LSTA: Our Market, Our Members, Our Products

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1 LSTA: Our Market, Our Members, Our Products Bridget Marsh, EVP & Deputy General Counsel, LSTA Tess Virmani, SVP & Associate General Counsel, LSTA Debevoise & Plimpton LLP New York, NY January 17, 2018

2 Presentation Overview Introduction to the LSTA Evolution of the US Loan Market Loan syndications, trading, and investing Growth of US corporate lending Secondary loan market emerges LIBOR: Will It Stay Or Will It Go? LSTA Primary Market Products LSTA Code of Conduct and Confidentiality Principles LSTA Form of Revolver LSTA Regulatory Guidance LSTA Form of Incremental Facility Amendment LSTA s Latin America Initiative Arbitration 2

3 LSTA AND THE LOAN MARKET

4 Since 1995, the LSTA Has Promoted a Fair Corporate Loan Market in the US LSTA s Formal Mission Statement: The Loan Syndications and Trading Association promotes a fair, orderly, efficient, and growing corporate loan market and provides leadership in advancing and balancing the interests of all market participants. 4

5 US Corporate Lending Quadruples in 20 Years I-Grade Leveraged Other $3,000 $2,500 Billions (USD) $2,000 $1,500 $1,000 $500 $- Source: Thomson Reuters LPC 5

6 U.S. Secondary Loan Market Emerges in the 90s and Continues to Grow $700 Annual Loan Trading Volume $600 $500 Billions $400 $300 $200 $100 $0 Source: LSTA 6

LSTA Members Include Both Sell-Side and Buy-Side Financial Institutions 175 424

7 LSTA Members Include Both Sell-Side and Buy-Side Financial Institutions Members Institutional Investors Banks Law Firms Service Providers 7

8 LSTA Promotes Market Growth Through Standardization of Terms LSTA began to standardize documentation in 1995 and now offers more than 100 documents to its members who participate in the primary and secondary loan market. Legal Documents LSTA Model Credit Agreement Provisions LevFin Investment Grade (to be published in early 2018) Investment Grade Revolving Credit Facility Suite of Secondary Trading Documents Cross-border Lending to Latin American Borrowers 8

9 LIBOR: WILL IT STAY OR WILL IT GO?

10 LIBOR May Be - or May Not Be - the Market s Reference Rate after 2021 In July 2016, the Financial Conduct Authority s Head, Andrew Bailey, said the regulator would no longer compel banks to participate as LIBOR banks after 2021 after it became clear there wasn t enough meaningful data to sustain the benchmark that underpins more than $350 trillion in securities. In addition to worries about LIBOR s replacement, market participants raised concerns about the viability of the old rate during the transition period if a number of the LIBOR banks were to decide to opt out of the program before a new benchmark was agreed. Fortunately, U.K. financial services regulator confirmed in November that all 20 banks that participate in LIBOR rate setting will support the rate through FCA is working with the banks to finalize an agreement for them to remain on the panels they currently submit to until the end of

11 LSTA is Engaged in the Process From LIBOR to New Benchmark In 4Q17, LSTA began working with other global trade associations and our members on the LIBOR issue and has hosted several Primary Market Committee meetings to inform members and educate them on LIBOR replacement language developing in the market. LSTA also joined the Alternative Reference Rates Committee (formed in 2014) which has the mandate to identify new benchmarks and develop a transition to a new rate. ARRC has recommended an alternative rate, SOFR (Secured Overnight Funding Rate) - a secured overnight Treasuries repo rate for derivatives. But SOFR doesn t actually exist yet. The Federal Reserve Bank of New York will begin to publish SOFR in mid

12 LSTA PRIMARY MARKET PRODUCTS

13 LSTA s Code of Conduct and Confi Principles are the Bedrock of the Market In December 2017, LSTA revised the near decade old Code of Conduct and Confidentiality Principles, the fundamental bedrocks of the syndicated loan industry. Although much has changed in the loan market since those docs were last published, they have held up well. Code s purpose is to promote integrity, fairness, efficiency and liquidity in the syndicated loan market by establishing general standards of conduct that are applicable to all loan market participants (LMPs) in connection with all loan market activities. Confidentiality Principles purpose is to outline broad guidelines for the receipt, use and distribution by and to LMPs of confidential information that is generally available in the loan market and that may at times include material non-public information (MNPI). The goal of the Principles is to address the thorny trading issues that arise by virtue of the fact that many LMPs also participate in the securities markets that transact solely on the basis of public information. 13

14 Finally, the LSTA Publishes a Complete Form of Credit Agreement in 2017 For 22 years, the LSTA had been expanding its Model Credit Agreement Provisions (MCAPs). In 2017, the LSTA released a new Form of Revolving Credit Facility (unsecured) designed to be used by investment grade borrowers. LIBOR definition is the traditional one we will update if necessary to reflect the market s adoption of any new reference rate. The new ERISA provision reflecting the DOL s new fiduciary rule not included because of the parties typically party to this revolver. LSTA DQ structure included in brackets and a drafting note highlights that parties are to consider whether the structure is appropriate for particular financing. Although financial covenants have been included, drafting notes provides that the circumstances of the particular financing will dictate the inclusion or exclusion of particular covenants and the appropriate materiality and other qualifications and thresholds to the negative covenants. 14

15 LSTA Re-Published Each of its Regulatory Guidance in 2017 Given how active the US government has been in using sanctions as a diplomatic tool, the "LSTA's Regulatory Guidance: US Sanctions in Lending Transactions" was updated twice in Latest publication in December 2017 includes important updates about the termination of sanctions against Sudan, the additional financial sanctions imposed on the Government of Venezuela, and new commentary on the situation in Iran and the Joint Comprehensive Plan of Action. Because it is expected that significant movement in this area will continue in 2018, the LSTA plans to refresh this Guidance quarterly. 15

