FAQ: USD LIBOR transition to SOFR
- January 27, 2021
Private Equity | Kennett Square, PA
Global Head of Hedge Accounting
Kennett Square, PA
Real Estate | Kennett Square, PA
Hedging and Capital Markets
Real Estate | Kennett Square, PA
SummaryUSD markets started transitioning from LIBOR to SOFR in 2017 after the FCA announced that LIBOR was at risk of discontinuation at the end of 2021. Chatham’s experts answer the most pressing questions asked by our clients about how the transition will affect their port.
In July 2017, the UK Financial Conduct Authority (FCA) announced that it would no longer require banks to submit cost of funds quotes to support calculating LIBOR, calling into question LIBOR’s viability and availability past 2021. LIBOR underlies hundreds of trillions of dollars in financial instruments, including loans and derivatives, and three years later, the idea of transitioning to a new rate continues to raise many questions among our clients and industry partners.
Chatham has been active in the LIBOR transition, representing end users before the key players identified below, to ensure as smooth a transition as possible from their perspective. These are some of the LIBOR transition-related questions we receive most often. You can find more information in our LIBOR transition resource stream.
- Who are the key players in LIBOR transition?
- When is LIBOR going away, and what are some of the key milestones between now and then?
- When do commercial real estate lenders, including Freddie Mac and Fannie Mae, plan to stop lending based on LIBOR?
- What is SOFR, and how is it different from LIBOR?
- How does Fed involvement in the Treasury repo markets affect SOFR?
- What are some of the key challenges facing SOFR adoption (i.e., lack of term structure, alternative rates)?
- What is term SOFR?
- What is the role of a SOFR curve?
- Can I buy a SOFR cap today?
Transition of existing loans and derivatives
- What are the main issues that must be addressed in transitioning a loan or derivative from LIBOR to SOFR?
- How are fallback triggers, rates, and spread adjustments addressed in loan and derivative documents?
- What happens to my existing LIBOR cap or swap once LIBOR goes away?
- How do I document my loan and derivative so they convert from LIBOR to SOFR at the same time? What risks do I take today when closing or hedging a LIBOR loan?
- How has accounting guidance evolved to accommodate LIBOR transition?
- How will designated hedges be impacted?
- How will debt and loans be impacted?
- How will other contracts with embedded derivatives be impacted?
- How has the SEC addressed disclosure requirements?
Basics of transition
Questions around the viability of LIBOR first arose from the LIBOR manipulation scandals that came to light beginning in 2007, though allegations of manipulation date back to the 1990s. In light of this manipulation, global regulators and policymakers engaged in a concerted effort to identify more robust alternatives. Some of the key players in the transition include:
Alternative Reference Rates Committee (ARRC): the ARRC is a private-public partnership convened in 2014 by the Federal Reserve Board of Governors (the Fed) and the Federal Reserve Bank of New York (New York Fed) to ensure a successful transition from USD LIBOR to a more robust reference rate. Chatham has responded to ARRC’s public LIBOR transition consultations and participates in ARRC working groups.
Central Clearing Parties (CCPs): LCH and the Chicago Mercantile Exchange (CME) clear a significant portion of global interest rate derivatives. As part of the ARRC’s Paced Transition Plan to increase SOFR trading, in October 2020, CME and LCH converted discounting and collateral of USD interest rate swap products from EFFR to SOFR. How the CCPs handle fallbacks will also have a significant impact on a large percentage of IBOR trades.
Commodity Futures Trading Commission (CFTC): the CFTC regulates U.S. futures and over-the-counter (OTC) derivatives markets, which comprise over $300 trillion in LIBOR-linked transactions. Chatham is a member of the CFTC’s Market Risk Advisory Committee and its Interest Rate Benchmark Reform Subcommittee.
Financial Accounting Standards Board (FASB): the FASB is an independent, private-sector non-profit that establishes financial accounting and reporting standards for GAAP filers. Chatham has consulted with the FASB regarding the LIBOR transition and the related accounting standard, ASC 848.
Financial Conduct Authority (FCA): the UK FCA regulates the Intercontinental Exchange (ICE), the LIBOR administrator.
