Credit Derivatives and Insurance .

It is a truth universally acknowledged (well - in the insurance world at least!) that insurance companies cannot enter into derivative contracts (unless the contract is entered into "in connection with or for the purposes of" insurance business - for example, if the insurer is hedging its own portfolio). What an insurer cannot do is enter into a derivative contract for commercial reasons.

This gives rise to a certain friction between what insurers are permitted to do and what they wish to do. It is also an issue for the capital markets who are thereby denied access to the vast capital resources available to many insurance companies which could well facilitate greater volumes of derivative activity.

This friction goes a long way in explaining the current market interest in "transformer" companies. As their name suggests, these are companies which, in effect, "transform" a contract, in this case a derivative contract, into an insurance policy. To understand why these companies are becoming popular, it is worth looking at the underlying issues more carefully.

The Similarities and the Differences

Similarities

Broadly, a credit derivative is a financial instrument designed to assume or lay off credit risk on loans, debt securities or other assets or in relation to a particular entity or country. In return for the laying off of risk, there is a payment from the originating party to the counterparty. Credit derivatives may take the form of credit default options, credit-linked notes or total return swaps, but the product which is most similar to insurance is the credit default swap. Credit default swaps typically pay out on the occurrence of a specified credit event - such as the insolvency of the referenced entity, or a material deterioration in that entity's credit-worthiness.

Compare this, then, to insurance, or more particularly credit insurance, which is defined in the Insurance Companies Act 1982 ("ICA") as being insurance against "loss to the persons insured arising from the insolvency of debtors of theirs or from the failure (otherwise than through insolvency) of debtors of theirs to pay their debts when due". Thus the same or a similar kind of risk could equally well be offset either by a derivative or an insurance product, both being contracts of indemnity and having a similar economic effect.

Differences

Although insurance and derivative contracts can be extremely similar, a derivative contract is not an insurance. One needs to understand the meaning of "insurance" in order to appreciate the difference between the two.

There is no English statutory definition of a contract of insurance but case law has identified certain essential elements as follows:

• there must be a promise to pay;
• the insured must have an insurable interest in the subject matter of the policy;
• what the insured purchases is the right to receive monies on the occurrence of an uncertain event (the key feature being that there must be an element of contingency, either as to the happening of the event or as to its timing);
• there must be a premium passing between the parties.

It is also worth considering the commercial effect of an insurance contract, which is to transfer risk from one party (the insured) to another (the insurer). Where there is doubt as to the correct characterisation, then as with any contract, what is likely to carry most weight with an English court is the substance of the contract as a whole, taken in its commercial context. How the parties choose to describe the contract will be of little persuasive force.

Furthermore, it has been established that either the contract as a whole is a contract of insurance or it is not. Only where the principal object of the contract is to insure will the contract be one of insurance. So a contract which contains an element of insurance which is collateral to its principal purpose will not constitute insurance.

The most important of the above features for the purpose of distinguishing credit insurance from a credit derivative is that the insured must have an insurable interest in the subject matter of the insurance. In other words, the insured must stand to lose financially if the event insured against happens.

The statutory definition of "insurable interest" is as follows:

"a person is interested in [a marine] adventure where he stands in any legal or equitable relation to the adventure or to any insurable property at risk therein, in consequence of which he may benefit by the safety or due arrival of insurable property, or may be prejudiced by its loss, or damage thereto, or by the detention thereof, or may incur liability in respect thereof."

The key concept is that of loss - is the insured's relationship with the matter insured such that he would incur financial loss should the risk insured against occur? If not, then the requirement that there must be an insurable interest is not satisfied. (Nor indeed is the requirement that there be a transfer of risk, since one cannot have a transfer of risk unless the insured would otherwise be exposed to that risk.)

Note, however, that the test is two-pronged: there must be a legal or equitable relationship, as well as an economic interest. Thus, for example, under English law, an individual cannot insure against being disinherited by his parents; nor can a person take out life assurance on the life of any other person save where he stands to suffer financial loss on that death (the most famous case in this respect involving the courts' refusal to classify as insurance a contract by a subject to insure the life of the King!), in both cases because there is no legal or beneficial interest in the property in question. (Note that it is this requirement of a legal or equitable interest that distinguishes insurance from gambling.)

