A guide to legal practice areas. These GSEs purchase loans that satisfy their origination criteria and issue securities backed by pools of such loans that are guaranteed by the relevant GSE. One client remarks that it is adept at moving at pace dealing with complex As noted in 4.11 Activities Avoided by SPEs or Other Securitisation Entities, this has impacts on the Investment Company Act and Volcker Rule analysis. Most of the remaining ABS are issued in private placement, typically in a manner that permits resales in compliance with Rule 144A. The Trust Indenture Act of 1939 is amended to provide that the right of any holder of any indenture security to receive payment of the principal of and interest on such indenture security shall not be deemed to be impaired or affected by any change occurring by the application of the LIBOR Act to any indenture security. Indenture trustees act on behalf of noteholders and typically also act as trustees for the collateral. (Rule 144A(A)(4) requires a holder or prospective purchaser of securities to have the right to receive, upon request, certain specified information about the issuer and the securities, but this information need not be made public.). In May 2022, the National Association of Insurance Commissioners (NAIC) issued a letter recommending adjustments to the risk-based capital (RBC) treatment of CLO investments held by insurance companies, in order to eliminate a perceived arbitrage opportunity. Not surprisingly, the more numerous the secured loan characteristics, the greater the likelihood that the transaction is viewed as such. Typically, the power to exercise such rights and remedies is given to the trustee with provisions that entitle the trustee to obtain directions backed by indemnification. The New York Fed publishes daily SOFR and 30-, 90-, and 180-day SOFR averages, which are compounded daily on each business day. Appointing an independent director whose fiduciary duty runs to the SPE and not to its shareholders, and employing an entity type that allows for such redirection of fiduciary duties, reduces the risk of a filing for the benefit of its shareholders. New York firm Shearman & Sterling LLP benefits from its long-term dedication to Brazil. News October 20, 2022 Shearman & Sterling Earns High Rankings in Chambers UK 2023 Shearman & Sterling continues to garner recognition in the 2023 edition of Shearman & Sterling represented the initial purchasers in connection with Shinsun Holdings (Group) Co., Ltd.s debut offering of $200 million 10.5% senior notes due 2022. As a result, the proposed rules could result in the disclosure of a number of immaterial risks for ABS issuers. According to the ARRC, use of the SOFR Term Rate should be in proportion to the depth of transactions in the underlying derivatives market and should not materially detract from volumes in the underlying SOFR-linked derivatives transactions that are relied upon to construct the SOFR Term Rate itself over time and as the market evolves initially. Market participants have coalesced around a view that, if the issuer of a Rule 144A asset-backed security were to undertake to make the required Rule 144A information publicly available and to keep it current, that would suffice for broker-dealers to quote those securities. formal legal requirements of the subsidiary as a separate and independent corporation are not observed. The nature of the CDS may also impact the Investment Company Act analysis for the issuer. Two rounds, the first includes an interview and the second a proper assessment centre with a group exercise, a written exercise, a case study and another interview. In addition to a robust, dedicated structured transactions practice, it offers key practice area expertise to support transactions, including tax, the Employee Retirement Security Act (ERISA), litigation, broker-dealer, real estate and investment company practice lawyers. As such, it is typical to obtain an opinion of counsel relating to the treatment of the notes issued by the SPE as debt for tax purposes and, depending on the activities of the SPE and the level of comfort provided under such opinions, to include additional transfer restrictions on instruments that are, or could be, equity for tax purposes so as to avoid the SPE becoming taxed as a corporation. Broadly speaking, perfection can be: The general means of perfecting a security interest in financial assets other than a deposit account is by filing a UCC financing statement in the applicable filing office. These can be provided by third-party liquidity providers or as part of the servicing rights and obligations. This option reinforces the notion that registered ABS where the issuer is subject to Exchange Act reporting requirements do not pose compliance issues under the Rule 15c2-11(b). There is a liquid TBA market for settlement up to three months after the trade date. Therefore, the only variations of SOFR actually available to use until July 2021 were: In March 2021, the ARRC published a white