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Articles 61 - 73 of 73
Full-Text Articles in Law
Payee Tax Representations & The Isda Master Agreement, Christian Johnson
Payee Tax Representations & The Isda Master Agreement, Christian Johnson
Christian A. Johnson
Negotiations over the payee tax representations to be made in an ISDA Master Agreement are often confusing, acrimonious and slow. U.S. negotiators, at the urging of expensive tax counsel, often insist that their foreign counterparties make comprehensive tax representations for U.S. tax purposes and deliver certain IRS tax forms to them. Typically, foreign counterparties resist making these representations because they don't understand the purposes behind them. However, these payee tax representations, and the related delivery of tax forms, serve important purposes.
Liquidity & The Isda Master Agreement, Christian Johnson
Liquidity & The Isda Master Agreement, Christian Johnson
Christian A. Johnson
Ensuring liquidity should be the primary goal in negotiating an ISDA Master Agreement (the "Agreement") for smaller, non-rated customers, such as a hedge fund or a middle-market corporation. Often highly leveraged and with little room for error, these customers should focus their efforts when negotiating the Agreement with a dealer on limiting the dealer's opportunity to terminate the Agreement. Unfortunately, however, customers (typically through expensive outside counsel), often instead use up valuable negotiating capital on esoteric legal issues that may only remotely affect a customer's situation.
Rehypothecation Risk, Christian Johnson
Rehypothecation Risk, Christian Johnson
Christian A. Johnson
Granting rehypothecation or "use rights" with respect to pledged collateral is common in the over-the-counter derivative market. In fact, subject to the pledgor's consent, the credit support annex to the International Swaps and Derivatives Association master agreement provides the secured party with the right to rehypothecate, or use for its own purposes, collateral pledged to it---subject only to the obligation to return the collateral once the pledgor has satisfied its obligations. Customers, however, are often alarmed to learn that the dealer requires such an unrestricted right to use and sell the pledged collateral.
Banking, Antitrust And Derivatives: Untying The Antitying Restrictions, Christian Johnson
Banking, Antitrust And Derivatives: Untying The Antitying Restrictions, Christian Johnson
Christian A. Johnson
This article argues that expressly requiring a borrower to enter into an OTC derivative with a bank as a condition for receiving credit does not violate the antitying restrictions of the Bank Holding Company Act ("BHCA"). Part I of this article discusses the nature of OTC derivatives and demonstrates through examples how OTC derivatives can enable a borrower to minimize various business risks. Part II examines how banks are encouraging their borrowers to utilize various risk management techniques such as OTC derivatives and discusses the impact of BHCA on such efforts. Finally, Part III analyzes the elements of tying a …
Banking Law Manual: Federal Regulation Of Financial Holding Companies, Banks, And Thrifts
Banking Law Manual: Federal Regulation Of Financial Holding Companies, Banks, And Thrifts
Patricia A. McCoy
No abstract provided.
Risky Business: Acting As A Lender And Otc Derivative Dealer With The Same Customer, Christian Johnson
Risky Business: Acting As A Lender And Otc Derivative Dealer With The Same Customer, Christian Johnson
Christian A. Johnson
Here the Author looks at some of the potential legal risk factors for a lender in taking a dual role with the same customer with respect to loans and over the counter derivative transactions. The principal risk, says the author, is the rejection of a bank's claim for damages in bankruptcy upon the termination of over the counter derivative transactions entered into with the now bankrupt borrower. This is because the damages with respect to the derivative transactions may be characterized as unmatured interest which may be rejected by bankruptcy court. Although such a characterization was rejected by the courts …
Special Factors Making Small Post-Socialist Economies Susceptible To Bank System Risk
Special Factors Making Small Post-Socialist Economies Susceptible To Bank System Risk
Patricia A. McCoy
No abstract provided.
At The Intersection Of Bank Finance And Derivatives: Who Has The Right Of Way?, Christian Johnson
At The Intersection Of Bank Finance And Derivatives: Who Has The Right Of Way?, Christian Johnson
Christian A. Johnson
The over-the-counter (“OTC”) derivatives industry has developed into one of the world's fastest growing financial markets.1Businesses of almost any description, size, and sophistication now engage in derivative transactions.
Minimizing The Risks Of Otc Derivatives Through Loan Documentation, Christian Johnson
Minimizing The Risks Of Otc Derivatives Through Loan Documentation, Christian Johnson
Christian A. Johnson
Following an introduction to the two types of derivatives instruments (exchange and over-the-counter ("OTC")) this article focuses primarily on minimizing risk from OTC derivatives used to hedge variable interest rate risk. The author uses best practices observed in a loan documentation review of 200 institutions' transactions to demonstrate that the path to risk mitigation lies prudent loan documentation that includes definitions and controls. Controls may include restricting the amount of indebtedness, controlling the quality of the transaction, restricting the purposes for a transaction, pledging collateral, default provisions, application of proceeds, and the incorporation of loan covenants.
Derivatives And Rehypothecation Failure: It's 3:00 P.M., Do You Know Where Your Collateral Is?, Christian Johnson
Derivatives And Rehypothecation Failure: It's 3:00 P.M., Do You Know Where Your Collateral Is?, Christian Johnson
Christian A. Johnson
A borrower would probably be alarmed to learn that its lender had an unrestricted right to use and sell the collateral that the borrower had pledged to secure its borrowings. Borrowers typically believe that a lender should safeguard and protect collateral pledged to it, not use the collateral for its own gain. Yet in the derivatives market, it has become increasingly common for secured parties to insist upon such unrestricted use of pledged collateral.
Wild Card Statutes, Parity And National Banks - The Renascence Of State Banking Powers, Christian Johnson
Wild Card Statutes, Parity And National Banks - The Renascence Of State Banking Powers, Christian Johnson
Christian A. Johnson
The United States has a dual banking system in which banks can be charted either as a National Bank under the National Bank Act or a State Bank under any one of fifty different state banking laws. State Banks have often led the way in banking innovations and developing new approaches for regulating and examining financial institutions. However, in the past decade, State Banks have experienced difficulties in remaining competitive with National Banks, primarily because of the increasingly broad powers granted to National Banks by the Office of the Comptroller of the Currency. Some states have responded by enacting "wild …
Emerging Theories Of Liability For Outside Counsel And Independent Outside Auditors Of Financial Institutions
Patricia A. McCoy
No abstract provided.