Financing Acquisition and Creation of a Community Forest ...
Acquisition Financing: Strategies for DlDeal...
Transcript of Acquisition Financing: Strategies for DlDeal...
Presenting a live 90‐minute webinar with interactive Q&A
Acquisition Financing: Strategies for D l C lDeal CounselEvaluating Financing Options, Structuring the Deal, Addressing Loan Documentation and Intercreditor Issues
T d ’ f l f
1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific
TUESDAY, APRIL 12, 2011
Today’s faculty features:
Lawrence F. Flick, II, Partner, Blank Rome, New York
Jeffrey A. Beuche, Partner, Perkins Coie, Denver
S. Randy Lampert, President, Lampert Debt Advisors, New York
Brian Schofield, Director, Lampert Debt Advisors, New York
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Acquisition Financing: S i f D l C lStrategies for Deal Counsel
April 12, 2011
888 Seventh Avenue | New York, NY 10019 | www.lampertdebtadvisors.com
Lampert Debt Advisors is a boutique investment bank specializing in arranging
LAMPERT DEBT ADVISORS
S Randy Lampert – President
Lampert Debt Advisors is a boutique investment bank specializing in arrangingdebt financing for privately-owned, sponsor-backed and publicly-tradedcompanies
S. Randy Lampert – President 30 years of experience in completing debt financings Co-founder of Debt Capital Markets Group and Head of Business
Development at Morgan Joseph Founder and Head of Leveraged Finance at Nomura Securities Founder and Head of Leveraged Finance at Nomura Securities Assistant Head of Communications and Technology at Salomon
Brothers MBA, University of Chicago randy lampert@lampertdebtadvisors com [email protected] 646.367.4660
Brian Schofield – Director Vice President – ICON Capital Corp., engaged in originating andp p , g g g g
structuring asset based transactions in numerous industries Founder of Schofield Realty Group, a real estate development company [email protected] 646.367.4662
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LEVERAGE FOR LBO’S CONTINUES TO RISE..
51%60%8.0x
Equity %EBITDA Multiple and with it, equity contributions decline
4.8 5.3 5.46.2
4.94 0
4.75.2
33%
43%51%
44%
39% 40%
50%6.0x
4.035% 32%
33%33%
20%
30%
2 0x
4.0x
0%
10%
0.0x
2.0x
2004 2005 2006 2007 2008 2009 2010 1Q11
FLD/EBITDA SLD/EBITDA Other Sr Debt/EBITDA Sub Debt/EBITDA Equity
Source: S&P LCD
77
Source: S&P LCD
STRUCTURAL CONSIDERATIONS
7.0
Avg. Term (yrs)
75%
% of New Issues with Pricing Grids and Prepay Fees
Average Tenor of New Issues
4.54.9 5.1 5.1 5.2
4.5 4.6 4.7
5.66.0 6.1 6.0 6.2
5.3
4.4
5.66.0
4 0
5.0
6.0
45%
62%
50%
3.4
2.0
3.0
4.0
32%27% 26% 26%
23%19%
17%15%14%
20% 21%
14%
21% 21%25%
0.0
1.0
2003 2004 2005 2006 2007 2008 2009 2010 1Q11Pro rata Institutional
6%
%%11%
0%2003 2004 2005 2006 2007 2008 2009 2010 1Q11
Pricing Grids Prepay Fees
Source: S&P LCD
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Source: S&P LCD
COVENANTS
40%
Year One Debt/EBITDA Headroom as a Percent of Covenant Level
27% 26%23%
28%
22%
17%
22% 21%20%
30%
n/a0%
10%
Source: S&P LCD
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Source: S&P LCD
KEY CONSIDERATIONS
Cash Flow Considerations Improvement Realizations Availability to Service Debt
Key Concentrations Customer / Industry Raw materials
Reinvestment Requirements Maintenance Capital Expenditures Working Capital Needs Growth Requirements
Markets served Ownership /leadership Products
Growth Requirements Gross vs. Free Cash Flow Seasonality Vulnerabilities
1010
RISK PROFILE
V l tilit
Given the trials and tribulations of the past 3 years, lenders are placing heavy emphasis on risk and how it can be mitigated.