paper containing an approach to using SOFR in new issuances of ABS and other securitised products. According to data provided by the Securities Industry and Financial Markets Association (SIFMA), the most commonly securitised financial assets are: Common structures used for the various types of securities previously outlined (see 8.1 Common Financial Assets) include the following. the sellers continued administration and control of the assets, particularly if the obligor is not notified of the sale (however, under current market practice, sellers often act as servicer of the sold assets and such continued involvement is generally not viewed as dispositive of the loan or sale characterisation). Legal. The group is split into three sub-teams in investment-grade finance, leveraged finance, and structured finance. However, the SEC has to date not done so, and the Treasury has recommended against such expansion. In March 2022, the SEC proposed a set of cybersecurity disclosure rules for public companies. L-shaped risk retention, by holding a combination vertical and horizontal risk retention that adds up to 5%. Shearman & Sterling advised Abu Dhabi Future Energy Company PJSC (Masdar) and PT PJB Investasi (PJBI), a subsidiary of Indonesian state-owned offtaker PT PLN (Persero), on the $114 million financing of a 145MWac floating solar photovoltaic power project on the Cirata Reservoir in Indonesia. In some instances, the perfection representations relating to chattel paper may also call for the original being marked as pledged to the trustee to reduce the risk that a third-party acquirer obtains possession without actual knowledge of the prior security interest. This structure is typically used in auto lease securitisations and other lease transactions relating to titled goods. reducing the risk of the issuer becoming substantively consolidated with any affiliates should they become subject to bankruptcy proceedings. In addition, the CFTC has anti-avoidance authority to treat as swaps transactions that are wilfully structured to evade the requirements of the DoddFrank Act and to bring enforcement actions where such transactions fail to satisfy applicable criteria. There is current and publicly available information (consistent with Rule 15c2-11(b)) about the issuer, and the staff would consider the Information Requirement discussed in Section II.C. Guangzhou Fineland Real Estate Developments Exchange Offer and Concurrent New Money Offering. Shearman & Sterling represented the dealer managers in connection with the exchange offer by Guangdong Hong Kong Greater Bay Area Holdings Limited of any and all of its outstanding 14% senior notes due 2021 for 13.85% senior notes due 2023. Wilful violations of the Risk Retention Rules may also give rise to federal or state criminal actions. Competition for training contracts at Shearman & Sterling is increasingly fierce. Most derivatives, certain mortgage repo transactions and many securities contracts are protected against the automatic stay and some of the most troublesome bankruptcy powers. 5. KWG Group Holdings Limiteds $378 Million Senior Notes Offering. In September 2017, the Consumer Financial Protection Bureau (CFPB) filed suit against 15 National Collegiate Student Loan Trusts (the Trusts), alleging that the Trusts had violated the Consumer Financial Protection Act (CFPA) by engaging in unfair and deceptive practices in connection with the servicing and collection of the private education (not Federally guaranteed) student loans owned by each of the Trusts (but not originated nor serviced by any Trust entity). transfer of assets without formal observance of corporate formalities. And its no surprise. SOFR compounded in advance, calculated by compounding interest over a set period of days. Newbies in the seat were drawn to the opportunities in developing areas of renewable energy and green power on offer, with typical tasks including drafting contracts, document management, and proof-reading.. For example, a single-member limited liability company (LLC) is, for federal tax purposes, disregarded (in the absence of the SPE electing any contrary tax treatment) and therefore any transfer of assets from a parent to its wholly owned LLC will not be a taxable event. For example, the CFTC has issued no-action letters exempting from the definition of commodity pool certain securitisation entities that are operated consistent with SEC Regulation AB or Investment Company Act Rule 3a-7. Black Spade Acquisition Cos $169 Million SPAC US IPO. Investors constitute a diverse group. 