According to the Wall Street Journal, the Greek threshold for "successful" CAC passage is now expected to be just 66%, far below the 95% discussed yesterday. Says the WSJ [7]: "The Greek government is aiming for a minimum participation of least two-thirds of bond holders in a planned debt exchange, a finance ministry official said Tuesday, with a formal offer on the exchange expected to take place by the end of this week. The deal, which aims to erase some EUR107 billion from Greece's debt burden, is part and parcel of a related EUR130 billion loan deal agreed to by euro-zone finance ministers in the early hours of Tuesday." As was extensively explained in our subordination piece from January, this is the number of bondholders that have to agree to the Collective Action Clause, which if passed successfully, would avoid a CDS trigger as it would be then deemed voluntary by ISDA who are more than happy to avoid any type of contagion causes by CDS triggers - they are after all a banker-owned organization. We ignore how a 66% participation rate is anything but a majority, let alone supposedly consensual. There is a bigger issue. And unfortunately by the Greek's actions, it shows they are in process of abrogating even more contractual rights in the form of foreign (UK-Law) covenant agreements. Either that, or the country is about to pay par to all UK-law bonds, both outcomes that threaten to put the entire second bailout in jeopardy.
As a reminder, and as we pointed out in January [8], "where the process falls squarely on its face, is the fact that Greece also has issued a modest amount, somewhere over €25 billion face, in bonds issued under UK-law. These are bonds which already have Collective Action Clauses and which as Stephen J. Choi and Mitu Gulati explain, come in two flavors: "Those that were issued prior to 2004 contained CACs that allow holders of 66% or more of an issue to modify payment terms in a manner that would bind all other holders. The bonds issued after 2004 require the consent of holders of 75% or more of an issue." Incidentally, this is where the Greece has the upper hand argument fails because while Greece can force local-law bondholders to do pretty much anything, it has no chance of doing that if a given hedge fund cartel has already built up a blocking stake in the UK-bonds. Choi and Gulati go on to state the obvious: "Obtaining approvals from between 66% and 75% of the bonds is likely to be difficult." And this is where the game gets interesting, because while the bulk of the bonds, or what is now becoming obvious is the junior class, can be impaired with impunity (pardon the pun), it is the UK-law, or the non-domestic indenture, bonds, which are the de facto fulcrum security. And since the notional outstanding here is tiny, it is quite easy to build up a blocking stake in the bonds and to obtain full control of the process, especially since the ECB appears to have been building up its own stake in local-law bonds."
In other words, if Greece does rule that the 66% threshold is enjoining, it means that a collective class of UK-law bonds has just had their covenant protection stripped, despite them being issued under UK-law, something which will set the entire sovereign bond market on fire, as it takes the threat subordination to a whole new level. In yet other words, a hold out class is no longer a hold out class, even if it controls more than 25.1% of the strong-law protected class. Either that, or hopefully more likely, instead of starting an epic litigation of UK-law bonds, Greece is simply preparing to pay par to the minority of UK-law holders, which are expected to block the deal, sue, and hold out for par as Greece will be subject to UK law (in which case keep an eye out on the price of the UK-law bonds which comprise half of all outstanding 2016 issues [9]).
And while UK-law bonds may be de minimis, or between €25 and €40 billion of the total as estimated before, this is still a massive amount when considering that any difference between the non-UK law bonds and par for this class could amount to an additional €20-€35 to the barely agreed upon €135 billion rescue package.
So have the creditors once again succeeded in pulling a fast one on Greece which continues to stun the world with its unbelievable misundestanding of bond law?