Leiden Law Blog

Bondholders in heavy weather – the case of SNS Reaal

Posted on by Matthias Haentjens in Private Law , 5
Bondholders in heavy weather – the case of SNS Reaal

Two weeks ago, the Dutch Minister of Finance decided to expropriate all shareholders and subordinated bondholders of SNS Reaal, one of the four largest financial conglomerates in the Netherlands. Interestingly, he did not touch senior bondholders.

Not only have they remained untouched, senior bondholders now have pari passu claims against a company in which the State freshly injected EUR 3.7 billion and which will be restructured, so that SNS Property Finance, the billion euro-bleeding subsidiary, will be isolated from the SNS Reaal group. But they have been lucky.

In his expropriation decision, the Minister left no doubt that, on the basis of the recently enacted ‘Intervention Act’, he would have been authorised to expropriate also the senior bondholders. Indeed, the Act states that the holder of any securities issued by the relevant financial institution may be expropriated. But Parliamentary proceedings suggest that the legislature had shares and similar instruments in mind, not ordinary bonds. Moreover, in Parliament, the Minister had said that the Act did not provide for ‘bail-in’, i.e. a forced write-down of bonds or a forced conversion of bonds into shares. And expropriation – from an economic perspective – amounts to ‘bail-in’: as a result of both expropriation and bail-in, the (ex-)bondholder loses his right to full repayment. The Minister concluded that it should be left to the European legislature to introduce bail-in as a resolution tool.

The Minister’s position made perfect sense, as the Dutch banking sector is financed for 20% with senior debt. Should the Intervention Act (expressly) have introduced bail-in, senior bondholders would thus hold riskier claims and therefore demand a higher interest rate on their bonds. This would, the Minister must have reasoned, not have helped the Dutch banking sector’s position. That his reasoning was not without merit showed in the week before SNS Reaal’s nationalisation: rating agency Fitch was not so sure about the fate of SNS Reaal’s senior bondholders, and threatened to reassess (read: downgrade) Dutch banks if it appeared that senior bondholders could be forced to accept major losses on their bonds.

The bondholder issue is not idiosyncratic for the land of dikes and tulips. In Denmark, for instance, senior bondholders were forced to accept losses after the collapse of Amagerbanken – with negative consequences for the Danish banking sector. Spain, on the other hand, has until now refused to infringe on bondholders’ rights. The European draft Recovery and Resolution Directive seeks to address this ‘unlevel’ playing field and provide harmonised rules for bank insolvencies, so that all Member States may write down bonds, convert them into shares, and reduce them to zero.

The bigger picture question is whether these harmonised rules would end the continuous spending of enormous amounts of taxpayers’ money on the banking sector. On the one hand, forcing bondholders to accept losses means these losses are not shouldered by taxpayers. As explained above, however, the possibility of bail-in will result in a rise of banks’ funding costs, which will be to the detriment of the already frail state the banking sector is currently in. Which might then require even more taxpayers’ money. Consequently, additional measures would be necessary. I would support European banking supervision, harmonised rules on the ringfencing of commercial bank activities from investment bank activities, and, most importantly, a common Eurozone redemption fund. While some form of European banking supervision seems to be politically feasible in the near future, the latter two measures are likely to be postponed to the future – well behind the cold front which still envelops Europe’s financials today. 

5 Comments

Matthias Haentjens
Posted by Matthias Haentjens on February 22, 2013 at 12:00

Again, excellent point. After the restructuring, SNS Bank will – at least initially – remain liable for the financing of Property Finance, i.e. for the separate property management vehicle created after the restructuring. But so as to minimize this exposure of SNS Bank on the vehicle, the State of the Netherlands will issue a EUR 5b guarantee to the benefit of SNS Bank.

But this remaining exposure of SNS Bank on the newly created property management vehicle must be distinguished from the intercompany financial structure, which contributed, as you rightly suggest, both in the SNS Reaal case, and in the DSB case to the plight they were in.

In the SNS Reaal case, there is the issue of ‘double leverage’. Under this finance structure, only the SNS Reaal holding company was externally financed, while this money was injected, as equity, in the holding company’s subsidiaries SNS Bank and Reaal. End 2012, the group was financed for EUR 909m this way. The proceeds of a possible sale of good parts of the group (such as the insurer Reaal), would therefore have to be used to pay back the holding company’s external liabilities, rather than to rescue ailing Property Finance. Thus, the ‘double leverage’ structure effectively blocked the sale and split-off of different parts of the group.

In the DSB case, by contrast, the DSB Beheer holding company borrowed relatively large sums (up to EUR 80m) from its (indirect) subsidiary DSB Bank. No adequate collateral or security was given to secure this loan. Also, DSB Beheer had large sums paid out to itself as dividend by its profit making subsidiary DSB Bank. This money was used, in part, to support other, loss making subsidiaries. Consequently, DSB Bank suffered from a too large exposure on DSB Beheer, which contributed to its insolvency.

Happy Hotelier
Posted by Happy Hotelier on February 22, 2013 at 10:08

Matthias
Will as a consequence of the reshuffling there be no receivables onProperty Finance be on the balances of the group companies anymore?

I understood there was a spaghetti heap of receivables all over the balances of the group companies on Property Finance which was so complicated that it was easier to nationalize than trying to untangle the spaghetti heap…and just ditch Property Finance…very similar to the DSB bank intercompany accounts situation actually i.m.h.o….

Steef M. Bartman
Posted by Steef M. Bartman on February 21, 2013 at 17:38

So what you’re basically saying, Matthias, is that the minister used an instrument (expropriation) as a spurious and well-hidden means to effectuate a bail-in of subordinated bondholders, which instrument the government previously did not dare to explicitly attribute to the Dutch Central Bank in the Intervention Act (and thus inform the market thereof) for fear of Dutch banks getting downgraded by rating agencies. Rather shocking I must say.

Matthias Haentjens
Posted by Matthias Haentjens on February 19, 2013 at 14:19

Interesting point. The capital injection and the restructuring of the SNS Reaal group are separate, albeit connected measures.

The capital injection has been structured as follows. EUR 0.3b will be injected as equity in the SNS Reaal holding company and EUR 1.9b in its subsidiary SNS Bank. An earlier EUR 0.8b loan from the State to the group will be amortised, i.e. cancelled. Finally, EUR 0.7b. will be injected in SNS Bank’s subsidiary SNS Property Finance.

The restructuring will be effectuated by a transfer of SNS Property Finance out of the SNS Reaal group to a separate property management vehicle. This property management vehicle will then be resolved.

Happy Hotelier
Posted by Happy Hotelier on February 19, 2013 at 00:29

Hi

I fail to see the connection between the infusion of new capital and the consequence as you seem to suggest that the property finance subsidiary will “so that SNS Property Finance, the billion euro-bleeding subsidiary, will be isolated from the SNS Reaal group” Did you leave out a step?

Add a Comment

Name (required)

E-mail (required)

Please enter the word you see in the image below (required)

Your own avatar? Go to www.gravatar.com

Remember me
Notify me by e-mail about comments