International Organization of Securities Commissions (IOSCO): IOSCO regulates and sets standards for the global securities sector. In 2013, IOSCO released its Final Report on Principles for Financial Benchmarks, establishing guidance that the ARRC and other global standard setters have utilized in selecting replacement rates as the market transitions from LIBOR and similar rates.
International Swaps and Derivatives Association (ISDA): ISDA exists to foster safe and efficient derivatives markets and is focused on a smooth LIBOR transition in derivatives, including by drafting forms of documents informed by public feedback. Chatham is an ISDA member and has responded to ISDA’s public LIBOR transition consultations, additionally participating in LIBOR transition working groups.
The nature of these players’ involvement in the transition has evolved. For example, in March 2020, the ARRC proposed a New York state legislative proposal to amend financial contracts that lack adequate fallback language, both to address existing agreements where transition may be challenging (e.g., bonds that require 100% of bondholders to consent to transaction), as well as to minimize adverse economic outcomes in transition. In October 2020, New York State Senator Kevin Thomas introduced a similar bill in the New York State Senate (Senate Bill S9070), as further detailed in our transition market brief.
Similarly, in June 2020, the UK Parliament announced its intentions to legislate to amend and strengthen the existing regulatory framework surrounding critical benchmarks such as LIBOR. The legislation imbued the FCA with the regulatory powers to enforce the LIBOR transition. The FCA is currently consulting on the use of its new powers to regulate use of LIBOR in transactions and to modify the methodology of how LIBOR is calculated. (Back to top)
There is no concrete date set for the LIBOR transition. In July 2017, the FCA announced that LIBOR is at risk of discontinuation after the end of 2021; however, in November 2020, the FCA announced its support of the extension of LIBOR through June 2023, with contemporaneous announcements by U.S. bank regulators suggesting that new loans cease to reference LIBOR after December 31, 2021. Some recent notable milestones in the transition include:
- Legislative and regulatory response: On November 30, 2020, the ICE Benchmark Administration (IBA) announced a December consultation on its intention to continue the publication of one-month LIBOR through June 30, 2023, allowing most legacy USD LIBOR contracts to mature, rather than need to convert.
- Immediately thereafter, the FCA, ARRC, ISDA, and Prudential Regulators (Fed, FDIC, OCC) publicly supported the consultation and idea of an extension. Notably, the U.S. Prudential Regulators also encouraged banks to cease entering into new LIBOR-based contracts by or before the end of 2021. This has led to discussion of syndicated loans with the ARRC’s hardwired “early opt-in” language for syndicated loans, which could allow lenders to transition LIBOR-based contracts if a specified number of USD syndicated loans reference SOFR. This could lead to LIBOR-based loans transitioning between December 31, 2021 (or even sooner, depending on how rapidly the SOFR market develops) and June 30, 2023, which may be attractive to banks, depending on any other steps that regulators might take to encourage them to transition as much of their LIBOR-based portfolio as possible in the near term.
- Prior to that, on October 28, 2020, a New York state senator introduced a bill to address LIBOR transition in “tough legacy” contracts that otherwise could not be updated to include adequate LIBOR transition language. Federal legislators are drafting a bill that would provide similar relief and create a safe harbor from litigation in certain instances where the interest rate associated with a financial contract is changed, upon LIBOR being unavailable, to SOFR. If passed, this federal bill would modify the fallback language in existing financial contracts to allow for SOFR adoption.
- Updated ISDA documentation: on October 23, 2020, ISDA published its IBOR Fallbacks Protocol (the Protocol) and related updates to the 2006 ISDA Definitions, with an effective date of January 25, 2021, to better accommodate permanent cessation of LIBOR. The Protocol is designed to facilitate an efficient transition of existing derivatives. Any derivative executed on or after the effective date that incorporates the 2006 ISDA Definitions will automatically incorporate these changes without need for the Protocol. Read our ISDA's IBOR Fallbacks Protocol FAQ.
- Clearinghouse “big bang:” on October 16, 2020, LCH and CME, the largest central clearinghouses, began using SOFR, rather than Fed Funds, for purposes of valuing positions and collateral held against them. This discounting switch is a pivotal step in the Alternative Reference Rates Committee's (ARRC) Paced Transition Plan for developing SOFR markets and marks a major milestone in the eventual discontinuation of USD LIBOR, similar to changes CME and LCH made for EUR cleared swaps in July 2020.
