For example, ABS issuers have a finite life, strict limits on their activities and no active governance. Logically, issuers of ABS offered under another exemption could undertake to make Rule 144A information publicly available and therefore enable those securities to be quoted under the last option above. A detailed description of the regulatory and other investment drivers for each of these diverse investor classes is beyond the scope of this summary; however, a few points that affect the structuring and offering of ABS are worth noting. 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?' In private deals, the investor vote required for certain actions is primarily a negotiated point, although in registered securitisations these requirements are more prescribed. disclosure of the form and determination of retained risk as specified in the risk retention rules; reporting of repurchases and replacements of securitised assets in connection with breaches of representations and warranties and of the conclusions and findings of third-party due diligence reports; and. Sorsby says We intentionally designed a separate assessment day so that we could use the vacation scheme as an experience. The ARRC, after issuing consultations and soliciting feedback, recommended fallback language for securitisations to facilitate a benchmark transition from LIBOR to SOFR in May 2019. The general counsel's comprehensive guide | Hong Kong, 76 items provided by Shearman & Sterling LLP. The DoddFrank Act introduced a mandate to the SEC and the bank regulatory agencies to promulgate rules requiring securitisers to retain credit risk, which are codified in the relevant sections for the relevant banking regulator (12 Code of Federal Regulations (CFR) part 43 for the Office of the Comptroller of the Currency; 12 CFR part 244 for the Federal Reserve System; 12 CFR part 373 for the Federal Deposit Insurance Corporation (FDIC); 12 CFR part 1234 for the Federal Housing Finance Agency; and 12 CFR part 373 for the SEC (the latter is also referred to as Regulation RR)). Open-market CLOs will not be subject to US risk retention requirements, as discussed in 4.3 Credit Risk Retention. I have a interview there next week for a VS. Any tips etc. shortfalls in reserves or over-collateralisation; outstanding amounts exceeding applicable collateral borrowing value; delinquencies or charge-offs in excess of specified thresholds; and. Applicable tax laws may also cause debt instruments to be characterised as equity interests for purposes of that determination. Registered rating agencies, referred to as NRSROs, are regulated by the SEC. We know that US law firms have a reputation for being aggressive, but that is not the case at Shearman & Sterling. We are one of only a few full-service US law firms in London. Twenty years. That's how long Shearman & Sterling has been welcoming trainees. We're able to offer the opportunity to work in different parts of the world. These funds are used to service interest and principal on the issued securitisation notes and are otherwise available to acquire new receivables or loans, as applicable. Robert Rudnick is especially active in tax controversy. Benchmark replacement conforming changes are changes that the Federal Reserve determines would address one or more issues surrounding the replacement of the contracts benchmark, or (for non-consumer contracts) that are necessary or appropriate to implement the new benchmark in the reasonable judgment of the calculating person responsible for calculating that benchmark under the contract. Skyfame International Holdings Limiteds $112 Million Bond Offering. These are typically used in dealer floor plan securitisations and credit card securitisations. While that analysis is not a legal analysis per se, it will involve a review of the various contractual rights existing in the transaction documents. DaFa Properties Group Limiteds $100 million Senior Notes Offering. Like most of the big US firms with a presence in London, Shearman & Sterlings origins in the Big Apple was a big part of the draw for trainees. the parent corporation owns all or a majority of the capital stock of the subsidiary; the parent and subsidiary corporations have common directors or officers; the parent corporation finances the subsidiary; the parent corporation subscribes to all the capital stock of the subsidiary or otherwise causes its incorporation; the subsidiary had grossly inadequate capital; the parent corporation pays the salaries or expenses or losses of the subsidiary; the subsidiary has substantially no business except with the parent corporation or no assets except those conveyed to it by the parent corporation; in the papers of the parent corporation and in the statements of its officers, the subsidiary is referred to as such or as a department or division; the directors or executives of the subsidiary do not act independently in the interest of the subsidiary but take direction from the parent corporation; and. If the transfer of an asset is respected as a sale, then such asset will cease to belong to the seller and therefore the buyers rights in such assets will typically not be affected by a subsequent bankruptcy of the seller. 