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IFLR Webcast

IFLR Webcast. July 31, 2012. NY2 706039. Dodd-Frank rulemaking progress. DFA – Open Issues. Many of the most important issues have not been addressed, including, for example: Designation of entities that are systemically important Volcker Rule Derivatives provisions

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IFLR Webcast

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  1. IFLR Webcast July 31, 2012 NY2 706039

  2. Dodd-Frank rulemaking progress

  3. DFA – Open Issues • Many of the most important issues have not been addressed, including, for example: • Designation of entities that are systemically important • Volcker Rule • Derivatives provisions • Securitization and mortgage related provisions

  4. Agenda • During today’s session, we will provide a status report on a number of the key areas of rulemaking, including: • Financial stability reform • Orderly Liquidity Authority (or our resolution authority) • The Volcker Rule • The framework applicable to funds • The regulation of derivatives • Securitization • Ratings • Capital

  5. Financial Stability Reform

  6. SIFIs SIFIs under U.S. law Bank holding companies and FBOs with $50 billion or more in consolidated assets Approximately 34 U.S. companies Approximately 99 FBOs Nonbank financial companies designated by the Financial Stability Oversight Council “Material financial distress” “Nature, scope, size, scale, concentration, interconnectedness, or mix of activities” Must be “predominantly engaged” in financial activities—an issue for the Federal Reserve

  7. FSOC final regulations – three stage process for designation Stage 1: Quantitative thresholds Stage 2: Public and existing supervisory information No institution will be informed of exit at Stage 2 Stage 3: Information request to company Notice of Consideration Notice of Proposed Determination Decision Note that prerequisite for SIFI designation is that company be “predominantly engaged” in financial activities Federal Reserve has not completed rulemaking SIFIs (cont’d)

  8. SIFIs (cont’d) FSOC expected to designate first nonbank SIFIs by end of 2012 Number of nonbank SIFIs could vary widely Federal Reserve perspective FDIC perspective Basel SIFI principles G-SIBs—framework published Nov. 2011 D-SIBs—proposed framework published June 2012

  9. Resolution and Liquidation Resolution planning U.S. requirements – rapid and orderly liquidation under bankruptcy code First plans filed on July 2 Orderly Liquidation Authority Criteria FDIC appointed as receiver $50 billion line of credit OLA institutions not synonymous with SIFIs Non-SIFI could, at the time, present material risk SIFI could be resolved in bankruptcy

  10. European provisions Disparity on nation-by-nation basis Financial Stability Board: Key Attributes (Oct. 2011) First plans in UK have been submitted International coordination Resolution and Liquidation (cont’d)

  11. Volcker Rule

  12. Volcker Interplay The Volcker Rule prohibits (with some exceptions) “proprietary trading.” Proprietary trading means: Engaging as principal For the trading account Of the “covered banking entity” In the purchase or sale of one or more “covered financial positions.” A “covered financial position” includes a swap. A “covered banking entity” includes an insured depository institution and any affiliates or holding companies. A trading account is an account in which positions are held in order to realize gains from short-term price appreciation. Generally, positions held for 60 days or less are deemed to be traded positions and are subject to Volcker restrictions. Positions held for more than 60 days generally are exempt

  13. Volcker Considerations Volcker restrictions apply to foreign banks trading outside the U.S. in several circumstances: The bank has a U.S. presence—even wholly unrelated to trading—but fails to meet certain conditions: Even though most of its assets, revenues, and income are derived from non-U.S. operations, the bank maintains a branch, agency, or representative office in the U.S. but does not comply with Federal Reserve regulations regarding these offices. The majority of any two of the bank’s total assets, total revenues, or net income are held or derived from activities in the U.S. rather than activities outside the U.S. The trading has any kind of nexus with the U.S.: The bank trades with a U.S. resident Any bank personnel directly involved in the trade is physically located in the U.S. Trading utilizes any kind of U.S. execution facility.

