Economics 04/11/2009: NAMA's first falls in the land of legal finance

International Swaps and Derivatives Association (ISDA) has issued an interesting opinion on Nama worth a read. Here are the main points (mind the legalese):

“…from an international perspective, a particular aspect of the NAMA Bill that has the potential to have a significant adverse effect on the transaction by participating institutions ...of domestic and cross-border financial transactions, including privately negotiated or “over-the-counter” (OTC) derivative transactions (“Relevant Transactions”).

ISDA’s main concern focuses on partial nature of property transfers under Nama.

“We note that ...the fact that the NAMA Bill envisages that partial property transfers – [i.e transfer of of some, but not all, of a participating institution’s rights and obligations arising under a Protected Arrangement, an arrangement with third parties legally protected under the international, Irish, UK, US or other national laws] - may be effected raises a significant risk of legal uncertainty for Protected Arrangements.” [In other words, what might be kosher for the Irish authorities under Nama might be violating international legal rights and obligations of parties related to Nama-impacted loans]

“If some, but not all, of such rights and obligations were “cherry-picked” for transfer pursuant to the NAMA Bill, the net position of that participating institution’s counterparty (and, indeed, of that participating institution) would be disrupted notwithstanding the provisions of Section 213” [of Nama legislative proposal].

“...During the UK consultations [on bailout packages] industry put particular emphasis on the possibility that the stabilisation measures provided for in the UK Banking Act 2009, which included a partial property transfer power (the power to effect a transfer of some but not all of the property, rights and liabilities of an affected UK institution), could be used to "cherry-pick" transactions, or even parts of transactions, under a netting arrangement, or otherwise disrupt the mutuality of obligations under a netting or set-off agreement... It is notable that, in the UK context, the validity of the industry concern in this regard was always acknowledged by the relevant authorities (HM Treasury, the Bank of England and the Financial Services Authority), so that the consultation process, in this regard, focused on how best to structure the relevant protections.” [This of course is not the case with Irish Nama case]

“As you are probably aware, the relevant protections were set out in Article 3(1) of The Banking Act 2009 (Restriction of Partial Property Transfers) Order 2009, as amended by The Banking Act 2009 (Restriction of Partial Property Transfers) (Amendment) Order 2009. Article 3(1) provides that a partial property transfer, within the meaning of the legislation, may not provide for the transfer of some, but not all, of the "protected rights and liabilities" between the affected UK institution and a third party under a "netting agreement". [Once more, in Nama case, no due diligence was even performed in this area – it appears from the note by ISDA that the Irish authorities have totally failed to consider the impact of Nama transfers on third parties]


So what does this mean for participating institutions and their counterparties?

“Risk management policies of parties to Relevant Transactions tend to require such parties to monitor credit exposure to counterparties under Relevant Transactions and, where relevant, put in place appropriate risk-reducing close-out netting and collateral arrangements. In the case of a party that is subject to prudential supervision (such as an Irish or foreign bank), whether it can treat its exposure to a Relevant Transactions counterparty as net, and take related collateral arrangements into account for risk reducing purposes, will also be key to the level of capital that the party is required to allocate to Relevant Transactions with that counterparty.” [So standard legal framework requires third parties to hedge risk vis-à-vis Nama-impacted institutions, but this process is at risk under Nama partial transfers. Which implies that Nama actions will spill over to third parties outside Nama jurisdiction. The legal bonanza that will be Nama is now risking crossing many borders…]

“A supervised institution will not be able to recognise close-out netting or a related collateral arrangement unless it can satisfy its supervisor that the close-out netting or collateral arrangement is enforceable with a high degree of legal certainty and with no unduly restrictive assumptions or material qualifications.” [This is the crux of the argument – if Nama will only partially impact security of collateral, this partiality will imply that counterparties to Irish banks’ transactions will not be able to properly assess the security of collateral held by the banks and in cases where such security is jointly held by an Irish institution and a non-Irish one, there will be no means for assessing the risks incurred by non-Irish institutions due to Nama take over of the loans or underlying collateral titles. Nama, therefore, will risk inducing new risk on unrelated institutions.]

Absent Nama “such opinions can be obtained in respect of potential [Nama-]participating institutions in respect of many industry close-out netting and collateral agreements. If the position in this regard were to change [a change which will be triggered by Nama coming into force], the commercial and financial implications for potential participating institutions and their counterparties to Relevant Transactions would be severe in that:

(a) supervised institutions [aka all non-Irish banks and credit providers] would be constrained in their ability to extend credit, or otherwise incur exposures, to participating institutions;

(b) supervised participating institutions themselves would find their own ability to conduct business constrained by much heavier capital requirements and their access generally to liquidity would be impaired”. [In other words, Nama will mean that participating banks will have to pay a heavy premium in terms of capital provisions due to the Nama-induced deterioration of their own collateral rights].

“…a concern remains that a [Nama-]participating institution’s counterparty’s net exposure could be disrupted by a partial property transfer of the type outlined [above]. If such a partial transfer of a bank asset by a participating institution to NAMA or a NAMA group entity occurred (or by NAMA or a NAMA group entity to a third party) occurs, the fact that the participating institution’s counterparty may terminate the agreement with the participating institution and enforce the close-out netting and collateral provisions will not provide comfort [at the immediate and massive cost to the Irish banks participating in Nama] if, as a result of the transfer, the transactions the subject of the netting/collateral arrangement have changed so that its net exposure differs from that which would have pertained but for the partial transfer.”

So, ISDA “strongly recommends that safeguards be introduced to the NAMA Bill to ensure that a Protected Arrangement may only be transferred as a whole under the NAMA Bill, or not at all, and that individual rights and obligations under the Protected Arrangement should not be vulnerable to cherrypicking.”

[In effect this will severely restrict two aspects of Nama operations:

1. this provision will increase the share of non-performing loans in the overall take up of loans by Nama, putting more pressure on Nama bottom line; and
2. this provision will also mean that some of the most toxic loans (with complex collateral rights, significant redrawing of covenants in the past, and/or substantial cross collateralization) will either have to be left with the banks as a whole or bought into Nama as a whole.]
   

But ISDA has expressed another concern: “An additional issue of concern to us is the proposal that, after acquisition of a bank asset by NAMA, …NAMA may change a term or condition of that bank asset where it is of the view that it is no longer reasonably practicable to operate that term or condition. ...the absence of legal certainty that would arise from this unilateral right to amend other contractual terms of Relevant Transactions – particularly when taken together with the provisions of Section 107 of the NAMA Bill – seems likely to have a negative impact on the ability of participating institutions to transact Relevant Transactions.” [In other words, if Nama is to have serious teeth in changing the terms and conditions of loans, it will risk freezing the entire future ability of the Irish banks to have meaningful access to international counterparties.]

[If anyone thinks things are tough in Irish financial markets now, wait till these aspect of Nama as an entity operating outside international norms and regulations come to play…]