CURRENT STATE OF THE SYNDICATED LOAN MARKET - LSTA

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CURRENT STATE OF THE SYNDICATED LOAN MARKET - LSTA
CURRENT STATE OF THE SYNDICATED LOAN
MARKET
Ted Basta, Executive Vice President – Market Analytics & Investor Strategy, LSTA
Maia Sloss Carson, Senior Counsel – Credit Capital Markets, Wells Fargo
Christian Fundo, Vice President & Assistant General Counsel, JP Morgan
Judith Fishlow Minter, Managing Director, RBC Capital Markets
Shafiq Perry, Vice President & Senior Legal Counsel, HSBC Securities (USA), Inc.
Tess Virmani, Senior Vice President & Associate General Counsel, LSTA

                                          ABA Business Law Spring Meeting, Vancouver - March 28, 2019
CURRENT STATE OF THE SYNDICATED LOAN MARKET - LSTA
PRESENTATION OVERVIEW
• A look at the loan market over the last 12 months
• Covenant packages:
     • Baskets
     • Collateral leakage
     • Additional debt
     • Mandatory prepayments
• Headline, credit and systemic risk
• The evolving role of the administrative agent
• LIBOR phase-out
• Spaces to watch…
• Closing thoughts

                                                      2
CURRENT STATE OF THE SYNDICATED LOAN MARKET - LSTA
AUDIENCE POLLING – THANK YOU FOR YOUR PARTICIPATION!
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                                                     3
CURRENT STATE OF THE SYNDICATED LOAN MARKET - LSTA
AUDIENCE POLLING QUESTION NO.1
“THE WARM-UP”

How many times have you attended this CLE presentation:

  A.   None. This is my first!
  B.   A couple of times – I catch it when I can.
  C.   5 or more times – I am a veteran!
  D.   More or less every year it has been presented. (I think the
       moderator has changed…)

                                                                     4
2018 PANEL TAKEAWAYS
• Tax Cuts and Jobs Act – what effect would the reduction in corporate tax
  rate and anticipated deemed dividend rules have on the market?
• The GAO’s determination that the Leveraged Lending Guidance was a
  “rule” - would Congress take action on LLG and what might that mean?
• Technical imbalances continued to allow borrowers to get ever greater
  flexibility in credit agreements
• Continued prevalence of direct lending
• The (then) new issue - LIBOR phase-out

                                                                          5
2018-19 MARKET OVERVIEW
AIDED BY A MORE DOVISH FED, INVESTOR SENTIMENT TURNED
    POSITIVE AGAIN IN 2019
                                         S&P 500 Index                                                         10YR Treas (%)                         3-MO LIBOR (%)
     3,000                                                                                      3.5
     2,750
     2,500                                                                                      3.0
     2,250
              Jan-17
                       Apr-17

                                                            Apr-18
                                                   Jan-18

                                                                                       Jan-19
                                Jul-17
                                          Oct-17

                                                                     Jul-18
                                                                              Oct-18
                                                                                                2.5

                                                                                                2.0
                          Shanghai Composite Index
     3,750
     3,250                                                                                      1.5
     2,750
     2,250                                                                                      1.0

                                                                                                                                  Oct-17

                                                                                                                                                             Jul-18
                                                                                                      Jan-17
                                                                                                                Apr-17

                                                                                                                                           Jan-18
                                                                                                                                                    Apr-18

                                                                                                                                                                      Oct-18

                                                                                                                                                                                   Jan-19
                                                                                                                         Jul-17
              Jan-17
                       Apr-17

                                                   Jan-18
                                                            Apr-18

                                                                              Oct-18
                                                                                       Jan-19
                                Jul-17
                                          Oct-17

                                                                     Jul-18

Source: Bloomberg                                                                                                                                                              7
S&P/LSTA LEVERAGED LOAN INDEX (LLI) RETURNS TOTALED 0.44%
       IN 2018; OUTPERFORMING ALL OTHER ASSET CLASSES

