Leveraged Finance Briefing: US Vs EU TLB Vs HY: Apples and Oranges?

28 October 2015 Leveraged Finance Briefing

Welcome to another Leveraged Finance briefing FURTHER INFORMATION which compares and contrasts key features of the

Suhrud Mehta leveraged finance markets in the US and +44 20 7615 3046 in Europe. [email protected]

Marcus Dougherty +1 212 530 5323 US vs EU TLB vs HY: Apples and Oranges? [email protected]

Neil Caddy + 44 20 7615 3145 [email protected]

Alex Schofield +44 20 7615 3011 As the English law EU covenant lite TLB market develops, how different are [email protected] English covenant lite TLB deals to their New York law counterparts, and

how much have both instruments moved towards the high yield bond Sarah Griffin +1 212 530 5621 market? [email protected] There has been a marked convergence between the EU and US TLB terms in Tim Peterson the past year or so. Meanwhile, certain structural features of EU deals are

+44 20 7615 3106 commonly included in cross-border US TLB deals (governed by NY law) for [email protected] EU credits. Key differences do remain so that overall the US TLB terms are more sponsor friendly but the divergence is diminishing as these markets Stuart Morrissy continue to evolve. +44 20 7615 3267 [email protected] Milbank’s leveraged finance team remains at the forefront of these markets, and this briefing provides a snapshot of the key similarities and differences Trevor Truman today commencing with a high level overview of US and EU TLB terms. +44 20 7615 3186 [email protected]

1. Overview of Key Differences - US TLB and EU TLB

Provision

Cost savings/ synergies No cap, no 3rd party oversight and 12-24 months Often capped and 3rd party oversight, 12 months

Equity cure EBITDA cure only in a cov lite context. Overcure not com- Mostly net debt only; some EBITDA cures, primarily in cov monly permitted lite context

Starter basket for debt Almost always included Frequently included, often smaller than US equivalent

Controls on ratio debt If incurred as incremental/accordion debt, limited to the TLB Often limited to specific entities Borrower(s); if incurred as additional ratio debt, any restrict- Required to sign up to the ICA ed subsidiary can incur it (subject to the non-loan party cap)

MFN only on pari passu loans (whether or not outside SFA) MFN (generally even if outside of SFA, although sometimes only on pari passu loans if outside the SFA)

RPs Builder basket (with “starter”) Subject to leverage and maybe small basket

Baskets Grower baskets are prevalent Some grower baskets

Collateral No guarantor coverage test Guarantor coverage test

Change of control Event of default Mandatory prepayment event or individual lender put right

Mandatory Prepayments Asset Sales/Insurance Proceeds Asset Sales/Insurance Proceeds Excess Cash Flow Excess Cash Flow Rarely includes IPO Proceeds IPO Proceeds No prepayment with Acquisition/Report Proceeds Acquisition/Report Proceeds

Transfers Blacklist or consent (not unreasonably withheld or delayed) Whitelist or consent (not unreasonably withheld or delayed)

Amends/waivers >50% 66 2/3 % (occasionally >50%)

Acceleration >50% 66 2/3 % (occasionally >50%)

Events of default Do not include unlawfulness, audit qualification, MAE Included

Call protection Soft call 101 for repricing/refinancing but with a number of Same but with limited carve outs, although broader US style carve outs carve outs are being included

Hedging Not required to be party to ICA Required to be party to ICA Only limited voting (e.g. on changes to waterfall) Usually vote on enforcement (at least with respect to actual exposures)

2. US TLB vs EU TLB vs HY Comparison

Provision

Financial covenant • Springing leverage covenant for RCF • Same as US TLB • None (only incurrence-based only covenants)

• Covenant headroom usually 25-35% • Maximum leverage will be “flat” and set at 30-35% above closing leverage

• Drawn percentage usually 25-30% (may • Only tested if RCF/ancillaries are include LC drawings) more than 30-40% drawn (treatment of LC drawings negotiated)

• Not a drawstop. Cross acceleration for • Not a drawstop. Cross acceleration TLB only for TLB only

• Amendments/waivers require 50% of • Amendments/waivers require RCF 662/3% (sometimes >50%) of RCF

