The new world of special situations funding in energy & resource projects
By Cameron Belyea and Rebecca Hanrahan
We're seeing various approaches where there is an arbitrage between existing valuation of going concern value and the notional value of the enterprise once the special event founding value dysfunction is resolved.
Chapter image Aged Care

At least $60 billion has been raised globally for investment into special situations over the past nine months, KKR and Bain alone closing $7 billion raisings in June. Other funds are reallocating capital from existing funds into associates with special and distressed lending mandates.

Australian energy and resources (ENR), always capital hungry, often the subject of pricing volatility, with the capacity to deliver significant value upside, will continue to provide opportunities for this form of capital. We'll summarise the state of play and then look at some strategies currently being used in the market.

Special situations

Many ENR projects are capital hungry, are often price takers in volatile markets, and can be the subject of unexpected regulatory, environmental, governmental licensing or supply chain events. Many Australian projects are undertaken by highly leveraged enterprises with limited equity sponsor support.

These enterprises may create the underperformance, balance sheet distress, untapped development potential or fundamental transitions known as "special situations". The COVID-19 pandemic is a paradigm example; in oil production, for example, we see a sudden and unexpected evaporation of demand from petroleum consumers and the over-supply of product into receiving terminals under take or pay arrangements.

Special situation funds

Enter special situations funders, typically mandated to offer credit instruments, with limited equity features (warrants, renounceable rights, non coupon forms of "payment in kind", and economic or derivative rights).

As a general rule, the funder looks to bridge the enterprise from its existing impaired position into a value enhanced/going concern condition. This may take the form of new lending into the enterprise or by trading into an existing impaired credit position. Some of the tear sheets maintained by brokers (Nomura, SC Lowy being two) provide useful market guidance to indicative trading values for this form of paper.

Fund allocation rules often target double digit rates of return for periods exceeding nine months, lock up periods typically extending out to three years, with conditional rollover rights. The time frame, then, for restructuring around the underperformance issues that led to the investment falls somewhere within these temporal periods.

Primed lending

ENR projects may seek bridging capital to complete commissioning, ramp up production, execute a merger or asset divestment, finish a cost out process or other means of restoring equity value to a balance sheet. The funder will seek project finance-style due diligence and covenant protection, or alternatively some form of back stopped exit instrument, to invest into this situation.

Investments at the liquidity stage are typically structured as new financing arrangements, often with intercreditor arrangements between new and existing financiers. Investments at the going concern stage more often than not follow one of a myriad of loan for own structures discussed below and often (not always) involve some form of balance sheet cleansing step via a scheme of arrangement or external administration. Investments in between generally have both debt and equity features, the latter commonly in the form of warrants or PIPEs. Sponsors seeking international fund investments utilise noteholder structures because of withholding tax considerations and, increasingly, FIRB delays if the facility conforms to money lender exceptions.

Debt instruments are also presently attractive given the 2020 willingness of yield driven investors to take on credit, liquidity and interest rate risk in return for high compensation (ie. supporting capital raisings). Debt cures operating expense needs in the enterprise (liquidity), equity capital to be utilised for capital expenditure (asset growth). To date enterprises have also had the benefit of the COVID-19 driven fiscal supports on offer to business: wage subsidies, credit guarantees for SMEs, responsible lending guidance from regulators, and temporary relief from some forms of insolvency risk.

“ Immediate value uplifts may be achieved by
de-leveraging balance sheets in order to free cash investment. ”

Trading – impaired positions

Distressed credit investors trade into impaired credits for different reasons. Arbitrage, hedge, vulture, value investors may each take positions in the capital structure, some to follow value through an executable or anticipated turnaround plan, others to gain information via Agent rights into the issuer, others to gain influence to control voting outcomes across different credit stacks in the issuer. Some will seek to exploit covenant anomalies in trust or investment note instruments, while others will try to influence voting outcomes via ad hoc committees, administrative amendments to financing instruments, engagement of advisers and the development of co-operation plans providing greater power to majority credit holders.

An issuer enterprise reporting more aggressive fund trades should assume it faces a more accelerated timeframe to turnaround value and (because it is often the case that the driver for the sub-par credit trade is leverage- or covenant breach-based) refinance or recapitalise its position or, as is the case in WICET, face litigation risk.

Market competitors can also effectively trade into positions – in late 2019, Galaxy Resources traded into a senior debt position with Alita Minerals and immediately appointed receivers to create the environment for a credit bid or other form of transaction structure to gain ownership or control of key assets of the enterprise (eventually selling its debt to a third party).

These forms of "loan for owns" can be structured to provide lower risk and greater control than traditional ownership models and can be expected to feature more regularly in ENR workouts over the next 18 months.

Energy and resources – valuations

In energy and resource projects, the preferred valuation approach is to perform a Discounted Cashflow (DCF). The methodology discounts projected cashflows of the ore reserves of the project. Unless there are long-term non-revocable offtakes (customer, hedging, puts, derivatives, financier based), cashflows will be sensitive to the volatility of commodity movements. Commodities such as lithium, rare earths, and oil are presently suffering pricing deflation affecting the DCF value of projects, while gold DCFs are difficult to forecast given present top of market spot pricing of that particular commodity.