- On October 9, 2020, the Internal Revenue Service issued Revenue Procedures (“Rev Proc”) 2020-44, which provides guidance on the application of modifications to financial instruments as part of ISDA or ARRC fallbacks. The Rev Proc describes the tax treatment of contract modifications related to applying ARRC contract fallback language or adhering to the ISDA Protocol.
- At the FASB Board meeting on December 9, 2020, the Board and Staff discussed that they would consider the need to change the sunset date of topic 848 after they are able to evaluate the results of the IBA consultation. In addition, they also approved moving forward with Topic 848 scope clarifications, which will be issued in January and can be applied retrospectively. The clarifications will provide some benefits to trades impacted by the discounting transition at the clearing houses that were not originally in the scope of Topic 848 (e.g. Fed Funds swaps) and will provide benefit to receive variable rate/pay variable rate cross currency swaps designated as net investment hedges where the variable indexes may change at different time.
When do commercial real estate lenders, including Freddie Mac and Fannie Mae, plan to stop lending based on LIBOR?
Fannie Mae and Freddie Mac no longer accept LIBOR-based loan applications and stopped purchasing LIBOR-based loans at the end of 2020. The first SOFR-based Freddie Mac loan was originated in September 2020, and Chatham assisted the borrower in purchasing the required SOFR cap. To date, other popular floating-rate lenders (e.g., global investment banks, regional and community banks, non-bank lenders, insurance companies) have not established any clear time frames for transition. (Back to top)
In June 2017, the ARRC identified SOFR as the presumptive replacement rate for USD LIBOR. The New York Fed calculates SOFR by taking the volume-weighted median of transaction-level data from three sources: 1) tri-party repo data, 2) GCF Repo (General Collateral Finance repurchase agreements) transaction data and 3) bilateral Treasury repo transactions cleared through FICC’s DVP Service (Fixed Income Clearing Corporation’s Delivery vs. Payment Service).
A primary attraction for regulators is that, unlike LIBOR, SOFR is fully transaction based and therefore less susceptible to market manipulation. There are approximately $900 billion of actual market transactions supporting the daily calculation of SOFR. Conversely, USD LIBOR relies primarily on expert judgment of the LIBOR panel’s submissions to calculate this rate. The most actively traded USD LIBOR tenor is three months, and less than $1 billion of transactions typically support the calculation of this rate each business day, particularly in the current COVID-19 environment. There is a much more robust market supporting the calculation of SOFR.
The Fed plays a significant role in setting SOFR and LIBOR rates. Both SOFR and LIBOR react to Fed monetary policy and target rates although in different ways. LIBOR is forward looking and anticipates upcoming Fed rate changes. As we approach the date of the anticipated rate change, LIBOR will drift closer and closer to the new expected rate. In comparison, SOFR is a historic overnight rate. SOFR reacts to the Fed rate change by jumping in value after the fact.
While the New York Fed publishes spot SOFR daily, market convention is developing such that these daily settings will be compounded (commonly in arrears, though in advance for certain key segments of the market — notably, agency Freddie ARMs and Fannie SARMs) or averaged.
SOFR is a measure of the overnight cost of financing U.S. Treasury securities in the repurchase agreement (repo) market. The SOFR rate is an average of the market transactions from bilateral trading (trimmed to exclude certain transactions using high-demand “on special” collateral) and the tri-party repo market. The dynamics driving pricing, volatility and risk in the U.S. Treasury repo market are therefore the same as those driving SOFR levels.
The Fed’s Federal Open Market Committee is responsible for periodically setting targets for several key interest rates, enforced through open market operations. The New York Fed conducts both repo transactions and reverse repo transactions in the tri-party repo market to manage the level of reserves in the banking system to further support the transmission of monetary policy to the economy. In a repo transaction the NY Fed is a lender, providing reserves to Primary Dealers in what equates to a collateralized loan. In a reverse repo the NY Fed reduces reserves by effectively borrowing funds from the market. The Fed’s involvement in the repo markets, meant to ensure an orderly and liquid market, influences the SOFR rate by effectively setting both a floor and a ceiling on repo rates. When the Fed lends funds via repo, they implicitly provide an avenue for primary dealers to convert their Treasury and MBS holdings to reserves. This lending can act as a backstop, encouraging those dealers to lend out reserves to other market participants and helping to ensure that repo rates don’t rise above the Fed’s targets. When the Fed borrows funds via reverse repo transactions they provide an alternative means for market participants to earn interest on their excess cash, which by design, keeps the Fed Funds rate from falling below the lower bound of the Federal Reserve’s target.