                  10%
                                           4Q18                       2018
                  5%

                               0.4%
   Total Return

                  0%
                                                  0.0%
                                                              -2.2%          -2.3%
                  -5%
                                                                                       -4.4%

             -10%

             -15%
                        Lev. Loans (LLI)      10YR Treas   HG Bonds     HY Bond      S&P500
Source: S&P Global, LCD                                                                 8
US CAPITAL MARKETS ARE RALLYING IN 2019 FOLLOWING A BRUTAL
       DECEMBER; LOANS HAVE RETURNED 4.2% YTD

             15%                                                                         5%
                                     Dec-18                YTD-Feb-19                               LTM Feb 2018: Return Volatility
             10%                                                                         4%
                                                                                                    LTM Feb 2019: Return Volatility
   Total Return

                  5%    4.2%                                                             3%

                  0%                                                                     2%

                  -5% -2.5%                                                              1%

         -10%                                                                            0%

                                                                                                                              HG Bonds

                                                                                                                                         HY Bond

                                                                                                                                                       S&P500
                                                                                              Lev. Loans

                                                                                                                 10YR Treas
                                                                      HY Bond

                                                                                S&P500
                        Lev. Loans

                                                           HG Bonds
                                              10YR Treas

Source: S&P Global, LCD                                                                                                                            9
PRICES (AND RETURNS) FELL TO MULTI-YEAR LOWS IN DECEMBER 2018

              AVG Trade Price                   Median Trade Price                       S&P/LSTA LLI Monthly Return
     101                                                                  3%
     100
      99                                                                  2%
      98                                                                  1%
      97
      96                                                                  0%
      95
                                                                          -1%
      94                                                                                 -1.0%
                                                                                -1.3%
      93                                                                  -2%
      92                                                                                                                   -2.5%
      91                                                                  -3%

                                                                                                             Dec-17
                                                                                Dec-14

                                                                                          Dec-15

                                                                                                   Dec-16

                                                                                                                            Dec-18
                                                                 Dec-18
           Dec-14

                         Dec-15

                                       Dec-16

                                                       Dec-17

Source: LSTA Trade Data Study & S&P/LSTA Lev. Loan Index                                                              10
LOAN MUTUAL FUND FLOWS TOTALED A RECORD $15B IN DECEMBER
      2018

                    Loan Fund Flows ($ Bils.)       Loan Fund Flows as % of AUM (L-axis)
                                                    Loan Fund Flows as % of Outstanding (R-axis)
       $10                                      10%                                        1.0%

         $5                                      5%                                           0.5%

          $-                                     0%                                           0.0%

       $(5)                                     -5%                                           -0.5%

      $(10)                                     -10%                                          -1.0%

      $(15)                                     -15%                                          -1.5%

Source: Refinitiv                                                                        11
S&P/LSTA LEV. LOAN INDEX OUTSTANDINGS INCREASED 20% OVER THE PAST 12
      MONTHS TO A RECORD $1.2T AS CLO ISSUANCE TURNED IN A RECORD YEAR

                              CLO Issuance ($B)                    Loan Outstandings ($B)        Loan Funds         CLOs
       $150
       $125                                                     $1,400

       $100                                                     $1,200
         $75
                                                                $1,000
         $50
                    2014      2015     2016       2017   2018    $800
                                                                                                             $586
                           Loan Mutual Fund Flows ($B)                                                     50% of LLI
       $15                                                       $600

         $5                                                      $400
                                                                                                             $147
                                                                                                           12% of LLI
        $(5)        2014     2015     2016        2017   2018    $200

      $(15)                                                         $-
                                                                      Jan-14   Jan-15   Jan-16    Jan-17   Jan-18       Jan-19
      $(25)
Source: Refinitiv                                                                                             12
LENDING VOLUMES TAPERED OFF AT YE2018 AS UPWARD PRICE FLEX
      ACTIVITY ENSUED

               Institutional Lending                                                           Price Flex Activity                                           New Issue Spread Level
              New Money                         Refinancing                                    Flex Up              Flex Down
     $120B                                                                     30                                                                    L+500