  14. Volcker Considerations (cont’d) If a foreign bank is subject to Volcker, a variety of prohibitions and restrictions come into play. Proprietary trading in any kind of security is presumptively prohibited. Trading in connection with an underwriting is permissible. Trading in connection with market making also is permissible, but a large number of restrictions apply. The specifics of these restrictions are unclear. Trading as a hedging activity is permissible, but the scope of such hedging is uncertain, particularly whether Volcker permits trading to hedge an entire portfolio. How the U.S. regulators will enforce these restrictions is unclear. U.S. regulators may or may not have authority to examine or supervise the non-U.S. operations of a foreign bank that are unrelated to the business of a branch, agency. U.S. regulators may attempt to restrict operations of a branch, agency, or representative office. U.S. regulators have some authority to limit other business of a foreign bank in the U.S.

  15. Funds

  16. SEC Releases June 22, 2011: SEC publishes three releases adopting new rules under the Advisers Act to implement provisions of Dodd-Frank: Release IA-3220: Family Offices Release IA-3221: Rules Implementing Amendments to the Advisers Act Release IA-3222: Exemptions for Certain Advisers October 31, 2011: SEC publishes a release implementing Form PF Release IA-3308 December 21, 2011: SEC publishes a release amending net worth standards for accredited investors Release 33-9287

  17. Implementing Release The Implementing Release relates to: registration requirements for investment advisers; and reporting requirements for (1) registered investment advisers, and (2) exempt reporting advisers

  18. Mid-sized Advisers Advisers Act Section 203A generally prohibits an investment adviser regulated by the state in which it maintains its principal office and place of business from registering with the SEC unless it has at least $25 million AUM Dodd-Frank created a new category of covered mid-sized advisers: with $25 million – $100 million AUM, and subject to registration and examinations as investment advisers with the state of their principal office and place of business Wyoming, New York and Minnesota are states that do not meet both requirements

  19. Mid-sized Advisers (cont’d) New Advisers Act Section 203A(a)(2) provides that no covered mid-sized adviser shall register with the SEC unless the adviser: advises a registered investment company; advises a “business development company”; or is required to register with 15 or more states

  20. Mid-sized Advisers (cont’d) By raising the SEC registration threshold to $100 million AUM, Dodd-Frank generally bars smaller and mid-sized investment advisers from choosing SEC registration over state registration According to the SEC, approximately 3,200 advisers will be required to withdraw their SEC registrations and register on a state level

  21. Transition to State Registration Mid-sized advisers registered with the SEC as of July 21, 2011, must remain registered with the SEC until January 1, 2012, unless an exemption applies. Deadlines for mid-sized advisers no longer eligible to register with the SEC: Those registered with the SEC on January 1, 2012, must file an amendment to Form ADV no later than March 30, 2012, to indicate that they are no longer eligible to remain registered with the SEC Advisers required to withdraw must withdraw registration with the SEC by filing Form ADV-W no later than June 28, 2012

  22. Assets Under Management The SEC revised the instructions to Form ADV Part 1A to create a uniform standard for advisers to calculate their AUM for determining eligibility for registration or exemptions, and other regulatory purposes Advisers Act Section 203A(A)(2) defines AUM as the “securities portfolios” with respect to which an adviser provides “continuous and regular supervisory or management services” New term, “regulatory assets under management” (RAUM), replaces “assets under management” in Form ADV Part 1

  23. Assets Under Management (cont’d) RAUM: to be calculated on a gross basis (without deduction of “any outstanding indebtedness or other accrued but unpaid liabilities”) to be valued at market value of private fund assets, or fair value if market value is unavailable must include: the value of any securities portfolios for which the adviser provides continuous and regular supervisory or management services, regardless of the nature of the assets held by the private fund (e.g., proprietary assets, assets managed for which no compensation is received, and assets of foreign clients) the amount of any uncalled capital commitments made to a private fund