When fixed costs of production cannot be quickly reduced, the DCF value can very quickly move an otherwise sustainable project into a net negative equity value and hence create value breaks inside the capital structure, typically inside debt and, increasingly, in senior or mezzanine debt positions.

In simple terms, counterparties to this part of the capital structure, as the economic parties with the most to lose if the restructure is poorly executed, would expect to be the drivers of workout initiatives for the company.

Energy and resources – realising value

We've described some of the approaches of those parties dealing with situations in which there is an arbitrage between existing valuation of going concern value and the notional value of the enterprise once the special event founding value dysfunction is resolved. Immediate value uplifts may be achieved by de-leveraging balance sheets in order to free cash investment to meet increasing output or customer demand once the impacts from the pandemic are resolved.

A number of the following concepts are dealt with below:

  • amend and extend situations – investor sentiment driving extend and amend as hoping for stronger future markets;
  • debt for equity conversions – allow distressed business under debt pressure to offer equity positions to reduce debt burden and offer new liquidity for opex and capex;
  • rescue funding outside Voluntary Administration and deeds of priority – taking opportunities from traditional banks due to uncertainties in economic environment. These funds are very good at DD, bringing in engineers and the like, charging full rack fee, mapping out growth, bridging towards better cashflow. Might end up as a bridge. Then, want guaranteed ROC for takeout transaction, often equity;
  • lender sharing risk as part of a management buy back, usually as an exit;
  • investment into non-performing loans looking for value uplift;
  • convertible or option-based structures to allow business to retain more cash within business, lenders matched to long term;
  • liability management (eg. SH Plan, Special Situations Plan or Business Judgments Plan) and pushing out maturity dates, DCSR, cash retentions;
  • PIIPE form of investments, also the re-emergence of FIIG like bonds to match future commitment income streams; and
  • cram downs via instruments – distinguishing obligations on the covenant (debt) with security, the latter being dealt with last, maybe by scheme or Receivers sale.

Key concepts

Distressed debt in the United States peaked at $934 billion at the end of March, roughly equal to 2008 global financial crisis levels and quadruple levels at the end of 2019.

Elsewhere, Fitch has doubled its forecasts of European corporate default rates in 2020 and 2021 (to 5% and 7%) and the Reserve Bank of Australia has written about corporate default risk in China.

In Australia, default rates could double existing levels to reach post GFC levels of 2.1% (representing $35 billion of corporate defaults).

While businesses including Virgin Airlines; retailers Tigerlily, Sea Folly, Colette, Harris Scarfe, Jeanswest, Bardot; and camping supplier Aussie Disposals have each gone into voluntary administration since December 2019, there have been relatively few ENR appointments as capital markets and special situations funders have sponsored solutions.

An "amend and extend" proposition promises stronger future markets and seeks, in return for more time and free use of cash, higher economic returns to financiers. This may be attractive to a funder in a market of low credit valuations and tightening repayment horizons.

Recent amend and extends agreed by lithium and graphite producers provided for capitalised coupon, improved spreads on future coupon, payment of significant fees and relatively light EBITDA, debt cover service ratios or cashflow reporting. In contrast, a recent oil well producer maintained the same economic profile with its funder in consideration for providing additional information flow, cash lock up arrangements and more regular testing of DCSR.

Increasingly, Agents and majority senior debt holders are being offered observer status at board meetings, although information flow is still restricted to cash events.

Ordinary limitations preventing debt assignment (on issuer approval, absolute prohibitions on trade competitors) are often relaxed as part of waiver negotiations. This risks disclosure of confidential information, even under confidentiality arrangements.

Lynas Corporation has done this extremely well with existing financiers.

Compare another (confidential) matter in which an exiting financier has agreed amendments to the financial instrument at the request of the incoming Agent. Those amendments add credit spread, tenor and substantial fees.

The Agent requires these changes to meet the higher economic internal rates of return requirements of the incoming noteholders behind the refinancing instrument.

The strategy works best if matched to a capital raising or merger process.

With many loans trading at discount in volatile markets, an emerging trend is for a borrower's equity sponsor (eg. minority shareholder) to trade into (purchase) debt instruments on the secondary market and then to control turnaround initiatives of the company.

Purchasing paper (credit instruments) at a discount may be used to retire debt via a credit swap into equity or to cure a financial covenant default or to avoid an equity cure.

The trade also gives the equity sponsor more influence over future transaction events inside the issuer enterprise, for example to encourage a merger or a credit bid to swap newly acquired debt into equity (subject to "control transaction" restrictions under the Corporations Law, FIRB delays, ASIC issues and ASX requirements, if applicable).

The strategy takes advantage of disconformity between going concern and special situation impaired values caused by singular (and apparently curable) events such as COVID-19.

The strategy is a more sophisticated form of one successfully employed post-GFC by savvy borrowers to buy back credit instruments at discount, for reissue on lower market terms. Fortescue Metals Group provides a useful example.

The strategy makes sense if the shareholder believes near term or existing covenant breaches or equity top up obligations can be cured through longer term business transformation and value uplifts.