     $100B                                                                     20
                                                                                                                                                     L+450
                                                                               10
       $80B
                                                                                -                                                                    L+400
       $60B
                                                                               (10)                                                                  L+350
       $40B
                                                                               (20)
       $20B                                                                                                                                          L+300
                                                                               (30)
        $0B
                                                                               (40)                                                                  L+250
                                  May-18

                                                    Sep-18
                                                             Nov-18
                Jan-18

                                           Jul-18

                                                                      Jan-19
                         Mar-18

                                                                                                                                                                               May-18
                                                                                                                                                                                        Jul-18
                                                                                                                                                                                                 Sep-18
                                                                                                                                                                                                          Nov-18
                                                                                                                                                             Jan-18
                                                                                                                                                                      Mar-18

                                                                                                                                                                                                                   Jan-19
                                                                                                        May-18

                                                                                                                          Sep-18
                                                                                                                                   Nov-18
                                                                                      Jan-18

                                                                                                                 Jul-18

                                                                                                                                            Jan-19
                                                                                               Mar-18

Source: Refinitiv                                                                                                                                                                                 13
AUDIENCE POLLING QUESTION NO.2
2019 MARKET PREDICTIONS

By year end, leveraged loan market outstandings will:

        A. Grow another considerable 20% to exceed $1.4 trillion
        B. Contract by more than 15% to under $1 trillion
        C. Remain flat at about $1.2 trillion

                                                                   14
COVENANT PACKAGES
BASKETS MAY BE THE MOST HEAVILY NEGOTIATED ASPECT
OF A CREDIT AGREEMENT
• Negative covenants are formulated to embody sweeping prohibitions on
  certain categories of borrower behavior. The expansive drafting approach
  provides the most lender protection. However, exceptions are needed or too
  much would be swept up into the broad negative covenant – baskets provide
  this relief.
  •   Dollar basket/hard cap – a cap of a fixed dollar amount
  •   Grower basket/soft cap - a cap based on a percentage, e.g., EBITDA or some other
      variable
  •   Builder basket – a basket that is sized by percentage of cumulative consolidated net
      income or the borrower’s cumulative excess cash flow that is retained by the
      borrower (it literally builds in size as the borrower’s cumulative CNI or retained
      excess cash increases over time).

                                                                                         16
BASKETS: THE TREND HAS BEEN MORE…AND MORE
(FLEXIBLE)
• Generally, borrowers are asking for both more and larger baskets
• Typically, credit agreements include growers that are tied either to
  Consolidated Total Assets or, most often, to Consolidated EBITDA
  •   Note: EBITDA adjustments increase these baskets too
• Ratio baskets are also generally looser in terms of how much the borrower
  needs to delever in order to access them
  •   Again, consider EBITDA adjustments!
• How do you measure the flexibility?
  •   One common approach is to add up the dollar and ratio baskets to see the
      cumulative total flexibility allowed in the credit agreement as turns of EBITDA

                                                                                        17
EBITDA IS THE METRIC WHEN IT COMES TO
        FINANCIAL COVENANTS
                                                     EBITDA: Adjustments for synergies

                                                                     2017           2018    Q418

          % deals with uncapped EBITDA adjustments
          (synergies & cost savings)
                                                                     36%            49%     42%

          Time period for EBITDA adjustments
          (months)                                                   18.63          21.21   20.94

Source: Covenant Review, A Fitch Solutions Service                                                  18
“J.CREW” AND “CHEWY”: THE WORDS ON EVERYONE’S
LIPS

• Collateral leakage is the area of biggest focus for lenders.
• Treatment of classes of subsidiaries is important: e.g. non-guarantor restricted
  subsidiaries, non-wholly owned guarantors, and foreign subsidiaries.
• Market has seen a significant rise in borrowers’ ability to invest on an
  unlimited basis in non-guarantor restricted subsidiaries.
• Investment baskets, Restricted Payments baskets, and other permitted asset
  transfers, in combination, can be used to transfer value out of the credit
  group.

