Amid a tightening economic environment for collateralized loan obligations (CLOs), market dynamics between CLO senior noteholders and equityholders have shifted, a trend that can been seen in the pages of new issue CLO indentures. While a widening of the 'AAA' CLO spreads over the past month may have eased the pressure, some of the largest CLO 'AAA' investors have told us that they have been trying to hold the line against changes in document provisions that they view in a negative light. Based on these conversations, we have compiled the following top 10 list of CLO indenture provisions that they see as coming under pressure.

This list has been created based on discussions with a sample of large 'AAA' note buyers. While we do an extensive review of CLO documents when rating a new issue CLO transaction, the comments we provide during the rating process cover some, but not all, of the below items. Some provisions (e.g., the LIBOR rate used as the index for the CLO liabilities) are important from an investor perspective but fall outside the scope of what our CLO criteria cover. Additionally, the list of items below is not meant to be a checklist for an investor contemplating the purchase of a CLO note. Ideally, an investor would be able to review all of the related documentation for a new deal. However, this list covers current high-priority items, according to the aforementioned note buyers.

The CLO indenture in the U.S. is a legally binding contract that typically lays out a transaction's general terms across 12 to 16 sections. Other documents are also important to review, such as the collateral manager agreement (CMA) and the offering memorandum (OM). For instance, the OM outlines different risk factors that could affect the transaction and which may not be covered in the indenture, such as potential litigation affecting the collateral manager, whether the arranging bank was able to place all of the CLO's notes, or other disclosures. The CMA, on the other hand, informs investors about provisions regarding manager replacement or platform sales, among other things. For simplicity's sake, however, we focus below on items within the CLO indenture that we have heard about in the course of our conversations with investors in addition to other indenture changes that have risen recently.

1. Conditions Under Which Par Can Be Leaked

(CLO indenture sections 1, 7, and 10)

A key aspect of CLOs is the separation of interest and principal proceeds received from the collateral loans and how the two are applied during the deal's life. A more restrictive definition of what constitutes interest proceeds can provide comfort to debtholders, as anything that is classified as principal will either be used to purchase additional collateral or to pay down the secured notes. Conversely, proceeds that are considered interest can "leak" (or par flush) to the CLO equity, thereby increasing the return to these investors while also reducing the credit support available to offset future losses. Provisions surrounding when, and under what conditions, par can be leaked to equityholders are something that have come up in virtually every discussion we've had recently with CLO senior note investors.

There are a number of ways in which proceeds typically considered principal can be reclassified to interest, and this is not a new concept; most new issue CLO transactions have long allowed par to be leaked to equityholders on the effective date if the transaction has ramped up to an amount greater than the target par amount. However, the reclassification provisions are evolving as managers attempt to balance the returns generated to both secured noteholders and equity investors. Some investors have begun to push back on these provisions, especially when proposed in connection with CLO resets. S&P Global Ratings reviews provisions that would allow for par leakage to assess whether they pose additional risk to the secured noteholders.

Below are some of the provisions senior note investors are discussing around the concept of par flush:

Trading gains:  Some documents allow CLO issuers to recharacterize principal proceeds into interest proceeds when a trading gain has been realized. Typically this is only permitted if the aggregate principal balance remains above the reinvestment target par. While this restriction maintains the closing date level of par available to support the rated notes, such provisions could incentivize managers to purchase riskier assets at the offset, such as discount obligations or lower-rated collateral, to realize such trading gains. Furthermore, this reclassification requirement typically does not account for haircuts to assets elsewhere in the transaction documents, such as in the overcollateralization (O/C) ratio calculation. In other words, while there is a requirement to maintain the par balance of assets at the closing date level, there may be not be a mandate that the O/C ratios will not deteriorate or that the level of risk in the portfolio will not increase.