SOFR has set between 1.5 and ten basis points since April 2020. Market uncertainty with respect to future Fed actions may introduce additional volatility to Treasury repo rates and SOFR. (Back to top)
What are some of the key challenges facing SOFR adoption (i.e., lack of term structure, alternative rates)?
The fact that SOFR is an overnight, secured, risk-free rate, as compared with LIBOR, an unsecured, forward-looking term rate, gives rise to challenges for the market to overcome.
- Lack of term structure: One of the key challenges facing SOFR adoption is the lack of a forward-looking term structure for SOFR, unlike the LIBOR market, which includes several tenors (e.g., one-month, three-month, etc.). There are three general approaches to handle the term structure issue.
- For swaps, SOFR is commonly compound in arrears (i.e., backward-looking, compounding each setting over the course of the period) and presents challenges from an operational perspective because the parties won’t know the SOFR compounded rate until the day after the period ends, when they know the final SOFR setting needed to compound all of the daily rates. This operational challenge also affects cash management, as there is less time to provide notices and process payments, which could lead to late or missed interest payments.
- Compound in advance rates compound daily SOFR settings from the previous period. Because these compound rates are known at the beginning of the interest period, payments are known further in advance of the payment date easing the operational challenges compared to compound in arrears. In early 2020, the Fed began publishing 30-, 60-, and 90-day SOFR compound in advance averages to help with bank system constraints around independently calculating compounded in arrears rates. Freddie Mac and Fannie Mae currently are in process of switching to the Fed’s SOFR averages in their loans. One issue with this rate is that it is inherently backwards looking and so does not align with the current interest period. This misalignment on average becomes small for long maturity products.
- We expect forward-looking term SOFR to develop eventually. On September 10, 2020, the ARRC released an RFP seeking a potential administrator to publish forward-looking SOFR term rates. More details are included in the term SOFR section below.
- Lack of credit sensitivity: Another key challenge is that some market participants — notably U.S. regional and community banks and financial institutions — have argued that SOFR does not reflect a typical bank’s borrowing or funding costs nearly as accurately as LIBOR because SOFR is a risk-free rate (RFR) that lacks credit sensitivity. Their concern is that SOFR potentially could reduce the availability of credit under market stress, and in response, others in the market have designed alternative rates to better reflect banks’ and financial institutions’ borrowing costs, including:
- American Interbank Offered Rate (AMERIBOR): published by the American Financial Exchange (AFX), an electronic exchange for over 1,000 U.S. banks and financial institutions, AMERIBOR is designed to reflect these banks’ and financial institutions’ actual unsecured borrowing costs, calculated each day based on the average interest AFX users charge one another for unsecured overnight loans
- The ICE Bank Yield Index (BYI): published by ICE Benchmark Administration, the current LIBOR administrator, this index is designed to sit atop the implied term SOFR curve and serve as a measure of the average cost of funds for large international banks borrowing U.S. dollars for 1, 3 and 6-month tenors on an unsecured basis
- IHS Markit dynamic credit spread: published by IHS Markit, a conglomerate of data providers, this also is designed to sit atop SOFR and will be constructed using Markit’s proprietary credit reference data, including over three-million daily price quotes on credit default swap rates
- Tradeweb/IBA constant maturity Treasury (CMT) rate: published by Tradeweb, an electronic trading network, and IBA, this tracks the volume-weighted average price of on-the-run US Treasury bills, notes, and bonds executed on Tradeweb’s dealer-to-client platform
- Bloomberg short-term bank index (BSBY): this is another spread designed to reflect the marginal cost of bank funding and layered on top of SOFR and built from aggregated data in the markets underlying LIBOR (e.g., commercial paper, CDs, dollar bank deposits)
More generally, challenges remain in the areas of accounting, tax, and legal, and regulators and standard setters continue to work to address them. (Back to top)
Creation of SOFR term rates is the final step in the ARRC’s paced transition plan. Term SOFR refers to a forward looking SOFR rate that covers a period longer than a business day, for example 1/3/6/12 months periods.
