In a surprising development, on September 11, 2019 the Seventh Circuit Court of Appeals issued a ruling on appeal reversing a lower bankruptcy court decision and found that a UCC financing statement that contained no collateral information whatsoever, but simply cross-referenced a security agreement, sufficiently “indicated” the collateral for purposes of UCC Article 9. In so doing, it put itself directly at odds with a January 2019 decision by the U.S. Court of Appeals for the First Circuit (In re Financial Oversight & Management Board)” in connection with the insolvency proceeding for Puerto Rico.

Continue Reading Seventh Circuit issues surprising ruling on sufficiency of UCC collateral description

Please plan to join us on Tuesday, October 15, as Mayer Brown lawyers from the United States, Europe and Asia and distinguished outside panelists discuss the latest business and legal developments in the supply chain finance market.

Now in its fifth year, our New York seminar will be a full-day program. A continental breakfast and lunch will be provided.

Topics:

  • Purchasing Accounts Receivable in the United States, an Overview
  • True Sale Beyond Credit Recourse
  • Our Five Most Common Bankruptcy Questions From Clients
  • New Trends and Current Issues
  • How To: Your New 20 Jurisdiction Receivables Financing
  • Distribution Update – Current Issues in Risk Participations and Beyond
  • Business Panel: Securitization, Receivables Purchase, ABL – Which One and Why?

Download Program Agenda

CLE credit is pending.

For additional information about this program or to register, please contact Emily Sullivan at esullivan@mayerbrown.com or +1 312 701 8451.

Registration
7:30 a.m. – 9:00 a.m.

Optional Pre-session
8:00 a.m. – 9:00 a.m.

Program
9:00 a.m. – 5:20 p.m. (including networking lunch)

Reception

5:20 p.m.

Location
Mayer Brown
1221 Avenue of the Americas
New York, NY 10020
+1 212 506 2500

We continue our series on capital relief trades (CRTs) with a look at issues that arise under the Volcker Rule and U.S. risk retention rules in connection with structuring CRTs in the U.S.

Please be on the look-out for Part three of our CRT series in which Ed Parker, global practice head of Derivatives & Structured Products at Mayer Brown, and Merryn Craske, a partner in Mayer Brown’s Structured Finance Practice in London, will provide a UK perspective on CRTs, including the capital treatment and regulatory requirements for such transactions and the insurance and swap issues arising in connection with CRTs issued in the United Kingdom, as well as the European Banking Authority’s consultation paper on an STS framework for synthetic securitizations.

You can find Part two of our CRT series here.

Continue Reading Capital Relief Trades: Structuring Considerations for Synthetic Securitizations (Part two of a three part series providing a U.S. and U.K perspective)

On September 26, 2019, the US Securities and Exchange Commission extended the ability to test the waters to all issuers by adopting the highly anticipated new Rule 163B under the Securities Act of 1933 (the Securities Act). The new rule allows any issuer, or any person acting on the issuer’s behalf, to engage in test the waters communications with potential investors that are reasonably believed to be institutional accredited investors (IAIs) and qualified institutional buyers (QIBs), either prior to or following the date of filing of a registration statement relating to the offering, without violating the Securities Act’s “gun jumping” rules. Prior to Rule 163B, testing the waters was limited to emerging growth companies (EGCs) only.

Read the full Legal Update here.

In this fall edition of our Structured Finance Bulletin, we discuss structuring and legal considerations for multi-jurisdiction trade receivables financing transactions as well as the latest innovations in CLO structures.

We also revisit the European Union securitization regulations and the application in the United Kingdom of the European Union securitization regulations following Brexit and describe the benefits of structuring lending arrangements as repurchase facilities.

Finally, we take a deep dive into the CFPB’s recent proposed debt collection rulemaking and discuss the Japanese risk retention rules and the SEC’s concept release regarding several exemptions from registration under the Securities Act of 1933.

Continue Reading Structured finance bulletin – Fall 2019

Today, we are kicking off a three part series discussing capital relief trades (CRTs)—often referred to as synthetic securitizations—which  are used by banks to transfer risk on reference pools of assets to non-bank investors, reduce the risk weight of assets held by such banks and improve capital ratios.

Historically, the CRT market has been dominated by issuers in the UK and other European jurisdictions.  The United States has lagged Europe in CRT issuance for a number of reasons, including:

  • US banks have largely been well-capitalized and have had less need for regulatory capital relief relative to banks in some European jurisdictions;
  • a higher risk-weight floor for securitization exposures in the United States means CRTs provide less benefits for US banks relative to their European counterparts; and
  • hesitancy by US banks to be a first-mover in the CRT market, which may be especially true in the case of regional banks who may have an interest in CRT, but prefer to wait for a large bank to pave the way with regulators.

