Home Private Equity Private Credit Deep Dives – Change Of Control – Shareholders

Private Credit Deep Dives – Change Of Control – Shareholders


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After the unprecedented boom of the immediate post-COVID era,
European M&A activity has slumped in recent months. Indeed,
recent market intelligence from Dealogic showed that Q1 of 2023 in
EMEA saw a 68% decline in M&A volume year-on-year and the
lowest Q1 level since 1997 (worse still than during the global
financial crisis). Against this backdrop, private equity sponsors
looking to create liquidity for their funds may need to consider
more bespoke and structured solutions at asset level rather than
simply selling their portfolio companies in full to third parties.
As a consequence, lenders in the European market will be looking to
understand what exactly constitutes a “change of control”
in their credit documentation and what rights they have in the
event that a “change of control” is deemed to have

This deep dive with Daniel Hendon (Partner) and Phil Anscombe
(Associate), lawyers in Proskauer’s Private Credit Group in
London, will explain the philosophy behind “change of
control” protection and what it is intended to achieve, how
the trigger events are typically described and what effects they
have within the documentation, and how common loopholes and
exceptions may be particularly relevant in today’s market.

When performing its due diligence on a prospective financing
opportunity, a lender will typically speak to both the shareholders
(or persons who will acquire the shares, if an acquisition
financing) and management to discuss and assess their business plan
and financial projections for the business. As a result, when
lenders commit to such a financing, they are in essence backing a
particular vision and strategy for the business going forward. The
underlying principle behind “change of control”
provisions in loan agreements is that, if there is a change in the
persons controlling the business (and those persons are in theory
able to use their control to change that business strategy), then
there has been a fundamental change in the dynamics of the
investment and the lender should have the option of exiting the
deal and being prepaid in full. There are a number of different
concepts that feed into both how a “change of control” is
defined and what its consequences are for the parties (and how
these concepts are treated vary depending on the size of the deal,
the sponsor involved and the commercial context of the deal)
– the ways in which such concepts are treated can broadly be
described as follows:

  1. What constitutes a “change”
    Traditional loan documentation operates so that if a specified
    group of permitted controlling investors ceases to exercise control
    over the group, then that is considered a “change” in the
    control of the group. However, the traditional approach in the
    world of high-yield bonds is for this to be constructed so that it
    is only when a certain new investor or new investors acting
    together in concert (which are, in each case, not permitted
    controlling investors) attain control of the group that a
    “change” is considered to have occurred. This is a subtle
    yet important distinction – the latter construct would allow
    multiple minority equity stakes to be sold (which in aggregate mean
    the original investors no longer control the operations of the
    group), while the former construct would consider this a
    fundamental “change” in the controlling composition of
    the shareholder group. The latter construct has increasingly
    pervaded the syndicated loan market, but private credit firms have
    generally been resistant to this and insisted upon the more
    traditional loan formulation.

  2. What constitutes “control”
    The most sponsor-friendly documents will solely define
    “control” as being the beneficial ownership of a simple
    majority (being more than 50%) of the issued voting equity in the
    parent company of the banking group. The rationale for this is
    that, while there will likely be some jurisdiction-specific
    factors, this is typically the level of equity ownership required
    in order to exercise key shareholder rights in order to maintain
    operational control (in particular, the right to pass resolutions
    to hire/fire board members). However, it is not necessarily the
    case that beneficial ownership will always carry these rights
    – for example, proxy voting rights may be granted, or
    contractual arrangements may be entered into that give such rights
    to other persons. Traditional LMA-style loan documentation would
    therefore state that “control” means the ability, whether
    by ownership of shares, proxy, contract, agency or otherwise, to
    have the power to: (i) cast, or control the casting, of a majority
    of the maximum number of votes that might be cast at a general
    meeting of the shareholders of the parent company, (ii) appoint or
    remove the majority of the board of directors of the parent
    company, or (iii) give directions with respect to the operating and
    financial policies of the parent company, with which the directors
    or equivalent officers are obliged to comply. Certain private
    credit providers have insisted on retaining the traditional
    formulation (including in US loan documents), while others have
    been more willing to rely on the test looking solely at voting
    share ownership (on the basis that sponsors are perhaps unlikely to
    give away such control rights while they still hold a voting
    majority). It should be noted that this is ordinarily expressed as
    being “direct or indirect” control – the reason
    being that in most structures the equity vehicle will be above the
    level of the senior banking group, and so what is really being
    referred to is being able to exert these powers by way of indirect
    control down a chain of wholly-owned subsidiaries sitting below the
    equity vehicle.