Excess in the ramp-up and/or principal accounts:  Often, in the event that a transaction has gone effective (i.e., has reached its target par amount) and has cash remaining in the principal or ramp-up account, the issuer can reclassify such proceeds into interest and allow for the excess par to be flushed to equity. This reclassification is typically restricted to around 1% of the target initial par balance and cannot result in the aggregate principal balance of the assets falling below the effective date target. Historically, in most cases, this was permitted only in connection with the effective date, which would also require rating agency confirmation on S&P Global Ratings' outstanding ratings. Recently, however, some transaction documents have extended the period in which reclassification can occur to two or three periods beyond the effective date. Aside from the rating agency confirmation associated with the effective date, the same requirements apply. However, as the time horizon permitting reclassification increases, the transaction will more likely experience defaults or negative credit migration. As such, the potential for the O/C to drop below its closing date requirement because of the reclassification becomes a greater possibility.

Partial refinancing:  Most transactions allow for the refinancing of one or more (but not necessarily all) classes of secured notes. Requirements typically ensure any outstanding notes not included in the refinancing are not harmed as a result (see the Refinancing Provision section below). Recently, transaction documents have also allowed for possible par leakage if the aggregate principal balance is above the target initial par amount. Because the refinancing and, subsequently, the par leakage, can occur at any time after the non-call period, the portfolio may be subject to negative credit migration, including defaults. If the measurement of excess par does not include the haircuts taken into account in the O/C ratio, credit support may decrease as a result of the reclassification. Some transactions limit haircuts in this calculation to just defaulted assets, which is more conservative than treating all assets at par but falls short of the haircuts used in the O/C numerator. Some documents only allow such leakage if all classes are refinanced, which makes the remaining noteholders protections a nonissue because all classes of secured notes would be new after the refinancing.

Amortizing reinvestment par amount:  Some transactions have implemented an amortizing reinvestment target par amount to account for the built-in cushion against losses that exists at the closing date. Thus far, S&P Global Ratings has only seen executed documents permit such a measure during the restricted trading period. However, if the concept were extended, it could affect the collateral quality tests, the reinvestment criteria, and potentially trading gain leakage to the subordinated noteholders.

2. Approval Process For Indenture Changes/Amendments

(CLO indenture section 8)

Transaction terms in a CLO indenture can typically be amended at any time by entering into a supplemental indenture, subject to certain conditions. Some amendments (generally covered under section 8.1 of the indenture) do not require noteholder consent if they don't materially and adversely affect any noteholder. These may include implementing names changes, clarifying language, conforming to changes in law, or modifying terms to conform with rating agency methodologies.

Amendments that fall under section 8.2 typically require some form of consent from each noteholder who would be materially affected by the proposed changes. These may include amending the stated maturity, interest rate, or principal amount of the notes; the payment priority; or certain definitions that would affect noteholder consent. Some deals have subordinated noteholder consent written into specific amendments if the noteholder is adversely affected by changes such as those to fees.

In some recent CLO transaction documents, the type of amendments that might fall under these two sections are shifting. Further, the process to execute a supplemental indenture that requires noteholder consent is also changing. Managers traditionally track down the noteholders and obtain their consent to make a change; if they can't reach all noteholders deemed materially affected, they can't implement the change. Recently, some deal documents have included "deemed consent" or "negative consent" provisions for certain changes, which allow the CLO manager to assume noteholder consent if they send out a notice of change and don't receive a formal objection within a predetermined period. However, so far these provisions have received pushback from senior noteholders.

3. Maturity Amendments And Long-Dated Assets

(CLO indenture sections 1 and 12)

Maturity extension provisions in CLO transaction documents specify circumstances under which the manager can consent to a loan amendment that extends the loan maturity. Typically, this is restricted to maturity extensions up to the maturity of the rated CLO notes, so as not to create market value risk for the CLO transaction. Typically, "long-dated" assets are limited to an amount defined by the eligibility criteria as set forth in the CLO transaction documents.

A CLO can generally acquire a long-dated asset in two ways. The first is by purchasing the asset, assuming there is room remaining in the eligibility criteria-defined bucket for long-dated assets. The second is by extending the maturity of an asset already in the CLO portfolio, which requires manager consent. This maturity amendment is often limited to certain circumstances, such as if the manager will use commercially reasonable efforts to sell the maturity-extended asset quickly or the obligor has defaulted or is expected to default in the near future. In most cases, long-dated assets are carried at a discount in the numerator of the O/C test, reflecting the additional market value risk associated with potentially having to sell them before maturity.

