Managing a Lending Relationship Through a Bankruptcy Process
Authored by Juanita Schwartzkopf & J. Tim Pruban
One method of predicting business failures is the Z score developed by Edward Altman. Mr. Altman developed a mathematical equation incorporating working capital, total assets, retained earnings, debt levels, and sales, among other items, to forecast the likelihood of a business failing. Altman is predicting a record number of mega bankruptcies this year, and he expects the number of large bankruptcies to meet or exceed the period immediately after the 2008 economic crisis.
The annual number of bankruptcies from 2000 to 2019 is shown in the table below (prepared by Statista). The number of annual bankruptcies peaked at 60,837 in 2009.
According to Fortune magazine, the ten industries with the largest number of bankruptcy filings so far in 2020 include categories you would expect based on the headlines.
This anticipated increase in bankruptcy filings means lenders will be challenged to manage an increasing number of borrower relationships through the bankruptcy planning process and during the bankruptcy.
Lenders, borrowers, and their advisors will need to focus on two key items:
Funding issues including DIP Budgets or Cash Collateral Budgets, and
The End Game which will typically include a Sales Process.
The use of these two topics presupposes a bankruptcy filing will result in the sale of the business. That is a practical approach because the number of bankruptcies that are filed to accomplish a sale or that result in a sale rather than a restructure has been growing. Businesses often learn, in the planning process or after they have filed for bankruptcy protection, that it is too expensive or unrealistic to restructure and the only outcome of the bankruptcy can be a sale of the assets or the business.
The Small Business Reorganization Act (“SBRA”), which was signed into law in August of 2019, intended to provide a lower cost approach to bankruptcy to support more reorganizations. However, the size requirements of the SBRA as increased by the CARES Act, only allow this option for businesses with a maximum of $7.5 million of non-contingent debt.
That means lenders will need to be prepared to review and analyze DIP and cash collateral budgets, and monitor performance of the business through a sales process in bankruptcy.
Analyzing a Borrower’s Budget Related to a Bankruptcy
The analysis of a budget for a bankruptcy is more complicated than a normal course of operations budget. Some of the key items to consider to properly develop a cash sources and uses in the bankruptcy context include:
First day motions:
Cash management processes: This motion addresses the ability of the debtor to continue to use existing cash management processes or allows the debtor to change its cash management processes. This motion may also address the payment of checks or disbursements that are in float on the filing date.
Joint administration or substantive consolidation: For related entities, in some districts, this motion addresses the reporting requirements for each entity or whether the entities can be combined as one entity for procedural or substantive purposes, including for cash flow and monthly operating reporting requirements.
Payroll and payroll related items including benefits (such as PTO, health insurance, retirement accounts and HSA accounts): This motion addresses payment of employees for prefiling payroll related expenses and strategies for dealing with benefits such as paid time off, benefits, employee expense reimbursement and other matters related to the flow of funds for employee matters.
Utilities adequate assurance: This motion identifies the amount of adequate assurance payments expected to be paid to utilities to ensure the uninterrupted receipt of services. Depending on the jurisdiction, this could be between two weeks and six months of usage and may require deposits.
Critical vendor designation: This motion seeks to pay vendors who are necessary to maintain the going concern or preserve substantial value, and contemplates payment for pre-petition claims during the early stages of the bankruptcy. This critical vendor approach essentially moves those vendors ahead of the secured lender and other creditors.
Assumption of any leases or obligations: This motion could identify contracts that are immediately assumed. Generally, the company waits as long as possible to seek this sort of relief to avoid paying cure costs and to preserve liquidity and options. There are some limited circumstances where critical vendor treatment may not be available and assumption of a contract may be desirable.
Rejection of any leases or obligations: This motion could identify contracts that are immediately rejected, and could result in cost savings by avoiding ongoing costs under the contract.
Insurance assumptions: This motion addresses insurance premiums that need to be paid or financed.
Hiring of professionals: These motions are specific for each professional and show hourly rates and payment practices during the case. These motions also disclose any retainers paid, including those that may not have been previously disclosed to the lender.
DIP Financing or Cash Collateral: These motions address whether the borrower will be receiving financing from its lender (Debtor in Possession or “DIP” financing), or will be able to survive on the cash that is collected (“Cash Collateral”). Depending on the specifics of the situation, borrowers and lenders may disagree on the approach or the conditions to attach to the funding. Because of that tension, a detailed weekly cash flow analysis and a thirteen week cash flow is a critical deliverable in any potential bankruptcy situation. A lender’s advisors will be able to review the cash budgets under various financing and cash collateral options, and relative to the first day motions, to provide detailed insight on the liquidity and liquidity needs of the business leading up to and during a bankruptcy.