While LIBOR rates are based on term lending, SOFR instruments such as SOFR OIS swaps and futures are needed to build the SOFR forward term structure. The Fed has already begun considering proposals for term SOFR rates to be published in the first half of 2021 if liquidity is sufficient. For example, the SOFR values could be calculated from SOFR OIS swap quotes until swap trade execution becomes more robust.
Use of term SOFR is expected to be restricted to certain segments of the cash market so as to limit fragmentation of the SOFR market. The development of term SOFR derivative products would be problematic as this could limit the use of the SOFR OIS swaps needed to build the term rate in the first place. (Back to top)
The SOFR curve is a key component of pricing and discounting of SOFR financial contracts. As discussed above, SOFR payments are averages of SOFR daily rates. To value future SOFR payments, and also to discount payments of other rates, a SOFR forward curve is needed. A SOFR curve can be used for both compound in arrears and compound in advance payments. For example, a SOFR curve was needed to properly handle the mid-October 2020 discounting switch from EFFR to SOFR at the clearing houses. The same SOFR curve can also be used to help value OIS SOFR swaps and compound in advance SOFR caps. (Back to top)
Can I buy a SOFR cap today?
Cap provider banks have indicated that they currently can or soon will be able to offer caps and other interest rate derivatives, though spreads initially will be wide because of the lack of a liquid market. In fact, ISDA continues to highlight there is more work to do regarding non-linear products like caps and has formed an IBOR transition working group specifically tasked with thinking through implementation challenges related to non-linear products. (Back to top)
Transition of existing loans and derivatives
What are the main issues that must be addressed in transitioning a loan or derivative from LIBOR to SOFR?
The main issues in transitioning a given loan or derivative are:
- Fallback triggers: what will give rise to a transition from LIBOR?
- Fallback rates: what rate will replace LIBOR?
- Spread adjustment: how will the loan spread and derivative economics be adjusted to reflect any difference between LIBOR and its replacement rate? (Back to top)
How are fallback triggers, rates, and spread adjustments addressed in loan and derivative documents?
The ARRC has prepared a series of recommendations and draft documents to address these questions for loans, as has ISDA in derivatives. They generally are aligned — with some notable differences — and address these issues as follows:
- Fallback triggers
- Cessation: public statements indicative of permanent discontinuation
- Pre-cessation: declaration that LIBOR is no longer representative, insufficient number of dealers providing quotes, et al.
- Fallback rates - this is one area in which the ARRC and ISDA are not entirely aligned
- ARRC: waterfall of term SOFR (if it exists), followed by Daily Simple SOFR, followed by an endorsed benchmark rate
- ISDA: SOFR compounded in arrears
- Spread adjustment: five-year median historical spread shifted by adding two banking days relative to the LIBOR period
With that, we’ve seen a variety of approaches across various types of lenders (e.g., global investment banks, regional and community banks, non-bank lenders, Freddie Mac and Fannie Mae), and many of these approaches have evolved and continue to evolve over time, meaning that a given lender’s transition language may look different in new or amended loans now, even as compared with how the same lender’s language looked one or two years ago.
There are two broad approaches to addressing these issues in loan documents.
- Hardwired approach: Some in the market use loan fallback language that includes a specific rate, index, or the determination (or future determination) of a substitute rate by a specific committee or organization (such as the Fed, the ARRC, or ISDA). The ARRC recommended SOFR as its preferred substitute rate and released its “hardwired approach” to fallback language for syndicated loans (updated June 2020). This fallback language uses a decision waterfall based on SOFR to determine the substitute rate and supports the ARRC’s recommendation that syndicated loans begin using hardwired fallback language by the end of Q3 2020.
- Amendment approach: Others prefer to retain flexibility in their loans and include language incorporating whatever fallback rates are ultimately adopted by the marketplace. In April 2019, the ARRC released its “amendment approach” to fallback language for syndicated loans, allowing flexibility for loan parties to agree on the selection of a substitute rate and amend their existing documentation accordingly.
The ARRC’s recommendations are not mandatory, and most lenders have their own preferred form of LIBOR transition language. This language also has evolved over time, such that a given lender’s preferred form of transition language probably looks different now than it did a year ago. However, over the past six months, Chatham has begun seeing more lenders begin to incorporate either the ARRC hardwired approach verbatim or a modified version thereof.