• EBITDA cost savings/synergy add-backs • EBITDA cost saving/synergy add- often uncapped, no third party backs often subject to 12 month notification required and 12-24 month period and overall cap (10-15%) of period annual EBITDA and certified by third party/auditors if over certain (5%- 10%) threshold

Equity cure • Cap: 3-5 in total; 2 per 4 quarter period • Cap: 3-5 in total and not in • N/A consecutive periods (sometimes 2 per 4 quarter period as per US TLB)

• Purpose: added to EBITDA (no other • Purpose: usually reduces net debt purpose i.e. not for pricing / incurrence (and no other purpose); sometimes baskets) added to EBITDA as per US TLB

• Can be grace/cure period but no RCF • Same as US TLB but no drawstop if drawings permitted during such period grace period

• Overcures not permitted • Over cures often permitted

Provision

Additional debt • Incurrence/ratio test based on leverage • Incurrence/ratio test based on total • Incurrence/ratio test generally incurrence or FCCR (for junior or unsecured debt) leverage and sometimes senior based on leverage ratio for secured leverage or (more rarely) FCCR (with debt and FCCR for unsecured levels based on closing ratios) - same as US TLB

• Starter basket often included on top of • Starter basket same as US TLB (can • Additional permitted debt baskets ratio test (usually one turn of EBITDA) be smaller) (which are not subject to ratio tests) typically include credit facility • Ratio debt can be incurred as • Ratio debt can be incurred as basket, general basket, acquired incremental/accordion alongside TLB incremental/accordion alongside TLB debt basket, capital lease/purchase or in separate instrument or in separate instrument as for US money basket and other negotiated TLB baskets

• Certain/most baskets may include • Grower baskets as for US TLB • Permitted debt baskets often include grower component based on % of growers (typically based on Total EBITDA or Total Assets Assets)

Incremental / • Ranking: pari passu secured, within • Ranking: same as US TLB (but • N/A accordion facilities existing documentation and incurred by sometimes can also be incurred by TLB Borrower(s) any TLB Obligor)

• Purpose: permitted acquisitions / capex • Purpose: as for US TLB /general corporate

• TLB and RCF • TLB (and sometimes RCF)

• MFN (50 bps, typically on TLB only) • MFN (50 – 100 bps); often sunset 6 sunset 6 – 18 months (generally with – 18 months (with flex as per US flex to remove / extend) TLB)

Additional ratio • Pari passu secured, junior lien or senior • Ranking as for US TLB • Can be pari passu or junior; if debt (not as part of unsecured/ subordinated secured, would typically be subject incremental/ to additional leverage test accordion)

• Can be incurred by any restricted • Generally restrictions on who can • Generally can be incurred by any subsidiary subject to non-Loan Party incur the debt (e.g. pari debt issuer to restricted subsidiary (but subject cap be same as TLB Borrower(s) or a TLB to non-Guarantor cap) Obligor, subordinated debt issuer to be a holding company)

• Purpose: not restricted • Purpose: similar to US TLB • Purpose: not restricted.

• Conditions include: (i) no default (ii) no • Conditions: similar to US TLB greater guarantees/collateral (iii) restrictions on maturity

• Not required to accede to ICA unless • Must accede to ICA (whether secured

Provision

secured (maybe for unsecured debt in / unsecured); sometimes threshold EU deals) included for unsecured

• No MFN except for pari passu loans • MFN similar to incremental/accordion MFN (although sometimes only applies for pari passu loans)

Negative • Generally permits liens to extent • Generally permits liens to extent • Liens on non-collateral generally pledge/liens secured debt permitted under secured debt permitted under permitted if HYBs are equally and Indebtedness covenant, plus other Indebtedness covenant, plus other rateably secured ordinary course liens ordinary course liens

• Additional general basket (fixed amount • Additional general basket same as US • If HYBs are secured on specified with grower based on EBITDA or TLB collateral, permitted collateral Assets) liens are generally tighter on collateral compared to non- collateral

• Aggressive deals are now incorporating • Permitted liens typically include HY bond-like lien basket liens to secure bank debt, capital Leases, general basket(s), ordinary course liens and other negotiated baskets