Maturity amendments and long-dated assets are not new concepts in CLOs. However, recent CLO documents are more frequently incorporating purchase allowances for long-dated assets. Further, some documents have broadened the circumstances under which a manager might consent to a maturity amendment. The amendment limitations might add multiple, increasingly complex provisions that allow the acquisition of a certain percentage of long-dated assets with extended maturity dates, as long as the extensions are within a specified range of time past the stated maturity. The provisions might also allow the breach of the weighted average life test upon such an amendment, for a certain percentage of the portfolio.

4. Covenant-Lite Loan Definition

(CLO indenture section 1)

Different CLO transactions provide different definitions to determine which loans should be treated as covenant-lite (cov-lite). Generally, cov-lite loans do not require the obligor to comply with financial maintenance covenants. Investors have been paying close attention not only to transactions' cov-lite allowance but also to the qualifications in the definition of cov-lite.

For a broadly syndicated loan (BSL) CLO, however, the distinction has a limited impact on our analysis. Where S&P Global Ratings has a '1+' through '6' recovery rating assigned to a loan, we use that rating for purposes of determining the recovery assumption to use in our CLO analysis rather than relying on the category of loan (senior secured, cov-lite, second-lien, etc.) to derive the assumption. With more than 95% of the loans in U.S. BSL CLO transactions having a recovery rating assigned, whether a given loan falls within the definition of cov-lite specified in the CLO documents only has a limited impact on our analysis.

When reviewing a loan to assign a recovery rating, analysts generate a hypothetical default scenario, factoring the cov-lite structure into the analysis in the form of lower fixed charges. This generally results in a lower estimated EBITDA for the company at the point it emerges from bankruptcy in the analysis; hence, a lower recovery assumption and potentially lower recovery rating for the loan.

In our recent review of cov-lite definitions in CLO transaction documents, certain carve-outs appear, including:

• Senior secured loans with a cross-default provision to, or that is pari passu with, another loan that has covenants; and,
• Loans with covenants that are subject to certain conditions, including funding or drawing on revolver, and the passage of time.

It is important to note that when determining the S&P Global Ratings' recovery rate, most documents provide that these carve-outs would not apply.

The definition of a cov-lite loan could have a greater impact on our analysis of middle-market CLO transactions if they were to become more prevalent in the middle-market space. For these transactions, a large proportion of the collateral loans are credit estimated rather than rated and do not have asset-specific recovery ratings.

5. Overcollateralization Test Definition

(CLO indenture section 1)

The O/C test is a defining part of what constitutes a CLO because it protects the senior noteholders during times of economic stress that see elevated default rates or companies with ratings lowered into the 'CCC' range.

While we don't expect CLO O/C ratio tests to go anywhere anytime soon, some recently reviewed transaction documents included changes to the haircuts for defaulted assets or assets from obligors with a 'CCC' rating. For instance, some proposed CLO transaction documents have provisions that exempt assets from being haircut if they are trading at or above par.

Another thing CLO market participants focus on is how the list of 'CCC' assets to be haircut for purposes of the O/C ratio calculation is defined in the indenture. While a transaction rated by S&P Global Ratings would include any asset rated 'CCC' in this list, other assets can be included if another rating agency rates them 'CCC' (or the equivalent). Transactions can vary in which another rating agency 'CCC' asset ratings are included, regardless of who rates the transaction. In the event of a difference of opinion on the creditworthiness of an underlying obligor, the broader the list of 'CCC' ratings to be included in the definition, the more likely it is for a given asset to find itself haircut for purposes of the O/C calculation.

Changing the calculation of the O/C ratio (through the O/C numerator) can have a significant impact on a transaction and distribution of payments. Carrying assets at a lower value might lead to breaching the test earlier, while the opposite could lead to a higher equity distribution and breaching the tests later in the transaction's life.

6. Reinvestment During And After The Reinvestment Period

(CLO indenture section 12)

Active management through trading and reinvestment is a key component of typical cash flow CLOs. This increased flexibility can help collateral managers balance the needs of debtholders and equityholders. S&P Global Ratings believes that certain collateral characteristics are key to mitigating the risks to the transaction's ability to pay the rated debt (see "How Typical CLO Document Provisions Affect Maintenance of Collateral Characteristics for Managed CLOs," published Nov. 6, 2013).

