UK Government Backed Financing 2.0: Key Updates and Issues to Consider for UK Businesses
On April 3, 2020, the Chancellor announced the introduction of the Coronavirus Large Business Interruption Loan Scheme (CLBILS) to be made available to UK businesses with an annual turnover of between £45 million and £500 million and will see the UK government guarantee 80 percent of new loans up to £25 million.
According to the Chancellor, CLBILS is intended to give banks “the confidence to lend to more businesses which are impacted by COVID-19 but which they would not lend to without CLBILS.” Further details of the CLBILS will be announced by the UK government later in April although it appears that CLBILS is intended to operate in a similar manner to the current Coronavirus Business Interruption Loan Scheme (CBILS) aimed at UK SMEs. Other than differences in turnover thresholds and the size of loans available, it remains unclear what other key differences will ultimately exist between the CLBILS and CBILS. However, it does appear that CLBILS will (i) not include coverage for the first 12 months of interest and fees as is currently available under the CBILS, and (ii) only apply where borrowers have been unable to secure regular commercial financing in the first instance.
The CLBILS therefore seeks to fill the gap between:
- The COVID-19 Corporate Financing Facility (CCFF) that went live on March 23, 2020, and is aimed at investment grade companies that make a material contribution to the UK economy – according to the UK government, £1.9 billion of financing has been provided under the CCFF (and a further £1.6 billion financing committed to be provided to date).
- The CBILS that went live on March 23, 2020, and is aimed at UK based small to mid-sized enterprises (SMEs) with an annual turnover of less than £45 million – accordingly to the UK government, £90m of loans have been made available under the CBILS to approximately 1,000 UK businesses.
Prior to the introduction of the CLBILS, many UK businesses (particularly those backed by private equity) would have fallen into the clear gap between CCFF and CBILS in that (i) they will not be of the investment grade financial strength pre-COVID-19 required to consider the CCFF, and (ii) they will have a turnover in excess of £45 million per annum and therefore not be eligible for the CBILS.
One key change announced by the Chancellor that is expected to improve access to the CBILS (but seemingly not the CLBILS which could potentially be a barrier to its use depending on the final details of the scheme) is the removal of the previous requirement that the relevant UK business was unable to secure regular commercial financing. As such, among other changes, insufficiency of security will no longer be a condition for accessing the CBILS. The revised CBILS is expected to be operational with eligible lenders from April 6, 2020.
As the Chancellor acknowledges, the next challenge will be for lenders under the CLBILS to “move quickly to support the economy, jobs and businesses” as anecdotal evidence suggests that the eligible lenders were already inundated with requests under the smaller CBILS (UK government figures suggested some 130,000 enquiries to access the CBILS have been received to date) and, according to media reports, some smaller lenders have temporarily suspended advertising that they are eligible lenders under the CBILS. The UK government has stated that it is making operational changes intended to accelerate lending approvals.
High level key terms of CLBILS currently known
What companies can benefit? |
UK businesses
Inability to secure regular commercial financing
Borrowing proposal and impact of COVID-19
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What financing is potentially available? |
Amount
Government partial guarantee
No 12 month interest and fees holiday
Term/type of facilities
Interest rate, security/guarantees and underlying principles of lending
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Timing |
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Process |
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High level recap of the key terms of the CCFF and CBILS, including key updates
CCFF
What companies can benefit? |
UK businesses
Sound financial health pre-COVID-19
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What financing is potentially available? |
Type of instrument
Amount
Maturity date
Security/guarantee and ranking
Terms
Pricing
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Timing |
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Process |
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CBILS
What companies can benefit? |
UK businesses
Borrowing proposal and impact of COVID-19
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What financing is potentially available? |
Amount
Government partial guarantee
Term/type of facilities
Security
Pricing
Underlying principle
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Timing |
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Process |
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Issues with certain leverage-backed businesses accessing the CCFF and CBILS
Very few privately owned leverage-backed businesses will be able to access the CCFF because (i) they are not investment grade (especially having regard to their debt position), and (ii) it is not available to leveraged investment vehicles. It would also be very difficult for CP issued as part of the CCFF to fit within the capital structure of many borrowers or issuers where the existing lender group benefits from security (as the expectation, at least based on the “Eligibility Form” to access CCFF, is that the CP will also benefit from such security which it would not likely be able to do without lender consent and the CCFF will not apply to CP with non-standard features such as subordination – it is unclear how this will play out in practice).
In relation to the CBILS, many companies (including many of those backed by private equity) will exceed the £45 million turnover threshold even ignoring some of the anecdotal teething issues around how this £45 million threshold is calculated where the proposed borrower is part of a privately owned group or the relevant company has operations in both the UK and abroad as many do.
Therefore, the announcement of the CLBILS appears to be positive news for many larger non-public borrowers or issuers (particularly those backed by private equity) subject to understanding the requirement for such borrowers or issuers not being able to secure “regular commercial financing” as a pre-condition for accessing CLBILS. We would expect borrowers, issuers and sponsors to commence discussions with eligible lenders (especially those with an existing debt position) regarding (i) the financing assistance that can be made available under CLBILS, and (ii) how it will fit into existing capital structures.
Of course, in addition to the above issues, proposed borrowers or issuers will need to consider the:
- Extent to which any new indebtedness is “Permitted Financial Indebtedness” (or the equivalent) for the purposes of their existing financing arrangements (or, if not, where such new debt would rank in the capital structure and any required intercreditor or subordination arrangements); and
- Speed with which any such new financing for working capital purposes can be put in place – the UK government is aware of this issues and seems engaged to try to speed up access to CCFF, CBILS and CLBILS.