So whilst it can be seen that the commercial and economic effects of credit derivatives can be similar to contracts of insurance, there is a clear conceptual distinction:

• With a credit default product, the event triggering payment is the occurrence of the credit event and not the loss suffered by the originating party as a result thereof. The existence or otherwise of such a loss is irrelevant to the contract.
• Under the terms of an insurance contract, however, loss to the insured is critical. If the insured has not suffered a loss, the insurer will not be under an obligation to pay.

In the case of a credit default product, although the originating party may suffer a loss if the relevant credit event occurs and, indeed, may have entered into the credit derivative specifically to hedge against that risk of loss, the counterparty is obliged to pay the originating party on the occurrence of the credit event whether or not the originating party has actually suffered a loss.

Why does the difference matter?

The difference is probably of greatest significance in relation to regulation. In the UK, a contract of insurance can only be issued by an authorised insurance company; an insurance contract issued by a non-authorised party will be unenforceable by the issuer and monies paid under it may be recovered by the insured, together with compensation for loss. In addition criminal sanctions are available against the issuer.

Conversely, UK-authorised insurers are prohibited from carrying on any business "other than in connection with or for the purpose of its insurance business" (section 16 ICA). (The intention of section 16 is to ensure that the business of insurance companies is completely ring fenced and isolated from the risks associated with any other commercial activity, whether regulated or not.) Thus a credit derivative issued by an authorised insurer could be unenforceable, and the wrath of the regulator will no doubt be incurred!

In addition, a number of consequences flow from a contract being one of insurance rather than non-insurance and these are, generally speaking, undesirable from a commercial perspective. Two of the most relevant in this context are, first, that insurance premium tax at the rate of 5% is payable on insurance premiums.

Secondly a contract of insurance is a contract of utmost good faith. Whilst all contracts (including derivatives) are subject to considerations of good faith to the extent that the law cannot support fraud, in ordinary commercial contracts, parties are not required to reveal all that they know about the proposed agreement. Subject to certain statutory protections available to purchasers (and in particular consumers), the common law applicable to most commercial contracts is that of "caveat emptor" (let the buyer beware). Not so for insurance.

The "utmost good faith" doctrine means that a duty of full disclosure is imposed on both parties to the contract. In practice, the duty of the insured to give full disclosure is the only one of importance. The duty is onerous - the insured must disclose all material facts which he knows or which he should have known about. The consequence of failure to disclose all material facts is, in English law, also harsh - the insurer can consider the contract void and avoid payment completely.

The consequences of whether a contract is one of insurance or not is also of particular relevance to the securitisation of insurance risk, where care must be taken to structure any note, or insurance-linked derivative, issued as a derivative, as otherwise the note-holders could be held to be carrying on (unauthorised) insurance business as a result of holding the notes.

Thus any person who wishes to write a credit derivative has plenty of reasons to ensure it is not actually a contract of insurance!

How Do Transformer Companies Work?

So, although insurers may wish to write credit derivatives, they may not do so. Bodies (such as banks) which do want to write credit derivatives need to take precautions to ensure the contracts they write cannot be characterised as insurance.

The first of these issues has been addressed by the development of transformer companies.

Although UK insurers cannot write derivative products, they are allowed to enter into insurance policies to insure a counterparty in a derivative agreement. Such a policy would indemnify the counterparty against having to pay losses incurred under the derivative agreement. The transformer effectively places itself in the middle of a structure, enabling the insurer to issue an insurance policy one step removed from the derivative contract.

In a typical transaction, the transformer would write the original swap contract, and the UK authorised insurer would then insure the transformer company, hence avoiding section 16 ICA problems. For the insurer there may also be the opportunity to offset its insurance liability by reinsuring the risk.

Figure 1

In addition, depending on the place of registration of the transformer, it is possible to transform an insurance risk into a derivative contract (i.e. the converse of the above structure - a transformer entering into an insurance policy and then offsetting the risk via a derivative contract). This is possible because in certain jurisdictions (for example, Bermuda) insurance companies are permitted to carry on non-insurance business.

It is also worth noting that although many transformer companies are set up as shells (i.e. with insufficient capital to honour their commitments under the derivative contract without the benefit of the insurance), and it could therefore be argued that the transformer has only a technical (and artificially constructed) liability to pay rather than an actual one, (i.e. casting doubt on the existence of an insurable interest) the inclination of the English courts is to find in favour of an insurable interest whenever the facts allow. Economic effect is not the test applied to the characterisation of a contract.

