Principal Due until June 1, Interest Only Payments Keeps the loan in performing status. Most beneficial to the Company for older loans where the monthly or quarterly payments have a large principal component. Less beneficial on newer loans where most of the payments go to interest.

44 Loan Restructuring Options 5. Bring in Additional s/ Lenders Reduces the risk and exposure of original bank Pari-passu basis (equal rights to payment) Subordinated basis

45 Loan Restructuring Options No Principal or Interest Due until June 1, Defer Principal and Interest Payments Puts the loan in non-performing status. The will be more likely to agree to this where: the period of deferment is short the loan is adequately secured or over-secured the collateral for the loan will maintain its value over time Will require credit committee approval which may be out of the hands of the loan officer.

46 Loan Restructuring Options Interest Rate = 7.5% 7.0% This is a very sensitive area for s. 7. Reduce the Interest Rate In fact, the may push to increase the interest rate on the argument that the risk of non-repayment of the loan has increased. May be possible if market interest rates have dropped. This will require credit committee approval and may result in additional fees being charged by the.

47 Loan Restructuring Options 8. Forgiveness of Principal or Past-Due Interest This approach is least preferred by s. In certain extreme situations, it may be the only alternative. It is best to ask for this when the Company s future prospects are bleak. It is much harder to ask for this when the Company is in recovery mode. If the agrees, it will likely insist on the right to recoup its losses in the event the Company outperforms its projections.

48 Don t Forget About Taxes Canceled Debt = Taxable Income

49 Loan Restructuring Options 9. Convert Debt to Equity This approach is most likely to be accepted by non-traditional lenders. Traditional s are less likely to agree. The Company will need to demonstrate good growth potential. The lender will usually insist on the right to put the stock back to the Company at a predetermined price.

50 Loan Restructuring Options 1. Waive Past Defaults 2. Extend the Maturity Date 3. Modify Financial Covenants 4. Interest Only Payments 5. Bring in Additional s/lenders 6. Defer Principal and Interest Payments 7. Reduce the Interest Rate 8. Forgiveness of Principal or Past-Due Interest 9. Convert Debt to Equity

51 Questions? How to Negotiate Effectively with Your to Restructure a Loan