                                                                                 19
INCREMENTAL FACILITY PROVISIONS MAY BE THE
SECOND MOST HEAVILY NEGOTIATED ITEM
• Borrower and lenders negotiate:
  • Size – how big the incremental facility can be:
         • Free and clear basket
         • Ratio test
  • MFN – the terms of the new debt and what controls / parameters the existing
    lenders can put on it
         • Amount by which the yield on the incremental debt can exceed the existing
           debt
         • Maturity date of the incremental debt cannot be earlier than the existing
           debt
         • No amortization of incremental debt
  • Other conditions that borrower must meet?

                                                                                       20
INCREMENTAL DEBT CAPACITY THROUGH FREE AND CLEAR BASKETS
      MAY BE HARD CAPPED (SET AMOUNT) OR SOFT CAPPED (% OF EBITDA)

                                                                   Average freebie as a % of
                       % of deals with a freebie
                                                                           EBITDA
                                         98%         98%
      100%           95%                                    100%
                                                                                85%            80%
       80%                                                         78%
                                                            80%

       60%                                                  60%

       40%                                                  40%

       20%                                                  20%

        0%                                                   0%
                     2017                 2018       Q418          2017         2018           Q418

Source: Covenant Review, A Fitch Solutions Service                                               21
BORROWERS CAN BORROW INCREMENTAL DEBT IN EXCESS
       OF FREE & CLEAR BASKET IF LEVERAGE RATIO IS BELOW A
       CERTAIN LEVEL
                                                 Average net first lien leverage ratio
                                                                level
      6.00

                                  4.13                               4.28
                                                                                         4.06
      4.00

      2.00

      0.00
                                 2017                                2018                Q418

Source: Covenant Review, A Fitch Solutions Service                                              22
MFN RATES INCREASED WHILE MFN SUNSET PERIODS
        DECREASED IN 2018
                                                                  Average sunset period in
                     Average MFN Rate (bps)
                                                                          months
       100                                                   20

        75                                                   15
                                                                  13.23
                                                                              11.91           12
                                       55.27         55.73
                   51.95
        50                                                   10

        25                                                    5

         0                                                    0
                    2017               2018          Q418          2017        2018          Q418

Source: Covenant Review, A Fitch Solutions Service                                                  23
BORROWERS ARE FOCUSED ON MANDATORY
PREPAYMENTS
• Leveraged-based step-downs
• Longer reinvestment periods
• In some cases, certain asset sales proceeds can be used
  to increase the capacity under the builder or available
  amount basket
• In some cases, borrowers are requesting changes in the
  application of prepayments

                                                            24
COVENANT-LITE DOMINATES TODAY’S MARKET

                         Most Institutional Term Loans
                               are Now Cov-lite           •   “Covenant-lite” simply means that the
          90%
                                                              institutional tranche does not have maintenance
                                                              covenants; they still have incurrence covenants
          80%
                                                              and they usually are pari passu with a revolving
          70%                                                 loan that has maintenance or springing
          60%                                                 maintenance covenants.
          50%
          40%                                             •   There are two ways to think about covenant-
          30%                                                 lite:
          20%                                                    • They reduce lenders’ control and repricing

                                                                    capability
          10%
                                                                 • They provide borrowers breathing room to
           0%
                            2007                   2018             fix companies if something goes wrong

Source: S&P Global LCD                                                                             25
HEADLINE, CREDIT AND SYSTEMIC RISK
AUDIENCE POLLING QUESTION NO.3
PROJECTED RECOVERIES
Recoveries in the next downturn will:

        A.   Remain at historical levels of about 78%
        B.   Deteriorate somewhat
        C.   Deteriorate a lot – run for the hills!
        D.   Downturn? This business cycle expansion still has legs!