Recently, transaction documents have started including proposals that add flexibility to the parameters by which a potential trade is assessed, both during and after the reinvestment period. For instance, collateral par maintenance provisions may allow the manager a higher degree of trading latitude when reinvesting sales proceeds. This might take the form of a less restrictive par hurdle for asset replacement or by loosened credit quality and/or tenor requirements for the replacement asset.

To a limited extent, managers have historically had the ability to bundle trades with offsetting characteristics when assessing whether a series of trades (often referred to as a "trading plan") meets the reinvestment guidelines. Some recent documents have extended the use of trading plans in evaluating maturity amendments and post-reinvestment trading or have increased the size of the trading plan limit. We've also noticed a wider array of obligations that could potentially be eligible for post-reinvestment period trading, such as credit-improved obligations or those received through bankruptcy exchanges.

During the reinvestment period, the collateral manager uses coverage tests, portfolio concentration limits, and collateral quality tests (including S&P Global Ratings' CDO Monitor) to determine if a particular trade or trading plan would increase the risk to the rated liabilities. We don't require the use of the CDO Monitor after the reinvestment period, but we expect the manager to preserve par and maintain asset quality, duration, and recovery prospects while trading to ensure the deal amortizes as expected. Investors tell us they are focusing on provisions that would potentially deteriorate trading standards and erode the aforementioned protections.

7. Refinancing Provisions

(CLO indenture section 9)

A CLO transaction can be optionally redeemed through a refinancing in many ways. In a full redemption or refinancing, all secured notes are redeemed in whole, at each class' respective redemption price. The redemption price typically ensures that classes get paid out at par plus accrued interest and should be provided for with the proceeds from the replacement note sale.

In a partial redemption by refinancing, on the other hand, secured notes can be redeemed in part by class, also at redemption price, as long as the class to be redeemed represents no less than the entire class of secured notes. In a partial refinancing, the terms should also specify that the new notes cannot have a higher interest rate or earlier maturity, that the payment priorities are unchanged, and that the principal amount of the refinancing notes is equal to the principal amount of the refinanced notes. If, for example, the principal balance of an existing tranche included provisions for additional expenses or costs, a larger notional amount could theoretically be issued, affecting cash flows to the non-refinanced notes.

Some managers have been incorporating more options and fewer restrictions as to the terms under which a refinancing can take place. These provisions might allow floating-rate tranches to be replaced with fixed-rate tranches if the weighted average spread of the new notes is less than the original notes'. Some provisions have amended voting, consent, and objection rights for prospective investors in a refinancing to obtain additional rights or accept fewer rights, if necessary. Proposed provisions might also allow par leakage in connection with a partial refinancing (see the Conditions Under Which Par Can Be Leaked section above).

Provisions detailing the ability to redeem and refinance existing transaction debt have evolved in recent quarters as certain vintage transactions grapple with restrictive language put in place prior to the overturning of risk retention that effectively prohibited them from refinancing. For those deals that cannot be refinanced again due to regulatory constraints or other restrictions, assets are rolled into new special-purpose vehicles, and new notes are issued in a "reissue." Investors tell us they review these provisions to ensure they are aware of their rights and priority in a potential refinancing.

8. Reinvestment Period Length

(CLO indenture section 1)

In the aftermath of the global financial crisis, the majority of CLOs closed with four-year reinvestment windows. Since mid-2017, however, a five-year reinvestment period (or even longer) has become the norm. In 2017, two transactions came to market with six-year reinvestment periods.

A longer reinvestment period provides equityholders an opportunity for greater returns, especially for transactions originated in times of tight asset spreads. The longer the CLO funding is locked in place, the greater the chance the transaction will be around--and able to capitalize on--a period of widening loan spreads. A longer reinvestment period also gives the manager more flexibility and a longer trading period before paying down the notes. However, from a senior noteholder perspective, the longer reinvestment period brings a greater chance that their money will be locked in place during increased economic stress and increased CLO liability spreads.

