On November 30, 2020, ICE Benchmark Administration (“IBA”), the administrator of U.S. Dollar LIBOR (“USD LIBOR”) and other IBORs, lowered the pressure with respect to the upcoming cessation of USD LIBOR. IBA announced that, following a consultation in December and January, (i) it intends to cease publication of 1-week and 2-month USD LIBOR at the
On 23 November 2020, the LMA published various documents with the aim of assisting market participants looking to include active LIBOR transition mechanisms in their loan documentation. These documents are a mix of new and revised versions of existing drafts, comprising:
- a revised version of the exposure draft multicurrency term and revolving facilities agreement incorporating rate switch provisions (lookback without observation shift);
- a new exposure draft multicurrency term and revolving facilities agreement incorporating rate switch provisions (lookback with observation shift);
- a revised commentary document relating to both rate switch facilities agreements referred to above;
- a new term sheet for use in conjunction with the two exposure draft rate switch facilities agreements; and
- new supplemental wording intended as an option for parties using the LMA’s Revised Replacement of Screen Rate wording published in August 2020, which includes a placeholder for pre-agreed terms in a process of renegotiation. This supplementary wording is designed as a starting point for parties looking to populate this placeholder by specifying pre-agreed terms in relation to the RFR.
When amending a material term of a loan transaction that includes guarantees and/or security governed by the laws of several jurisdictions, it is often prudent for creditors to obtain guarantee and/or security confirmations to ensure that the amendment does not adversely affect their rights to claim under the guarantee or enforce the security. As we head toward 2021, it is well documented that loan agreements with final maturities beyond the end of 2021 that are priced by reference to an IBOR benchmark will need to be amended unless they contain fallback provisions that stipulate a replacement rate for, or procedure for replacing, the relevant IBOR. So, will changing the benchmark rate necessitate guarantee and/or security confirmations, or will this additional hurdle be something that can be avoided?
Continue Reading Will Amending a Facility Agreement to Move from an IBOR to an RFR Require Guarantee and Security Confirmations?
On 12 November 2020, the Asia Pacific Loan Market Association (“APLMA”) published two discussion draft facility agreements (the “Facility Agreements”) referencing risk-free reference rates (“RFRs”) for US dollar syndicated loan transactions in the Asia Pacific region. Until recently, there has been a lack of market standard for RFR calculation formulae, pricing methodology, and institution operational practice in the Asia loan market.
Continue Reading APLMA launches the first SOFR-based facility agreements for syndicated loans in Asia Pacific
On 16 October, the Loan Market Association (“LMA”) published an updated version of a list that sets out the near risk-free rate (“RFR”) referencing loans which have been announced to date. The list is based on publicly available information and seeks to raise awareness of RFR-referencing loans by providing information on the conventions used.
Continue Reading LMA publishes latest list of RFR referencing loans
On September 28, 2020, the Loan Syndication and Trading Association (“LSTA”) exposed draft revisions to the LSTA form of Par/Near Par Loan Trade Confirmation Standard Terms and Conditions to facilitate the transition from LIBOR to SOFR (or other alternative risk-free rates (“RFRs”)) for the US syndicated loan market. Once these revisions are finalized, comparable revisions will be made to the LSTA’s distressed documentation.
Continue Reading The LSTA Proposes Changes to Trading Documents for LIBOR Transition
During an economic downtown, LIBOR (and the interest rate on a LIBOR-priced loan) would likely increase. Because SOFR is a rate based on transactions secured by U.S. Treasury obligations, it’s possible that during an economic downtown SOFR (and the interest rate on a SOFR-priced loan) would not increase and would in fact decline. Thus, in times of economic stress, a bank’s income from its SOFR-priced loans would decline, while its funding costs would increase.
Continue Reading A Credit-Sensitive Supplement to SOFR: Borrowers’ Objections
On August 7, 2020, the Alternative Reference Rate Committee of the U.S. Federal Reserve (the “ARRC”) released a three-part “SOFR Starter Kit.” The first two parts provide a history of the events that led to the replacement of the London Inter Bank Offered Rate (“LIBOR”), the choice of the Secured Overnight Financing Rate (“SOFR”) as its replacement for U.S. dollar LIBOR-based financial contracts, and how SOFR compares with LIBOR.
It is part three that brings together the numerous resources that the ARRC has published to implement its key recommendations, including links to its Best Practices (revised on September 7 to anticipate the imminent release of ISDA’s IBOR Fallback Protocol), syndicated loan conventions, refreshed recommended business loans fallback language, and an internal systems transition guide.
The Benchmark Regulation (“BMR”) came into force in 2016 and applies since 1 January 2018. It aims to regulate benchmarks, including interest rate benchmarks such as London Interbank Offered Rate (“LIBOR”), used in the EU in order to make such benchmarks more reliable. For this purpose, the Benchmark Regulation introduced licensing and registration requirements but also obligations for users of benchmarks to deal with, and provide for plans in case of, interruptions or cessations of benchmarks. The BMR, however, does not give supervising authorities the right to directly amend financial instruments or contracts if the parties to it are unable to replace a benchmark for whatever reason. So any of these plans are subject to civil law requirements and restrictions applicable to a financial instrument or contract under its governing law.
Continue Reading Proposal for a Governmental IBOR Transition in the European Union
Borrowers and administrative agents in the syndicated loan markets continue to negotiate and fine-tune various fallback provisions related to LIBOR transition. Although pricing had traditionally been considered a “sacred right” requiring all lender approval, one of the most ubiquitous aspects to these LIBOR-transition-related fallback provisions is limiting or removing syndicate members’ consent rights to the replacement rate in the name of easing the logistics of such a massive overhaul. In fact, both the “Amendment Approach” and the “Hardwired Approach” recommended by the Alternative Reference Rates Committee (“ARRC”) have moved away from an all-lender standard. Although moving to a lesser standard should ease the pain of transition, prudent syndicate members will review these fallbacks with caution. Below is a list of LIBOR-transition-related issues that syndicate members should consider before making a commitment to lend.
Continue Reading Three LIBOR Transition Considerations for Syndicate Lenders