FEDERAL AGENCIES WANT REVISIONS TO LEVERAGED FINANCE GUIDANCE

The following excerpt is from a FDIC e-mail:
Agencies Propose Revisions to Leveraged Finance Guidance
The Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and Office of the Comptroller of the Currency (the agencies) are seeking comment on proposed revisions to the interagency leveraged finance guidance issued in 2001. Transactions that are covered by this guidance are characterized by a borrower with a degree of financial or cash flow leverage that significantly exceeds industry norms as measured by various debt, cash flow, or other ratios.

The agencies observed tremendous growth in the volume of leveraged credit leading up to the crisis and in the participation of non-regulated investors.  While there was a pull-back in leveraged lending during the crisis, volumes have since increased while prudent underwriting practices have deteriorated.  As the market has grown, debt agreements have frequently included features that provide relatively limited lender protection, including the absence of meaningful maintenance covenants and the inclusion of other features that can affect lenders’ recourse in the event of weakened borrower performance.  In addition, capital structures and repayment prospects for some transactions, whether originated to hold or to distribute, have been aggressive.  Management information systems (MIS) at some institutions have proven less than satisfactory in accurately aggregating exposures on a timely basis, and many institutions have found themselves holding large pipelines of higher-risk commitments at a time when buyer demand for risky assets diminished significantly.

Leveraged finance is an important type of financing for the economy, and banks play an integral role in making credit available and syndicating that credit to investors.  It is important that banks help provide financing to creditworthy borrowers in a safe and sound manner.
In light of the market’s evolution, the agencies propose replacing the 2001 guidance with revised leveraged finance guidance that refocuses attention to five key areas:
Establishing a Sound Risk-Management Framework:  The agencies expect that management and the board identify the institution’s risk appetite for leveraged finance, establish appropriate credit limits, and ensure prudent oversight and approval processes.  
Underwriting Standards:  These outline the agencies’ expectations for cash flow capacity, amortization, covenant protection, and collateral controls and emphasize that the business premise for each transaction should be sound and its capital structure should be sustainable irrespective of whether underwritten to hold or to distribute.
Valuation Standards:  These concentrate on the importance of sound methodologies in the determination and periodic revalidation of enterprise value.
Pipeline Management:  This highlights the need to accurately measure exposure on a timely basis, the importance of having policies and procedures that address failed transactions and general market disruption, and the need to periodically stress test the pipeline.
Reporting and Analytics:  This emphasizes the need for MIS that accurately capture key obligor characteristics and aggregates them across business lines and legal entities on a timely basis.  Reporting and analytics also reinforce the need for periodic portfolio stress testing.
Although some sections of the guidance should apply to all leveraged transactions (for example, underwriting), the vast majority of community banks should not be affected as they have no exposure to leveraged loans.
Comments on the proposed guidance must be submitted to the agencies no later than June 8, 2012.

THE FREE RIDE: BUYING SECURITIES WITH NO MONEY DOWN

The following is an excerpt from the SEC website: “Washington, D.C., Oct. 26, 2011 – The Securities and Exchange Commission today charged a pair of purported money managers with orchestrating an illegal “free-riding” scheme of selling stocks before they paid for them and netting $600,000 in illicit profits. The SEC alleges that Florida residents Scott Kupersmith and Frederick Chelly portrayed themselves to broker-dealers as money managers for hedge funds or private investors, and they opened brokerage accounts in the names of purported investment funds they created. Kupersmith and Chelly then engaged in illegal free-riding by interchangeably buying and selling the same quantity of the same stock in different accounts – frequently on the same day – with the intention of profiting on swings up or down in the stock price. Unbeknownst to broker-dealers, Kupersmith and Chelly did not have sufficient securities or cash on hand to cover the trades, and they instead used proceeds from stock sales in one brokerage account to pay for the purchase of the same stock in another brokerage account. The SEC alleges that when trades were profitable, Kupersmith and Chelly took the profits. But when the trades threatened to result in substantial losses, Kupersmith and Chelly failed to cover their sales and left broker-dealers to settle the trades at a significant loss. In total, their brokers suffered more than $2 million in losing trades. “Kupersmith and Chelly engaged in a classic ‘heads I win, tails you lose’ scheme to trade risk-free at the expense of broker-dealers,” said George S. Canellos, Director of the SEC’s New York Regional Office. “The SEC is firmly committed to pursuing individuals who fraudulently game the system thinking that they will never be caught.” According to the SEC’s complaint filed in U.S. District Court in New Jersey, Kupersmith and Chelly traded through a special type of cash account that broker-dealers offer to customers with the understanding that the customer has sufficient securities and cash held with a third-party custodial bank to cover the trades that the customer makes in the account. Kupersmith and Chelly never disclosed to broker-dealers that they were instead using proceeds from sales of shares in one brokerage account to pay for their purchase in another brokerage account. Kupersmith and Chelly also used offshore accounts to facilitate their trading activity. According to the SEC’s complaint, the free-riding scheme occurred in 2009 and 2010, and unraveled when Kupersmith and Chelly failed to deliver shares to settle long sales in various brokerage accounts. The SEC’s complaint charges Kupersmith and Chelly with violations of Section 17(a) of the Securities Act and Section 10(b) of the Exchange Act, and Rules 10b-5 and 10b-21 thereunder. The complaint seeks a final judgment permanently enjoining the defendants from future violations of these provisions of the federal securities laws and ordering them to disgorge their ill-gotten gains plus prejudgment interest and pay financial penalties. In parallel actions, the U.S. Attorney’s Office for the District of New Jersey and the Manhattan District Attorney’s Office today announced the unsealing of criminal charges against Kupersmith. The SEC’s investigation was conducted by Stephanie D. Shuler, Vincenzo A. DeLeo, and Peter Lamore of the SEC’s New York Regional Office. The SEC acknowledges the assistance of the U.S. Attorney’s Office for the District of New Jersey, Federal Bureau of Investigation, and Manhattan District Attorney’s Office. The SEC’s investigation is continuing.” The above free-riding activity looks like it might be fraud however, it is easy to make a mistake and get a free-ride notice from your broker or the Federal Reserve. When you are suffering significant losses on a stock that is headed into oblivion it makes it hard not to hit the sell button without doing the proper calculations to make sure the stock has been paid for. Of course opening up a margin account or using only settled funds are two easy ways to avoid being accused of violating free ride restrictions."