Volatility exposure Competitive exposure Input costs O t t i Output prices Asset deterioration Technological risk
In soliciting lenders, it is critically important for borrowers (and their important for borrowers (and their representatives) to mollify investor concerns early in the process
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CAPITALIZATION STRATEGY
Gear amortization to the specific cash flow characteristics of the borrower
Coordinate financing layers to fully benefit from Coo d ate a c g aye s to u y be e t o various classes of assets
Establish levels of leverage consistent with ownership’s risk toleranceownership s risk tolerance Ownership
Public vs. Private F Fi i l S C bili Future Financial Support Capability Track Record
Use wide, Auction Financing Process to drive: Lowest cost of capital – rates, fees Optimal terms and improved flexibility Looser covenants Looser covenants
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INVESTOR LANDSCAPE
%
100%
70%
80%
90%
50%
75%
30%
40%
50%
60%
70%
0%
25%
0%
10%
20%
30%
US Banks Finance Co.Foreign Bank Institutional InvestorSecurities Firm 2008 2009 2010 4Q10 1Q11Securities Firm
Source: S&P LCD
1313
Source: S&P LCD
OUR INVESTOR NETWORK
Banks
Fi C ’ T L
Revolver
LDA possesses a network of over500 investors across multipleclasses of debt and equity securities
Finance Co’s
CLO’s
BDC’s
Last Out Senior
Term Loan
classes of debt and equity securities.Our active dialogue with thesesources of capital provides us withreal-time market knowledge withrespect to key investment criteria
BDC s
Hedge Funds
Insurance Co’s
TLB
Second Lien TL
such as return, appetite andstructure requirements
Insurance Co s
Private Debt Funds
Mezzanine Funds
Sub Debt
Bridge Financing
Credit Oppty. Funds
Private Equity
Structured Equity
Common Equity
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y
DEBT FINANCING AUCTION PROCESS
•Real time knowledge of current market terms•Optimal structure based on market requirements and company needs•Identification of and solution to credit and transaction risks
Structure •Specific covenants and inter-creditor terms established upfront
•Rapid deployment and comprehensive solicitation of investors for each
Solicitation
p p y pfinancing layer
•Concentrated management meetings minimize distraction•Successfully secure multiple proposals and commitments•Secure “back-pocket” bids
•Seamless transition from commitment to closing•Reduction in closing surprises and elimination of “drift” in terms
Closingg p
•Increased likelihood of successful closing
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CONCLUSION
Most market participants expect to see M&A activity increase in the 2nd quarter
The supply/demand imbalance, particularly in the loan market, has given rise to tightened spreads and looser terms in the first 3 months of 2011; however, March saw investors push back on a number of very aggressive transactions
Geopolitical events occurring throughout the world and the natural disaster in Japan have created a degree of uncertainty in the long-term view of the economic recovery
Acquisition financing should remain readily available in 2011; however, proper alignment of deal characteristics and the financing being sought will be the main underpinning of
f ll fi d i itisuccessfully financed acquisitions
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Acquisition Financing: Strategies for q g gDeal Counsel
Evaluating Financing Options, Structuring the Deal, Addressing Loan Documentation and Intercreditor IssuesLoan Documentation and Intercreditor Issues
April 12, 2011
Lawrence F. Flick, II, Partner, Blank Rome, New York
212.885.5556 [email protected]@
Jeffrey A. Beuche, Partner, Perkins Coie, Denver
303 291 2321 JBe che@perkinscoie com303.291.2321 [email protected]
Structuring the Transaction• Cash Flow vs. ABL; Layers of Financing; y g
– During downturn, cash flow loans largely disappeared and traditional cash flow lenders became ABL lenders.
– Amend/extends often accompanied by conversion to ABL structure and/or additional covenants. Strongest borrowers were able to extend existing loans, reduce covenant h dl d i f ili i i hhurdles, and upsize facilities to continue growth.
– More cash flow deals getting done, but ABL deals still very common, especially in lower middle market.
– Important to understand real availability in ABL structures. Increasing lender discretion in borrowing base criteria versus borrower's desires for certain of access to capital.in borrowing base criteria versus borrower s desires for certain of access to capital.
– Split collateral package loans.– Increase in sponsors providing mezz/sub debt or even senior debt in order to more
quickly deploy capital; to be determined whether there will be an adequate supply of traditional lender loans to refinance sponsor financing.
