Interest and Fees
In a unitranche facility with one rate of interest on all
of the obligations, the AAL specifies how much each
set of lenders is entitled to with respect to interest and
certain fees. The AAL should be clear that the last-out lenders are only entitled to their additional interest
and fees when they are actually paid by the borrower.
If interest and fees are paid by charging the revolver
(either at the borrower’s election or the agent’s), the
first-out lenders should bargain for the ability to cease
charging such amounts during a default or any events
connected with a default.
Most AAL’s will have rules that alter the voting provisions of the credit agreement, such that any right of the
required lenders under the credit agreement is instead
a right of required lenders as determined in the AAL.
Class voting, in which the required first-out lenders and
the required last-out lenders (typically those holding a
majority) constitute required lenders for all purposes, is
the preferred approach for first-out lenders.
In some AALs there is a drag along right in favor
of the last-out lenders which gives the required last-out
lenders all the rights of the required lenders so long as
the borrower is performing at certain financial levels.
The first-out lenders may agree to this when working
with last-out lenders they have a relationship with, so
the drag along should always be conditioned on the
initial last-out lenders continuing to be in control of the
required last-out lenders.
There will be items that the drag along does not
apply to. One of the most important is the borrowing
base and related rights to trigger cash dominion. The
first-out lenders should ensure that any discretion they
have, or their agent has, in managing the borrowing
base and revolver is retained. Further, the first-out
lenders should ensure that no changes may be made to
the conditions under which they are required to make
advances. A further protection that the first-out lenders
should require is that the drag along does not prohibit
the required first-out lenders from triggering the waterfall or creating an escape hatch. abfj
DANIELLE GARCIA is a partner in Blank Rome’s Restructuring and Bankruptcy group. ALYSSA KEON is an associate
in the group.
term loan collateral, such as equipment and intellectual
property. These provisions must be negotiated with a
clear understanding of what an actual foreclosure on the
revolver collateral in question will entail.
In a typical intercreditor agreement, lenders with
competing liens claim the proceeds of collateral, while
an AAL covers all collateral proceeds and all payments
received under the credit documents. If agreed upon
“triggers” occur, payments under the credit agreement
are applied per a waterfall that will, subject to certain
exceptions, pay off the first-out obligations before the
last-out obligations. The triggers are typically specified events of default, plus notice to the agent from
the required first-out lenders (typically those holding a
majority of the first-out loans).
The first-out lender should ensure that these triggers
include notifying the agent if there is an over advance
on the revolver or if the revolver is no longer available
to the borrower. The first-out lender should also ensure
that the waterfall applies to all amounts received in an
insolvency (such as adequate protection payments),
and that it applies automatically in an insolvency and
after acceleration. If the revolver has the benefit of cash
dominion in which all incoming funds to the borrower
are automatically applied to the revolver balance, the
first-out lender needs to understand how and when the
waterfall will affect that application of payments.
Caps and Limits on Protective Advances
The waterfall will typically provide for payment in full of
the first-out obligations up to an agreed upon cap. This
cap will apply to the principal amount of the first-out
obligations, as well as any bank products (i.e. hedges
and cash management products and services) secured
by the collateral under the terms of the credit agreement. The first-out lenders will want to negotiate a cap
on bank products that allows the lenders to provide any
bank product that the borrower may need.
However, the last-out lender will want those bank
product obligations reserved against the revolver to
minimize risk of the last-out obligations not being paid in
full. Depending on the type of bank products a borrower
needs, that can result in a material loss of availability
to the borrower. As such, a first-out lender may want to
negotiate for typical cash management obligations to be
uncapped and for flexibility in the amount and timing
of reserves for other bank products. Protective advances
(made to preserve or protect the collateral or enhance
the likelihood of repayment) are typically paid out in the
waterfall ahead of most other obligations.
The AAL will cap either the amount of such advances
or the amount of advances that have priority in the
waterfall. In split collateral deals, the first-out lenders
may also want the AAL to address whether protective
advances, that are made mostly to protect or liquidate
one pool of collateral over the other, should only have
priority in the waterfall that applies to the collateral
receiving the benefit of such advances.
In a unitranche facility with one rate of interest on all of the
obligations, the AAL specifies how much each set of lenders is
entitled to with respect to interest and certain fees. The AAL should
be clear that the last-out lenders are only entitled to their additional
interest and fees when they are actually paid by the borrower.