Restricted • Annual management fees (capped or • Annual management fees (capped or • Annual management fees (capped payments/ tied to management agreement) tied to management agreement), no or tied to management agreement) dividends conditions

• Annual management equity repurchases • Annual monitoring/advisory fees • Annual management equity (dollar cap) (capped and usually subject to no repurchases (usually capped), with event of default) rollover of unused amounts

• Management /employee advances • Management equity repurchases • Management /employee advances (dollar cap) (usually capped) (usually capped)

• Parent taxes and expenses • Parent taxes and expenses • Parent taxes and expenses

• Post IPO dividends (6 % of aggregate • Post IPO dividends (sometimes) • Post-IPO dividends (generally 5- gross IPO proceeds per annum) (subject to total leverage ratio and 7% of aggregate gross IPO only from IPO proceeds that don’t proceeds per annum; sometimes have to be prepaid) also includes market cap prong)

• Repayment of equity/subordinated debt with proceeds of equity issuance or new subordinated debt or capital contributions

• Leverage basket (subject to no default) • Leverage basket (subject to no Event • Leverage basket (sometimes

Provision

of Default), with two levels depending included) on funding source (wider if funded from Acceptable Funding Sources)

• Builder basket (see below) • No builder basket – (see below) • Builder basket

• General basket (dollar amount subject • Sometimes general (de minimis) • General basket (dollar amount, to grower) basket often subject to grower)

• Repayment of junior debt typically • Sometimes junior and unsecured debt • Excluded Contributions (by subject to same restrictions/baskets can also be redeemed instead of Sponsor) although with fewer conditions/ wider dividend/restricted payment leverage tests • Distribution of capital stock of Unrestricted Subsidiaries

Builder basket/ • “Starter” basket ($$) • Typically no builder basket • 50% of CNI since beginning of available amount concept. measurement period (minus 100% • Builder component (retained of any CNI deficit during such ECF/50% CNI - borrower can be • Payments under restricted period), plus permitted to choose at time of usage) payment/dividend leverage basket subject to no Event of Default and sometimes (depending on • 100% of capital contributions and leverage governor (sometimes no leverage) required to be 50% net proceeds from sale of equity of leverage test or wider test if used for funded from Acceptable Funding issuer, plus investments and/or repayments of Sources, usually (i) new equity, (ii) debt) retained excess cashflow, (iii) • 100% of principal amount of debt amounts permitted to be up converted or exchanged into • Equity contributions (unless used for streamed to sponsor (can include equity, plus equity cure); debt converted to equity cash overfunding and retained IPO/disposal/insurance proceeds) • 100% of amount received from • Cash or fair market value of (and (depending on usage) sale of Restricted Investments or dividends, distributions or other Permitted Financial Indebtedness) Unrestricted Subsidiaries, plus returns on capital from unrestricted subsidiaries or other investments • Acceptable Funding Sources can also • 100% of FMV of Unrestricted Subs made using builder basket be used to restrict sources of funding that are redesignated Restricted for acquisitions, joint ventures and Subs • Amounts from re-designation of debt buy-backs or (sometimes, and in restricted subsidiaries such cases usually excluding • Use of builder basket subject to Permitted Financial Indebtedness) to being able to incur $1 under ratio • Amounts from dispositions or increase an available capped basket or test and no default repayments of an investment leverage / FCCR based basket for joint ventures / acquisitions • Used for: restricted payments, payments of junior debt, and investments / acquisitions

Provision

Investments and • Permitted Acquisitions uncapped • Permitted Acquisitions subject to • Acquisitions (uncapped as long as acquisitions subject to minimal conditions: no limited conditions: majority stake, no target becomes Restricted Sub) default (sometimes just bankruptcy / default, same line of business, non-payment), majority stake, same jurisdictions, acquired entities line of business, acquired entities providing guarantees / security if providing guarantees / security if applicable, may have cap on target’s applicable (with cap on consideration negative EBITDA, no material paid for entities / assets that do not contingent liabilities, usually pro become guarantors / collateral) and forma compliance with opening sometimes proforma compliance with leverage ratio (or sometimes senior financial ratio. Note no cap on secured / FCCR ratio (unless funded negative EBITDA or material from certain Acceptable Funding contingent liabilities Sources – see above))