2010 - dc. The proposed disclosures do not appear particularly relevant to ABS issuers and would be problematic if made applicable to ABS issuers in their current form. In June 2017, the ARRC identified SOFR as its preferred alternative to LIBOR for many purposes, including securitisations. Shearman & Sterling advised Osaka Gas and its U.S. subsidiary Osaka Gas USA Corporation in connection with the agreement with Oriden LLC to jointly develop a portfolio of more than 700 MWdc (600 MWac) of utility-scale solar and storage projects throughout certain U.S. markets. Payments based on US-source income to foreign individuals and corporations are potentially subject to withholding tax. There is no effect on contracts that already contain fallback provisions that identify a benchmark replacement that is not based in any way on USD LIBOR, or as to which the parties agree in writing to opt out of the application of the LIBOR Act. Following the 200708 financial crisis (the Global Financial Crisis), the Exchange Act has been amended to require certain additional disclosure requirements that apply to all ABS, including: Registered ABS offerings are subject to additional disclosure requirements as set forth in Regulation AB, which was significantly revised and updated in 2014 (Reg AB II) to address a number of perceived shortcomings in prior practices and to enhance investor protection in the ABS market. Finally, the SEC has proposed, but not finalised, conflict-of-interest rules intended to address conflicts of interest inherent in synthetic securitisations that would have made such securitisations impracticable in many circumstances. The CFTC can also impose equitable remedies, including restitution and disgorgement of gains. Future Diamond Limited's $200 Million Senior Notes Offering. Enforcement is usually a combination of events of default under the indenture, which gives the noteholders the right to direct the indenture trustee to take enforcement actions, and servicer defaults, which give the specified class or classes of noteholders rights to replace the servicer. Any identified determining person will have the authority to replace the LIBOR rates with the SOFR-based benchmark replacement selected by the Federal Reserve. Shearman & Sterlings Litigation Group is strongly positioned to counsel and protect clients in todays challenging environment. annual reporting or proxy disclosure about directors cybersecurity expertise. Graduate recruitment manager, Paul Gascoyne tells us the online form is pretty standard and contains three open-ended questions: 'Why do you want to be a solicitor?' Under older practice, which still applies in some circuits, the courts may rely on a multi-factor analysis. The form also gives trainees the option of requesting a secondment. As is often the case in corporate seats, the hours can be unpredictable, particularly around closing, but small teams working on each deal meant great responsibility and ownership. Research forms a big part of trainee life in the corporate M&A group, which I hadnt expected from a transactional seat. oversight and governance of climate-related risks; how climate-related risks, including those that are reasonably likely to have a material impact on business or financial statements, may affect business; how climate-related risks have affected or are likely to affect strategy, business model and outlook; processes for identifying, assessing and managing climate risks and how those processes fit into overall risk management; impact of climate-related events and transition activities (such as policy changes) on the financial statements and financial estimates; and. the issuer becoming subject to insolvency proceedings. However, the recent October amendments to the Volcker Rule allow for a small bond basket, thereby removing one of the restrictions that have prevented CLO managers from engaging in a bond/loan arbitrage that was popular prior to the promulgation of the Volcker Rule. This no-action letter withdrew the December 2021 letter, but effectively extended Phase 1 under the December 2021 letter until 4 January 2025. "He is very proactive, approachable, easy to work with and technical.". The derivatives underlying such securitisation are regulated by the SEC if they reference a single security, a single loan or a narrow-based security index and by the CFTC if they are deemed to be swaps (in which case the SPE may also be a commodity pool). The servicer typically also produces periodic reports and interfaces with the trustee to ensure the correct application of funds in accordance with the applicable priority of payments waterfall. Under the GAAP accounting rules, a true sale opinion from an attorney is often required to support a conclusion that transferred financial assets are isolated from the transferor and its consolidated affiliates. If a foreign securitisation issuer were to be engaged in US trade or business for US federal income tax purposes, it would become subject to US federal income tax and potentially also subject to state and local income tax. Shearman & Sterling; watch this thread. In the event that a pre-cessation event is operative, the ARRCs recommended five-year historical median spread adjustments will be determined at the same time as the ISDAs spread adjustments, which will be at the time of any announcement that LIBOR will cease or has ceased or will or has become no longer representative. In 2014, the Board of Governors of