The Relationship Between Lender and Company Is a Key Factor
By Steve J. Schwartz, Esq. and David K. Webber, Esq.
In the May 13, 2013 issue of BusinessWest; we penned an article titled “A Primer on the ESOP.” This is an extension of that article that specifically focuses on financing an ESOP, or employee stock- ownership plan, and informs the reader of the lender’s concerns in making a loan as part of the structure of a leveraged ESOP.
In the prior article, we described an ESOP as follows: an ESOP is a qualified defined-contribution retirement plan established under §§ 401(a), 409, and 4975 of the Internal Revenue Code. Unlike other qualified plans, an ESOP is designed primarily to invest in shares of a closely held corporation, referred to in the code as ‘employer securities.’ The sponsor company may transfer the shares of common stock as a qualified contribution, or the ESOP may purchase shares from shareholders or the sponsor company. In a ‘leveraged’ ESOP, the company takes out a bank loan to fund the purchase, then lends the funds to the ESOP to finance the purchase of shares. A 100% sale of shares to an ESOP may require a series of smaller transfers because 100% bank financing is unlikely.
The selling shareholder may receive cash as partial or complete consideration for the shares. In the alternative, or in addition to cash, the selling shareholder may self-finance a portion by accepting a note as partial payment. As the note is paid off in installments, the plan trustee transfers shares to each of the employees’ accounts, eventually vesting all the stock in employee accounts in accordance with the terms of the plan.
The lender has its usual concerns in making the loan, which will eventually be used to purchase shares by the ESOP. The considerations do not vary much between financing an ordinary loan and financing an ESOP. The lender’s customary due diligence is utilized to assess the credit worthiness of a borrower. If the company is a customer of the lender, it will normally have a relationship with the current management.
If the ESOP is part of an exit plan and there will be a change of control, the lender will be concerned with the capacity of the new management team to manage the business. It is important that the new management team be involved in dealing with the lender in obtaining the loan. In the event there is not a change of control, it will also consider this issue for the future in case there is a change of control due to death or disability or part of a future plan to vest control in new management. Hopefully, the lender will have experience in dealing with an ESOP transaction.
It is important for the company to prepare a financial plan for the period of the loan so that its needs for financing are included in its request for financing. It is also important that working capital and other financial requirements are included in the request. The company’s request should consider any contingencies.
The lender will analyze the company’s financial circumstances, including the security for its loan and the ability of the company to make the loan payments. The lender will also consider the company’s other financing requests.
As part of the ESOP planning process, the company shall be required to engage an independent appraiser to determine the value of the shares to be sold as part of the ESOP. The lender will review the appraisal carefully in its approval process. It will provide the lender with an independent view of the company and its prospects.
The terms of the loan should be keyed to the ability of the company to generate profits. However, there are limitations on the term. An ESOP is a retirement plan and must comply with applicable laws; the internal note and pledge agreement from the ESOP to the company will be subject to federal government scrutiny. A term that is too long, or an interest rate greater than market rate, is suspect because it could unduly favor the selling stockholder over the employees.
Shares are released to the employees’ individual accounts on the payment of the loan. A longer term would affect the release of shares to the ESOP participants: the longer the term, the slower the release of shares. The term and interest rate of the note should therefore be reasonably short (fewer than 10 years) in order to mitigate excess scrutiny from the IRS and Department of Labor.
The loan normally will be secured by all the assets of the company. It is not unusual for the lender to request the personal guaranty from the stockholders. Also, it may be necessary for the proceeds of the sale to be pledged as additional security for the loan. The lender may agree to reduce the additional collateral as the loan is repaid.
If the company has existing loans or new loans with the lender, there will be cross-collateralization, cross-default, and cross-guarantee agreements. If any loan is in default, the default will apply to all the other loans. In the event a stockholder is owed money by the company, the lender may require that the stockholder subordinate the obligation to the lender and restrict the payment terms of the obligation to protect the company’s cash flow. The lender may require life insurance on the management team to be assigned to the lender as additional collateral for the loan.
As with any loan, there will be annual reporting requirements, financial covenants, and other performance metrics. The terms should be clearly set out in the commitment letter. The lender may have other requirements such as insurance, landlord’s consent, mortgagee’s consent, and collateral control agreements if some of the assets are not on the premises of the company.
The loan from the company will be documented by a separate note and security agreement to be signed and delivered simultaneously with the loan to the lender. In addition, there will be a stock-purchase agreement between the ESOP and the seller(s) of the shares.
The lender will require that the proceeds of the ESOP loan must be used solely to purchase shares in the company. The ESOP will be able to repay the note from company contributions to the ESOP or from dividends paid to the ESOP from the company.
In summary, the relationship between the lender and company is a significant factor in the establishment of the ESOP, financing the purchase of company shares and the future of the business. Even if a lender is initially skeptical, the lender can become an invaluable part of the business-succession team once the plan has its blessing.
We want to thank Vicky Crouse and Frank Crinella of TD Bank, N.A. and L. Alexandra Hogan, Esq. of Shatz, Schwartz and Fentin, P.C. for their assistance in preparing this article.
Attorney Steven J. Schwartz, of Shatz, Schwartz and Fentin, P.C., concentrates his practice in the areas of family business planning, mergers and acquisitions, corporate law, and estate planning; (413) 737-1131; sschwartz@ssfpc.com. Attorney David K. Webber, of Shatz, Schwartz and Fentin, P.C., concentrates his practice in the areas of closely held business, corporate law, real estate, trusts and estates, and bankruptcy; (413) 737-1131; dwebber@ssfpc.com.
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