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Friday, January 3, 2014

A Deep Dive into Till v. SCS Credit Corp – Part IX: The Loan Market Appears to Satisfy Any Reasonable Standard for an Efficient Market

The best evidence that the current US market for senior secured loans is efficient lies in the fact that, when a bank is arranging a large secured loan of any size for a commercial client, the arranger refers to comps in the loan market to estimate the pricing on the loan (I say "estimate" because, as with any other offering, the final price is set based on the feedback that the proposed terms elicit when the arranger canvasses the likely buyers in the marketplace).  I don't have an ungated webpage to link to that says this, but companies like Thomson Reuters, S&P and the trade organization Loan Syndication and Trading Association publish data regularly from which this can be demonstrated quite evidently, and anyone who has worked on loan syndication or followed the development of the market (like the Loan Syndication and Trading Association) can testify to this.

To illustrate the give and take with market participants that occurs when a new syndicated loan is coming to market, here are a few paragraphs from the December 19, 2013 edition of S&P Capital IQ's LCD Today News, a report on the credit markets that comes into my inbox every afternoon:

Alcatel-Lucent followed Valeant in boosting the ticking fee on its repricing to the full spread starting on Jan. 1. The issuer also set pricing at the wide end of its range, at L+350, with a 1% LIBOR floor. The two deals have been criticized by investors as a potential watering down of the 101 soft call provision. In Alcatel-Lucent’s case, the premium doesn’t run off until Feb. 18. Arrangers Morgan Stanley and Credit Suisse were looking to wrap the deal this afternoon.

Lenders also knocked out final terms for ARC Document, Allison Transmission, Vantage Energy, and Open Text. Results were mixed, with spreads on three deals lifted against a couple of cuts as arrangers pushed to wrap up 2013 business. Expect additional changes, including wider talk on some deals, to emerge tomorrow.

Among the boosters: ARC Document widened its yield to 6.96%, from 5.86%, and made structural changes; Vantage Energy went to L+750, from L+675, and Open Text gave up a quarter, raising its spread to L+250, from L+225 talk.

Meanwhile, Allison Transmission tightened its discount to 99.5, from 99, and upsized its B3 term loan by $150 million. GE Capital and CIT Capital Markets firmed HydroChem at the tight end of L+400-425 talk, with a 1% LIBOR floor at 99.75. The discount was outlined initially at 99.5.
Additionally, HydroChem’s $250 million, seven-year loan now includes a step-down to L+375 when net senior leverage drops below 3.5x.

The  jargon may bog some readers down, but that's not the main point; this is just to illustrate market dynamics that many non-New York readers may be unfamiliar with.
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The credit markets are clearly more efficient at pricing new offerings than, say, the IPO markets.  The arrangers' commission is much smaller than the standard 6% underwriting discount on IPOs; there is greater standardization of documentation; there is no need for the documentation to linger in SEC review; investors are more sophisticated institutions, not retail holders, so large amounts of expensive lawyers' time do not have to be spent ensuring that every conceivable risk of loss is spelled out in plain English; underwriting due diligence is not required (the syndicated credit agreement places that burden on each individual lender).  A large syndicated loan can be structured from scratch in a handful of days, documented, syndicated and closed within a month.   And of course the after-market performance of IPOs, which can move 25% or more on the first day of trading, is much more volatile than that of syndicated loans, which consistently trade within 1-2% of par for  weeks after issuance, and will tend to stay close to par as long as there is no change in credit quality.  Also, there is many times more litigation over the distribution of IPOs than over the distribution of new loans.  All these facts indicate the process of that leads to a new loan market is more efficient than other new financial offerings.  (And it is certainly more efficient than the process of litigating a rate determination before a judge.)

 Turning to the secondary market in loans, data indicate an increasingly efficient market, although not necessarily of the breadth and depth of the stock market.  The LSTA keeps track of data on the market and discloses statistics frequently. The data in this post comes from its 2013 Loan Market Chronicle which is not publicly available on the Web, although older editions are at this webpage and I would assume the latest version can be obtained from the LSTA.  Other sources, such as Thomson Reuters and S&P  Leveraged Commentary and Data also contain extensive data on the lending market that is relevant to loans to companies emerging from chapter 11.

According to the LSTA, in 2012, approximately 1100 different loans traded at some time during the year; half were traded actively; a quarter occasionally; and the rest rarely.  For comparison's sake, the pan-European stock exchange, Euronext, listed the equity of approximately 932 companies at the end of 2011 according to their "Factbook" and Brazil's Bovespa listed around 525.  So, were the US loan market a stock market, it would be one of the largest in the world.

Bid-ask spreads are commonly investigated to assess the efficiency of a financial market; the narrower the spread between buyers' bids and sellers' asks, the more efficient the market is considered to be.  Here, the loan market is becoming more efficient.  LSTA reports that the average bid-ask spread for non-distressed loans in 2012 was 22 basis points, roughly a quarter of a penny per dollar of loan.  Smaller loans carry a wider bid-ask spread (roughly a penny per dollar of loan) than larger ones, which is consistent with other financial markets, including the US equity markets, where small caps generally have less volume and wider spreads than S&P100 issues.