the Federal Reserve System (the Federal Reserve) and the Federal Reserve Bank of New York (the New York Fed) formed the Alternative Reference Rate Committee (ARRC) to identify possible alternative reference rates for US dollar LIBOR and to identify best practices for implementation of a new reference rate. The US bank regulators have generally implemented the Basel III capital and liquidity rules but with some important distinctions. Shearman & Sterling LLP Website www.shearman.com Share profile Contact details Contact number +8621 6136 5000 Related Rankings Chambers Review Notable Practitioners Ranked While loans is a broad term for the purposes of that exclusion, there are significant limitations on an SPEs ability to hold derivatives (other than for the purposes of hedging interest and currency risk) and securities (other than for certain short-term cash-management purposes). For those trainees hoping for the luck of the draw, the projects development & finance (PDF) seat is one plenty will have their eye on. Instead of selling the assets and leases to be securitised to a particular issuer, the titling trust segregates such leases and assets, and issues special units of beneficial interests (SUBIs) that represent the interest in such segregated pool. As the old saying goes (sort of): with great responsibility, comes great hours. In CLOs the servicing agreement is typically referred to as a Portfolio Management Agreement, Collateral Management Agreement or Investment Management Agreement (or similar term). Each series of notes typically has a revolving period during which no principal is paid on the notes, with the notes paying down once the amortisation period starts. Consequently, in order to be attractive to banks, securitisation entities tended to avoid becoming a covered fund under the Volcker Rule. the relevant laws relating to the relevant form of organisation in its jurisdiction of formation; bankruptcy or other applicable insolvency laws. Held here at our London office, the day will comprise of the following: An introduction to the industry and to Shearman & Sterling. Shearman & Sterling 2023 | Attorney Advertising, Committee on Foreign Investment in the United States (CFIUS), Financial Institutions Advisory & Financial Regulatory, Environmental, Social and Governance (ESG), EU General Data Protection Regulation (GDPR), Future of Financial Services Regulation in the UK, Global Compliance & Anticorruption (FCPA), Special Economic Zone and Regulatory Drafting. Furthermore, FDIC-insured banks may face higher insurance premiums for taking on exposures in securitisations collateralised predominantly by sub-prime and other high-risk assets, which reduces the attractiveness of such securitisations. DaFa Properties Group Limiteds $100 million Senior Notes Offering. Overview. The firm has offices across the US, giving it a strong presence in state and federal court actions throughout the country. Until recently, Rule 15c2-11 has always been understood by market participants to apply only to equity securities. Shearman & Sterling Hi all, Anyone had any experience with these guys? Applications for 2022 vacation schemes were high; the firm received around 2,000 applications for its 15 training contract vacancies. With experience across the energy, mining and metals, infrastructure and TMT sectors, the practice determining benchmark replacement conforming changes, for contracts other than consumer loans. The servicing provisions generally relate to continued collection and servicing of the relevant asset and typically include a number of provisions relating to reporting, notice and turnover of collections. Typically, investors will not have responsibilities per se, although investors may be subject to certain deemed representations relating to their eligibility to invest in the securitisation. The structure allows for multiple series of securities to be issued that all share in assets of the master trust. The Volcker Rule prohibits banks from holding an ownership interest in, or sponsoring entities that are, covered funds for purposes of the Volcker Rule. Yet despite the firms American twang, the London office has its own distinctive voice: The London office isnt just a satellite for the US, one source remarked, its a standalone office with its own work. Trainees also highlighted that a smaller trainee intake [of around 15 a year] means more responsibility early on, so the work you do as a trainee has a bigger impact. Prospective candidates can expect stiff competition, with as many as 2,000 applying for a place in 2022. For a sale of financial assets to be valid and enforceable against third parties, it has to attach and be perfected similar to what applies to a security interest in collateral. Rule 3a-7 is available for entities holding primarily self-liquidating assets that are only sold or purchased in accordance with the terms of the transaction, and not for the purpose of capturing market gains or avoiding market losses. The regulatory authority