• Investments baskets include: • Investments: generally no • Investments baskets include: • Intercompany Investments “Investments” covenant, protected by (usually with cap on investments “No Loans or Credit” and “No JVs”, • Investments in Restricted by Loan Parties in non-Loan and including the following baskets: Subsidiaries, not just guarantors (uncapped) Parties) • Loans to Non-Obligors • Investments in Unrestricted Subs (usually a fixed cap) • Investments in a Similar (dollar cap) • General basket for loans Business (dollar amount, typically subject to grower) • Investment in JVs (dollar cap) (fixed cap) • Investments in Unrestricted • Ratio-based investment basket • Investments in JVs (fixed cap + certain Acceptable Funding Subs (dollar amount, typically (total leverage) subject to grower) Sources (see above)) • Investments using builder basket • Loans and advances to (see above) • A few recent precedents employees/directors/officers • Dollar cap on acquisitions of, or follow US TLB approach to (dollar amount, typically other investments in, non- acquisitions / investments subject to grower) Guarantors (including • General permitted intercompany investments) investments basket (dollar amount, typically subject to grower)

• Certain baskets may include grower (e.g. Unrestricted Subs, JVs, non- Loan Parties)

Provision

Guarantees and • Senior guarantees from wholly owned • Senior guarantees from all Material • Generally no guarantor coverage collateral domestic restricted subsidiaries only Subsidiaries (subject to security test; obligation to provide (subject to exceptions) principles) guarantees for HYBs triggered by guarantees of other debt

• Material subsidiaries: 2.5-5% • Material subsidiaries: usually • Some corporate credits may have (individual); 5 – 10 % (aggregate – in EBITDA / assets of 5% (sometimes no independent requirement that some cases) assets test). Holding companies of significant or material subsidiaries obligors must accede as guarantors become guarantors

• No guarantor coverage test • Guarantor coverage test included (usually around 80% of EBITDA / assets (sometimes no assets test))

• Collateral: senior secured by • Collateral: as for US TLB except that • Collateral coverage will vary by substantially all the assets of the there is no “excluded collateral” jurisdiction and transaction, but borrower and guarantors, except for concept: collateral determined by will typically piggy-back off excluded collateral, i.e. CFCs (65% reference to security principles collateral package negotiated in pledge of equity only), equity in (cost/benefit etc) bank debt; senior secured HYBs in unrestricted subs and immaterial Europe will generally be secured subs, leasehold interests, immaterial pari passu with bank debt fee-owned real estate, assets to extent prohibited by law/regulation or requiring government/regulatory consents

Change of control • Triggers an Event of Default • Usually requires automatic • Requires issuer to offer to mandatory prepayment (some deals repurchase at 101% where individual lenders may elect to get prepaid)

• Definition: • Definition is similar to US TLB save • Definition: • Pre-IPO: Sponsor/ Mgmt.< 50% that: • Person acquires > 50% • Post-IPO: third party acquires >35- • Post IPO, Sponsor/ Mgmt. (sometimes 35% post-IPO) of 40% holds < 30% voting stock (except Sponsor/ Management) • Loss of direct 100% ownership in • It is a Change of Control if there holdco chain is a sale of all/substantially all • Can include loss of direct of the assets of the Group 100% ownership in holdco • Post Qualifying IPO (if leverage chain (but typically not) following IPO is below a certain level): third party gains control • Sale of all / substantially all (50%) assets • No prong for sale of all/substantially all assets (covered in “Fundamental Changes” covenant); Change of Control under

Provision

other material debt sometimes included

• Waiver: Majority Lenders • Waiver/Amendment: most commonly • Waiver: not applicable – each all Lenders but sometimes Majority individual holder has option to put Lenders (prior to any actual right to bonds at 101% payment having already arisen)

• Management interest sometimes • Management interest is not usually capped capped

• Portability is rare • Portability is rare but perhaps not as • Portability is common based on rare as in US rating and/or leverage; number of times negotiable

Asset sales Requires Mandatory Prepayment Requires Mandatory Prepayment Requires Offer to Purchase