However (and notwithstanding the above) it is important to observe the legal niceties of the distinction between insurance and derivative contracts and not, in transformer structures, to make the two contracts entered into with the transformer completely "back to back". (The same principles should be observed by parties writing derivatives who desire to avoid the contract being classified as insurance.) The following suggestions may be of use:

(a) the policy should have its own self-contained terms (rather than incorporating and annexing the derivative agreement). In particular, the parties should define and include all the key financial provisions of the insurance within the policy, rather than relying on the derivative contract;

(b) the liability under the policy should not exactly match the insured's liability under the derivative agreement (i.e. there should be a retention of some kind under the policy or some other financial liability for the insured);

(c) where, under a standard ISDA agreement, payment is by instalments with such instalments diminishing if an obligation ceases to be part of the portfolio, be wary of matching this exactly by an identical proportionate premium rebate under the policy;

(d) the benefits of the policy should not be freely assignable, particularly to the originating party.

If the above suggestions are followed, we believe that the risk that a court would characterise the role of a transformer as a mere device, in a structure where the true purpose and intent of the parties is that an insurer writes a credit derivative, would be materially reduced.

This is a grey area of law and it is difficult to state with any certainty where the dividing line between insurance and derivatives is drawn. However, adherence to the above guidelines should result in the relevant contracts, if ever challenged, satisfying the requisite criteria to keep on the right side of the regulators!

Beware the Dreaded 'Make-Whole': Private Placement Insurance Company Debt.

You're a CFO. Times are good, and you receive an offer you can't refuse - 7-10 year, $100 million term financing. No bothersome collateral. A relatively low fixed-rate coupon for such a maturity - call it 5.50 percent. A pre-negotiated term sheet leading to reduced lawyer haggling and, ultimately, reduced transaction costs. Sounds good, right?

These are the earmarks of the traditional private placement debt market - a corporate debt market provided by U.S. insurance companies that indeed constitutes one of the true cornerstones of American finance. And over the years, many CFOs across the country have in fact signed on the dotted line and have tapped this important market for their corporate debt.

For many, it has been absolutely the correct decision. The private placement insurance company debt markets do provide relatively low-cost, long-term, unsecured financing. However, if the economy suffers, corporate profits swoon and lenders start instituting defaults, a two-word phrase can be heard ringing down the halls of corporate America - "make-whole."

The Refi Pain

You're a CFO, and now times are not so good. Your company is no longer investment grade, and is in default under the financial covenants contained in the private placement debt agreement pursuant to which these long-term, fixed-rate unsecured notes were issued. You've missed your numbers and missed your covenants. The insurance company lenders that bought these notes have told you that they want "out." They demand that you refinance the notes. And, adding insult to injury, they demand payment of a prepayment premium of sorts - the dreaded "make-whole"

"Make-whole" may not sound so bad, but, unfortunately, the "make-whole" amount can be a really, really, big number - a devastatingly large number. For example, for some recent refinancing deals ranging between $90 million to $200 million, the make-whole amount ranged from $13 million to $22 million. Ouch! For some perspective, imagine if you had to pay a $75,000 prepayment premium on your $500,000 home mortgage - it's about the equivalent.

Defining ‘Make-Whole'

Make-whole is the term used to describe the amount over par that the issuer of notes is required to pay in the event the issuer desires to, or, as is quite often these days, is required to, prepay or refinance the notes prior to their stated maturity.

The make-whole amount is calculated by determining the present value of the interest that would have accrued on the notes through their originally stated maturity, all as if the notes had not been prepaid. The present value calculation uses a discount factor, referred to as the "reinvestment yield," equal to the treasury rate corresponding to the remaining maturity of the notes (plus, typically, 25 or 50 basis points).

The reinvestment yield represents what the investor can now theoretically earn by reinvesting the prepaid principal in a relatively safe investment. Not surprisingly, given its name, the make-whole feature is designed to give the investor the benefit of its economic bargain as if the notes were held to maturity and to make the investor whole, notwithstanding the early prepayment.

Further, make-whole is payable not only when the issuer voluntarily prepays the notes for its own internal reasons, such as a recapitalization of its balance sheet or a refinancing to reduce interest expense. Rather, insurance companies insist upon - and private placement loan documents will invariably provide for - make-whole even when it is the insurance companies themselves that call a default and force the issuer to refinance them out.

It is this "forced refinancing" scenario that is most disturbing to CFOs. Paying a premium in the case of a voluntary prepayment is one thing. After all, it is the issuer that is depriving the noteholder of the benefit of the remaining interest-payment stream. But it is quite another matter, from the perspective of the CFO, if his or her company is being forced to refinance the notes because the insurance companies are not willing to waive covenant violations beyond the control of the issuer. It is the payment of a make-whole premium in this context that is most distressing.

