Mae Credit Agreement
As a result, “outlook” can sometimes still be included in definition formulations in lower-middle market transactions, but larger, higher-end loans generally omit this part of the wording. Application of the EAW clause. MFA clauses affect the borrower`s performance and obligations under a loan agreement in several ways. That time is long gone, and asset-based loans are another animal. Once the exclusive domain of lower-middle-class commercial financial firms, ABL is now a major financing product for many currency centers and large banks, serving some of the largest corporations in the United States. In addition to this metamorphosis, the ABL market has also changed. Developers draft their own loan agreements and lenders angrily compete for the privilege of using their capital. In other words, the position of borrowers today means that a separate EAW default event is no longer considered a standard market determination. As a result of financial pressures facing businesses across the country, many have tapped into unused lines of credit to provide additional liquidity. For some businesses, however, the current pandemic may raise the question of whether they can legitimately fall back on the lines of credit available as borrowers. In addition to financial performance clauses and other measures that borrowers must regularly comply with under their loan agreements, the current situation also raises the question of whether COVID-19 has automatically defaulted on some companies under their existing loan agreements.
Businesses should be aware of these provisions when making business decisions that could affect their rights and obligations under their credit documents. Many clients in Latin America and elsewhere are now questioning whether the impact of COVID-19 is significant enough to form an EAW under their existing loan agreements and other debt instruments governed by New York law. However, New York law is the most common law in many commercial agreements (including credit agreements). Interestingly, there are no significant precedents for the interpretation of EAW clauses in the context of credit agreements. We offer the following important considerations based on existing jurisprudence in Delaware and New York that you can support during this time. As the COVID-19 situation evolves, borrowers with existing credit facilities need to review their loan agreements and understand their ECM obligations. But if an EAW is no longer a standard event, how does the concept exist and work now? As mentioned earlier, it is one of the main modifiers of insurance, guarantees and restrictive covenants – including exceptions to restrictive covenants – in most loan agreements. Forecasts regarding the total impact of COVID-19 (better known as coronavirus) on the economy remain extremely uncertain and continue to reflect a variety of results.
As a result of this uncertainty, entities that have remaining credit capacity under existing credit facilities are considering using some or all of the remaining credit capacity they may have under their credit facilities. In fact, as has been widely reported, many companies have already decided to do this and take advantage of all or most of their available credit capacity. For some companies, these considerations were motivated by the general fear that a rush on the bank by other borrowers could cause a liquidity crisis for lenders and potentially make financing unavailable if necessary. Borrowers who are in the process of negotiating loan agreements should ensure that they address this issue in the EAW provisions that will bind them in the future. Any party availing itself of an EAW clause must bear a heavy burden to demonstrate that the crisis has caused a significant adverse change that is important and lasting for the agreement as a whole. However, it should be noted that in the context of a borrower`s ability to make interest and principal payments in a credit agreement, in the context of the acquisition context in which the courts have required buyers to demonstrate a longer-term impact on the activities of the target company, courts may take a softer approach when analyzing whether MAID has occurred. Similarly, the more the impact of the COVID-19 pandemic is manifestly business-specific or has a disproportionate and unforeseen impact on the borrower`s particular business, the more likely it is that a court will conclude that these effects constitute an EMA. Similarly, other statements and a variety of important clauses (including negative restrictive covenants and exceptions thereto) may be modified by a similar sentence. which can happen in dozens of places. during a loan agreement. In addition, many loan agreements maintain a credit condition (whether as a condition precedent for initial closing, for subsequent borrowing, or for the effectiveness of a change) that there has been no EMA for some time.
Similar text can be included in a stand-alone representation. With a revolving credit facility, these insurances are usually renewed each time a loan application is made. If the representation is not true, it will result in a false statement that represents a failure event. However, the same issues that led to the fall of MAE as a stand-alone default event are still present – lenders are skeptical about designating a default event solely on the basis of an EAW, whether as a stand-alone default or as the cornerstone of an alleged misrepresentation. Interpretation. EAW clauses have rarely been invoked by lenders and, as a result, there is little guidance on how to interpret them. Borrowers should consider how COVID-19 has affected their specific business and whether notices or disclosures are required. For example, a physical retailer operating in jurisdictions where it has been asked to cease operations is more likely to suffer from MAID in the current circumstances than a manufacturer of medical devices or consumables. The applicable legal clauses will be important in this provision. While many loan agreements are governed by New York law, many are governed by the laws of other states.
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