is primarily divided between the CFTC and the SEC, with the US banking regulators setting capital and margin requirements for banks. The sale of loans and other receivables can also trigger certain gains or losses, generally depending on whether the SPE is part of the same tax-consolidated group as the transferor, and may, depending on applicable law and the characterisation of the transfer, also have consequences for the transferors continued ability to deduct losses from bad loans. Candidates are asked the usual 'Why law?' The servicer will typically be responsible for collecting payments under, and ensuring that the issuer complies with, the obligations relating to the collateral. Shearman & Sterling. the transferor being a debtor of the transferee on or before the purchase date; the transferors ability to extinguish the transferees rights in the transferred assets by payments or repurchase by the transferor or from sources other than collections on the asset; and. 2015 - aujourdhui8 ans 1 mois Counsel juil. An SPE that is organised as a partnership or an LLC that has elected to be treated as a partnership for tax purposes would not be subject to entity-level tax, but transfers to a securitisation SPE that is treated as a partnership for tax purposes may have different tax consequences than transfers to a disregarded entity and, as such, it is possible to structure the SPE (and use a multi-SPE structure) so as to optimise the securitisation for the desired tax neutrality. there is a signed agreement that reasonably identifies the relevant rights and assets. The agencies may also impose civil monetary penalties that can range between USD5,000 and USD1 million per day, and it may seek to impose removal and prohibition orders against any institution-affiliated party (a potentially broad list of persons), which may remove and potentially bar the person from participating in the business of the relevant banking entity or other specified entities. Theres plenty of room for pro bono work at Shearman too, with a dedicated pro bono point person (shoutout to Nina!) Rule 15c2-11 under the Securities Exchange Act of 1934 (Exchange Act) allows brokers or dealers to initiate or resume trading quotes on OTC securities not listed on a national securities exchange by requiring them to obtain and review specified issuer information prior to publishing or submitting for publication a quotation on the securities. The corresponding rules as implemented in the USA also refer to tranched credit risk, but do not include the pool requirement. However, as a practical matter, SPEs organised in the USA overwhelmingly tend to be organised as a limited liability company or a statutory trust. Shearman & Sterling advised IFC on the first housing bond issued in Bangladesh, provided to BRAC Bank Limited. A security that has been issued in a private placement will typically be subject to resale limitations that may restrict the liquidity of the issued securities. in legacy contracts (including ABS transactions) that have adopted the ARRCs recommended fallback language; in business loans where transitioning from LIBOR to an overnight rate has been difficult; and. I have a interview there next week for a VS. Any tips etc. Shearman & Sterling advised Qxpress Pte. Come qualification time, third-seaters receive a list of teams who are looking to hire for that year. This framework is built around the principles of: In addition, Title VII imposes registration, oversight and business conduct standards for dealers and large participants in the derivatives market. Tax Laws and Issues. In one recent matter, the firm advised Greek food company Chipita on its sale to a subsidiary of Mondelez International for 1.7 billion. These recommendations, if adopted, could result in significantly higher capital charges for insurance company investments in CLO transactions. The offering of securities in a synthetic securitisation will be governed by the Securities Act. Delaware is viewed as a favourable jurisdiction for forming business entities. The DoddFrank Act added a new Section 27B to the Securities Act intended to address certain conflicts of interest that, if implemented, could create significant hurdles for synthetic securitisations. The structure also allows for some series to be in their revolving period while other series are in their amortisation period. Student insights. In some securitisation transactions they are also responsible for establishing and preparing the relevant securitisation structure and documentation. Sections 15E and 17 of the Exchange Act and the rules promulgated thereunder establish a detailed set of records that must be created and disclosed to the SEC, and mandate that some of this information must be made publicly available free of charge, including the assigned credit rating and any subsequent upgrade or downgrade. Plus Business Combination with Hennessy Capital Investment Corp. V. Shearman & Sterling is representing the banks who are acting as joint placements agents