                                                                       27
THE SECONDARY LOAN MARKET GREW $191 BILLION (20%)
       OVER THE LAST TWELVE MONTHS - TO A RECORD $1.2 TRILLION
                   S&P/LSTA LLI Outstanding ($ Billions)         Dec-16   Dec-17   Dec-18
      $1,200                                               30%

      $1,100                                               25%

                                                           20%
      $1,000
                                                           15%
        $900
                                                           10%

        $800                                               5%

                                                           0%
        $700
           Jan-16              Jan-17      Jan-18

Source: S&P/LSTA Leveraged Loan Index                                                 28
THE LEVERAGED LOAN MARKET IS ONLY A SMALL PIECE OF THE
              BROADER FIXED INCOME MARKETS
                                                Like Many Markets, Loans                                                                     Leveraged Loans < 5% of Fixed Income
                                           Have Grown During 10-Year Recovery                                                                              Markets

                                   3,000                                                                                       30000
   Loan/Bond Outsandings ($BIls)

                                                                       Inst Loans                                                                                         Municipal
                                   2,500                                                                                       25000     HY Bond            IG Bond         9%
                                                                       BBB Bonds                                                           3%                 18%
                                   2,000                               DJIA                                                    20000   LevLoans
                                                                                                                                          4%
                                   1,500                                                                                       15000
                                                                                                                                           Asset-                                     Treasury
                                   1,000                                                                                       10000       Backed                                       34%
                                                                                                                                             4%
                                    500                                                                                        5000    Money
                                                                                                                                       Markets                 Mortgage
                                                                                                                                        2%      Federal        Related
                                      -                                                                                        0                Agency           22%
                                           1999
                                                  2001
                                                         2003
                                                                2004
                                                                       2006
                                                                              2007
                                                                                     2009
                                                                                            2011
                                                                                                   2012
                                                                                                          2014
                                                                                                                 2015
                                                                                                                        2017

                                                                                                                                               Securities
                                                                                                                                                  4%

Source: SIFMA, Bloomberg, LSTA, Barclays, Yahoo Finance                                                                                                     Source: S&P/LCD            29
LOAN MARKET LIQUIDITY IS STRONG IN TODAY’S SECONDARY MARKET
      AND DEMONSTRATES VAST IMPROVEMENT DURING TIMES OF HIGH
      VOLATILITY
                 Trading Volume         Avg. Size of the S&P/LSTA LLI   Annual Loan Turnover Ratio (%)
   $1250B                                                                                                                      100%
                                                                                                        76%
   $1000B                                                 70%                                                                  75%
                                                                                                        $839
                                                         $720
     $750B                                                                                                                     50%

     $500B                                                                                                                     25%

     $250B                                                                                                                     0%

                                                                          12/14 (Ann.)

                                                                                         12/15 (Ann.)

                                                                                                           12/18 (Ann.)
                     2014

                                2015

                                       2016

                                                 2017

                                                            2018
Source: LSTA Trade Data Study                                                                                             30
LEVERAGE (DEBT/EBITDA) MULTIPLES HAVE TRENDED LOWER
        FOR PUBLIC FILERS IN THE S&P/LSTA LEVERAGED LOAN INDEX
                                            Weighted Average Leverage   Median
     7.00x

     6.00x

     5.00x

     4.00x

     3.00x
                  4Q07 4Q08 4Q09 4Q10 4Q11 4Q12 4Q13 4Q14 4Q15 4Q16 4Q17 4Q18
Source: LCD, an offering of S&P Global Market Intelligence                       31
INTEREST COVERAGE MULTIPLES HAVE HIT HISTORICAL HIGHS
      DURING THE LAST THREE YEARS OF THE CREDIT CYCLE
                                  Weighted Average Interest Coverage                       Median
      5.0x

      4.5x

      4.0x

      3.5x

      3.0x

      2.5x

      2.0x
                 4Q07        4Q08        4Q09       4Q10     4Q11   4Q12   4Q13   4Q14   4Q15   4Q16   4Q17   4Q18
Source: LCD, an offering of S&P Global Market Intelligence
                                                                                                              32
THE DEFAULT RATE FELL BELOW 1.5% IN JANUARY 2019 AND
       IS PROJECTED TO HIT JUST 2% BY YEAR-END
                     Projected                                      Downgrade/Upgrade Ratio (Rolling 12-Mo.)
                     LTM Default Rate by issuer count               Rolling 3 Mo.
      3.0%                                               3%   3.0

