* Odds shorten on Argentinian default after ruling
* Judge cites payment agents as active participants
LONDON, Nov 22 (IFR) - Argentina is likely to default next month unless Bank of New York Mellon and other US payment agents are prepared to defy a court order and pay USD3bn to holders of the country’s GDP warrants on December 15.
The odds have jumped after a New York judge set out on Wednesday evening how Argentina should comply with an earlier ruling that it must pay investors in its old defaulted bonds in full at the same time as paying holders of instruments that most investors took in 2005 and 2010 exchanges.
Replying to an appeal court request to set out how this ruling should be implemented, district court Judge Thomas Griesa said the full USD1.3bn due to NML Capital and other plaintiffs should be paid if Argentina goes ahead with the payment to the GDP warrant holders.
“The amount that is currently due is the amount of the unpaid principal, the due date of which has been accelerated, and accrued interest. The total...is approximately USD1.33bn,” said Judge Griesa.
He added: “Argentina must pay that USD1.33bn concurrently with or in advance of the payments on the exchange bonds. Argentina owes this and owes it now. After 10 years of litigation this is a just result.”
Argentina’s President Cristina Kirchner and other members of her government have indicated that they will never pay such holdouts, since its appeal was rejected in New York on October 26. That view is unlikely to change.
“It would be a big loss of face for the country to pay the holdout creditors,” said a senior capital markets lawyer.
But even though Argentina may have the capacity to pay its exchange bondholders, the latest ruling from Judge Griesa suggests this may be hard to execute. He warned that critical US payment system agents would be defying the court if they make the USD3bn payment, without the holdouts receiving their money.
In his order Judge Griesa cited trustee Bank of New York Mellon, nominees Cede & Co and BNY Depositary and clearing systems operators such as the Depository Trust Company as acting “in active concert or participation with the Republic to assist...in fulfilling its payment obligations under the exchange bonds.”
“Under the circumstances, these third parties should properly be held responsible for making sure that their actions are not steps to carry out a law violation, and they should avoid taking such steps,” he ruled. The injunction must be served physically on these bodies to bind them.
Prior to the most recent ruling, BNY Mellon said it would “comply with any court order by which it is deemed bound, as well as its duties and obligations to the exchange bondholders under the indenture.” The institution declined to update its position following the latest ruling.
The payment to exchange bondholders could be made via a different route, said the lawyer. But the order requires Argentina to seek court approval if it was to alter or amend “specific transfer mechanisms by which it makes payments on the exchange bonds”.
“So the country is likely to go into payment default because of the mechanism not getting sums due to exchange holders,” said the lawyer.
The appeal court will now respond to Judge Griesa’s decisions. Argentina has also requested a rehearing of its appeal ‘en banc’. In March the sovereign secured a stay on proceedings until the appeal process ended.
But this has now been ended by Judge Griesa, who wants his original order carried out forthwith. “This means that the order will be applicable to the interest payments to exchange bondholders in December 2012,” he ruled.
The first such payment of USD42m on December 2 is allowed by the judge but he called for the USD3bn due on December 15, relating to GDP warrants, to be placed in an escrow account awaiting the final decisions of the appeal court.
“The December 15, 2012 interest payments due to exchange bondholders cannot be made unless Argentina certifies that it is making the appropriate payment for the benefit of plaintiffs to the escrow account, either in advance of or concurrent with any payment to exchange bondholders,” he said. (Reporting by Christopher Spink; Editing by Sudip Roy)