Insurance companies will argue adamantly that such yield protection is the price of a relatively low, long-term, fixed rate. Borrowers will argue that the insurance company lenders should not be compensated for the entire portion of the interest they would have received, since they are not making an outlay of cash, and therefore an outlay of risk, during this entire time. But regardless of who is right and who is wrong, it is the CFO that must account for this hit to net income.

Pre-Closing Considerations for the CFO

Before signing onto the issuance of private placement insurance company debt, CFOs should understand the potential extraordinary impact of make-whole in an early refinancing context.

• First, understand the amounts involved. Run some projections assuming prepayment in the first years of the deal, using your best estimates as to where interest rates will be at those times. Understand the extent of the make-whole risk your company is undertaking.
• Second, like any financing, obtain the most lenient financial ratio covenant package you can negotiate. The longer your company stays out of default, the longer you can avoid the dreaded forced refi scenario and reduce or eliminate the dreaded make-whole itself.
• Third, proceed cautiously if your company is especially cyclical or is in an industry sector that could face a downturn. Otherwise, basically sound but cyclical businesses can often stumble on the financial covenants, resulting in a potential forced refinancing.
• Fourth, because make-whole is payable in a voluntary prepayment context as well, consider whether there are any potential transactions or events on even the mid-term horizon that could fundamentally change the company's corporate structure or character. Examples include a potential change of control, a significant equity issuance or other recapitalization or a significant acquisition or divesture. If such events are likely, either build them into the agreement so that they are permitted or carefully consider whether the private-placement market is for you.
• Fifth, consider other long-term financing alternatives, including the public debt markets. Yes, public bonds do typically contain extended no-call periods. Further, even when the bonds become callable, they come with substantial premiums. However, the key difference between public debt and privately placed debt in this regard is that public debt instruments do not contain financial ratio maintenance covenants that give rise to the dreaded forced refinancing scenario. As a result, it is far easier to stay out of default with public debt. The transactions costs may be higher but the make-whole risk is reduced.

When Make-Whole Stares You in the Face

So, what do you do when you are looking at a $15 million make-whole payment in a forced refi scenario? Negotiate. For the most part, experience has shown that insurance companies will forgo all or a portion of the make-whole in exchange for receiving 100 percent of their principal if they sense a true distressed or workout credit.

But, to get to this result, you must either actually be poor or cry poor effectively! Obviously, actually being poor has its own hurdles - first and foremost of which is the ability to obtain refinancing in the first place. If the issuer is in a tenuous position financially, it may be unable to obtain sufficient refinancing to repay principal, much less make-whole.

However, if the issuer can obtain alternate refinancing, crying poor effectively is still tricky. The issuer must demonstrate to the insurance companies that it has just enough collateral or cash flow to refinance the notes at par but not enough to pay any additional make-whole amount. While this can often be the true state of the issuer's financial affairs, it is often difficult to convince the insurance companies of this fact.

Depending upon the gravity of the situation, the insurance companies may waive the make-whole. For instance, a series of failed refinancings is an obvious signal that the issuer has real problems and, if presented with a refinancing that pays principal at par but no make-whole, the insurance companies may very well take that deal.

Often, if cash or collateral is tight, insurance companies will accept deferred subordinated notes or preferred stock or other equity, or simply reduced make-whole, depending upon a range of factors. These include the amount of make-whole involved, the issuer's true (and perceived) financial state, the intransigence of the noteholders and, perhaps, the effectiveness of issuer's counsel.

Also, CFOs are encouraged to be skillful in playing groups of lenders against one another. Commercial banks despise make-whole just as much as the issuer that is obligated to pay it. The banks can place pressure on the insurance companies to accept a refi that pays less than the full make-whole amount. If the issuer can present a picture of true financial distress, some or even great success can often be had.

In this same vein, attempt, with the aid and comfort of other lenders, to subordinate the make-whole portion of the insurance company claims in any intercreditor negotiations-whether before or after default. As a corollary, avoid whenever possible securing the make-whole obligation with any collateral security. The lower the make-whole is in the waterfall of payment, the greater chance for success in avoiding or reducing make-whole. Sometimes, your other lenders can be your best friends.

Richard W. Grice is chair of the Leveraged Capital Group of Alston & Bird, a national law firm headquartered in Atlanta.
(This article first appeared on Financial Executive Online, November 2003)