CURRENT STATE OF THE SYNDICATED LOAN MARKET - LSTA
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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
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
AUDIENCE POLLING – THANK YOU FOR YOUR PARTICIPATION! Connect to WiFi SSID: buslaw_Fasken Password: buslaw19 Open Your Web Browser # ABA2019 Go to slido.com Enter Event Code: #ABA2019 3
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. 45 45
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. 46 46
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 47
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 48
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 50
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