Posts by: Howard S. Altarescu

The Impact of the House and Senate Bills on Financing Transactions

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On November 2, 2017, House Ways and Means Committee Chairman Kevin Brady (R-TX) introduced a tax bill entitled the Tax Cuts and Jobs Act, and later proposed amendments to the bill on November 3, November 6, and November 9, 2017. The House passed the amended version of the bill on November 16, 2017. On November 9, 2017, Senate Finance Committee Chairman Orrin Hatch (R-UT) released a Senate version of the bill, and later proposed amendments to the bill on November 14, 2017. On November 16, 2017, the Senate Finance Committee approved the bill after making some last minute changes in a manager’s amendment. The Senate is expected to take action on its version of the bill sometime after the Thanksgiving break. If the bill is passed by the Senate, the conference committee will attempt to reconcile the House and Senate versions of the bill. If the bill were to become law, there would be certain fundamental changes to the taxation of financing transactions.

Click the chart above to view a larger version

A brief summary of the comparison of the impact of the House and Senate versions of the bill on financing transactions is available here. A more detailed version of such comparison is available here.

Please feel free to contact a member of the Orrick Tax practice group for further up-to-date details as these developments continue to unfold.

European Commission Launches Consultation on Investors’ and Managers’ Duties Regarding Sustainability

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On November 13, 2017, the European Commission launched a public consultation on institutional investors’ and asset managers’ duties regarding environmental and social sustainability.  The consultation is open for responses until January 22, 2018.

The consultation is in response to a recommendation in the EU High-Level Expert Group on sustainable finance interim report published in July 2017.  The interim report recommended that the Commission clarify that fiduciary duties of institutional investors and asset manages explicitly integrate material environmental, social and governance factors and long-term sustainability.  The Consultation Document notes that the Commission has commenced an impact assessment process assessing how such a clarification of institutional investors’ and asset managers’ duties regarding sustainability could contribute to a more efficient allocation of capital and sustainable and inclusive growth.

The consultation seeks evidence from “all citizens and organizations” of how clarifications or amendments to investor duties can contribute to more efficient allocation of capital and to more sustainable and inclusive growth; of how to ensure that end investors and beneficiaries have the right information to help them make sustainable choices; and from leading responsible investors on their strategies for considering environmental, social and governance issues.  Further information about the consultation, including how to respond, is available here.

OECD Development Assistance Committee Adopts Blended Finance Principles

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The Development Assistance Committee (“DAC”) of the Organisation for Economic Co-operation and Development (“OECD”) has adopted policy guidance on the use of blended finance for development.

The guidance includes five nonbinding principles, which are described in Annex 1 to the DAC High Level Communiqué: October 31, 2017, which was published after a DAC convention on October 30 and 31, 2017. The five principles are referred to in the Communiqué as The OECD DAC Blended Finance Principles for Unlocking Commercial Finance for the SDGs. The principles are: (1) anchor blended finance use to a development rationale; (2) design blended finance to increase the mobilization of commercial finance; (3) tailor blended finance to local context; (4) focus on effective partnering for blended finance; and (5) monitor blended finance for transparency and results. The Communiqué provides additional detail with respect to each principle, including how each principle can be implemented.

In a separate publication, the OECD previously defined blended finance as “the strategic use of development finance for the mobilization of additional finance towards sustainable development in developing countries.”

The Communiqué also provided guidance on how aid can be spent on refugees arriving in transit or host countries, including a list of aid-eligible and noneligible expenditures.

The Communiqué is available here.

FMO and Shell Foundation to Create Fund to Provide Capital to Social Entrepreneurs

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On October 24, 2017, the Dutch development bank FMO announced that FMO and the Shell Foundation, in cooperation with the U.K. Department for International Development, will cocreate a fund to provide growth capital to social entrepreneurs.

According to a press release by FMO, FMO and the Shell Foundation signed a Memorandum of Understanding agreeing to cooperate in the field of access to energy in Sub-Saharan Africa and India. This will include investing in financial institutions with specific goals of increasing access to finance, reducing inequality, and promoting green financing and agribusiness. The growth capital fund is planned to launch in the first quarter of 2018.

The press release is available here.

Impact Finance

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Impact Finance—investment with the intention to generate social and environmental impact alongside a financial return—is a large and growing global market. According to the Global Impact Investing Network‘s Annual Impact Investor Survey 2017, over $22 billion was invested into nearly 8,000 Impact Finance deals worldwide in 2016, which represented 15 percent growth over 2016, and the market was expected to grow another 17 percent through the end of 2017.

Impact Finance is an important focus area for Orrick, and we will be periodically reporting in our Financial Industry Week in Review on developments in this area.