11 years ago. News October 20, 2022 Shearman & Sterling Earns High Rankings in Chambers UK 2023 Shearman & Sterling continues to garner recognition in the 2023 edition of With experience across the energy, mining and metals, infrastructure and TMT sectors, the practice 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. Those rules, which were proposed in July 2022 and adopted in December 2022, will become effective 30 days after their publication in the Federal Register. In addition to driving value for clients, the data system also provides powerful predictive insights to help clients achieve their business goals. For contracts without any fallback provision (other than the disregarded fallback provisions described below), or with fallback provisions that do not identify a specific USD LIBOR benchmark replacement or identify a determining person with authority to select a benchmark replacement, a benchmark replacement recommended by the Federal Reserve will automatically replace the LIBOR benchmark in the contract after 30 June 2023. While new securitisation documents can provide for an effective alternative reference rate, LIBOR transition has posed more difficult problems for many existing ABS and their underlying pool assets. SOFR is a secured rate derived from borrowing and lending activities on US treasuries, while LIBOR is based on a survey of quotations from participating banks regarding what they believed the going-forward unsecured interest rate should be. The nature of the CDS may also impact the Investment Company Act analysis for the issuer. Enforcement and Penalties for Non-compliance. disclosure requirements for communications with rating agencies, which, among others, require all information provided to hired Nationally Recognized Statistical Ratings Organizations (NRSROs) in relation to the initial credit rating or any ongoing credit surveillance to be posted to a password-protected website, referred to as the 17g-5 website. conflicts that must be disclosed and managed by the NRSRO; and. This approach was based not on term SOFR but on 30-day average SOFR with a monthly reset period, set in advance of the interest accrual period. Ginnie Mae does not itself issue MBSs, but instead provides a guarantee, backed by the full faith and credit of the US government, of securitisations by participating institutions of government-insured mortgages. If a credit event occurs under a CDS, then the SPE will fund its payment obligation with proceeds from the permitted investments. 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. 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. In all matters, Shearman & Sterling is dedicated to serving clients at the highest level. There is a liquid TBA market for settlement up to three months after the trade date. Shearman & Sterling represented the initial purchasers in connection with KWG Group Holdings Limiteds offering of $378 million 6% senior notes due 2026. In sum, Rule 15c2-11 rule does not appear to pose problems for brokers or dealers desiring to quote registered public ABS, at least so long as they are currently reporting. Shearman & Sterling continues to garner recognition in the 2023 edition of Chambers UK receiving 35 rankings in the new edition, including 13 practice and 22 individual rankings. Ginnie Mae, Fannie Mae and Freddie Mac are the principal agencies and government-sponsored entities (GSEs) engaged in the securitisation of mortgages. Phase 2 was scheduled to extend from 4 January 2023 through 4 January 2024, and Phase 3 was scheduled to begin on 5 January 2024 and extend indefinitely. Because SOFR is effectively a risk-free rate, it requires a spread adjustment, known as the applicable benchmark replacement adjustment in ARRC parlance, to match LIBORs unsecured and riskier calculation. There is no federal value added tax, sales tax or stamp tax on the transfer of financial assets to a securitisation SPE, but in some cases the transfer of loans or leases accompanied by transfers of the underlying assets securing such loans or leases could trigger certain state or local sales tax. For example, the Basel III capital rules penalise banks that invest below the most senior position in a securitisation, thereby impacting banks willingness to invest in mezzanine tranches and below. An SPE that is subject to entity-level tax, such as a corporation or a partnership that is taxed as a corporation, will potentially incur tax liability for any gains resulting from the sale of financial assets and any income otherwise paid with respect to the financial assets in excess of deductible expenses. Investors in unfunded ABS tranches will typically have contingent funding obligations and may be required to provide additional credit support or face replacement if their credit drops below agreed levels. Shearman & Sterling LLP stands out for its expertise in high-profile energy and infrastructure projects in Indonesia, as demonstrated by its advice to Masdar and PT PJB Investasi on the development and financing of a 145MW floating solar PV project over the Cirata reservoir. Shearman & Sterling represented New Metro Global Limited in connection with its offering of $300 million 4.625% guaranteed senior notes due 2025, unconditionally and irrevocably guaranteed by Seazen Holdings Co., Ltd. Shinsun Holdings (Group) Co., Ltd.s Debut Senior Notes Offering. The information must be published at least three days prior to bringing a covered securitisation to market. In securitisations with revolving periods during which there is a constant replenishment period, the servicer will also typically be required to ensure compliance with applicable pool criteria and provide relevant reports in connection with any collateral removal, additions or substitutions. In a securitisation transaction it is common for tax counsel to provide an opinion addressing the tax treatment of the issued securities; in particular, whether the offered notes would be treated as debt securities for US federal income tax purposes. The GSEs traditionally used separate, but similar, platforms to issue their pass-through securities. The number of independent directors should be at least equal to the minimum number of members or partners required to continue the SPEs existence. The ARRCs recommendations suggested the use of a waterfall of fallback language to deal with the potential discontinuance or effective unavailability of LIBOR. The specific RBC formula varies depending on the primary insurance type and focus on asset risk, underwriting risk and other risk. However, there is significant