  24. Derivatives

  25. Status of Title VII • Critical building blocks of the Title VII regulatory regime have recently been jointly adopted by the CFTC and SEC • Entity Definitions (adopted in April and published in May 2012) covering definitions of swap dealer, security-based swap dealer, major swap participant, major security-based swap participant and eligible contract participant • Product Definitions (adopted in July 2012, with publication expected soon) covering definitions of swap and security-based swap • However, still awaiting final action by the U.S. Treasury regarding the exemption of FX forwards and FX swaps for certain purposes • Publication of Product Definitions will trigger a host of compliance dates under the CFTC’s Title VII regulations, but will not have a similar effect with respect to the SEC’s Title VII regulations • Except for joint rulemaking efforts, CFTC is much further along in its Title VII rulemaking than the SEC

  26. Status of CFTC Title VII Implementation • CFTC is moving ahead toward commencing implementation of significant components of its Title VII regime during the fall of 2012 • CFTC has been more active than SEC in adopting final rules under Title VII, including between April 2012 and as recently as last week acting to finalize rules for: • End-User Exception • Phase in Schedule for Mandatory Clearing • Core Principles for Designated Contract Markets • Customer Clearing Documentation and Timing Requirements • Internal Business Conduct Standards for Swap Dealers and MSPs • CFTC has recently provisionally registered ICE Trade Vault as a swap data repository and approved DTCC-SWIFT as an interim provider of “Legal Entity Identifiers” (LEIs) to permit compliance with swap data reporting requirements • CFTC also last week proposed its first list of swaps (covering certain categories of interest rate and credit default swaps) to be designated for mandatory clearing • Subject to a post-publication 30-day comment period, this list could become final some time in September 2012

  27. Status of CFTC Title VII Implementation (cont’d) • With publication of the Product Definitions expected to occur soon, registration for swap dealers and major swap participants will likely become mandatory by late September/early October 2012 • Once this registration requirement occurs, many other Title VII rules adopted by the CFTC will begin to take effect at that time or shortly thereafter, including: • Real-time Reporting for Credit and Interest Rate Swaps • General Recordkeeping and Reporting for Credit and Interest Rate Swaps • Various Internal Business Conduct Standards for swap dealers and MSPs • External Business Conduct Standards • Position Limits for physical commodity-based futures and swaps for spot months and, for legacy agricultural commodities, non-spot months (CFTC recently provided temporary no-action relief from certain aggregation requirements under its position limit rules) • Also under CFTC’s rules, FCMs will be required in November 2012 to implement the LSOC method for segregating customer initial margin posted for cleared swaps

  28. Status of CFTC Title VII Implementation (cont’d) • Despite all this recent activity, CFTC has significant rulemaking that it has not yet completed, including • Margin requirements for OTC swaps (CFTC recently reopened the comment period on the rule it had proposed covering OTC swap margining) • Capital requirements for non-bank swap dealers and MSPs • Swap execution facility (SEF) requirements, the most significant of which are • SEF market structure (central limit order book versus request for quote) • Block trade definitions • “Available to trade” criteria • Documentation requirements for OTC swaps as well as portfolio compression and netting • Additional phase-in rules covering trading documentation and margining

  29. Status of CFTC Title VII Implementation (cont’d) • CFTC is also working to finalize guidance and compliance relief relating to the cross-border application of Title VII and the CFTC’s Title VII rules • Within last month, CFTC issued: • Proposed Guidance regarding the application of its Title VII rules, and • Proposed Exemptive Order to permit delayed compliance with certain Title VII requirements • Following the applicable comments periods, • Proposed Guidance could be finalized by some time in September 2012, and • Proposed Exemptive Order could be finalized by late August to mid September 2012