• Use of holding companies– Important to understand lender's requirements around org chart early in process.– Most lenders require pledge of equity in borrower/operating company to facilitate
transfer of control in default situation (exercise of pledge rights vs. foreclosure on operating assets)
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• Fraudulent transfer issues– Traditional lenders increasingly focused on issue, particularly as leverage levels
increase.
– Many approaches: Target as borrower, acquisition entity as borrower with target assuming obligations immediately upon closing, new strategies to limit loans made to operating subsidiaries, stronger solvency representations.
– Does not seem to be a standard approach at this time.pp
• Intercreditor issues– Many possible intercreditor issues, affecting subordinate and second lien lenders,
sponsors (relating to management fees), holders of seller notes and earnout recipients.
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• Focus on when and to what extent subordinated lenders can exercise enforcement rights and the extent of the senior lender's ability to make decisions binding on subordinated lenders in enforcement proceedings.
• Subordinated lenders focused on an exit strategy, a seat at the table during enforcement proceedings, and objective asset valuations.
• Seller notes and earnouts are often deeply subordinated, which is a key issue to be handled; different approaches on timing of these discussionsto be handled; different approaches on timing of these discussions.
• Seller notes and earnouts often subject to refinancing indebtedness, further prolonging the lifecycle.
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Investors/Sponsor
P t
Equity Investment by way of Loan Notes
Equity Investment by way of subscription for Share of Parent (including Preference Shares)
Rollover equity
Parent(Top Co)
Subscription for Share of Sub-Holding Company and Structural Intra Group Loan
Warrants (if applicable)
Equity
Sub-Holding Company
Mezzanine/High Yield Lenders
Subordinated Loan/Bond/Note
Downstreaming of funds
2nd Lien Loan/Note (if
q ypledge
Equity pledge
Senior Borrower (Purchaser) Senior Lenders2nd Lien Lenders
Senior Loan
Acquisition
(applicable)
(Term Facilities A, B and C plus Revolver)
Target Company
S b idi 1 f S b idi 2 f S b idi 3 f
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Subsidiary 1 of Target
Subsidiary 2 of Target
Subsidiary 3 of Target
Commitment Letter Issues
• “SunGard” provisions
• Market flex provisions• Market flex provisions– Increased sponsor resistance given increased competition among
lenders.
– Certainty of deal terms and shifting some or all of the syndicationCertainty of deal terms and shifting some or all of the syndication risk to lenders is critical for many sponsors.
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Documentation Issues• Financial covenant definitions
I d f li d h fl i i ( i– Increased sponsor focus on covenant compliance and cash‐flow sweep provisions (extensive negotiations on EBITDA add‐backs and other inputs driving covenant compliance and cash‐flow sweep numbers).
– Sponsor demands for flexibility to contribute additional capital without mandatory pre‐pays, undertake equipment and other operational financing options, and to execute growth strategy through add‐on acquisitionsthrough add on acquisitions.
– Trend towards negotiating definitions at term sheet/commitment letter stage.• Permitted acquisitions
– Often a critical negotiating point for sponsors, but rarely will lenders provide self‐executing carveouts from negative covenants for material transactions.F i th th th b k t b t li d d t f d t– Focus on issues other than the basket: can process be streamlined, amendment fees agreed to up front or waived, etc.
– For negative covenants generally, sponsor focus on avoiding yet another costly amendment: certainty on covenant compliance, flexibility for growth/ordinary course event, tying together negative covenants so that an exception to one is an exception to all, predetermined amendment fees for non default amendmentsfees for non‐default amendments.
• Permitted distributions– Rarely will pure dividends be permitted, but important to negotiate rights to make tax distributions.– Need to look up the org chart to understand the complete picture around tax distributions.– Consider need for carveouts in respect of dividend accruals on preferred stock, management fees,
earnouts and equity repurchases from departing employeesearnouts, and equity repurchases from departing employees.
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• Equity cure rights• Equity cure rights– Sponsors have different strategies.– If included, negotiations around amount of cure permitted, number of cures
permitted, and time frame over which cure amounts included in covenant l l ticalculations.
• Solvency representations
D f l i l d i i• Defaulting lender provisions– Typical remedies.– Lead lender(s) commitment to make loans for defaulting lenders.– Impact on availability of swingline loans.
• Consents to assignments– Sponsor focus on the "relationship" and have approval right on new agent or
material change in inter‐lender provisions.Limitations on syndication– Limitations on syndication.
– Assignments during default.
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