Loans exhibit much less price volatility than most other financial assets, including not only the stock market but also, in 2012 at least, less than the 10-year Treasury.  This could cut both ways (it might be a sign that the loan market is inefficient because prices don't move very much, or it might be a sign of efficiency that loans are priced correctly consistently). It seems fairly obvious that it reflects the essential features of a loan that its downside is mostly protected by collateral value; the upside is mostly capped at par plus accrued, and interest rate fluctuations don't affect commercial loans as much as they do long-term Treasuries because commercial loans are all priced on a floating rate basis.  In this respect, loans are not readily comparable to that many other asset classes.

There appears to be a difference in how lenders price small vs. large loans.  The 2013 Loan Market Chronicle states that loans less than $100MM don't have institutional execution and don't really trade.  LSTA data also show a "size premium" for smaller loans of 80-100 bps (i.e., those loans cost that much more to the borrower).  Likewise, Thomson Reuters' October 2013 Loan Investor Monthly identifies a 150 bps premium for "lower middle market loans" over large corporate loans (6.37% vs. 4.8%) Does that mean there is room for judicial intervention to fix that "bias"?   I would say no, that is just a normal market phenomenon which can be quantified with little effort.  There are plenty of reasons why a lender charges more for smaller loans.  There are fixed costs to any operation that have to be allocated among assets.  There is greater illiquidity which is meaningful since lenders are themselves leveraged entities.
 
But most relevantly, the highly efficient equity market has similar characteristics.  Systematic differences are fairly well documented in performance of small cap stocks vs larger ones.  This was one of the first arguments raised in response to Fama's claim the stock market was efficient.  It is such a recognized factor that, in valuations based on the standard "capital asset pricing model", it is a recognized practice to add a small-cap "size premium" to the cost of equity. That premium increases the cost of equity in the calculation, and lowers the valuation of small cap companies, all else being equal.  The size of the size premium in equity valuations has been studied at length.  It is estimated to be as much as 5.4% according to Morningstar's Technical Analysis of the Size Premium.  That is quite substantial compared to the size premium observed in the loan markets.  So the size premium is not a basis for disregarding loan market comps, but for making sure you have the right ones and follow the right valuation methodology, just like in equity valuation.  And that kind of valuation analysis should all be bread and butter stuff to a chapter 11 judge, nothing "far removed" from his or her ordinary tasks.

If we follow more closely the example of the securities law cases and focus in on the "informational efficiency" of the loan market, the answer appears to be the same: the loan market is as "informationally efficient" as other deep financial markets in the US.

Before one can talk about the "informational efficiency" of the loan market, a bit of background about information in the loan market is in order.  Credit documents always call for some delivery of information about the borrower to the lenders through the administrative agent.   In a leveraged loan, that information generally exceeds what the borrower publicly reports as required by the securities laws to holders of its debt or equity securities, although not every lender will elect to receive the excess information, as discussed below.  The information enables the lenders to monitor the creditworthiness of the borrower, which, for bank lenders, is required by bank "safety and soundness" regulation, and to ask questions that go beyond the public financials.  Academic literature refers to this as the "monitoring" role the bank plays on behalf of its depositors and investors; it is the flipside of the "agency problem" that most lawyers are probably familiar with from corporate law.  Monitoring is a critical component of managing the  investment of capital in the modern economy in which businesses procure capital from a variety of sources, not all of which participate in the day-to-day management of that business, and has been the subject of decades of academic analysis in economics. 

The transmission of non-public information is also necessary from the borrower's perspective when it needs to seek a waiver or amendment of any covenants or defaults under the credit facility.  If a borrower under a credit facility has tradeable securities outstanding, some of its Tranche B holders who wish to remain free to trade in those securities may decline to receive non-public information under the credit facility, so as to remain free to trade.  But it is safe to say that the remaining lenders -- chiefly the traditional banks in the revolving credit and the A Tranche -- will receive non-public information about the borrower.   Depending on the credit documentation, and the nature of a waiver or amendment, the Tranche B lenders may be entitled to vote on the request, in which case, depending on how many of them have walled themselves off from receiving non-public information, it may become necessary to disclose publicly enough of the information to solicit their vote, or to devise some other protocol to communicate that information to them (such as getting them to "go restricted", i.e., restrict themselves from trading,  for a few days, or confirming to the borrower that they have established an internal "wall" in which a specified individual will receive the non-public information, while another individual on the other side of the "wall" does not and thus remains free to make trading decisions).

In contrast, because bonds are clearly governed by the federal securities laws, in the ordinary course, bondholders tend to receive the same information as equity holders, i.e., the borrower's SEC filings and press releases. 