On the derivatives side, ISDA solicited public feedback and published its IBOR Fallbacks Protocol (the Protocol) and related Fallbacks Supplement to the 2006 ISDA Definitions, with an effective date of January 25, 2021, to better accommodate permanent cessation of LIBOR. The Protocol is designed to facilitate an efficient transition of existing derivatives. Any derivative executed on or after the effective date that incorporates the 2006 ISDA Definitions will automatically incorporate these changes without need for the Protocol. (Back to top)
In the event of LIBOR’s discontinuation, ISDA’s existing benchmark fallback language, which contemplates temporary unavailability, rather than wholesale discontinuation/replacement, calls for the parties to request and average quotes from a group of banks; but in that scenario, it is likely that most banks would be unwilling to provide a quote on a permanently discontinued rate. This is one of the reasons that ISDA is undergoing a process to revise its definitions to include more robust fallback language. To the extent that the updated fallback methodology is incorporated into the terms of the existing trade, once fallback is triggered, the derivative will be updated to begin referencing the new fallback rate (e.g., SOFR). If an entity does not incorporate the revised ISDA definitions into the terms of its derivative, it remains to be seen how this will play out in practice. It is unclear what will happen if an entity does not, or refuses, to incorporate the updated fallback methodology into the terms of its transaction.
Chatham expects the majority of the market to use SOFR compounded in arrears, with a lookback to the SOFR from two days earlier, for the derivatives fallback rate. Unfortunately, it’s too early to tell how the volatility markets will develop; data necessary to calculate volatility and convexity isn’t readily available given how new SOFR is. Nearly all the regulators’ focus at this stage has been on determining rates and calculating payments, as compared with related issues like volatility markets. This presents challenges not only for caps but also for calculating XVA (Credit Valuation Adjustments, Debit Value Adjustments, Funding Value Adjustments, etc.) on other products like swaps. CME began offering SOFR options on 3-month SOFR futures earlier this year. The availability of option products will allow for volatility markets to develop. (Back to top)
One significant open question is whether loans and hedges can convert in such a way as to minimize unnecessary cost to a borrower. The answer lies in whether the transition language in the loan and cap or swap are consistent in terms of the fallback trigger, fallback rate, and spread adjustment. If any of these do not match, there could be a negative impact to a borrower, particularly those sensitive to hedge accounting treatment.
While there remain differences between the lending and derivatives markets at this stage, there have been recent steps towards harmonization of approaches. For example, in June 2020, the ARRC announced that it would recommend alignment with ISDA on the value of the spread adjustment to USD LIBOR as well as the timing of when the spread adjustment will be determined.
If any differences between lending and derivatives markets continue through implementation, they could drive market participants to negotiate bilateral adjustments to their derivative transactions (to match their hedged items) rather than adhering to the new ISDA protocol as a standardized practice. This concern about the need for consistency has been echoed by other stakeholders responding to ISDA’s public consultations regarding fallback methodology and pre-cessation triggers. End users need to be aware of the potential for mismatch and what that could mean from a risk perspective, advocating and pushing for change where necessary to minimize the gap. (Back to top)
GAAP requires extensive analysis of contract modifications, the results of which can lead to current P&L impacts and loss of hedge accounting. Revenue, leasing, debt, loans, and derivatives are all impacted by these analyses. FASB recently issued Topic 848 which disregards these analyses as long as the modifications relate solely to reference rate reform. Additionally, hedged accounting may continue while there is still uncertainty about how the contracts will ultimately transition to an alternative reference rate. Without this guidance hedge accounting for interest rate exposures would be lost by all market participants.
FASB issued Topic 848, Reference Rate Reform in March 2020. Topic 848 is a set of exceptions and practical expedients to current GAAP for contracts that are affected by reference rate reform. These exceptions and practical expedients treat the amendment of these contracts as a modification or continuation of the contract, as opposed to a termination. Additionally, Topic 848 extends practical expedients to allow hedging relationships to continue and to temporarily ease certain of the effectiveness assessment requirements. These expedients may only be applied if all of the contractual changes relate to reference rate reform, which will require documentation of the contractual changes and the election of the expedients.
