United States: ISDA Proposes Amendments To The 2014 ISDA Credit Derivatives Definitions Relating To Narrowly Tailored Credit Events

On March 6, 2019, the International Swaps and Derivatives Association (ISDA) published proposed amendments ¹ to the 2014 ISDA Credit Derivatives Definitions ² relating to so-called narrowly tailored credit events (NTCEs). ISDA describes an NTCE as an arrangement with a corporation which causes a credit event that results in settlement of credit default swap (CDS) contracts while having minimal impact on the corporation, although its proposed amendments relate only to "Failure To Pay" credit events. The amendments would, if adopted and when applicable to relevant credit derivatives transactions, require a subjective determination that a failure to pay credit event resulted from or resulted in a deterioration in the creditworthiness or financial condition of the reference entity. This requirement would mark a significant departure from current practice. If adopted, it is expected that market participants will use the amended definition for new CDS contracts and that, in due course, a market protocol will provide market participants the opportunity to apply the amended definition to existing credit derivative transactions.

The proposal comes in the wake of concerns raised by market participants over certain failure to pay credit events, or claimed failure to pay credit events, that have occurred in recent years. In particular, most recently, the 2017 agreement by Hovnanian Enterprises to default on an interest payment to an affiliate in order to obtain favorable refinancing terms from GSO Partners received significant attention. Under CDS contracts with Solus Alternative Asset Management LP, GSO would be paid out upon Hovnanian's default if such default was considered a failure to pay credit event. Solus sought an injunction to block the arrangement, which was denied, and followed with an action accusing Hovnanian and GSO of market manipulation under Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. ³ The matter was ultimately settled in a manner that allowed Hovnanian to make the interest payment upon which it defaulted prior to the expiration of the grace period, such that a failure to pay credit event would not be triggered in the CDS contracts. ⁴

Prior to the settlement, both the Commodity Futures Trading Commission (CFTC) and ISDA board of directors released statements generally criticizing arrangements that appear to involve intentional or "manufactured" credit events. ⁵ The CFTC stated these may constitute market manipulation and could damage the integrity of CDS markets. The ISDA board of directors stated that it intended to consider amendments to the ISDA Credit Derivatives Definitions to address such situations.

The ISDA working group expressed concern that NTCEs can create incentives for a corporation and protection buyers under a CDS contract referencing that corporation to "engineer" a payment default inconsistent with the "normal incentives of borrowers and lenders." ISDA, as well as other market participants, have noted that it is difficult to devise a definition of NTCE that is comprehensive, objective and not subject to the risk of "gaming" or abuse. The proposal takes the position, however, that a distinguishing feature of an NTCE is that it is not the result of and will not result in a deterioration in creditworthiness or financial condition of the reference entity.

Proposed Amendments

To address the concerns described above, the working group is proposing to amend the definition of "Failure to Pay" to include a requirement (which can be applied by protocol adherence and so stating in the trade confirmation) that the failure to pay resulted from, or results in, a deterioration in the creditworthiness or financial condition of the reference entity.

Specifically, the definition of "Failure to Pay" in Section 4.5 of the 2014 Credit Derivatives Definitions would be amended as follows (with the underlined text to be added): 

ISDA has also prepared proposed guidance on the interpretation of the credit deterioration requirement. The guidance assumes that the relevant Credit Derivatives Determinations Committee (DC) or External Review Panel would make the determination of whether an event constitutes a Failure to Pay; however, the principles are intended to apply even if interpretation is made on a bilateral basis.

Notably, the DC may consider eligible information available to it at the time of its determination and is not obliged to conduct further investigation. The DC may presume the credit deterioration requirement is met in the absence of eligible information to the contrary. The guidance notes that there must be a causal link between non-payment and creditworthiness deterioration such that either the creditworthiness deterioration causes the non-payment or the non-payment causes the creditworthiness deterioration.

Information that would tend to indicate that the credit deterioration requirement has not been met includes, but is not limited to:

• Non-payment that results from an arrangement with the reference entity whereby the essential purpose is to benefit under a credit derivatives transaction through triggering a credit event through such non-payment;
• Non-payment that did not accelerate the reference entity's other debt obligations or cause them to become capable of being accelerated;
• The reference entity has access to sufficient liquidity to pay its debts and no eligible information suggested non-payment had a technical, administrative or operational cause;
• Non-payment is promptly cured following the relevant grace period; or
• Non-payment only relates to debt unlikely to be accelerated or subject to enforcement.

The guidance also listed the following information that would tend to indicate that the credit deterioration requirement has been satisfied:

• The reference entity announces that it is in financial distress or eligible information indicates that the reference entity was in financial distress and/or considering restructuring its debts;
• Non-payment is due to a creditor process overseen by a court or independent insolvency official;
• Non-payment relates to debt obligations held by numerous parties;
• Non-payment results from the reference entity being unable to refinance;
• Non-payment occurs on a payment date scheduled under the terms of the debt obligation at the time it was incurred, or, if amended, was scheduled well before the non-payment date;
• Other reference entity debt obligations are accelerated or becoming capable of acceleration; or
• The reference entity fails to pay other debt obligations and/or is subject to a bankruptcy event.

The guidance further states that if a reference entity enters into a forbearance, standstill or other similar arrangement with its creditors for bona fide commercial purposes due to a deterioration in creditworthiness or financial condition, this would likely satisfy the credit determination requirement. Also, if a reference entity enters into an arrangement or understanding with creditors, who have hedged their exposure to the reference entity through credit derivatives that includes a failure to pay, with the purpose of causing settlement of such derivatives so as to increase the likelihood of a successful bona fide restructuring, this would generally be considered to have the essential purpose of facilitating restructuring rather than creating a benefit under the credit derivative transaction.

The proposal also makes an unrelated additional amendment to the description of the calculation of "Outstanding Principal Balance" such that the applicable laws to be considered in determining the Quantum of the Claim component of such balance must include any bankruptcy or insolvency law affecting creditors' rights to which the relevant obligation is, or may become, subject.

ISDA has sought comment from market participants on the amendment. ISDA has also stated that it is discussing the proposal with relevant regulators, who may have views on the amendment in light of the concerns previously raised by the CFTC and others concerning intentional or manufactured credit events.

If ISDA and market participants determine to move forward with the amendment, it is expected that it would be incorporated into new standard CDS transactions (through an amendment to the CDS Physical Settlement Matrix) and existing transactions (through an ISDA protocol to which market participants could adhere).

Footnotes

1 See, ISDA, "Proposed Amendments to the 2014 ISDA Credit Derivatives Definitions Relating to Narrowly Tailored Credit Events" (Mar. 6, 2019).

2 See ISDA, "2014 ISDA Credit Derivatives Definitions" (Jun. 30, 2014).

3 Solus Alternative Asset Management LP, v. GSO Capital Partners L.P., Hovnanian Enterprises, Inc., et al. Case No. 18-CV-00232-LTS-BCM, Docket No. 69 (Jan. 29, 2018).

4 See Andrew Scurria, "Blackstone Stands Down on Hovnanian Swaps Wager", The Wall Street Journal (May 30, 2018).

5 See ISDA, "ISDA Board Statement on Narrowly Tailored Credit Events" (Apr. 11, 2018); and CFTC, "Statement on Manufactured Credit Events by CFTC Divisions of Clearing and Risk, Market Oversight, and Swap Dealer and Intermediary Oversight" (Apr. 24, 2018).

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