      2.5%
                                                2%            2.5
      2.0%

      1.5%                                                    2.0

      1.0%
                                                              1.5
      0.5%

      0.0%                                                    1.0
          Jan-17         Jan-18        Jan-19   Jan-20           Jan-17    Jul-17   Jan-18    Jul-18        Jan-19

Source: LCD, S&P Global Market Intelligence.                                                           33
FITCH EXPECTS THE BENIGN DEFAULT ENVIRONMENT TO CONTINUE
     IN 2019, AND THE POTENTIAL FOR THE LOWEST $DEFAULT RATE
     (1.5%) SINCE 2011
                                         2017                2018                    2019 Forecast
      20%
      18%
      16%
      14%
      12%
      10%
       8%                                            7.0%
       6%                                                                                 5.0%
       4%                                4.0%
                         1.0%                                         1.5%
       2%                                                                                            0.5%      0.5%
       0%
                                                   Retail

                                                                    Overall

                                                                                       Telecom
                                 Broadcast
                    Energy

                                                                                                 Services

                                                                                                            Technolo
                                 . & Media

                                                                                                 & Misc.

                                                                                                            gy (13%)
                                                   (5%)
                     (3%)

                                                                                                  (12%)
                                                                                         (6%)
                                    (5%)

                                                            () = Sector Weightings
Source: Fitch U.S. Leveraged Loan Default Index.                                                               34
OVER THE PAST 30 YEARS, LOAN RECOVERY RATES
      AVERAGED 78%
                                                         Average Discounted Recovery Rates (last 30 yrs)
      100%
                  78%
       75%

       50%                                                                            45%

       25%

         0%

Source: LCD, an offering of S&P Global Market Intelligence                                                 35
THE EVOLVING ROLE OF
ADMINISTRATIVE AGENT
LIBOR PHASE-OUT
SURVEYING LIBOR REPLACEMENT
       LANGUAGE IN CREDIT AGREEMENTS
         • Loan market participants have developed an                                        LIBOR AMENDMENT LANGUAGE
           efficient amendment processes to select a                                           IN 2018 LOAN DOCUMENTS
           replacement benchmark in case of LIBOR cessation
         • Typically, the borrower and agent select a new rate
         • In many cases, the required lenders have an
           opportunity to vote via negative consent
         • However, less than 1% of deals explicitly
           contemplated a credit spread adjustment
           (although most arguably allow for such a change)
                                                                                                 No Consent*
       *This group also includes examples in which no lender consent is required for a
                                                                                                 Required Lenders - Negative Consent
       “broadly accepted” successor rate, but a negative consent right is given if no such
       “broadly accepted” rate exists, and the agent and borrower must identify a                Required Lenders - Affirmative Consent
       successor on their own.

Source: Xtract, September                                                                                                              38
THE ARRC CONSULTATION FOR US$ SYNDICATED LOANS
• What are the ARRC’s two proposals?                     • What are the four components of LIBOR fallback
                                                           language?
  o   An “Amendment” approach that is similar to
      the fallback language that has been introduced       o   Trigger – What event precipitates a transition from LIBOR to
      in syndicated loan agreements over the past 15           the new reference rate?
      months.                                                      o   Mandatory Triggers
  o   A “Hardwired” approach that anticipates the                          o   ISDA Triggers
      transition from LIBOR and sets all the terms for                     o   Pre-cessation Triggers
      that transition at the origination of the credit
                                                                   o   Opt-in Triggers - Could reduce the inventory of loans that
      agreement (thus avoiding the need for an
                                                                       would have to be transitioned upon LIBOR cessation, thus
      amendment in most cases). Closely aligned with                   reducing systemic risk
      the proposed fallback language for floating rate
      notes (and other cash products).                     o   Replacement Reference Rate – What is the new reference
                                                               rate for the loan?
                                                           o   Spread Adjustment – Because LIBOR and the replacement
                                                               rate (likely SOFR) are different rates, there may need to be a
                                                               spread adjustment to make them more comparable. What is
                                                               the mechanism to determine that rate?
                                                           o   Amendment Process – Some scenarios require
                                                               amendments

