On March 24, 2021, New York State’s Senate and Assembly approved LIBOR transition legislation. New York Governor Andrew Cuomo’s consent awaits and is expected as the governor indicated his support earlier this year.
The law will have limited impact on syndicated loan markets; the long-running discussion of LIBOR fallbacks and LIBOR transition amendments will continue. This is a positive step, however, for other debt markets where inclusion of LIBOR fallback language is not common.
The law closely tracks the text of legislation proposed by the Alternative Reference Rates Committee (ARRC), the committee established by the Federal Reserve Board and the New York Federal Reserve Bank to manage the transition from LIBOR. The law includes the following key provisions:
Most sophisticated syndicated and bilateral loan agreements contain a fallback provision, even those agreements entered into prior to regular market use of the model ARRC fallback language. The ARRC “hardwired” or “amendment” fallback language provides for SOFR or a negotiated rate, respectively, to be used in the case of LIBOR termination. Pre-ARRC fallback language typically falls back to a prime interest rate.
A significant number of other types of debt contracts, however, have no fallback language. This new law aims to provide a procedure for determining a fallback for this group of contracts. A recent Federal Reserve Board “Progress Report” on the state of LIBOR transition estimates that $2 trillion of “tough legacy” LIBOR contracts exist without any fallback provisions. Many of these contracts exist in debt markets where amendments to debt contracts are difficult to obtain. These include certain types of securitizations, floating rate notes, mortgages, municipal bonds, and derivatives.
The law is not without potential controversy. Some commentators, including the New York City Bar Association (which supports the law), have noted that, in the case of contracts subject to the Federal Trust Indenture Act, application of the law may violate the Act. Other concerns with the law include possible federal and New York State constitutional claims to its legality.
We will continue to monitor developments relating to the LIBOR transition and provide updates. Please do not hesitate to contact the Morrison & Foerster team if you have any questions.
UPDATE (April 6, 2021): New York Governor Andrew Cuomo has now signed this LIBOR transition legislation into law.