The IASB has provided IBOR reform guidance in two phases: Phase 1 provides guidance relating to pre-replacement issues that impact hedge accounting, such as the probability assessment for cash flow hedges; prospective and retrospective assessments of effectiveness; and separately identifiable risk components. Phase 2 focuses on replacement issues including contractual amendments and falling back to a new rate. Overall the reliefs provided are broadly similar to those available under US GAAP. For more information related to IFRS, see our accounting guidance for the GBP LIBOR to SONIA transition. (Back to top)
For derivatives designated in hedge accounting relationships, a modification to the critical terms of a derivative requires that the hedge accounting relationship be discontinued. A new hedge accounting relationship can be established for the modified derivative if new accounting documentation is put in place. However, this revised hedge accounting relationship is more complex to account for and typically requires a more sophisticated approach. Optional expedients are available in Topic 848to overcome the requirement to re-designate the hedging relationship.
Fundamental to cash flow hedging relationships is the expectation that the future hedged transactions are probable to occur. Given the current definitions of hedged transactions, amended contracts that reference a new index would not qualify and hedge accounting would need to cease. Topic 848 allows an entity to assume that the derivative and exposure will transition to the replacement rate at the same time.
For fair value hedges, the value assigned to the hedged debt will need to be updated for the change in the reference rate, though no specific approach is mandated in Topic 848.
Effectiveness assessments are also impacted. There are several simplified approaches that would become invalid upon amendment of the derivative or hedged exposure. Topic 848 provides a range of optional expedients that will allow an entity to change assessment methods or ignore certain elements in the assessment. Quantitative effectiveness assessments may require market data that is not available and reasonable proxy data may be appropriate. (Back to top)
When a debt contract is modified it must be analyzed to determine whether the change in cash flows indicates that the modification is in substance an extinguishment of the old contract. If deemed extinguished, any unamortized debt issuance costs must be recognized in current period earnings. Topic 848 provides relief in this area and waives the requirement to assess modified debt if the only modification is to reference rate reform related changes. (Back to top)
Upon issuance and modification, all contracts must be analyzed for embedded derivatives. Both qualitative and quantitative factors are considered to determine whether the embedded derivative should be accounted for separate from the host contract.
Topic 848 grants relief so that amendments related to reference rate reform will not trigger analysis of embedded derivatives.
New contracts will pass through the existing requirement to analyze embedded derivatives, though the market data for a new reference rate may not be robust enough initially to complete the analysis. In this case, a reasonable proxy may be appropriate.
Lessees carry most leases on the balance sheet as a liability with an associated right-of-use asset, while certain leases are off balance sheet. A modification in the contract requires a reassessment of this classification. Topic 848 grants relief for this reassessment.
Certain long-duration construction contracts are recognized in earnings based on a percentage of completion. Amendment of the contract requires a reassessment of the amount recognized in earnings and possibly a new pattern of recognition in the future. Topic 848 provides relief for this analysis if the modification is solely due to replacement of a reference rate. (Back to top)
Over the last two years, the Securities Exchange Commission (SEC) has encouraged entities to include additional disclosure in their filings to discuss the impact of reference rate reform. This disclosure should likely reside in the Management Discussion and Analysis section of financial statements. The SEC suggested the following disclosure:
- Population of contracts that extend past 2021 that reference LIBOR and the plan to convert those contracts.
- The actions that are needed to mitigate the exposure to LIBOR cessation.
- The expected impact on profitability.
- The expected impact on the effectiveness of the company’s hedging strategy.
- Disclosure that allows investors to see the issue through the eyes of management.
- The impact on business, systems, processes, risk management, and clients.
The SEC welcomes pre-filing consultation so companies can get the level of disclosure right. (Back to top)
What does Chatham recommend?
With the likely extension of LIBOR’s publication through June 2023, many borrowers have decided to deprioritize preparing for the LIBOR transition; but timing of the transition is more nuanced than many headlines would suggest, and loan documents may be drafted in a way that gives rise to risk of an early and potentially unfavorable transition. With that, Chatham generally recommends that borrowers be proactive with respect to the LIBOR transition, beginning with understanding their exposure.