• Proceeds to be used to prepay the • Proceeds to be used to prepay the • Proceeds may be used during term loans (i.e. including TLB / term loans (i.e. including TLB / specified period (could be 365-455+ Incremental / Capex/Acq) or can be Incremental / Capex/Acq) and then days (or if committed within that applied to prepay other pari debt RCF / ancillaries time, a further 180 days)) after receipt to: • Subject to reinvestment for purchase • Reinvestment rights similar to US • Pay down non-guarantor debt of assets for use in the business of the TLB save that reinvestment period is or bank debt (including RCF), or group, financing Permitted 365 days (or if committed within that pari passu debt (typically Acquisitions/Capex, restructurings time, a further 180 days) requires proportionate offer to within 365-540 days bondholders) or the HYBs

• Asset sale provisions may also allow • Re-invest in Additional Assets reinvestment in shares/businesses (assets to be used by group or useful in similar business / • Could include asset sale step downs (a shares of similar businesses) percentage based on leverage) • Make capital expenditures

• If Excess Proceeds (above threshold amount) remain unused after specified period, offer to purchase bonds at par required to be made

Excess cashflow Mandatory Prepayment Required Mandatory Prepayment Required No Prepayment Required sweep • 50 – 25-0% to be prepaid (step down • Similar to US TLB based on leverage)

• Similar deductions to EU TLB save • Deductions include: that: • voluntary prepayments of pari

Provision

• voluntary prepayments re other (non-revolving) debt debt are deducted before; • de minimis (deducted after) deducted after, for TLB debt • acquisition/capex/ • certain restricted payments (if restructuring costs which are funded from internally not debt funded generated cash)/prepayments of maybe also: (1) debt buy back amounts junior debt could be deducted (for amount of cash paid), (2) committed capex/acquisitions

• “Keeper”/de minimis (rare)

Call protection • Soft call at 101 for • Similar to US TLB • Non-call for 2-5 years (generally repricing/refinancing up to half of maturity)

• Initial fixed price call premium set

• Applicable for 6-12 month period • Applicable for 6-12 month period at 75% or 50% of coupon, declining rateably to par in 12-24 months prior to maturity • Usually limited to transactions where • May be marketed without (but with primary purpose is to reduce yield flex rights to include) • Exceptions during non-call period: • Make-whole

• Often limited to refinancings with • May include Change of Control carve • Equity claw call right (35 – secured term debt; additional carve out, additional recent carve outs have 40%) at par plus a premium outs may include IPO; transformative also included “primary purpose” and equal to 100% of coupon Acquisition/Investment and in rare “transformative acquisition” cases, dividend recap • For all non-U.S. issuers, par call right for changes in tax law

Assignments and • Consent, acting reasonably (deemed • Same as US TLB • No consents or disqualified list transfers given after 5 – 10 BDs) • Securities law transfer restrictions apply - 144A/Reg S notes (which are not registered in the US) must be resold only to (1) QIBs in the US, (2) Non-US persons or (3) pursuant to, or pursuant to an exemption from, US registration requirements

Provision

• No white list; instead a “Disqualified • White List (and also subject to Institutions” concept minimum rating condition for transfer of RCF)

• No transfers to industrial competitors • No transfers to industrial / defaulting lenders competitors / defaulting lenders

• No restrictions following Event of • No restrictions following Event of Default (limited to non-payment / Default (sometimes limited to non- insolvency related EoDs) payment / insolvency related EoDs)

• Debt Buy Backs: as for EU but • Debt Buy Backs: open order/Dutch includes a cap (20 – 30%) and does auction; no cap (unless legal not allow purchase of RCF considerations dictate); no default condition (for Group buy backs); no exclusion of RCF

• Sub-participations – voting rights • Sub-participations - subject to limited to “affected lender” votes assignment and transfer provision (voting / non-voting)

