Guide

Breaching lender covenants

Gateley Legal

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Robust monitoring will give good warning of potential breaches. This may give time to avoid them. If not, early and effective lender management can minimise their impact.

In this article Aneesh Prasad looks at the importance of understanding and monitoring lending covenants and dealing with potential breaches.

Introduction to lender covenant

A Board that embraces good corporate governance will ensure that management forecasts are properly prepared, kept up to date and regularly reviewed. This will, amongst other things, allow the Board to assess whether finance lines are within terms.

Management forecasts should also identify early warning signs that one or more lender covenants are potentially at risk of being breached.

The nature of the anticipated covenant breach will depend upon the circumstances. Raw material prices, labour costs and import duties continue to increase. Inflation is at a 30-year high. Financial covenant breaches could perhaps be the primary concern, but there may also be wider issues such as aging debtor days, continuity of supply, or even the inability to pay debts as they fall due in the short term.

Early stakeholder management with financiers will often increase prospects of agreeing the moderation of those covenants. This will assist the Board’s strategy to move quickly towards stabilisation and recovery. Conversely, failing to engage appropriately with financial stakeholders will, in certain cases, limit the options available to crisis management only.

In this article, we examine the issues that a Board should be considering when faced with prospective covenant breaches, what outcomes those breaches could potentially trigger, and what steps the Board should be looking to take.

What is a lender covenant and where are they found?

Lender covenants are drafted on a case-by-case basis, depending upon the relevant finance line and the commercial transaction entered into between the parties.

There are however categories of covenants that are considered standard form across a number of products. They often sit within the facility agreement with the lender.

General covenants contain the covenant to repay to the lender over the term and at a price (i.e. interest). They also include other restrictions on matters such as the incurring of additional financial indebtedness and the granting of further security.

Information undertakings regulate the periodic delivery of financial statements and other matters relating to the business being conducted.

Financial covenants provide for regular financial testing based upon agreed parameters.  e.g. minimum liquidity, leveraging or interest cover.

There will also be other types of representations such as repeating statements that:

  1. the business is not insolvent or in an insolvency process and will continue to trade
  2. the information delivered to the lender is so delivered in good faith, is not incorrect and is not  misleading; and that 
  3. no breach of a lender covenant is continuing.

To find out more about the options for insolvent business, click here to read our article.

What are the consequences of a breach of a lender covenant?

A covenant breach may constitute an “event of default” which entitles the lender to exercise one or more rights. These may include the right to:

  1. charge pre-agreed default interest and other fees;
  2. cancel undrawn commitments;
  3. accelerate and demand early repayment;
  4. demand cash cover; or
  5. enforce any supporting security granted in favour of the lender.

It may however be that the breach is sufficiently minor such that the facility agreement permits the beach to be cured or remedied within a specific grace period and avoid being categorised as an event of default.

The lender’s recourse options will, of course, depend upon the terms of the contractual documentation.

What issues should the Board be aware of when facing a default?

1. Understand your contractual documentation

Where a lender is aware of an event of default or likely breach of contractual obligations, it may instruct solicitors to conduct a review to ascertain the scope and effectiveness of its facility and security documentation.

The Board should likewise be taking steps to diligence and understand the position.

2. Cross default

Be aware that a default of one finance line may occasion a cross-default on other finance lines, and perhaps even the commercial contracts under which your business operates.

There may also be wider repercussions for associated businesses that have guaranteed your finance terms.  Directors or other key stakeholders may have granted personal guarantees.

Agree a contract review with your internal and external advisers at the outset.

3. Consider Directors’ Duties

The Board should ensure that they comply with their duties at all times.

Click here to be taken to our guide on director's duties. 

Click here to read our article expanding on director's duties, answering questions such as "when can a director be personally liable for a company’s debts?"

4. Take professional advice

A prudent Board will seek appropriate and early professional advice.

Your auditors will often be in a position to assist the Board in conducting a business review. They can also work alongside your instructed solicitors to provide joined-up-advice on essential matters such as directors’ duties, covenant reviews, ongoing trading and options planning.

Consider also whether specialised advice is needed depending upon the problems faced by the business. There may, for example, be issues concerning a defined benefit pension plan which may need advice from an independent pensions trustee or actuary. Perhaps a project monitor is needed to assess the possession on a construction related project. Advice may be needed on debtor management. Consider the position in the round and the categories of advice that are needed.

Options planning for lender covenants

Once the Board has identified the key issues arising from the anticipated breaches, it can begin shaping a stabilisation plan.

That plan should include detailed cash flow projections and a consideration of all turnaround options. Any potential ‘deal blockers’ which may obstruct short to medium term goals and viability should be addressed head on.

Key elements of a stabilisation plan may include one or more of the following solutions:

Mitigation of anticipated breaches

Explore whether the Board can pursue a transformation programme to mitigate or avoid the anticipated breaches.

Operational turnaround and other self-help remedies will in many cases assist in the discharge of directors’ duties, and may have the added benefit of avoiding transaction costs and other expenses.

This strategy may not be available in all circumstances.  Be aware that a Board may be open to criticism if it embarks upon a transformation programme that has not been properly dilligenced.

To understand more about organisational restructuring, click here and read our guide.

Covenant Amendments / Waivers

It may be the case that the relationship with the lender is sufficiently strong such that, in the overall circumstances, the covenant can be waived or moderated by the lender in the short-term.  This may be because the covenant breach does not affect the lender’s overall appetite to risk and the lender has been kept fully appraised (in advance) of the difficulties which the Board have been facing.

This interim remedy can provide a lifeline whilst the Board address the underlying issues that are challenging the business.

Additional Liquidity

There may simply be a looming cash requirement.

The Board should explore whether cash can be generated organically, or alternatively whether an injection of funding is needed from the existing lenders by way of an amendment and restatement to the existing facilities.

In some cases it may be that the preferred option, or the only option, is to seek to re-finance with another lender.

To read more about trading through financial difficulty, read our article linked here.

To read more about additonal funding, read our guide here. 

Stakeholder management – who should I inform, and when?

Where it is right to do so, keep financial and other stakeholders regularly informed and seek to manage their reasonable concerns.

In particular, the Board should seek to engage with the relevant lenders in early course to agree the proposed stabilisation plan, including where appropriate the moderation of certain covenants.

Be aware that the lender may write to you to reserve the lender’s rights that may arise under the contractual documentation as a result of the anticipated default.

Depending upon the circumstances, the lender may also ask the for certain matters to be satisfied as a condition to the lender not exercising any existing or future enforcement rights.

Any such conditionality should be considered carefully with your advisors as part of the Board’s overall stabilisation plan.

Support available with breach of lender covenants

A well-advised Board will invest in continuing relationships with all financial stakeholders, including when a breach of terms is anticipated across one or more lines.

Our experience is that lenders will generally be more supportive if they are aware of the difficulties at an early stage. They will often be gate keeper to the stabilisation plan.

The taking of early professional advice is essential to options planning and the development of a stabilisation plan which the lender(s) can seek to support. The taking of such advice will also evidence that the Board are mindful to, and are taking appropriate steps to, discharge their duties as directors.

Our Restructuring Advisory team have the required expertise and experience to assist you with restructuring challenges you may face. Please contact us if you would like to discuss any aspect of this article or series.

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