  3. Are there additional triggers – Certain
    other trigger events commonly seen in the loan market are as

    1. While often not described as a “change of control”
      for the purposes of the definition itself, a sale of all or
      substantially all of the assets of the Group typically constitutes
      a trigger event in the same way as a “change of control”
      for the purposes of the loan documentation. This is to cater for a
      scenario in which the shareholders elect to exit their investment
      by way of an asset sale rather than a share sale.

    2. A common feature on almost all European loan financings is a
      limb within the “change of control” definition that
      protects the “single point of enforcement”.” In
      contrast to the US (where there is a common insolvency regime
      across all states that is well understood by market participants
      and well tested on prior transactions), due to the diversity in
      insolvency regimes across Europe, transactions are typically
      structured so as to ensure there is a robust and protected security
      interest granted to lenders at the top of the banking structure
      that would facilitate an enforcement and sale of the entire group
      as a going-concern, on an out-of-court basis, in a downside
      scenario. To ensure the sanctity of this share security through the
      life of the deal, it typically constitutes a “change of
      control” if the chargor/pledgor ceases to hold (directly) the
      entirety of the issued equity in the entity over which it is
      granting security. Note that US deals will still typically include
      a requirement that the topco “holdings” entity retain
      ownership of 100% of the issued and outstanding equity of the opco
      / borrowing entity. In lower middle-market transactions or in
      structures where there are material operating entities that sit
      underneath the primary borrower, US lenders may push for ownership
      prongs with respect to those subsidiaries as well, but that is a
      negotiated point and atypical in larger deals.

    3. Certain lenders take the view that, in addition to ensuring
      that the original shareholders maintain operational control, the
      “change of control” definition should also look to ensure
      that those original investors maintain sufficient economic
      “skin in the game”. The purpose of this would be to
      ensure that the sponsor cannot materially reduce the extent of
      their financial investment and realise value (e.g., by way of a
      secondary sale to a third party) by disposing of non-voting equity
      or equity-like instruments, so as to circumvent the “change of
      control”, e.g., a disposal of loan note instruments or
      preference shares. To achieve this, such lenders would require that
      a “change of control” be considered to have occurred if
      the original investors cease to own the majority of all equity
      (voting or non-voting) or cease to own the majority of any
      quasi-equity instruments (e.g., loan note instruments accruing
      roll-up interest) that were issued at the outset of the deal, the
      latter formulation of which is not common in the US. This has
      generally remained a feature of the European mid-market only and
      some sponsors are resistant to this on the basis that they consider
      it to unduly inhibit their portfolio management. They would also
      argue that it is not practically likely that a new investor would
      acquire the majority of the economic capital in a deal without
      requiring voting control at the same time.

  4. Who is a permitted controlling investor
    – Traditionally, the permitted controlling investors (that
    were required to retain control at all times) under loan agreements
    were the sponsor funds invested in the transaction at closing of
    the deal. However:

    1. In recent years, it became common for this to be extended to
      affiliates and related funds of those initial funds (i.e., so as to
      include any other vehicles established now or in the future,
      provided they are managed and controlled by the same sponsor). The
      thesis behind this is that lenders are backing that sponsor’s
      vision for the business, so provided the sponsor as an institution
      remains in control, that should be sufficient from the lender’s
      perspective to remain in the deal. This is particularly topical in
      the current market as, given the subdued M&A environment, there
      has been an increase in GP-led secondary trades as a method of
      generating liquidity for sponsor funds. What this means is that,
      where a particular fund is nearing the end of its life cycle and
      requires liquidity (but conditions are not optimal for a widely
      marketed sale process of a particular asset), the sponsor may set
      up a new and separately capitalised vehicle to acquire the asset
      from the original fund, so it can continue to be managed and sold
      at a later date. Although the sponsor remains in control of the
      business, an exit has nonetheless been achieved for the original
      fund (and value/upside realised by the investors in that fund)
      – in this context, certain lenders have queried whether in
      fact this should constitute a “change of control”, so
      that lenders can recover value concurrently or otherwise discuss
      new terms to reflect the new sponsor vehicle’s new investment
      horizon. In the US, the market has largely accepted that the
      “Sponsor” for purposes of the “change of
      control” definition will include a hardwired fund and its
      “controlled investment affiliates” to account for this
      flexibility, but this remains a hot topic of discussion and it will
      be seen in due course whether these sensitivities prompt a change
      in the approach taken by the wider market.