Despite the above forces, there is a growing interest among US banks in CRTs.  The first part of our series on CRTs will feature:

  • Julie Gillespie, co-head of Mayer Brown’s structured finance practice, and Carol Hitselberger, co-leader of Mayer Brown’s banking and finance practice, discussing why U.S. banks are interested in CRT and what are the operational requirements for synthetic securitizations under the US capital rules;
  • Larry Hamilton, co-lead of Mayer Brown’s US Insurance Regulatory & Enforcement group discussing issues that arise under US insurance regulations in connection with CRTs; and
  • Derivatives partners, Curtis Doty and Matt Kluchenek, discussing important issues under US swaps regulations affecting CRTs.

You can find Part one of our CRT series here.

Please be on the look-out for Part two of our CRT series, in which we will discuss issues that arise under the Volcker Rule and U.S. risk retention rules in connection with structuring CRTs.

In Part three we will wrap up our series with a UK perspective on CRT from Ed Parker, global practice head of Derivatives & Structured Products at Mayer Brown.

Mayer Brown is an associate sponsor of ABS East 2019 at the Fontainebleau Miami Beach, and Mayer Brown partner Ryan Suda will be presenting a panel at 2:50 p.m. on September 23rd entitled “Deciphering Emerging CLO Structures”.

Topics discussed will include:

  • The new ‘mascot’ feature received negative press. What are the facts vs. fiction regarding this and other new features emerging?
  • How prevalent is it going to be, how well utilized? Is it just for lesser-known managers? What is the tradability of the mascot?
  • Bond – loan hybrid deals: a solution to the drying up of loan collateral? What is investor appetite for non-Volker compliant collateralized credit opportunities?
  • Stress CLOs: Are we seeing an increased issuance in CCC deals?
  • How are these structures different than the much-maligned CDO?

Time & Location

2:50 pm Eastern

Fontainebleau Miami Beach
4441 Collins Avenue
Miami Beach, FL 33140

For more information, please visit the event’s website.

Transactions in the collateralized loan obligation (“CLO”) market have generally included some form of LIBOR replacement provisions for over a year, stemming from the announcement in July 2017 by Andrew Bailey, the head of the UK Financial Conduct Authority (“FCA”), that the FCA intended to phase out LIBOR in its present form by the end of 2021. The latest iteration blends a “hardwiring” approach with an “amendment” approach. In this Legal Update, we discuss this “Blended Approach”—how it updates the LIBOR replacement provisions otherwise prevailing in the CLO market, addresses value transfer and basis risk concerns and achieves two positive outcomes for the CLO market.

You can find the Legal Update here.

As you may remember, there were a lot of changes to the U.S. tax law at the end of December 2017.  Those changes were enacted by the so-called Tax Cuts and Jobs Act. One of those changes was the addition of Internal Revenue Code section 451(b). This rule requires accrual method taxpayers who file “applicable financial statements” to recognize certain items of income for federal income tax purposes no later than when they recognize such income on those financial statements.

Section 451(b) could affect the timing of a sponsor’s tax recognition of certain of its revenue (e.g., credit card late fees), and could affect the timing of a noteholder’s tax recognition of income items from an investment in a note (e.g., discount).  It is not uncommon to see securitization offering documents contain some tax disclosure regarding this new rule.  On September 5, 2019, the IRS issued proposed regulations providing guidance on the application of these rules.

The proposed regulations address a variety of matters, including certain items of income relating to debt instruments.  The proposed regulations clarify that Internal Revenue Code section 451(b) does not apply where special methods of accounting are used for federal income tax purposes, including hedging transactions, mark-to-market accounting and REMIC inducement fees.  According to the proposed regulations, included in the special methods of accounting for which Internal Revenue Code section 451(b) will not require acceleration of income inclusion on the basis of a financial statement are the general special tax accounting rules for debt instruments such as original issue discount, de minimis original issue discount, market discount, de minimis market discount, contingent payment debt instruments and variable rate debt instruments.  However, the proposed regulations provide that certain payments to a lender that are otherwise not treated as “fees” for federal income tax purposes but instead are treated as amounts that reduce the debt instrument’s issue price and are recovered as income over time, must be included as income of the lender in the year of receipt if those payments are treated as fees on the lender’s applicable financial statement.

We expect future securitization disclosure to be updated to reflect the recent proposed regulations.  For more information, see our Legal Update, which summarizes how these rules impact affected taxpayers.

In July, the Federal Deposit Insurance Corporation (the “FDIC”) proposed a change (discussed here) to certain provisions of its securitization safe harbor rule (the “Rule”), which relates to the treatment of financial assets transferred in connection with a securitization or participation transaction.  The proposed change would eliminate the requirement under the Rule that disclosure documents for bank-sponsored securitizations not otherwise subject to Regulation AB’s disclosure requirements (i.e. non-public transactions) comply with Regulation AB.   This could significantly ease the compliance burden associated with non-public bank-sponsored ABS issuances, potentially resulting in a greater volume of such transactions.

Continue Reading Recent credit card ABS disclosure trends