  30. Status of CFTC Title VII Implementation (cont’d) • Proposed Guidance attempts to address cross-border matters by: • distinguishing between “Entity-level” requirements and “Transaction-level” requirements of Title VII • defining who is a U.S. Person for cross-border purposes • considering how Title VII should apply to foreign branches, subsidiaries and affiliates of U.S. Persons, as well as how guaranties by U.S. Persons might impact these considerations • contemplating, in the case of some Entity-level requirements, potential “Substituted Compliance” based on comparably robust home country regulation • Though early in the comment period, the Proposed Guidance is already attracting a significant and deeply concerned reaction from the international banking and financial regulatory community • Proposed Exemptive Order supplements the Guidance by allowing delayed compliance for certain (but not all) Entity-level requirements • Primarily for non-U.S. swap dealers/MSPs who by complying with the order may delay some compliance until July 2013 • However, U.S. swap dealers/MSPs who comply can delay their compliance with some Entity-level requirements until January 1, 2013

  31. Status of CFTC Title VII Implementation (cont’d) • All indications are that that CFTC is intent on having compliance commence by this fall, which will mean that over the next two months: • Cross Border Proposed Guidance and Proposed Exemptive Order will need to be finalized • Initial list of swaps designated for mandatory clearing should be published • To the extent possible, further important rulemaking by the CFTC should be completed or, alternatively, guidance should be provided as to how newly registered swap dealers and MSPs should conduct themselves if such rules are not finalized • To the extent possible, CFTC and NFA should endeavor to address many questions and uncertainties that have arisen over the interplay of the NFA’s registration process for swap dealers and MSPs and the CFTC’s regulatory implementation schedule • U.S. Treasury should finalize its proposed exemption for FX forwards and FX swaps • Potential swap dealer and MSP registrants will need to finalize and implement many policies, procedures and system/infrastructure enhancements • To position the industry to comply with External Business Conduct Standards, OTC documentation will need to be supplemented, most likely via the Protocol, Supplement and Questionnaire process currently under development by ISDA • Address other requests for guidance or clarification from various industry groups or participants

  32. Status of SEC Title VII Implementation • SEC is taking a different approach to Title VII rulemaking • It appears that no registration requirements will be imposed until all substantive Title VII rulemaking by SEC is complete • Two of the CFTC’s Commissioners (Sommers and O’Malia) indicated they had hoped that the CFTC would proceed in a similar fashion • SEC’s substantive rulemaking has lagged significantly behind the CFTC’s • In some cases, the SEC is yet to publish a proposed rule on matters that the CFTC has long since published proposed rules on or even proceeded to adopt final rules • For example, as yet no SEC proposed rule on • on margin requirements for OTC swaps or capital for non-bank registrants • cross border application of SEC’s Title VII regulation • Even where SEC has published proposed rules, the timeline for finalizing these rules is unclear

  33. Status of SEC Title VII Implementation (cont’d) • At present, there is no clear indication that the SEC will be moving aggressively or on an expedited basis to finish its Title VII rulemaking • In addition to manpower issues, the SEC has many other aspects of the Dodd-Frank Act that are drawing on its resources • For swap dealers/MSPs that also are potential security-based swap dealers or major security-based swap participants, the lack of synchronization between the CFTC and SEC Title VII programs is likely to present some difficult and confounding compliance challenges

  34. Securitization

  35. Dodd-Frank Securitization Perspective In the mind of Congress in mid-2010, securitization was a major contributing factor, if not cause, of financial crisis and thus one of the principal reasons for the enactment of D-F Relatively few D-F provisions specifically target securitization, but securitization-related concerns permeate the entirety of D-F Also, many securitization issues were already being addressed by regulators and accounting profession before Congress “caught up” by enacting D-F This section of the presentation will address the status of: D-F provisions specifically addressing securitization (“core” D-F securitization provisions) Generally applicable D-F provisions that significantly impact securitization (“non-core” D-F securization provisions) Significant non-D-F legal, regulatory and accounting developments affecting securitization

  36. Dodd-Frank Securitization Status Core D-F Securitization Provisions Section 941: Risk Retention and Definition of “Qualified Residential Mortgage” (QRM) – PENDING Section 942: Exchange Act §15(d) Reporting – Done Disclosure – PENDING Section 943: Representations, Warranties and Repurchase Provisions – Done Section 945: Issuer Due Diligence – Done Section 621: Conflicts of Interest – PENDING

