The LSTA and LMA Present Joint Secondary Documents Teach-In. Thursday, March 25, 2010

Size: px

Start display at page:

Download "The LSTA and LMA Present Joint Secondary Documents Teach-In. Thursday, March 25, 2010"

Herbert Dorsey
6 years ago
Views:

1 The LSTA and LMA Present Joint Secondary Documents Teach-In Thursday, March 25, 2010

2 SUMMARY OF ECONOMIC IMPLICATIONS Clare Dawson - LMA

3 Summary of economic implications Delayed Settlement Compensation will be calculated using a two-step method, namely: Seller pays Buyer all interest and recurring fees on the Traded Portion; and Buyer pays Seller interest on the Settlement Amount

4 Summary of economic implications Break funding default position will be that IT DOES NOT APPLY With respect to permanent reductions and payment of fees (i.e.to whom they benefit) all references are to on or after Trade Date If there is a default under a loan which has traded on Settled Without Accrued Interest basis, it flips to Trades Flat

5 Summary of economic implications Revised Buy-in/Sell-out (BISO) methodology Counterparty insolvency now catered for with ability for non-insolvent counterparty to terminate the contract Trade is a Trade concept now applies to Par Trades Essential that counterparties agree ALL TERMS OF TRADE when the verbal contract is struck

6 Roadmap of an LMA Trade 25 March 2010 Deborah Neale Clifford Chance

7 Introduction Trading a loan the structure Suggested timeline Which secondary trading documents should I use? What choices do I need to make? Roadmap of an LMA Trade 7

8 LMA Trading Documents Structure of a Trade No change to structure/method Confidentiality/KYC/due diligence Oral trade (trade is a trade - no conditionality) Confirmation (evidences oral trade) Terms and Conditions (general) Sale and purchase agreement Pricing letter Roadmap of an LMA Trade 8

9 LMA Trading Documents Structure of a Trade Roadmap of an LMA Trade 9

10 Suggested Timeline T x T KYC requirements satisfied Buyer and Seller exchange Confidentiality Letter (if necessary) Trade Date (telephone or otherwise) T + 1 Seller sends request to Agent for Borrower consent (but see Condition 6) Seller sends Credit Documentation to Buyer (unless sent before Trade Date) (But see Condition 7.2(b)) T + 2 T + 4 Responsible Party sends Confirmation to Other Party (Condition 4(a)) Agent sends consent request to Borrower Other Party returns Confirmation to Responsible Party (Condition 4(b)). T + 5 Responsible Party sends Transaction Documentation to Other Party (Condition 8). T + 7 T + 7 (Par) T + 15 (Distressed) T + as soon as reasonably practicable T + 10 (Par) T + 20 (Distressed) T + 60 (par only) Borrower s approval of trade Both parties sign Transaction Documentation - deliver to the Agent (But see Condition 8). Settlement Date (Condition 10.1) If applicable, delayed settlement compensation starts to accrue (Condition 10) Buy-in/Sell-out applies if one party fails to perform its Settlement Delivery Obligations (Condition 22.3) Roadmap of an LMA Trade10

11 LMA Trading Documents Confi Letters (Seller) (Purchaser) (Agent/Broker) Master No Change Trade Confirm (Par) Trade Confirm (Distressed & Bank Debt) Trade Confirm (Bank Debt) Trade Confirm (Par) Trade Confirm (Risk Participation) Trade Confirm (Distressed Claims) Trade Confirm (Claims) Roadmap of an LMA Trade11

12 LMA Trading Documents Terms and Conditions (par) Terms and Conditions (distressed & bank debt claims) Reps & Warranties (distressed bank debt/ secondary lender) Reps & Warranties (distressed bank debt/ original lender) Reps & Warranties (distressed claims/ secondary lender) Reps & Warranties (distressed claims/ original lender) Terms and Conditions for Par and Distressed Trade Transactions (bank debt and Claims) Notices and Pricing Panel Methodology Funded Participation (Distressed) Funded Participation (Par) Funded Participation (Par/Distressed) Risk Participation (Par) Risk Participation (Par) Roadmap of an LMA Trade12

13 LMA Trading Documents Funded/Risk Participation (Par) Fund/Risk Participation (Par) Risk to Funded (Par) Risk to Funded (Par) Master Risk and Master Funded (Par) Put option/call option (Par) Master Risk (Par) and Master Funded (Par/Distressed) Removed (elevation in Participation Agreements) Assignment (Par) Assignment (Distressed Bank Debt) Assignment (Bank Debt) Roadmap of an LMA Trade13