    2. On more aggressive transactions (particularly on larger deals),
      sponsors commonly request a more expansive list of permitted
      controlling investors. They will often push for all institutional
      equity investors at closing (for example, any seller that is
      rolling over all or a portion of its investment into the new
      structure but as a minority shareholder, or any other new minority
      co-investor introduced by the sponsor) and all management
      shareholders to be included in the numerator of the calculation.
      This evidently does not require that the sponsor itself retains
      control and calls into question what happens if the sponsor itself
      reduces below 50% and subsequently has a fall-out with management
      (for example) over the future strategy of the business. This could
      lead to a dead-lock situation that would be value destructive
      – a situation that lenders would look to avoid. Sponsors
      would argue, however, that they are entirely aligned with lenders
      in protecting their controlling voting rights going forward. Where
      it is requested that co-investors (or, more generically, limited
      partners of the sponsor) be included, lenders will often request
      that they be explicitly named in the documentation to ensure it is
      clear who has been approved. Where that is not possible (for
      example, where the sponsor intends to syndicate a portion of its
      equity post-closing or between commitment and completion) and
      lenders are willing to accommodate that flexibility, they will
      generally offer a time-capped period only in which such
      co-investors can be brought in (e.g., 6 months from closing) or, in
      the US, a pre-agreed “white” list of investors who may
      come in. Lenders also sometimes agree for LPs/co-investors to count
      as permitted controlling investors but only to the extent all of
      their voting rights are at all times controlled and exercised by
      the sponsor (i.e., they are fully silent and passive co-investors
      only). The purpose of these various parameters is to ensure that
      there are no significant loopholes in the construct – given
      the diversity of the LP base in many private equity funds (many of
      which LPs may well also have a direct investment arm themselves),
      it would otherwise be difficult to regulate whether this
      flexibility could inadvertently permit what would otherwise be
      considered a true third-party sale.

  5. Is it a control investment – It should
    be noted that the above analysis assumes that the relevant
    transaction is a regular “control” majority equity
    investment by a private equity sponsor. If it is a sponsor-less
    transaction, there will clearly need to be a more bespoke analysis
    undertaken and reflected in the drafting (perhaps by reference to
    the shareholdings of key founders/members of management). If the
    transaction in question still represents an investment of private
    equity capital but on a minority basis, lenders (including in the
    mid-market) are generally more amenable to including specified
    co-investors or members of management as at closing alongside the
    sponsor in the “permitted controlling investors”
    definitions. However, lenders may look to supplement this by
    requiring an additional limb of the definition, stating that the
    sponsor itself must retain a certain proportion of its own equity
    investment. They may also require that a limb be inserted requiring
    that the sponsor must retain all of the minority rights it has
    under the shareholders’ agreement as at closing. A sponsor
    investing on a minority basis may negotiate with the other
    shareholders so that it has certain step-in rights upon the
    occurrence of trigger events pertaining to underperformance
    (possibly including swamping rights, facilitating the sponsor to
    take control of the board) and lenders may seek to ensure that loss
    of such fundamental rights (whether due to the sponsor selling its
    stake below a certain ownership threshold or otherwise) would also
    constitute a “change of control”. In certain US deals
    where specific individuals are important to the ongoing business,
    lenders may sometimes push for prongs requiring that such
    “key” individuals either retain some portion of the
    equity or retain certain positions or responsibilities. This is
    particularly relevant where a lender’s underwriting is focused
    on an individual officer’s relationships with customers or
    vendors, for example.