Chatham recommends that all LIBOR-based borrowers do the following:
- Review and inventory their loans and associated derivatives as to trigger, fallback, and spread adjustment language (or lack thereof) as soon as possible
- Incorporate more robust fallback language into their loans (see Chatham’s recommendations)
- Monitor the LIBOR transition, specifically including:
- issuance of non-LIBOR indexed debt for signs of preparedness on the part of lenders and increased appetite from lenders and investors for exposures to benchmarks other than LIBOR
- the major U.S. clearinghouses’ (LCH and CME) incorporating SOFR into their valuation and collateral calculations for cleared USD interest rate swaps in October 2020, and the subsequent impact on SOFR derivatives activity
- Understand transition guidance and any relief afforded
- Assess potential regulatory scrutiny as to various entities within an organization
Chatham further recommends that LIBOR-based borrowers who hedge their interest rate exposure with OTC caps, swaps, etc., spend time reviewing the revised ISDA definitions and the ISDA protocol, along with any bilateral agreements issued by ISDA or specific lenders/hedge providers, to determine the optimal hedge fallback mechanism for their specific situation. Moreover, to the extent that the borrower has OTC derivatives documented via non-ISDA agreements (e.g., the German framework agreement, DRV, or the French framework agreement, FBF), the borrower should analyze those agreements as well. Those who hedge with cleared derivatives should have seen a more immediate impact arising from the "clearinghouse big bang." (Back to top)
LIBOR-based borrowing/hedging is by far the most prevalent among our real estate, private equity, and corporate client bases. These clients use LIBOR swaps, caps, and swaptions to hedge floating-rate loans and future issuance or refinancing of fixed-rate debt. Many clients are focusing on reviewing fallbacks in their underlying cash market instruments (loans) and comparing those terms to ISDA’s Fallback Protocol to understand the potential mismatches in timing of fallback and pricing of fallbacks. Many of our clients continue to focus on ensuring flexibility for LIBOR fallbacks and cessation events in loan documentation. Some clients have included trigger language in derivative trade confirmations for longer-dated trades, likewise, focusing on flexibility and commercial reasonableness. As for financial institutions, we’ve seen many of our clients move away from LIBOR-based balance sheet hedging programs to Fed Funds based programs.
In addition, it presently appears that a term SOFR may not become available until sometime after 2021 or later. If the markets develop sufficiently to borrow and hedge at SOFR compounded in arrears (or compounded in advance, as appropriate) prior to term structure availability, it would be safest not to wait for a term structure. (Back to top)
What LIBOR transition-related resources are available?
- Chatham Financial frequently publishes LIBOR content, here are some essential entries:
- The New York Fed publishes the following SOFR rates each business day at 8 a.m. EST:
- Some key players in LIBOR transition have published the following:
- ARRC: Recommended Best Practices for Completing the Transition from LIBOR (May 2020)
- Fannie Mae and Freddie Mac: LIBOR Transition Playbook (December2020)
- ISDA: Benchmark Reform and Transition from LIBOR
- FASB: Reference Rate Reform
Still have questions?
Please send a message to the Chatham team if you have questions around the USD LIBOR transition or how use of SOFR in your loans and derivatives could affect your interest rate exposure.
Chatham Hedging Advisors, LLC (CHA) is a subsidiary of Chatham Financial Corp. and provides hedge advisory, accounting and execution services related to swap transactions in the United States. CHA is registered with the Commodity Futures Trading Commission (CFTC) as a commodity trading advisor and is a member of the National Futures Association (NFA); however, neither the CFTC nor the NFA have passed upon the merits of participating in any advisory services offered by CHA. For further information, please visit chathamfinancial.com/legal-notices.
Transactions in over-the-counter derivatives (or “swaps”) have significant risks, including, but not limited to, substantial risk of loss. You should consult your own business, legal, tax and accounting advisers with respect to proposed swap transaction and you should refrain from entering into any swap transaction unless you have fully understood the terms and risks of the transaction, including the extent of your potential risk of loss. This material has been prepared by a sales or trading employee or agent of Chatham Hedging Advisors and could be deemed a solicitation for entering into a derivatives transaction. This material is not a research report prepared by Chatham Hedging Advisors. If you are not an experienced user of the derivatives markets, capable of making independent trading decisions, then you should not rely solely on this communication in making trading decisions. All rights reserved.19-0239
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