14 LMA Trading Documents Assignment (Distressed Claims) Assignment (Distressed Claims) Transfer Agreement (Par) Transfer Agreement (Distressed) Transfer Agreement (Bank Debt) Termination and Transfer Agreement (Distressed) Termination and Transfer Agreement (Par) Termination and Transfer Agreement (Par and Distressed) Settlement Letter (Par) Pricing Letter (Distressed) No Equivalent Users Guide (Distressed) Users Guide (Par) Users Guide Roadmap of an LMA Trade14

15 Know Your Documents Which Trade Confirmation?: Bank Debt (Not Risk Participation) Risk Participation (Bank Debt Par) Distressed Claims Form of Purchase Novation Assignment Participation (Risk or Funded) Roadmap of an LMA Trade15

16 Know Your Options - New Is it a par or a distressed trade? Settlement Date (as soon as reasonably practicable) Delayed Settlement Compensation (still optional but separate from BISO (par)) Legal Transfer only Termination on Insolvency between Trade Date and Settlement Date Buy-in/Sell-out (par only/new default position) Breakfunding (par only/new default position) Participation No Traded Margin Additional representations and warranties Original lender Roadmap of an LMA Trade16

17 Conclusions Same structure but one set of documents Know your documents Know your options (Checklist) Roadmap of an LMA Trade17

18 Overview of Combined Terms and Conditions 25 March 2010 Justin Conway Goldman Sachs Deborah Neale Clifford Chance

19 Terms and Conditions - Process LMA Secondary Documentation Committee Merger began with Terms and Conditions. Other documents followed Terms and Conditions now based on existing distressed Therefore main differences are to par Overview of Combined Terms and Conditions 19

20 Terms and Conditions New for Par Trade is a trade mandatory settlement Settlement Date as soon as reasonably practicable Delayed Settlement Compensation follows distressed to put Buyer and Seller in position of T+10/20 settlement. Must be selected but now separate from BISO Settled without accrued clawback for Borrower default No breakfunding unless specified Overview of Combined Terms and Conditions 20

21 Terms and Conditions New for Par (contd) Purchased Assets include ancillary rights and claims and non cash distributions Obligor insolvency provisions (i.e. info requirements) Two-way indemnities for breach of agreed terms or warranty, failure to perform obligations and resulting from obligation to reimburse or disgorge Seller pays Agent s expenses (i.e. steering committee) up to Settlement Date, or, if Trades Flat, Trade Date Overview of Combined Terms and Conditions 21

22 Terms and Conditions New for Par (contd) BISO Only applies to Par Trades Based on LSTA model Differences to current BISO BISO applies to all par trades unless expressly excluded. BISO only applies if the exclusion of the liability clause for the LMA Pricing Panel and the associated third party rights provisions are incorporated into the transaction. BISO kicks-in 60 Business Days after original Trade Date (Trigger Date). Overview of Combined Terms and Conditions 22

23 Terms and Conditions New for Par (contd) BISO Notice can be served any time after Trigger Date. Defaulting party has 15 Business Days to remedy default. Non defaulting party has 15 Business Days from end of Cure Period to enter into Substitute Confirmation. Disputes over price for substitute trade referred to Pricing Panel which acts according to Pricing Panel Methodology. Overview of Combined Terms and Conditions 23

24 Terms and Conditions New for Par (contd) Permanent shield. BISO scenarios Overview of Combined Terms and Conditions 24

25 Terms and Conditions New to Par & Distressed Termination on Insolvency Applies between Trade Date and Settlement Date Insolvency Event follows ISDA Default = termination by notice (in LMA form) Either party can select automatic termination for certain insolvency events in confirmation or by notice Consider master notice for particular counterparty. Legal implications jurisdictional. On termination, NIP calculates the Early Termination Amount. Overview of Combined Terms and Conditions 25

26 Terms and Conditions New to Par & Distressed (contd) Early Termination Amount Statement (in LMA form). Payment by Insolvent Party of difference between Early Termination Amount and the Settlement Amount (calculated as at the Early Termination Payment Date). Default interest. Overview of Combined Terms and Conditions 26

27 Terms and Conditions New to Par & Distressed (contd) Business Day Definition Average LIBOR/EURIBOR Confidentiality (not to confuse with Borrower confidential information). Note: Settlement service provider 27

28 Terms and Conditions New for Par & Distressed (contd) Tax gross up except in respect of interest and fees under Credit Documentation Notices by Seller to send Buyer copies of all notices/documents received under Credit Documentation between Trade Date and Settlement Date Overview of Combined Terms and Conditions 28