Is the loan market informationally efficient?  In general, the answer appears to be "yes".  Until the last couple of decades, loans did not trade enough for a comparison to be drawn between the secondary market in loans and that in bonds or stocks.  Once trading data for loans became available, however, a study led by Edwin Altman of NYU (2004 version here; 2009 version here; both papers can be downloaded from Professor Altman's webpage at Stern/NYU) found that the loan market was more efficient than the bond market in reacting to information of a prospect of default , both in terms of changes in price near the time of default and in terms of achieving a greater recovery on the loans post-default-information than bonds.  The study supports the thesis that the "monitoring" role of the loan agreement's covenants gives its holders better or at least more timely information and further that such information has value in terms of achieving a greater recovery for its recipients.
 
Another study, by Linda Allen and Aron A. Gottesman, "The Informational Efficiency of the Equity Market as Compared to the Syndicated Bank Loan Market" in 2005, concluded that "the equity and syndicated bank loan markets are highly integrated such that information flows freely across markets", implying a substantially similar degree of informational efficiency, one to the other.

To illustrate the movement of loan prices in response to information, here are a couple of examples I pulled from recent editions of S&P Capital IQ's LCD News Today:

December 19: "In other credit-specific news today, dealers were making wide markets at lower levels in Gymboree term debt after Moody’s yesterday afternoon downgraded the children’s retailer to Caa1, from B3. A couple of dealers were marking the term loan due 2018 (L+350, 1.5% floor) wrapped around 94, while another desk was quoting it at 92.5/94.5. The loan was active in the mid-94s – down about three points – after the retailer last week disappointed the Street, posting a nearly 28% drop in third-quarter adjusted EBITDA and a 4% drop in same-store sales."

December 18: "loans backing Toys ‘R’ Us slid roughly two points this morning after the retailer late yesterday posted third-quarter results. The issuer’s covenant-lite term loans dipped roughly two points following the results. The B-1 term loan due 2016 (L+450, 1.5% LIBOR floor) slid to bracket 92, while the B-2 and B-3 tranches due 2018 (L+375, 1.5% floor) slid to bracket 92. Net sales in the 13 weeks ended Nov. 2 edged down to $1.64 billion, from $1.68 billion in the year-ago period. Losses widened to $274 million, from $60 million."

The documented price movements in relation to changes in underlying creditworthiness show that the loan market is "informationally efficient."

Another source for pricing credit risk comes from the CDS (credit default swap) market.  A CDS works like an insurance policy on the creditworthiness of a particular underlying debt (or class of debt) over a particular time period; the buyer pays a premium to buy a right to payment upon default of the reference debt within the time specified in the swap.  The premium goes up if the underlying risk of default increases, and v.v., pricing the risk in an observable manner that generally speaking correlates with the movement of the yield on the issuer's debt, thus providing an additional data point experts could use to advise on where to price debt with similar risk, although additional variables, such as cost of funds and maturity differences, would need to be accounted for.

Several academic papers have looked at the reaction of CDS prices in relation to ratings changes and earnings announcements (Nicole Thorne Jenkins, et al. "The Extent of Informational Efficiency in the Credit Default Swap Market: Evidence from Post-Earnings Announcement Returns" (2011);  Caitlin Ann Greatex, "The Credit Default Swap Market's Reaction to Earnings Announcements" (2008); Lars Norden and Martin Weber, "Informational Efficiency of Credit Default Swap and Stock Markets: The Effect of Credit Rating Announcements" (2004). They seem to come to substantially similar conclusions that the CDS market is somewhat efficient, in that prices move in response to changes in information, although price movements appear to be too volatile, in the authors' estimation, for that market to be considered highly efficient.   Still, the more data one has to look at, as long as one does so intelligently, the better the analysis should be.
But ultimately, the test should not be whether the pricing shown in the loan market is determined as efficiently as pricing in the equity markets or as an ivory tower conception might posit.  It should be on which is relatively more efficient:  reference to the market as it is or a more intensively litigated cramdown battle?


As many of the Till-in-chapter 11 cases involve commercial real estate businesses, it is worth noting that the commercial mortgage market is estimated by the Fed to hold more than $3 trillion in such paper.  It is likely a market of that size is going to be reasonably efficient - it is larger than pretty much every stock exchange in the world.  Since there is no central exchange where CRE loans have been listed, data about its efficiency are harder to come by. However,  there are a number of firms that provide, for a fee, analytics and information concerning that market that courts, or experts testifying before them, could turn to for references on recent transactions that would be instructive in evaluating proposed cramdown paper.  For some examples, CoreLogic, a fairly well-known real estate services firm, maintains a commercial mortgage database and provides analytics derived from it; The Mortgage Bankers Association maintains a Commercial / Multifamily DatabaseRealtyRates.com provides surveys of recent commercial mortgage lending trends in dozens of major metropolitan areas; Life Comps is an index of privately issued mortgages held by life insurers; Markit and various others monitor trends in CMBS (package of recently issued commercial mortgages); and there are likely more that persons more experienced in the industry than I am could identify.  The point being there are a lot of data out there from which a reasonably strong analysis of interest rates on commercial mortgages could readily be prepared and pass Daubert muster.