in connection with Plus business combination with special purpose acquisition company (SPAC) Hennessy Capital Investment Corp. V. Jiayuan International Group Limiteds $130 Million Senior Notes Offering. The SEC regulates the offer and sale of securities issued by a synthetic securitisation and the issuers Investment Company Act exemptions are the same as in a traditional securitisation. Skyfame International Holdings Limiteds $100 million Senior Notes Offering. Shearman & Sterling has a distinguished history of supporting clients wherever they do business, from major financial centres to growing markets. The Federal Reserve was required to promulgate implementing regulations not later than 180 days after the date of its enactment. If the determining person does not select any non-LIBOR benchmark replacement, the benchmark replacement selected by the Federal Reserve will automatically replace the LIBOR rates in the contract. The SEC adopted amendments to Rule 15c2-11 that became effective in September 2021 to, among other things, provide greater transparency to investors and other market participants by requiring that information about the issuer and its security be current and publicly available before a broker or dealer can begin quoting that security. The intersection of legal and accounting requirements often plays a significant role in structuring a securitisation transaction. Certain types of LIBOR fallback provisions will be disregarded: provisions that base the LIBOR replacement in any way on a LIBOR value, except to account for the difference between LIBOR and the benchmark replacement; and. in the case of a foreign financial institution (defined broadly to include a hedge fund, a private equity fund, a mutual fund, a securitisation vehicle or other investment vehicle), the entity must identify and provide information in respect of financial accounts with such entity held directly or indirectly by US persons and US-owned foreign entities; and. Insurance companies capital requirements are subject to state regulation. SOFR has been used routinely in CLOs, where the pool assets consist generally of floating rate commercial loans, but the ARRC has expressed displeasure over the recent use of term SOFR as the benchmark for other floating-rate ABS backed by fixed-rate receivables. Only a small minority of new ABS issuances are made in SEC registered form. Of those, five were in Band 2 or above and for the seventh year in a row, the firm is ranked in Band 1 for UK-wide: Projects and Band 2 for UK-wide: Energy & Natural Resources: Power. Chambers and Partners guides offer in-depth analysis of the legal market within countries and regions across the globe. Under the most recent no-action letter, the SEC staff will not take enforcement action against a broker-dealer that publishes, or submits for publication, quotations for fixed-income securities, if the broker-dealer reasonably has determined that the security or its issuer meets one of several specified criteria, or there is current and publicly available financial information (consistent with Rule 15c2-11(b)) about the issuer. Servicers are typically the sponsor or an affiliate of the sponsor. Firm Overview:Shearman & Sterling has a long and distinguished history of supporting its clients wherever they do business, from major financial centers to emerging and growth markets, for nearly 150 years. Shearman & Sterlings Tax practice plays an integral role in the firms corporate and cross-border practice and provides tax capability in France, Germany, the United Kingdom and the United States. Furthermore, the Attorneys General of the various US states and territories also have certain authority to bring enforcement actions under Section 13a-2 of the CEA where their citizens are adversely affected. Department profile | Shearman & Sterling LLP. As such, the mapping of ABS assets to an NAIC rating will often dictate the attractiveness of a particular asset-backed security for an insurance company. Under the ARRCs recommended language, a transition from LIBOR to SOFR in a securitisation is triggered upon the declaration of a specific benchmark transition event: The ARRC has confirmed that the March 2021 IBA USD LIBOR announcement constituted a benchmark transition event and amended its recommended fallback language to reflect that occurrence. It maintains a strong office in So Paulo handling capital markets mandates for blue-chip The specific RBC formula varies depending on the primary insurance type and focus on asset risk, underwriting risk and other risk. Masdar Floating Solar Photovoltaic Power Project in Indonesia. The securitisation must also satisfy some additional requirements, including having a trustee with certain minimum qualifications holding either title or a security interest in the assets, and investors in securities that are either below investment grade or not fixed-income securities must satisfy certain qualification requirements. 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