Fannie Mae and Freddie Mac Deadlines are Fast Approaching

As two of the largest participants in the lending market, Fannie Mae and Freddie Mac (the “GSEs”) are busy preparing for the transition away from LIBOR.  Both GSEs have established milestones for beginning acquisition and issuance of SOFR-indexed products and ceasing LIBOR-indexed products.  Below are reminders of important deadlines:

Single-Family (“SF”) ARMs and Securities:

August 3, 2020 Fannie Mae began accepting delivery of SOFR-indexed ARMs.
September 30, 2020 LIBOR applications end. All LIBOR loans must have Application Received Date on or before this date.
November 16, 2020 Freddie Mac will begin accepting delivery of SOFR-indexed ARMs.
December 1, 2020 This the last MBS/Guarantor PC issue date for LIBOR-indexed ARM pools.
December 31, 2020 This is the last date for cash/whole loan purchase of LIBOR-indexed ARMs.

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To Hardwire or Not to Hardwire?

The question is not nearly as existential as the question phrased by William Shakespeare, but it is a significant one in the lending world as the transition from LIBOR to SOFR ideally happens by the middle of next year.  The official answer is easy—hardwired LIBOR transition language is recommended by the ARRC for syndicated loans and bilateral loans.  For diligent lenders, adopting hardwired language is part of a proactive approach to addressing the LIBOR transition process.  By setting the broad parameters of the new rate up front now, the ultimate details of implementing the new rate can be simplified with a notice to the borrower rather than negotiating an amendment in the future when time is short. Our prior Alert discusses the hardwired approach in more detail.

Still, for some lenders there are solid reasons to adopt a wait and see approach and possibly skip the hardwired language.  These lenders are no less diligent in their desire to do the right thing, but the developments in the LIBOR/SOFR transition are starting to accelerate, with major details still unsettled at this point.  Determining how the broad market will handle the transition and keeping a lender’s actions in line with the market without getting ahead of the developments may suggest a more cautious approach.

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Is There Room for AMERIBOR in a SOFR Future?

With the phase out of LIBOR just over a year away and the ARRC having identified the Secured Overnight Financing Rate (SOFR) as its preferred replacement for US dollar loans, it appears that the market has the guidance it needs to make the transition.

Not so fast, say some Main Street banks.  SOFR may work for much of the loan market and particularly larger banks that can borrow on a secured basis. However, this does not represent the reality for many smaller and regional banks, which often can borrow only on an unsecured basis. Using SOFR can lead to a mismatch between the borrowing risk that such banks take and the interest they can earn on their loans.

What are such banks to do?  Some of them have voiced their support for an alternative LIBOR replacement rate―the American Interbank Offered Rate (AMERIBOR).

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A Hot Issue for a Hot Summer: Time to Understand ISDA IBOR Benchmark Fallbacks

As we patiently wait for the International Swaps and Derivatives Association (ISDA) to publish its long planned IBOR Fallback Protocol and IBOR Fallback Supplement for interest rate derivatives, we thought we would highlight some recent announcements on the topic.

According to ISDA’s letter on July 22, 2020 to the Alternative Reference Rates Committee (ARRC), ISDA planned to finalize the Protocol and the Supplement by the end of July.  On July 29, 2020, ISDA announced that it would publish the Protocol “soon”.  This is hardly the first time that things have been delayed, but it’s important to get it right.  Among other things, it’s possible that ISDA is still waiting for a positive business review letter from the US Department of Justice and similar feedback from competition authorities in other jurisdictions.

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For LIBOR Transition Procrastinators, SOFR Starter Kit to the Rescue!

LIBOR is going away.  It was a distant pronouncement in 2017, and many thought it wouldn’t happen, or would get delayed.  But it’s coming.  Soon.  December 31, 2021 may still seem a long way off, but there’s a lot to do between now and then.  Market participants may be forgiven for concentrating on the global pandemic the last few months, but regulators in many arenas have stepped up their efforts in the past month to get the word out on LIBOR transition and get everyone moving forward on the right track.