uncertainty around a bankruptcy courts acceptance of such statutes, and securitisations are therefore typically structured to comply with the judicially created true sale criteria. The Section 3(c)(5) exemption is available for issuers securitising accounts receivable, loans to manufacturers, wholesalers, retailers or purchasers of specified merchandise, insurance or services, as well as for mortgages and other liens on and interests in real estate as long as a holder of any such issuers securities does not have the right to require early redemption of such securities. Wilful violations of the Risk Retention Rules may also give rise to federal or state criminal actions. For the firms full list of rankings, visit Chambers and Partners. Shearman & Sterling represented J.P. Morgan as the initial purchaser in connection with KWG Group Holdings Limiteds tap offering of $158 million 7.40% senior notes due 2024. The agency securitisation model and the related guarantees allow investors to focus primarily on the payment characteristics of the underlying pools of mortgages rather than the credit risk. The issuer trust will typically issue notes to investors and trust certificate(s) to the depositor. With approximately 850 lawyers in 25 offices pleb1. The DoddFrank Act had the effect of causing swaps to be included in the definition of commodity pool under the CEA and under the definition of security for purposes of the Securities Act and the Exchange Act. As such, the TBA market permits lenders to lock in rates for mortgages before they are originated, which, in turn, allows borrowers access to lower, locked-in rates. The firms success is built on its clients success. Delaware has up-to-date business entity laws that provide for efficient and quick formation, a sophisticated judiciary and a significant volume of decisions that together provides additional certainty and acceptance. Apply today at CareerBuilder! The NAICs letter described a hypothetical example in which an investment in all of the tranches in a CLO transaction would be subject to a lower RBC factor than a direct investment in the CLOs underlying collateral, and they expressed their position that the RBC factor each such investment should be equal. In determining whether a transfer is a true sale or a disguised loan, courts look to a number of factors. He regularly handles cross-border mandates. 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. However, many broker-dealers appear to have concluded that their quotation procedures for these securities do involve publishing them (or submitting them for publication), so that the rule does not apply. Examples include domestic family law clinics, supporting children obtain refugee status and amnesty for death row inmates. For those trainees hoping for the luck of the draw, the projects development & finance (PDF) seat is one plenty will have their eye on. Shearman & Sterling represented the initial purchasers in connection with Skyfame International Holdings Limiteds offering of $112 million 13% senior notes due 2023, unconditionally and irrevocably guaranteed by Skyfame Realty (Holdings) Limited. There may also be additional representations relating to the nature and characteristics of the relevant assets. 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. US Summer Program | Shearman & Sterling. 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. The ARRCs approach was not meant to be a binding directive, but merely an example of how an ABS product could be created using average SOFR. 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. Various courts have noted that some factors may be more important than others; in particular, the consolidation of financial statements, difficulty of separating assets, commingling of assets and profitability to all creditors. 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. Reg AB II introduced new ABS-specific registration statement forms, Forms SF-1 and SF-3, to reflect the additional disclosure requirements and shelf-eligibility requirements under Reg AB II. In March 2022, the SEC proposed a set of climate change disclosure requirements for public companies. It is important to note that because this decision came from a Federal court sitting in Delaware, if upheld by the Third Circuit, it could potentially have much broader consequences to the securitisation marketplace affecting a variety of asset classes (such as securitisation trusts that own auto loans, mortgages, credit card receivables, unsecured personal loans, etc) than a decision in a different judicial district, as most special purpose entities (trusts and limited liability companies) that are formed for securitisation purposes are organised in Delaware and are thus subject to suit in the same court under the CFPBs authorising statute. These types of contracts can therefore be used as a means of transferring exposure to the assets underlying a securitisation as an alternative to a true sale. specific greenhouse gas emission metrics. 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. 