Amendments and • Majority: 50.01% • Majority: 66 2/3% (ordinary • Each affected holder (or typically waivers amendments and waivers; 90% of holders in Europe) must • Only lenders under “amend and acceleration; Structural Adjustments consent to: (1) changes to the extend” facility, refinancing facility, (plus Affected Lenders) (but a few interest rate, stated maturity, etc. required to effect amendments in recent deals have adopted the US currency of payment (or other connection therewith TLB position of > 50%) economic terms); (2) waive a • Affected Lenders: increased maturity • Affected Lenders only: “not default in the payment of or due date for interest/fees, materially and adversely affecting principal, premium or interest; (3) increased commitments, reduction in the rights and interests of other impair the right of any holder to principal/ interest/fees, pro rata Lenders” receive payment; (4) subordinate sharing provisions the HYBs to any other obligations; and (5) change the • Majority RCF Lenders only: financial • Majority RCF Lenders only: same as amendment/waiver provision covenant, equity cure, financial US TLB covenant event of default/acceleration • All other amendments require consent of holders of a majority of • All Lenders: release of substantially • All Lenders: amendments and the outstanding principal amount all guarantors or security waivers/currency/borrowers and guarantors/ subordination and ICA • All or substantially all collateral

can often be released with consent • Super Majority (80 – 90 %): release of holders of 66-2/3% (or 75%) of of security the outstanding HYBs • “Yank-a-Bank”: Defaulting /Non • “Yank-a-bank”: same as US TLB consenting /Increased costs lenders • HYBs owned by the issuer or any Affiliate of the issuer are disregarded for voting purposes

Provision

Events of default • Non-payment • Non-payment • Non-payment (30-day grace for interest)

• Non-compliance with covenants • Non-compliance with covenants • Non-compliance with material covenants within 30 days of notice of non-compliance from trustee/holders; non-compliance with other covenants within 60 days of such notice

• Breach of representations • Breach of representations • No breach of rep EoD

• Cross default to material debt • Cross default to material debt • Cross-payment default (generally excluding a breach of the springing excluding a breach of the springing for principal; sometimes for RCF covenant; cross-acceleration RCF covenant; interest) to material debt (€ threshold)

• Financial covenant in respect of the • Financial covenant in respect of the • Cross-acceleration to material RCF only unless and until the RCF RCF only unless and until the RCF debt (€ threshold) Lenders have accelerated Lenders have accelerated

• Insolvency • Insolvency

• Bankruptcy (or similar) proceedings • Insolvency proceedings • Bankruptcy defaults

• Creditors’ process

• Judgments to the extent not covered • Litigation • Judgment defaults (usually same by insurance and undischarged for € threshold as cross- 30-60 days (usually same threshold as default/acceleration) cross default/acceleration)

• Impairment of security interests in • Unlawfulness and invalidity • Impairment of security interests in collateral; invalidity of guarantees collateral; invalidity of guarantees

• Change of control • Intercreditor Agreement

• ERISA • Cessation of business

• Audit qualification

• Expropriation

• Repudiation and rescission of agreements

• Material adverse change

Provision

Secured hedging • Non-speculative hedging permitted • Non-speculative hedging permitted • Non-speculative hedging generally obligations (uncapped) (may be capped) permitted (uncapped)

• May be secured if provided by a • May be secured regardless of who • May be secured as a permitted lien lender or its affiliate and become part provides the hedge of the “Secured Obligations”

• Typically recover from collateral • Typically recover from Collateral proceeds pari passu with the loans proceeds pari passu with the loans (same as US TLB)

• Hedge counterparties not required to • Hedge counterparties (to the extent accede to intercreditor secured) must accede to the intercreditor

• Intercreditor does not restrict • Termination and close-out of swaps termination/ close-out restricted under certain circumstances

• Hedge providers may negotiate for • Instructing creditors under limited voting rights (e.g., changes to intercreditor agreement include waterfall) in credit agreement hedge counterparties

• Release of collateral/ guarantees may • Secured hedges must be terminated • Secured hedges provided by the be triggered on repayment of loan and repaid prior to release of banks will be part of “Secured obligations (even if hedges remain collateral and guarantees Obligations” (on pari passu basis) outstanding)

• No minimum hedging requirement • Often include an obligation to implement minimum interest rate hedging post-closing

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Marcus Dougherty Suhrud Mehta Trevor Truman*

+1 212 530 5323 +44 20 7615 3046 +44 20 7615 3186

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