Following its Summer Series on LIBOR transition, on August 7, 2020, the Alternative Reference Rates Committee of the New York Fed published the SOFR Starter Kit, a set of factsheets to inform the public about the transition away from USD LIBOR to SOFR. The SOFR Starter Kit is intended to ensure market readiness for the transition and help participants in markets using USD LIBOR to quickly familiarize themselves with the background information of, and main issues related to, the transition. The SOFR Starter Kit has three parts:

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Hardwired for a Smoother LIBOR Transition?

The London Interbank Offered Rate (LIBOR), which has served as a reference rate for approximately $350 trillion of debt and derivatives, will be phased out after December 31, 2021. In the United States, the Alternative Reference Rates Committee (ARRC), convened by the Federal Reserve Board and the New York Fed, has been tasked with ensuring a successful transition from USD LIBOR to a more robust reference rate. In June 2017, the ARRC identified the Secured Overnight Financing Rate (SOFR) as its recommended alternative to USD LIBOR. In April 2019, the ARRC first published recommended fallback language for syndicated business loans. At the time, the recommendations provided two approaches: an “amendment approach”―which delays all decisions about the successor rate and adjustment until a future date―and a “hardwired approach”―which hardwires the priority of replacement rates to be selected into the credit agreement upon origination based on what replacement rates are available at the time of replacement and provides for an easier amendment of related terms.

The syndicated lending market has largely adopted the amendment approach so far. In June 2020, however, the ARRC released refreshed recommendations regarding fallback language for U.S. dollar-denominated syndicated business loans that reference LIBOR. Unlike the April 2019 recommendations, the June 2020 recommendations provide only for hardwired fallback provisions. Read on to see how our Alert, published today, can help you discern the differences between the hardwired approach and the amendment approach and determine which works best for you.

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ARRC Pumps Up the Summer Heat on LIBOR Transition

While the COVID-19 pandemic has taken center stage the past few months, the transition away from LIBOR has been continuing in the background, almost unnoticed at times.   Some market participants have questioned whether the disruption caused by COVID-19 will delay the LIBOR transition process.  The proposed timelines have stretched a bit, but regulatory authorities have been adamant that the December 31, 2021 deadline remains firm.

Earlier this month, the Alternative Reference Rates Committee of the New York Federal Reserve (ARRC) began a full court press to make the case for transitioning to SOFR and guide market participants to that goal.  Tom Wipf, the chair of the ARRC, spoke at webinars hosted by the Loan Syndications & Trading Association (LSTA) and the International Swaps and Derivatives Association (ISDA).  The ARRC also kicked off a SOFR Summer Series of webinars open to the public.  The speakers include many top officials and industry leaders, and their insight is invaluable.  There are also lively questions and answers from the moderator and the internet audience.

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The Transition Away from LIBOR Gains Traction

By Joel N. Ephross

The transition from U.S. dollar (USD) LIBOR to a more robust reference rate is a necessity. The UK’s Financial Conduct Authority (FCA) is responsible for regulating LIBOR, and FCA Chief Executive Andrew Bailey has made clear that the publication of LIBOR is not guaranteed beyond 2021, so time is of the essence. Continue reading The Transition Away from LIBOR Gains Traction

Expansion of Main Street Lending Program by Federal Reserve

On June 8, 2020, the Federal Reserve made significant additional changes to the terms of the Main Street Lending Program, aimed at making the program more attractive to small- and mid-sized businesses and to lenders. Changes include decreased minimum loan amounts, increased maximum loan sizes, extended loan terms and deferred principal repayments, among others.

To read the full text of this Duane Morris Alert, please visit the firm website.

Federal Reserve Updates Main Street Lending Program Guidance and Publishes Form Loan Documents

The Federal Reserve Board issued initial guidance regarding its Main Street Lending Program, as authorized under the Coronavirus Economic Stabilization Act (Title IV of the CARES Act), on April 9, 2020, which was modified and supplemented by the frequently asked questions (FAQs) published on April 30, 2020. On May 27, 2020, the Federal Reserve Bank of Boston, which the Federal Reserve System tasked with administering the Main Street Lending Program, released a further updated set of FAQs and published form documentation to assist with the documentation of each loan participation. The new guidance both modified and supplemented the previous guidance issued on the three facilities―the Main Street New Loan Facility, the Main Street Expanded Loan Facility and the Main Street Priority Loan Facility.

To read the full text of this Duane Morris Alert, please visit the firm website.