Federal Reserve Seeks Comments on LIBOR Alternatives

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On August 24, 2017, the U.S. Federal Reserve requested public comments on a plan for the New York Federal Reserve and the Office of Financial Research to come up with three reference rates based on U.S. Treasuries-backed repurchase agreements (repos). The proposed rates are to be called:

  • Tri-party General Collateral Rate (TGCR)
  • Broad General Collateral Rate (BGCR)
  • Secured Overnight Financing Rate (SOFR)

The most comprehensive of the rates, SOFR, would be a broad measure of overnight Treasury financing transactions and was selected by the Alternative Reference Rates Committee (ARRC) as a U.S. dollar LIBOR alternative. LIBOR is a benchmark for $350 trillion worth of financial products worldwide, including $150 trillion in derivatives.

Public comments on these proposed rates are requested within 60 days of publication in the Federal Register, which is expected shortly, according to a Federal Reserve Board press release. To read the press release, click here.

LIBOR Discontinuance and the Derivatives Market

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On July 27, 2017, the Chief Executive of the UK Financial Conduct Authority (“FCA“) announced that, after the end of 2021, the FCA would no longer use its power to persuade or compel panel banks to submit rate information used to determine the London Interbank Offered Rate, known as “LIBOR.” LIBOR serves as a benchmark rate for hundreds of trillions of dollars of securities, loans and transactions, including over-the-counter and exchange-traded derivatives. The potential permanent discontinuance of LIBOR has significant implications for the derivatives market, especially for legacy transactions. Read more here.

Rating Agency Developments

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On July 7, 2017, Kroll published its Research Recap for Q2 2017. Here are several articles of interest:

On June 29, 2017, DBRS published an update to its rating methodology for U.S. equipment lease and loan securitizations. Report.

On June 29, 2017, Fitch published an update to its rating criteria for insurance-linked securities. Release.

On June 28, 2017, Fitch published a report entitled U.S. State Housing Finance Agencies: Single-Family Mortgage Program Rating Criteria. Report.

On June 28, 2017, Fitch published a report entitled U.S. RMBS Surveillance and Re-REMIC Rating Criteria. Report.

On June 23, 2017, Moody’s published a report entitled Regulated Electric and Gas Utilities. Report.

On June 23, 2017, S&P issued a report entitled RMBS: Methodology And Assumptions: Assessing Pools Of Residential Loans In Austria, Denmark, Germany, And Sweden. Report.

On June 22, 2017, S&P issued a report entitled ABS: Global Methodology And Assumptions For Corporate Securitizations. Report.

On June 22, 2017, Fitch published a report entitled U.S. RMBS Rating Criteria. Report.

On June 22, 2017, Fitch published a report entitled EMEA CMBS and CRE Loan Rating Criteria. Report.

Treasury Department Report: Decreasing Regulatory Burdens, Increasing Regulatory Accountability and Fostering Economic Growth

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On June 12, 2017, the U.S. Treasury Department released its report to the President, “A Financial System That Creates Economic Opportunities – Banks and Credit Unions,” authored by Steven Mnuchin, Secretary, and Craig Phillips, Counselor to the Secretary. The report sets forth the Treasury Department’s analysis and recommendations on a wide range of bank and credit union regulatory reform proposals, including the following with regard to certain lending and financing matters, which are set forth in a section of the report titled “Providing Credit to Fund Consumer and Commercial Needs to Drive Economic Growth.” Read the full article here.

OCC Addresses Questions Related to Bank Collaboration with Fintech Companies and Others

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Recently, with increasing frequency, questions have been posed regarding the responsibilities of bank regulated entities (“Bank Entities”) with respect to their “third-party relationships,” particularly with financial technology companies.

On June 7, 2017, the Office of the Comptroller of the Currency (the “OCC”) issued a supplement (the “Supplement”) to its Bulletin 2013-29, “Third-Party Relationships: Risk Management Guidance,” issued October 30, 2013.

As an overview, the OCC stated:

OCC Bulletin 2013-29 defines a third-party relationship as any business arrangement between the bank and another entity, by contract or otherwise. Third-party relationships include activities that involve outsourced products and services; use of outside consultants, networking arrangements, merchant payment processing services, and services provided by affiliates and subsidiaries; joint ventures; and other business arrangements in which a bank has an ongoing third-party relationship or may have responsibility for the associated records. Recently, many banks have developed relationships with financial technology (fintech) companies that involve some of these activities, including performing services or delivering products to a bank’s customer base. If a fintech company performs services or delivers products on behalf of a bank or banks, the relationship meets the definition of a third-party relationship and the OCC would expect bank management to include the fintech company in the bank’s third-party risk management process. (Emphasis added.)

The OCC expects banks to perform due diligence and ongoing monitoring for all third-party relationships. The level of due diligence and ongoing monitoring, however, may differ for, and should be specific to, each third-party relationship. The level of due diligence and ongoing monitoring should be consistent with the level of risk and complexity posed by each third-party relationship. For critical activities, the OCC expects that due diligence and ongoing monitoring will be robust, comprehensive, and appropriately documented. Additionally, for activities that bank management determines to be low risk, management should follow the bank’s board-established policies and procedures for due diligence and ongoing monitoring.

The Supplement then addresses a series of FAQs that should be considered by Banking Entities. Conversely, these FAQs also provide guidance to fintech companies seeking relationships with Bank Entities and in addressing due diligence inquires. FAQs.