Our methodology for rating CLOs takes into account this increased risk and, all else equal, a CLO with a longer reinvestment period should require greater subordination than a transaction with a shorter reinvestment period. The increase in weighted average life has a uniform negative effect on scenario default rates and credit quality across our rating categories because of the increased probability of defaults over time. On the other hand, the impact of a longer weighted average life on break-even default rates (BDRs) will depend on the CLO notes' seniority. On average, the BDRs for 'AAA' rated notes decline because of an increase in the weighted average life, but the BDRs rise for the other, non-senior notes because they benefit from excess spread for a longer period.

The length of the reinvestment period also correlates to the length of the non-call period, which has also increased in recent quarters.

9. LIBOR

(CLO indenture sections 1 and 8)

Two issues relating to LIBOR provisions within CLO transaction documents have risen recently: LIBOR's potential phase-out beginning 2021 and the difference between one-month and three-month LIBOR, which has been narrow, historically, but has widened to as much as 40 basis points in recent quarters.

LIBOR replacement provisions

Regulators and other market participants have signaled their intent to phase out LIBOR and similar IBOR benchmarks after 2021 (see "With A LIBOR Phase-Out Likely After 2021, How Will Structured Finance Ratings Be Affected?," published Oct. 19, 2017). The Alternative Reference Rates Committee is working to replace LIBOR with the Secured Overnight Financing Rate by 2022. However, because the widely referenced replacement rate is still under discussion, recent CLO documents include a provision to adopt the rate generally accepted by the overall market on or around the time of replacement.

Generally speaking, LIBOR replacement provisions are increasingly open-ended in their scope. Some documents include a fallback list of replacement rate options, which are typically commercially reasonable and attempt to align with the rates referenced by the underlying assets in case the transaction is exposed to basis risk. Having rate transitions subject to approval by a majority of the bond class, or having no language at all, opens up potential for dispute risk because it could be difficult to achieve a consensus in selecting a new benchmark.

Basis between one-month and three-month LIBOR

Underlying leveraged loans are increasingly moving to one-month LIBOR as their payment index as the basis between one-month and three-month LIBOR rates widens to post-crisis highs. CLO noteholders, however, continue to receive the higher three-month rate offered on the CLO notes, further squeezing CLO equity distributions. In several recently issued CLO transactions, the CLO liabilities could switch to the one-month rate, lowering total returns for the noteholders. In other recent CLOs, however, the noteholders held the line and kept three-month LIBOR in place. Unless the basis between the one- and three-month rates flattens, we anticipate this could be an ongoing source of tension between equity and debt investors.

10. Concentration Limitations

(CLO indenture section 1)

Unlike the prior topics, we have not seen material changes to concentration limitations and the definition of the collateral obligation in recent CLO indentures. Nonetheless, we include them here as an area investors focus on and a part of the document that could see changes if market participants were struggling to make the economics of a given CLO transaction work.

Concentration limitations and the definition of the collateral obligation specify what a manager can purchase. Concentration limitations tend to be standard across deals; as a reference, for U.S. CLOs, we usually see the following limitations:

• 5%-10% fixed-rate assets: limits the interest mismatch between fixed assets and floating liabilities.
• 5% semiannual bucket: limits the payment frequency mismatch between assets paying semiannually and liabilities paying quarterly.
• 7.5% 'CCC' bucket: limits the exposure to 'CCC' rated assets. This definition usually is included in the O/C numerator.
• 2.5% current-pay bucket: limits the amount of assets that would otherwise be viewed as defaulted but can be held as performing if they meet certain criteria.
• 0%-5% deferrable bucket: limits the assets that could potentially defer interest while still carrying a performing rating, thus creating a mismatch between interest received on the assets and interest due on the liabilities.

On top of the concentration limitation, some specific asset types are clearly excluded from the collateral obligation definition, such as zero-coupon bonds, equity securities, letters of credit, structured finance securities, leases, and other obligations that may have substantial non-credit-related risks.

As the economics of the CLO and leveraged loan markets evolve, the tug-of-war between senior debt and equity investors will likely continue to play out in the provisions of the governing documents. We have seen some version of those noted above across a variety of indenture drafts. We review each transaction document and may incorporate quantitative stress based on the degree to which measurable risk can be estimated. When presented with atypical transaction provisions, additional stresses in our analysis may constrain the ratings. In our view, the key is to continually focus on the transaction elements that could present payment and ratings stability risk.