Even as the general market, dumb as a doorknob, had been following every headline out of Europe, soaking up the BS that Greece may after all end up being bailed out in some miraculous way, there were those who wondered about the legal basis of the Greek bailout #2, also known as a redux of the "Vienna initiative." The problem with the second "Deux Ex Machina" bailout is that there is absolutely nothing Deus about it, no Ex, and most certainly no Machina. In fact, as it now clearly appears, the whole rescue package is flimsier than a house of cards and a quick read through the indenture makes it all too clear. The key reason why the voluntary Vienna Initiative worked back in 2009 is that the alternative was the end of the world, and nobody would profit from not going along with the herd. This time things are diametrically different. The key phrase (or two) in the proposed package: "Voluntary" and "Collective Action Clauses"... Well as the following excerpt from Citi explains, both of these critical (as in binary: without them, Greece is dunzo) assumptions are unworkable, and explains why every single Greek bond in recent weeks has been purchased by hedge funds who have remembered that the economics of "nuisance value" when the upside of bluffing the EUR printer is virtually unlimited. Which means that not only is Bailout #2 in jeopardy of not passing the Greek parliament, but that we may suddenly find ourselves in the biggest "activist" investor drama, in which voluntary restructuring "hold out" hedge funds will settle for Cheapest to Delivery or else demand a trillion pounds of flesh from the ECB in order to keep the eurozone afloat. In other words, the drama is about to get very, very real. And, most ironically, a tiny David is about to flip the scales on the mammoth Goliath of the ECB and hold the entire European experiment hostage...
The smoking gun courtesy of Citigroup:
Legal Characteristics of Greek Government bonds
After the question of whether or not a restructuring will occur and when, the next most important question for most investors is whether or not it can be done in such a way as to not trigger CDS. Lee Buchheit3 has indentified several aspects of Greek debt that are relevant. In particular, the large amount of domestic debt without features such as cross defaults and negative pledges should facilitate a number of restructuring options.
There are €327bn of outstanding Greek government bond debt, of which €9.8bn are treasury bills. Of the total, less than 2% is in dollars, yen, Swiss francs or other foreign currency. From a legal standpoint, the most striking feature is that 90% of the total bonds are governed by Greek law with the majority of the remainder under English law. Figure 2 illustrates that a large portion of the international debt is only due after 2016. These factors have significant implications for Greece’s options if they decide to go down the restructuring route.
Greek law bonds have no Collective Action Clauses (CACs) which mean that voluntary restructurings require 100% of investors to accept the new terms in order to avoid triggering a default, an almost impossible hurdle. Greek sovereign bonds issued under English law prior to 2004 have CACs which permit 66% of bondholders consent to modify terms that would bind all holders. Post 2004 75% of bondholders consent is required but the scope of potential revisions is broader.
The situation is similar for negative pledges which are only found in English law debt. The clause requires Greece equally and ratably to secure each of the bond issues if ever it creates a security interest over its revenues, properties or assets to secure any external indebtedness. This is normally applied to foreign currency borrowings and only really makes sense prior to Greece joining the Euro. Therefore, negative pledges in euros only really apply to bonds issued after 2004, a relatively small percentage.
Equally, cross-acceleration, cross-default and moratorium event of default clauses only apply to international debt denominated in currencies other than euros. Therefore bondholder remedies such as acceleration are only relevant to a very small percentage of debt issued before 2004.
Given that the percentage of bonds with difficult clauses is relatively small, Greece could presumably offer some form of tender, additional collateral or waiver for them. This opens up a number of possibilities. For example, it would be able to collateralize a future Euro-denominated issue of securities in a European version of Brady bonds. Or alternatively, obtain a partial guarantee of the new instruments from a creditworthy party as the Seychelles did recently.
Looks like someone in the troica did not do their homework...