                                                                                                                          39
THERE ARE PROS AND CONS TO EACH APPROACH
               Amendment Approach                       Hardwired Approach

       Terms are not predetermined so may     Avoids amendments (in most cases)
       require many loans to be amended in
       short amount of time
       Does not rely on terms that do not     Predetermined terms means giving up
       currently exist (Term SOFR,            flexibility
       Compounded SOFR)
       Opportunity for winners and losers     Less susceptible to gamesmanship (e.g.
                                              no fallback to Prime based solely off of a
                                              lender vote)
       Similar to what the loan market has    Inclusion will be a bigger change to
       already developed / is familiar with   current practice

       Leverages loans’ unique amendment      More closely aligned with other cash
       flexibility                            products

                                                                                           40
AUDIENCE POLLING QUESTION NO.4
SOFR PREDICTIONS
To date, there have been no reported SOFR syndicated loans. When
will we see a syndicated loan linked to SOFR?

        A. The market is ready – watch this space!
        B. The market will be ready in 2020
        C. Very likely once SOFR-derived rates (e.g. compounded
                average of SOFR) are further developed
        D. Never, unless forward-looking term rates are available

                                                                    41
SPACES TO WATCH…
BREXIT CONSIDERATIONS FOR THE LOAN MARKET

       Bail-in                                Contractual
    recognition                             interpretation
     provisions

                   Loss of financial                             Withholding
                  services passports                            tax on interest

                                                             Withholding tax on
                                    Governing law,                interest
                                   jurisdiction and
                                   enforcement of
                                      judgments

                                                                                  43   43
WHAT ARE THE QUALIFIED FINANCIAL CONTRACT (QFC)
STAY RULES?
• The Federal Reserve, FDIC and OCC adopted the QFC        Covered Entities include:
  Stay Rules in 2017 to improve the reliability and
  resilience of GSIBs.                                         •   U.S. GSIBs and their subsidiaries
                                                                   worldwide and
• The QFC Stay Rules require Covered Entities to include
  contractual language in certain of their qualified           •   U.S. subsidiaries, U.S. branches and
  financial contacts (QFCs) to:                                    U.S. agencies of foreign GSIBs.

   •   mitigate the risk of destabilizing closeouts of     •   For these purposes, a “subsidiary”
       QFCs that could be an impediment to the orderly         generally means a company that is
       resolution of a GSIB and
                                                               owned or controlled directly or
   •   recognize the powers of the FDIC under the              indirectly by a GSIB, using the Bank
       Federal Deposit Insurance Act and Title II of the       Holding Act definition of “control.”
       Dodd-Frank Act (Special Resolution Regimes) to
       transfer QFCs to a bridge institution and
       temporarily stay their closeout.

                                                                                             44
WHAT AGREEMENTS NEED TO COMPLY WITH THE
    REQUIREMENTS OF THE QFC STAY RULES?
•   Only contracts that qualify as “in-scope QFCs” under the        Default Right – The QFC Stay Rules define a
    QFC Stay Rules need to be conformed to the requirements         “default right” broadly to include a right of a party
    of the Rules.                                                   to liquidate, terminate, cancel, rescind, or
•   Generally, an in-scope QFC is a contract                        accelerate an agreement or transactions
    that both:                                                      thereunder, set off or net amounts owed, exercise
                                                                    remedies in respect of collateral or other credit
       •   is a QFC and
                                                                    support, demand payment or delivery, or
       •   explicitly either:                                       suspend, delay, or defer payment or performance.
               •   provides one or more “default
                   rights” that may be exercised                    Transfer restriction – The term “transfer
                   against a Covered Entity or                      restriction” broadly refers to any provision that
               •   includes a “transfer restriction”                prohibits a party from assigning its rights or
                   that restricts the transfer of the               obligations to any other party without the other
                   contract or any interest or                      party’s consent or allows an assignment only to
                   obligation in or under, or any
                   property securing, the contract                  certain types of entities or subject to certain
                   from a Covered Entity.                           conditions.