  6. Is there a portability concept – While
    still an uncommon feature in the market, occasionally loan
    documents will contain a “portability” concept. This is
    effectively an exception to the “change of control”
    regime, such that the debt can be “ported” and remain in
    place notwithstanding the sale of the group to a new sponsor.
    Clearly, this feature is very attractive to sponsors, as in theory
    it would make a sale of the business easier to manage (as an
    incoming buyer would not need to arrange its own package of debt
    financing). Given the current difficult environment for raising
    debt finance, it may be that sponsors in fact look for portability
    features more frequently than they did when credit markets were
    buoyant. Where the concept is seen in the European and US private
    credit markets, it is usually subject to tight parameters, which
    may include a time limit (e.g., the loan is only portable for the
    first 2 years following closing, which should ensure any incoming
    sponsor’s investment horizon is not wildly out of kilter with
    the tenor of the loan), a limited list of incoming sponsors that
    may benefit from the portability option (typically sponsors with
    which the lender has a good relationship or which have strong
    experience in the sector), a condition requiring that the option is
    subject to a pro forma leverage test (e.g., set at opening leverage
    from the original deal, so the deal cannot be ported in a downside
    scenario) and that a specified minimum equity condition must be met
    (e.g., a pro forma equity cushion of 50% following the new
    sponsor’s investment) and that a fee must be payable at the
    time of the portability option is exercised (somewhat akin to an
    origination/underwriting fee, though sometimes with a discount to
    regular new money fees). In the US, lenders will also limit the
    number of so-called “permitted” “change of
    control” transactions, such that only one can occur over the
    life of the facility, to avoid a situation in which the company
    changes hands repeatedly. Call protection would also typically be
    re-set once the debt has been ported and on some transactions
    lenders might offer a tenor extension in connection with the
    exercise of the portability option. Requests for portability are
    most commonly seen on refinancing transactions, where a sponsor
    already owns the asset and expects to exit within a relatively
    short period of time after the refinancing deal (and has at least
    some visibility as to likely buyers) and is looking to simplify
    and/or reduce the cost of the debt-raise process for prospective
    buyers. In the US, portability historically has been limited to
    upper market deals, particularly in prior years where sponsors had
    more bargaining power given the historic level of M&A activity
    and related competition. However, the US market has since largely
    pushed back on this concept, and as of now it remains rare in true
    middle market transactions. That being said, this may become a
    trend in the current market, as difficult M&A conditions have
    meant many sale processes have been postponed until the market
    recovers (but refinancings/dividend recaps may still be proceeding
    in the meantime). It is worth noting that, even where portability
    features are included, it remains relatively uncommon for them to
    be utilised in practice. Whilst the existence of the feature
    clearly means the lender has to come to the table if an eligible
    transaction has been proposed, in practice, most incoming sponsors
    will have their own views on appropriate terms and structure and
    will prefer to refinance the existing facilities under a new
    document, rather than rely on the prior sponsor’s negotiated

  7. What is the result of a “change of
    – Traditional European loan
    documentation operates so that a “change of control”
    causes all amounts outstanding under the finance documents
    (including principal and all accrued but unpaid interest) to become
    immediately due and payable. A “change of control” will
    constitute an event of default in US credit agreements, but will
    not trigger automatic acceleration (or an automatic “mandatory
    prepayment”) outside of older lower middle-market
    transactions. In addition, the significant majority of private
    credit transactions in the European market require that call
    protection be due in connection with a “change of
    control” transaction – as such (and if within the call
    protection period), such a premium would also crystallise and
    become due and payable at that time. However, on European large cap
    transactions (where there have commonly been very large and diverse
    banking syndicates where debt investors may have varying views on a
    new incoming sponsor) it has become more common for the result of a
    “change of control” to be structured as a lender put
    option. The way that this works is that the group must notify the
    agent of the proposed “change of control” (and the agent
    then promptly notifies the lenders) – each individual lender
    will then have a certain period in which to confirm whether it is
    electing to exercise its “put” and be prepaid in full (in
    the same way as set out above) or whether it is happy to continue
    to remain a lender to the group. While the outcome should be
    substantively the same if the lender wishes to be prepaid, it puts
    the procedural risk (albeit a small risk) of an issue in the agent
    failing to notify a lender (or the lender missing such
    notification) or the lender failing to notify the group, onto the
    lender in question. Clearly the ramifications for a lender that
    wishes to exit but is not ultimately able to do so may be
    significant – however, private credit lenders on larger
    transactions have increasingly become comfortable with this. In the
    US, because a “change of control” will not necessarily
    trigger a prepayment requirement as noted above, a related
    prepayment will instead constitute a “voluntary” or
    “optional” prepayment, which will be subject to the
    applicable prepayment premium. However, the market has moved toward
    incorporating a discount on prepayments in connection with changes
    of control. As such, the company will only owe 50% of the premium
    that would have otherwise been payable in connection with a typical
    voluntary prepayment. It should be noted that, irrespective of
    which formulation is used, it is important that a “change of
    control” itself cannot be waived by the majority of the
    lenders and that the definition and operative provisions cannot be
    amended by the majority of the lenders (as these matters should
    always be sacred all-lender matters).

Given the difficult environment for raising new finance and the
likelihood of private equity sponsors pursuing bespoke
opportunities to realise liquidity for their funds, it seems highly
likely that “change of control” provisions will remain in
sharp focus for lenders and borrowers alike during the course of

Private Credit Deep Dives – Change Of

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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