We also understand that, in certain restricted circumstances where a business’s current working capital facilities are inadequate, businesses may be able to refinance into the CBILS (and hopefully the same potential flexibility will be available to CLBILS).
Availability of other UK government schemes and support measures
It is hoped that CLBILS will assist many companies (including leverage-backed companies) in a way that the CCFF and CBILS have not been able to assist to date. In addition, most UK based companies still have the ability to benefit from the following schemes or measures to help them seek to manage their working capital position in the short-term:
- Coronavirus Job Retention Scheme (the CJRS):
- The CJRS is available to all UK employers with a pay as you earn (PAYE) scheme as of February 28, 2020, i.e., available to all UK employers irrespective of size or sector – in order to seek to minimise redundancies (to the extent possible), Her Majesty’s Revenue and Customs (HMRC) will reimburse employers for 80 percent of the wages of “furloughed workers” (being workers who are being asked to stop working for the time being but remain employees during this time) up to £2,500 per month.
- UK employers will still need to comply with applicable law and employment contracts in relation to making employees “furloughed workers”.
- The CJRS is open for an initial period of at least three (3) months starting from March 1, 2020.
- Deferred Value-added tax (VAT) and Income Tax payments:
- VAT payments are permitted to be deferred for three (3) months – this deferral applies from March 20, 2020, to June 30, 2020.
- All UK businesses are eligible.
- Time to Pay service: All businesses that pay tax to HMRC and have outstanding tax liabilities may be eligible to receive support with their tax affairs from HMRC - this is aimed at companies in financial distress and is considered on a case-by-case basis.
- Statutory Sick Pay scheme:
- Statutory Sick Pay scheme is available to UK based businesses that are small or-medium sized with fewer than 250 employees as of February 28, 2020.
- Government will cover up to two (2) weeks per relevant employee who is absent from work due to COVID-19.
- Business rate holidays:
- For retail, hospitality and leisure businesses in England and for certain UK nursery businesses, they will be entitled to a business rate holiday for the 2020/2021 tax year.
- This will be benefit properties that are wholly or mainly used (i) as shops, restaurants, cafes, drinking establishments, cinemas and live music venues, (ii) for assembly and leisure, (iii) as hotels, guest and boarding premises and self-catering accommodation, and (iv) certain nursery businesses.
- Commercial insurance: Although likely to only be relevant to a very small number of businesses as most insurance policies will not cover COVID-19, businesses should consider whether they have in place any insurance arrangements that may apply to any loss or damage that they suffer as a result of COVID-19 issues (either as a result of its declaration as a pandemic or as a result of the UK government ordered lockdown).
- Eviction protection for commercial tenants: Although not a rent holiday, there is protection for commercial tenants from being evicted if they miss rental payments up to June 30, 2020, due to COVID-19 issues.
Many of these measures will be helpful to assist UK businesses manage working capital. Other self-help measure we expect borrowers and issuers to be considering include:
- Drawing down under any available revolving credit facilities (or the equivalent) immediately and thereby seeking to avoid any ability of lenders to seek to not fund drawdown requests whether due to “material adverse effect” outs or otherwise.
- Seeking extended credit terms from suppliers, landlords or other debtors.
- Where possible (mainly when contracting with governmental authorities), seeking shorter payment terms from customers and clients.
- To the extent possible with HMRC’s prior approval, seek to agree deferred payment of taxes (beyond the deferrals announced by the UK government).
- Where relevant to the business, active discussions with trade credit insurers.
- To the extent possible in the circumstances having regard to general logistics (depending on the nature of the asset) and valuation, exploring the disposal of non-core assets.
Approach of lender groups to businesses impacted by COVID-19
Despite the above measures which may partially assist some UK businesses managing their working capital, we anticipate that many companies will struggle to maintain compliance with the covenants in their financing arrangements (especially those with acquisition debt prior to the “cov-lite” trend of recent years). In this regard, the Prudential Regulatory Authority (PRA) recently issued a “Dear CEO” letter in respect of, among other things, the prudential treatment of loans to borrowers affected by COVID-19. The tone of the letter is to encourage PRA-regulated firms not to exercise excessive caution with respect to borrowers experiencing difficulties arising from the COVID-19 restrictions, including where covenant breaches and waivers have taken place, or where repayment breaks are granted. The PRA expects lenders:
“…to consider the need to treat [covenant breaches that arise from COVID-19 related matters that are of a general nature or are firm-specific but unrelated to the solvency or liquidity of the borrower] differently compared to uncertainties that arise because of borrower-specific issues and in doing so consider waiving the resultant covenant breach. [The PRA] would expect firms to do so in good faith and not to impose new charges or restrictions on customers following a covenant breach that are unrelated to the facts and circumstances that led to that breach.”
This message was subsequently repeated in a joint statement by the PRA and Financial Conduct Authority (FCA) and a similar sentiment is separately clear from a number of recent FCA announcements. The clear messaging is that banks and other financial institutions are expected to play an active part in helping UK businesses navigate the challenges of the severe economic disruption caused by the COVID-19 measures and that they will be under ongoing scrutiny to assess whether they are providing the assistance required. Additionally, it should be noted that the Bank of England has taken material measures to make additional resources available to UK banks to encourage lending to businesses that need financial assistance as a result of the direct or indirect impact of COVID-19 on the business (including new regulatory guidance confirming that banks are permitted to use capital and liquidity buffers to address temporary shocks and a reduction in the UK countercyclical buffer to zero percent).
We are continuing to closely monitor developments for our clients. If you have any questions around access to UK government support finance packages or the other schemes announced to date or in the future, Akin Gump is tracking and is available to assist.