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QFC STAY RULES – HOW ARE THEY RELEVANT FOR THE LOAN
MARKET?
•   A QFC includes a “swap agreement,”              •   In such case, boilerplate            •   Such agreements may
    which is defined to include not only an             language will need to be                 contain provisions that
    underlying swap agreement but also any              included that recognizes the             would render them "in-
    guarantee, security arrangement or                  FDIC's powers under the                  scope" for purposes of the
    other credit enhancement related to a               Special Resolution Regimes               QFC Stay Rules, such as
    swap agreement.                                     with respect to such QFCs                terms that limit the ability of
•   Syndicated leveraged loan documents                 and acknowledges that there              hedge banks to transfer the
    may include a guarantee or security                 are no cross-default rights              benefit of the credit support
    interest that supports the borrower's               against a Covered Entity with            or their status as secured
    swap obligations to a hedge bank.                   respect to such QFCs.                    parties to an assignee.

               These provisions are similar in some respects to the EU Bail-In language, which has become
               accepted in the market. Both are mandated by regulatory requirements that aim to facilitate the
               orderly resolution of large financial institutions.

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WHAT ELSE SHOULD YOU BE THINKING ABOUT?

• Division of Delaware LLCs
  •   In August 2018 the State of Delaware amended the Delaware Limited Liability
      Company Act to allow any Delaware limited liability company to divide into
      two or more limited liability companies pursuant to a plan of division.
  •   Credit agreements typically restrict mergers, asset sales and similar
      transactions, but most do not currently explicitly contemplate divisions.
      Concern comes out of (i) leakage in negative covenants, especially
      Investments and (ii) the further assurances and additional collateral
      provisions not picking up newly created “divided” companies
• Credit default swaps, net short debt and the loan market
  •   Recent examples: Windstream, UNFI complaint

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2018 WAS “YEAR OF FIRSTS” FOR
    SUSTAINABLE LOANS IN THE AMERICAS
                                                                                                                      •   January 2019: Prologis, a
•   April 2018: Iberdrola        •       June 2018: CMS Energy                                                            warehouses REIT,
    Mexico closes $400M green            closes $1.4B sustainability                                                      refinanced its $3.5B
    term loan to refinance               linked RCF in US; pricing                                                        equivalent global credit
    three wind farms in Mexico           reduced when borrower                                                            facility (and accordion
                                         meets renewable energy                                                           facility to grow by another
                                         generation targets                                                               $1B-equivalent) with
•   April 2018: sPower closes                                                                                             sustainability linked RCF.
    $175M green RCF in US to                                                                                              Pricing partially tied to
    support solar, wind and                                                                                               achievement of certain
    storage activities                                                                                                    sustainable benchmarks.

                                                                          •   June 2018: AVANGRID closes $2.5B        •   March 2019: Xylem, a
                                                                              sustainability linked RCF in US;            water technology company,
                                                                              pricing reduction based on                  closes $800 million
                                                                              borrower’s continuous reduction             sustainability linked RCF
                                     •    April 2018: Terra-Gen closes        of emission intensity (sustainability       revolver tied to overall
                                          $244M green term loan in            indicator independently verified)           company sustainability
                                          US to finance construction of                                                   performance/external ESG
                                          windfarms in CA and TX                                                          rating

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THE LSTA IS COMMITTED TO FACILITATING THE GROWTH
OF SUSTAINABLE LENDING

                                               49
AUDIENCE POLLING QUESTION NO.5
PREDICTIONS FOR THE REMAINDER OF 2019
If we fast-forward to this time next year, what is the most likely event
to occur:

         A.   Supply increases and there’s a technical rebalancing
         B.   Lenders take a stand and refuse to buy loans
         C.   Benign credit cycle ends abruptly
         D.   Geopolitical shock occurs

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