29 Terms and Conditions Representations All representations and warranties now included as standard in the Terms and Conditions regardless of whether trade is par or distressed regardless of whether the traded portion is bank debt or an insolvent claim regardless of whether the seller is an original or secondary lender Common mutual representations for par and distressed trades typical corporate representations Overview of Combined Terms and Conditions 29

30 Terms and Conditions Representations (contd) Common seller representations legal and beneficial ownership no documents other than the credit documentation no default of seller/pit in relation to the purchased assets traded assets capable of being assigned/participated amounts used in calculating the settlement amount true and accurate ERISA compliance quality of Ancillary Rights and Claims Overview of Combined Terms and Conditions 30

31 Terms and Conditions Representations (contd) Additional specific par trade seller representation no decision to accelerate or enforce rights under the credit documentation Additional specific distressed trade seller representations provision of the credit documentation to the buyer no "connection" with any obligor no "bad acts" or set-off or counterclaim no notice or knowledge of any claim impairment no obligation to make further advance or extend further credit no proceedings against seller/pit which would adversely affect the purchased assets Overview of Combined Terms and Conditions 31

32 Terms and Conditions Representations (contd) Buyer representations compliance with confidentiality requirements ERISA compliance Additional representations to be annexed to the confirmation variations to standard representations and warranties to be agreed at time of trade Overview of Combined Terms and Conditions 32

33 Terms and Conditions Representations (contd) New for Par some additional seller representations predecessor-in-title representations Ancillary Rights & Claims ERISA New for Distressed ability to assign/participate the purchased assets Overview of Combined Terms and Conditions 33

34 Participations 25 March 2010 Justin Conway Goldman Sachs

35 Introduction Outline of process Legal structure and role of Funded Partipation Differences from current par Funded Participation Differences from current distressed Funded Participation Voting Rights

36 Outline Focus on forms of Funded Participation Combined document Based on currently published distressed Funded Participation Same terms apply whether a trade is par or distressed (other than voting rights) Other forms of participation conformed

37 Legal structure of Funded Participation Upfront payment by Participant to Grantor In return, Grantor pays Participant amounts equivalent to those received by Grantor from Borrower under the relevant Loan Legal basis is a limited recourse loan from Participant to Grantor no change in ownership of the relevant Loan Participant takes credit risk on relevant Borrower and on Grantor

38 Role of Funded Participation One of the Forms of Purchase But also the fallback Form of Purchase under the trade is a trade provisions of the Standard Terms and Conditions unless not possible changes can t be agreed parties elect otherwise N.B. not designed as a freestanding document

39 Key changes from currently published par Funded Participation Deletion of Traded Margin concept Grantor s duty of care Non-attributable sums allocated pro rata Participant bears risk of debt restructuring Treatment of Non-Cash Distributions Information Rights Elevation Rights ERISA Framework for collateral for undrawn commitment Termination provisions

40 Changes from currently published distressed Funded Participation Some changes to terminology Allowance made for interest treatment selected in Agreed Terms Specific provision made for Grantor withholding only Ability for Participant to opt out of receiving information under Credit Documentation Participant bears risk of amendments to Credit Documentation Obligation on Grantor to bring about an Elevation if the trade defaulted to a funded participation Participant given two Business Days notice of requirement to make funds available Participant given a two Business Day grace period to remedy breaches

41 Voting Rights No change to the current position Par trade Where Participation is of all Grantor s commitment Participant has voting rights on key reserved matters only: date of payments changes to amounts or currencies reduction in interest/recurring fees release of security all Lender matters Otherwise no voting rights Distressed Trade Parties choice If voting rights are given, Grantor gives effect to Participant s instructions Majority voting

42 Questions? UK/ /02

43 Comparison Between LSTA & LMA Terms & Conditions Thursday, March 25, 2010

44 Comparing LSTA and LMA Docs Structural differences Transfer methods Timing Settlement LSTA Upstreams vs. LMA Step-ups Participations in the US and UK BISO Mechanisms Novations and Assignments Termination rights 44

45 Comparing LSTA and LMA Docs Loan agreements governed by NY law which trade on both LMA and LSTA documents Delayed compensation and purchase price calculations Other differences: Bar Date/Proof of Claim/Insolvency Voting LMA Substantive Terms Representations 45

Master Currency means the currency in which the Facility is principally denominated.

Master Currency means the currency in which the Facility is principally denominated. Standard Terms and Conditions for Par/Near Par Trade Confirmations (Published by The Loan Syndications and Trading Association, Inc. as of April 24, 2014, 2016) The following are the Standard Terms and