The option is attractive to shareholders seeking to gain influence over recapitalisation or restructuring turnarounds, especially if the alternative exit for the existing credit provider is an enforcement process via receivership or other value destroying step (including greater cash reservations or bank guarantees, which tend to constrict cash in the business).

Due diligence is critical to understand any restrictions in credit instruments (loan note security deeds and similar), intercreditor arrangements, including any existing co-operation or good faith workout deeds and any restrictions operative at the issuer level (shareholder agreements, subordinations, turnover trusts for dividends etc). Particular attention must be given to assignment, administrative approval, restricted payment rights and confidentiality clauses within credit instruments require review, as might covenant restrictions, rateable sharing, voting entitlements, information sharing (confidentiality), participation rights.

Intercreditor arrangements and, if applicable, shareholder agreements, may also contain "tag and drag" or "follow me" rights which will need to be considered, along with related party, significant transaction and "position of influence" restrictions in the Listing Rule and Corporations Act.

In a recent (confidential) assignment for a non-commissioned processed minerals plant owner, special situations funders negotiated bridging facilities to bring the plant to post commissioning and cash generative states. The plant operator and owner formed part of a larger distressed enterprise unable to, in the time frames involved, increase credit facilities with existing financiers.

Utilisation terms enabled the curing of existing liquidity events and funding of capital. The funding, undertaken after a deep technical due diligence required project finance like covenants to be met and reported against – plant performance, offtake arrangements, key supply and reagent agreements, tenure packages, key-person commitments and cash reservation and reporting within the business.

The funding package would be expected to (and in the example mentioned above, does) contain the usual utilisation and draw down conditionality expected of project financing, together with additional restrictions around achievement of projected cashflows. A key consideration for the funder was its IRR, which was met by providing for a minimum term payout fee calculated in the same manner as a break fee for a securitised fixed income package.

Key to the funding package was the inclusion of deed of priority conditionality and certain whole of enterprise restrictions to turn off enforcement rights under the senior package for a particular term. The senior lenders gained comfort by the default cures provided by the new (rescue) funding package and the value uplifts through making the plant operational (removing an operational impairment).

If there are concerns around tail or contingent liabilities, the funder may require a formal process in order to cleanse unknown exposures – some, such as Paladin Energy, involve court processes undertaken during administration, while others, such as Carnegie. Clean Energy occur as part of a full DOCA and Prospectus process. Others still, such as WICET or Quintis are achieved via a scheme of arrangement process.

Where there are substantial lenders in a club or syndicated financing or where the economic holders are represented by an Agent, steering committees and the execution of co-operation or "good faith" agreements are common.

In an existing workout arrangement led by a majority holder of notes to an oil and gas producing entity, a steering committee was formed to encourage the issuer to undertake a merger transaction. The majority creditor joined an ad hoc restructuring committee with the issuer and others.

Provisions were included in the agreement between all holders providing for "drag alongs" of minority lenders, amendments to the administrative actions of the Agent (including to direct the Security Trustee to authorise a Receiver to "dispose" of assets on covenant default by way of "non-monetary" action; ie. permitting credit bidding to swap positions into equity). There is useful UK authority to support this direction being given to an Agent.

Most debt instruments will require a structured approach to amending some voting and form of consideration receipt provisions, as well as confidentiality and trading right restrictions.

A well-formed committee will always obtain DCF valuations of the enterprise. These valuations, which can take many months to prepare so should be developed well ahead of covenant breach or testing points, should inform the creditors and issuer as to value breaks, briefing assumption differences (reserves in particular are the subject of common debate, as are the differences between bull and bear spreads in forecasting futures, whether commodity values, operating costs or value in system logistics and supply arrangements).

Valuations will assist drive decisions around resets, recapitalisations, restructuring arrangements, workouts and other forms of turnaround planning.

The workout arrangements mentioned above are informal in design. More structured formal processes – credit bids via Receivers, cram downs via scheme of arrangement or DOCA/Creditors Trust and section 444GA equity transfers are other mechanisms used to cleanse an enterprise of liabilities an assets of liens. Formal processes may be undertaken in conjunction with Prospectus style capital raisings, shareholder approved back-door listing of new assets into the enterprise, alternatively as part of a Court-approved merger process by scheme of arrangement.

The appropriate transaction structure will depend on the value-breaks, range of interest holders and perceived execution risk.

Funds typically provide corporate or asset based finance, secured against real property and personalty.

Inside a leveraged enterprise, already primed with senior, mezzanine or other junior debt and asset based (receivables) lending, funds may take repurchase positions.

In simple terms, the fund purchases a particular asset for an agreed sum (typically something valuable such as a processing plant or inventory).

The treasury or economic entity within the "vendor" enterprise will then put an irrevocable offer to the "purchaser" to repurchase the asset at a future point in time. The "purchaser" then chooses whether to retain the asset or accept into the put at the relevant time, depending on the rate of return each option offers. Quintis is one example here.

Other forms of repurchases include commodity offtake arrangements, "build and operate own" contracts and plant or key equipment purchase agreements. These can be structured as leases, hiring arrangements or involve an agreement between a financier and the grantor under a Put option.