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. The agreement will also often contain provisions that define the servicing standard and further address the relevant role and any additional obligations of the servicer. The CLO is actively managed and will acquire and maintain a diversified pool of underlying loans that is managed to conform to a number of concentration limits for the pool, with the goal of maximising return while maintaining the required pool diversification and other relevant transaction criteria. You hear that US firms have cut-throat cultures, but that isn't the case, one emphasised. In its simplest form, a synthetic securitisation will invest the proceeds from issuing securities in permitted investments and sell CDS protection on a particular financial asset. With lawyers in New York, London, Washington DC, and Frankfurt, Shearman & Sterlings Structured Finance & Securitization Group assists clients in developing, structuring and executing a broad range of financings, including securitisations, structured products, asset-based lending, tailored leasing and royalty arrangements, and other sophisticated financing techniques. The rules governing such entities will be a combination of: The primary factors driving the type and jurisdiction of the securitisation entity will be bankruptcy remoteness and tax. Variations on the ARRC recommended fallback language are now commonly included in US securitisations. If that strategy is not available, there are a number of potential exclusions from the covered fund definition in the Volcker Rule itself, of which the loan securitisation exemption is most important in the securitisation context. Trainees whod experienced other vac schemes were won over by Shearman & Sterling: Some firms give you fake pieces of work and put on too many socials. The CFTC can also impose equitable remedies, including restitution and disgorgement of gains. As a global, elite law firm, Shearman & Sterling represents many of the worlds leading corporations and major financial institutions, as well as emerging growth companies, governments and state-owned enterprises, on ground-breaking, precedent-setting matters. Issuers are typically SPEs that are restricted from engaging in activities unrelated to the securitisation. In some securitisations, such as CLOs, the servicing role may be quite active, consisting of purchasing and selling relevant assets, participating in any workouts as required and otherwise managing the collateral in accordance with the terms of the transaction. Please describe the interview process at Shearman & Sterling. 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). For example, this can be done by using a tax-transparent organisational form or by incorporating the SPE in a jurisdiction that does not impose such taxes. Chambers Student, the students companion to the legal profession, gives the truth about law firms and the Bar. As you might expect from a firm with such an international reach, there are four internationalsecondment opportunities available to trainees at the firm: Dubai, Abu Dhabi, Singapore, and an antitrust seat in Brussels. London, United Kingdom. If its the international side of the firms work that youre keen on, then there arent many places youll find more of it than in international arbitration. The proposed rules would also prohibit private fund advisers from engaging in certain compensatory and other practices which have the effect of creating conflicts of interests between private funds and their advisers. Number of partners worldwide: 200+ determining benchmark replacement conforming changes, for contracts other than consumer loans. As such, broker-dealers can continue to provide quotations for ABS offered under Rule 144A if they reasonably believe that the issuer will provide the information specified in Rule 144(d)(4) upon request. 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. Department profile | Shearman & Sterling LLP. Shearman & Sterling advised Citigroup Global Markets Ltd. as the global coordinator, sole bookrunner and representative of the underwriters of the initial public offering of Black Spade Acquisition Co of 16,900,000 units at an offering price of $10 per unit on the New York Stock Exchange. Violations of the swaps rules promulgated by the CFTC will be subject to enforcement and penalties by the CFTC. 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). events of default that give rise to a right to accelerate the transaction and exercise remedies, including the ability to enforce against collateral (sometimes with collateral sales being subject to additional consent requirements, unless a sale would generate sufficient proceeds to pay the secured notes in full). The firms initiatives include WISER (Womens Initiative for Success, Excellence and Retention), BLAQUE (Black Lawyers Aligned in the Quest for Excellence), AACES (Asian Attorneys for Community, Empowerment and Success), and finally: BUILD (Black Undergraduate Internship & Lawyer Development). In turn, this has allowed for the emergence of a highly liquid to-be-arranged (TBA) market, where pools of MBSs are deemed to be fungible, and traded, on the basis of a few basic characteristics, such as the issuer, amortisation type (eg, 30 years or 15 years), the coupon rate, the settlement date and the maximum number of mortgage securities per basket. Whether this option covers registered ABS that are subject to Exchange Act reporting requirements but where those requirements were suspended before ABS issuers had to file for the life of the deal poses an interpretive question. Until recently, Rule 15c2-11 has always been understood by market participants to apply only to equity securities. Duddell Street Acquisition Corp.s Business Combination with FiscalNote Holdings, Inc. Shearman & Sterling represented Citigroup Global Markets Inc. and J.P. Morgan Securities LLC in connection with Duddell Street Acquisition Corp. (Duddell Street)'s business combination with FiscalNote Holdings, Inc. (FiscalNote). L-shaped risk retention, by holding a combination vertical and horizontal risk retention that adds up to 5%. We were told that if you hit a certain number of hours of pro bono, you get a star on your door. Who said lawyers couldnt be suckers for some positive reinforcement? In June 2017, the ARRC identified SOFR as its preferred alternative to LIBOR for many purposes, including securitisations. Investors constitute a diverse group. The typical items of documentation used to effectuate bankruptcy-remote transfers are: As previously noted, title is not dispositve of ownership, nor is it necessary for the consideration to be in the form of cash. 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