  37. Dodd-Frank Securitization Status (cont’d) Non-Core D-F Provisions Title II: “Orderly Liquidation Authority” (OLA) Provisions – PENDING Section 619: Volcker Rule – PENDING Title VII: Derivatives – PENDING Section 939A: References to Credit Rating Agencies (CRAs) Market Risk Capital Rule – Done ICA Rule 3a-7 – PENDING Related Issue: ICA §3(c)(5)(C) – PENDING Section 939F: Franken Amendment – PENDING Section 939G: References to CRAs in Prospectuses – Done Sections 1411 and 1412: Ability to Repay; “Qualified Mortgage” (QM) Definition – PENDING

  38. Non- Dodd-Frank Reforms - Status • Accounting – FAS 167/167 – Done • FDIC Sale Rule – Done • Regulation AB II – PENDING • Bank Capital Rules – Mixed • Rule 17g-5 – Done • CRD Article 122a – Done

  39. Core Dodd-Frank Reforms Risk Retention – D-F § 941 Joint regulatory proposal 5% of credit risk must be retained Applies to both public and private ABS transactions Permissible forms: horizontal, vertical, L-shaped Cash premium over par value must be placed in a “premium capture cash reserve account” (PCCRA) No hedging or transfer of risk Exception for “qualified residential mortgage” (QRM) –hotly debated Comment period ended 8/1/11; still no final rule

  40. Core Dodd-Frank Reforms (cont’d) D-F § 942 – Disclosure To be implemented via SEC’s “Regulation AB II” Asset level disclosure Compensation of broker and originator Amount of risk retention by originator and securitizer NPR published in 5/10; re-proposed post-D-F with comment period ended 10/4/11; final rule due by 7/21/11, but not yet issued D-F § 943 – Fulfilled and requested repurchases across all securitization trusts aggregated by originator; CRA rep & warranty disclosure Rule 15Ga-1 (sponsor disclosure of repurchase history) Adopted in Jan. 2011; filing of initial Form 15Ga-1 with repurchase history was due on 2/14/12 Rule 17g-7 (CRA analysis and disclosure of rep & warranties and enforcement mechanism) Adopted in Jan. 2011; CRA compliance required commencing 9/26/11

  41. Core Dodd-Frank Reforms (cont’d) D-F § 945 – Issuer due diligence Diligence on assets must be performed and disclosed by or on behalf of issuer Rule 193 became effective on 3/28/11 for issuances after 12/31/11 Compare: Section 932 NPR (proposed Rule 15Ga-2) requiring issuers and underwriters to disclose third party due diligence reports published on 6/8/11 but no final rule yet D-F § 621 – Conflicts of interest For one year after the closing of an ABS issuance (including synthetic ABS), no underwriter, placement agent, initial purchaser or sponsor, or any affiliate, may engage in any transaction that will result in a material conflict of interest with any investor in the ABS transaction Industry concerned that proposed rule prohibits traditional structuring and hedging activities that should not raise conflict of interest concerns Eliminates CDS vehicles Eliminates credit linked note vehicles that protected bank’s assets if bank is also the u/w Can u/w do simple interest rate swaps? Can u/w retain subordinated notes? Senior notes? Final rule was due under D-F by 4/15/11 NPR was issued in 9/11 (after final D-F deadline) with comments due on 2/13/12; no final rule yet

  42. Other Dodd-Frank Reforms • D-F Title VII – Derivatives • See separate section of presentation for details • Securitization industry concern with mandatory centralized clearing and availability of “end user” exemption for securitization participants • Industry-seeking broad “structured finance” exemption • Final rule on swap participant definitions became effective on 7/23/12, but “end user” exception rules still not issued • Industry relying on temporary relief provided by SEC on 6/15/11

  43. Other Dodd-Frank Reforms (cont’d) D-F § 939A – References to Credit Rating Agencies Market Risk Capital Rule (Final rule adopted in 6/12) SEC’s ANPR on ICA Rule 3a-7 SEC’s ANPR on ICA §3(c)(5)(C) SEC ICA ANPRs published on 9/7/11 with comment deadline of 11/7/11; no further action to date D-F § 939F – Franken Amendment (Assigned Credit Ratings) SEC report to Congress required in 7/12; deadline just missed Must implement Franken’s assigned ratings system unless an alternative in place – Rule 17g-5?