16 LSTA s KYC Guidance Was Revised in 2017 To Account for FinCEN's May 2016 Final Rule FinCEN's May 2016 final rule added a new requirement for covered financial institutions to identify/verify the identity of the beneficial owner of legal entity customers where a bank is required to conduct customer identification and verification procedures. In many loan market instances, a bank/customer relationship does not arise and as such this new requirement would not be applicable. For those situations where a customer relationship does arise and due diligence pursuant to a bank s customer identification program is required, members should note that covered financial institutions must comply by May

17 LSTA FCPA Guidance was Updated in set new records for the number of FCPA enforcement actions and the total amounts paid to resolve such actions. LSTA updated our FCPA Guidance and will monitor the need for further revisions in

18 LSTA Released a Draft Form of Incremental Facility Amendment Last Week Incremental facilities may take the form of tranches of an existing facility (as an "accordion") or tranches of an entirely new facility (as a "new incremental tranche"). Incremental Facility Amendment - the instrument pursuant to which the new or increasing lender becomes bound to the increase and is executed by the borrower, any guarantors, the administrative agent, and each incremental lender (typically they are not required to execute a counterpart of the credit agreement). Pursuant to this short document, each new lender assumes its commitment as a lender under the facility and an increasing lender agrees to the increase of its commitment. In addition to typical boilerplate language, it sets forth the conditions precedent to the incremental loans, certain borrower representations & warranties, and a reaffirmation of guarantees/security interests by the loan parties. 18

19 LSTA S LATIN AMERICA INITIATIVE

20 LSTA is Producing Documents for Use in Latin America The LSTA is producing documents for use in the origination and trading of New York law governed loans made to borrowers in certain jurisdictions in Latin America. Initially, we focused on Chile, Colombia, and Peru, but other jurisdictions will be added, e.g., Mexico Form of Model Credit Agreement Provisions 2017 Form of Cross Border Trade Confirmation 2017 Form of Par/Near Par Participation Agreement 20

21 Members Supported Inclusion of an Arbitration Provision in the LatAm Confirm Unlike the LSTA s Confirm (for domestic borrowers), the LatAm Confirm includes a check the box option on the face of the confirm for parties to select Arbitration Applicable. If selected, any controversy or claim arising out of or relating to the transaction or the confirm shall be determined by arbitration administered by the ICDR in accordance with its International Arbitration Rules. 21

22 If Parties Fail to Check a Box, then Default is One Arbitrator Chosen by ICDR There shall be one (1) arbitrator to be selected by the International Centre for Dispute Resolution ( ICDR ) in accordance with its International Arbitration Rules. The claimant shall appoint one (1) arbitrator in the notice of arbitration. The respondent shall appoint one (1) arbitrator in the statement of defense. If any party fails to make its nomination pursuant to this selection then the ICDR shall appoint an arbitrator on its behalf. The two (2) arbitrators so appointed shall, within fourteen (14) days of the appointment of the selection of the second, appoint the presiding arbitrator. If the third arbitrator has not been appointed within this time limit, the third arbitrator shall be appointed by the ICDR, unless the parties all agree to provide the party appointed arbitrator additional time to select the presiding arbitrator. 22

23 Parties May Also Select the Arbitration Location The Confirm provides that parties may choose either NYC or Miami for the arbitration location. If the box is left blank, then the default location is NYC. LSTA arbitration provision also provides: ICDR arbitration language is English BISO Arbitration may proceed concurrently Award shall be final and binding Arbitration is confidential 23

She is responsible for responding to and addressing secondary loan market trading disruptions and ensuring that the LSTA s primary market and trading documentation reflect current market practices.

24 Bios Bridget Marsh is Executive Vice President and Deputy General Counsel of the Loan Syndications and Trading Association (LSTA). Bridget heads the LSTA s Primary Market Committee and Trade Practices and Forms Committee and leads the legal projects for the development and standardisation of the LSTA s documentation. She is responsible for responding to and addressing secondary loan market trading disruptions and ensuring that the LSTA s primary market and trading documentation reflect current market practices. Prior to joining the LSTA, Bridget practiced as a corporate finance attorney at Milbank, New York, and as a lawyer in the corporate/m&a department of Simmons & Simmons, London, and completed a judicial clerkship for The Honorable Justice Beaumont of the Federal Court of Australia. She is a Regent of the American College of Commercial Finance Lawyers. Bridget Marsh received a B.A. magna cum laude from Georgetown University, a law degree with first class honors from Sydney Law School, University of Sydney, and a Masters in Political Science from the University of New South Wales. She is admitted as an attorney in New York, England & Wales, and New South Wales, Australia Tess Virmani is Senior Vice President & Associate General Counsel of the Loan Syndications and Trading Association (LSTA). Ms. Virmani works with the LSTA s Primary Market Committee and Trade Practices and Forms Committee on legal projects for the development, standardization and revision of the LSTA s documentation and is also involved in resolving secondary loan market trading disruptions. Ms. Virmani participates in the LSTA s advocacy efforts, including engagement with regulators and working on industry solutions to address market developments. Prior to joining the LSTA, Ms. Virmani spent three years practicing as a finance attorney at Skadden, Arps, Slate, Meagher & Flom LLP, New York. She received a B.S. from the Walsh School of Foreign Service at Georgetown University and a J.D. from Fordham University School of Law. She is admitted as an attorney in New York. 24

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