Each of the items listed under first day motions and the approach to the use of cash has an impact on the dollars expended during the time leading up to the bankruptcy and immediately thereafter. These expenditures need to be addressed specifically as line items in the budgets prepared by the borrower, and reviewed by the lender and the lender’s advisors.
Working Capital Management:
The possibility, and likelihood, of delayed receipts and cash flow sensitivities need to be considered.
Future sales: Depending on the type of business, the bankruptcy filing may impact future sales at different times during the budget period.
Borrowers may want to identify critical vendors which would allow prepetition payables to be paid with funds collected or funded during the bankruptcy.
Suppliers may require COD payments to continue the supply of goods or services.
The sale at discounted prices of obsolete or slow moving inventory could be a source of cash receipts.
It is critical to establish tracking procedures to identify accounts payable as pre-petition and post-petition obligations. This needs to be done to evaluate when, and if, payments should be processed. Lenders need to be sure that the borrower is prepared from an accounting perspective and a staffing perspective to address reviewing invoices received for categorization as pre versus post-petition obligations. If a borrower is not careful with this tracking, post-petition collections could be used to pay prepetition amounts in violation of the bankruptcy laws and the rights of secured creditors.
Each of these items has a material impact on cash flow planning leading up to and during a bankruptcy.
At a minimum, secured creditors need to require the following:
Weekly cash receipts and disbursements, including a roll forward of book and bank cash balances.
Weekly reporting of collateral.
Weekly reporting previously provided to the lender.
Monthly reporting previously provided to the lender.
A lender and its advisors, legal and financial, will also need to consider collateral values at filing, and monitor collateral values on a weekly basis. Using the borrower’s cash flow forecast, estimates of values must be established and compared against the cash burn of the borrower to determine the likelihood of success in seeking adequate protection payments or other reductions in debt levels during the bankruptcy case, or to seek other relief due to ongoing losses or diminution in collateral.
Analyzing Considerations for a Sales Process
Secured creditors are often asked to fund operations leading up to a filing to ensure a stalking horse bidder for the borrower’s assets is identified prior to the filing. While this is often a more comfortable approach for a borrower and its advisors, this approach may not be the best for the lender.
Absent a substantial equity cushion, a lengthy sales process by an investment banker that results in the identification of a potential buyer is probably not ideal unless collateral values are increasing (which is generally not the case) or there is a meaningful prospect of substantially higher offers. These are the arguments the borrower and its advisors will make. However, the costs of going through an extended sales process prior to the bankruptcy filing, and the level of communication that takes place with potential buyers, are negatives lenders need to consider.
A cash flow for the sales process through the pre-bankruptcy period followed by the bankruptcy filing and then through the sale process MUST be compared against a cash flow with a short planning period followed by a bankruptcy filing then a quick sales process during the bankruptcy case.
Without the analysis of both options, using a detailed weekly cash flow model for at least a thirteen week period, the likely economic impact to the secured creditor under the two approaches cannot be properly evaluated.
Although there may be more risk in certain situations, a borrower does not need to have an identified buyer to file for bankruptcy. Despite confidentiality agreements signed by potential buyers, the borrower’s financial condition will not generally be kept secret during a sale process, and expecting that the financial condition will remain confidential is a mistake for the lender. While borrowers often reason they will be able to find a buyer at a higher price before a bankruptcy filing, lenders need to consider the costs of going through a prefiling sale process and the cash burn from operations during that period to evaluate risk and reward.
With the support of its Lender, a borrower can move through a sale process relatively quickly with or without a stalking horse bidder. In most bankruptcy courts, the process post filing could take 60 to 90 days, if there are no unexpected circumstances and a buyer is found. It should also be considered that a pre filing sale process could take the same 60 to 90 days, and may not result in an acceptable offer. After that failed process, a bankruptcy process would still be required.
Bankruptcy cases do not have certainty of outcome.
Proper planning for a bankruptcy requires the evaluation of cash flows and risks of delays while preparing for and moving through the bankruptcy process. No borrower or its advisors will be able to guarantee a speedy process or specific results. Lenders and their advisors must be prepared for uncertainty and be able to forecast and monitor cash flows (and all of the underling variables) both before and after a bankruptcy filing to minimize costly mistakes.
Lenders who are armed with experienced legal and financial advisors to evaluate cash flows and bankruptcy options will be able to negotiate, structure and implement liquidity and funding solutions that are most likely to maximize value and recoveries through the bankruptcy process.