  44. Other Dodd-Frank Reforms (cont’d) • D-F § § 1411 and 1412 – “Qualified Mortgage” Definition • Creditors must determine borrower ability to repay • Rebuttable presumption of ability to repay with “qualified mortgage” (QM) – controversial issue parallel to “QRM” under Section 941 • Industry seeks safe harbor instead of rebuttable presumption • Rulemaking authority now with CFPB • FRB issued original NPR in 5/11; responsibility shifted to CFPB in 7/11 • In May 2012, CFPB requested additional comments on limited questions under NPR, with comment deadline of 7/9/12 • Proposal outstanding; no final rule yet • CFPB’s deadline under D-F is 1/21/2013

  45. Accounting – FAS 166/167 Much harder to obtain “sale” treatment of a securitization and to recognize “gain on sale” Assets must be legally isolated from the transferor and its consolidated affiliates Ignore “bankruptcy remote” subsidiaries Transferor must surrender control Transferees must have the right to pledge or exchange the assets A variable interest holder must consolidate a variable interest entity if it has a “controlling financial interest” FAS 166 and 167 became effective for most purposes in Jan. 2010

  46. FDIC Sale Rule12 CFR 360.6 Applies to FDIC-insured banks Promulgated because of adoption of FAS 166/167 Provides A safe harbor for sale treatment of transfers of assets that qualify as a sale under FAS 166/167 for all but legal isolation requirement, or Relief from the 90-day automatic stay for securitizations that fail to qualify as sales under FAS 166/167 To qualify: 5% risk retention; no hedging Loan level disclosure and periodic reports No synthetic or unfunded securitizations If RMBS, no more than 6 tranches If RMBS, 5% cash reserve for one year to repurchase loans in breach of reps If RMBS, no external credit support or guarantees (other than GSEs) Final rule adopted by FDIC in Sept. 2010

  47. Reg AB II Initially proposed prior to D-F, but would constitute SEC’s compliance with D-F § 942 Extensive loan level data disclosure Reg AB extended to cover 144A and Reg D offerings Same disclosure as S-1 offering Departure from “sophisticated purchaser” paradigm for private placements Shelf offerings require: a preliminary prospectus be available 5 days prior to pricing CEO certification of assets being “sufficient to pay” offered securities Quarterly 3rd party opinion that assets not repurchased for breach of reps in fact were not in breach 5% risk retention; allocated among originator and sponsor Proposed rule issued in 5/10; most recent comment period ended 10/4/11

  48. Rule 17g-5 Adopted in 11/09 pursuant to Credit Rating Agency Reform Act of 2006 Issuer, sponsor or underwriter must post all rating agency material on a password protected internet website Material is available to any CRA that can make required certifications Competing CRAs can issue their own ratings Advanced as an alternative to “assigned ratings” system under Franken Amendment

  49. CRD Article 122a European Securitization Rule Bank investors must obtain sufficient information from issuer to ascertain the exposure of their investment Failure to do so could result in a deduction from capital of 100% of the investment EU bank sponsors are required to provide investors with access to all relevant data Requires 5% risk retention by any of originator, sponsor or original lender of the securitization Sponsor must be a credit institution to satisfy the risk retention rules Member States may require more than 5% No hedging of the risk Form of retained interest must be in the form of one of four options Very narrow exemptions Cross-border issuers are concerned with potential conflicts between Article 122a and the final U.S. risk retention rule under D-F § 941 when adopted

  50. Credit Ratings

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