Latham & Watkins Distressed Credit Markets Advisory Group

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1 Number 842 March 26, 2009 Client Alert Latham & Watkins Distressed Credit Markets Advisory Group Federal Reserve Bank of New York Revises and Expands the Term Asset-Backed Securities Loan Facility We have prepared this update summarizing important developments the program has undergone since the announcement of its launch on March 3, To follow up on prior Latham & Watkins Client Alerts regarding the Term Asset-Backed Securities Loan Facility (TALF), we have prepared this update summarizing important developments the program has undergone since the announcement of its launch on March 3, Most notably, the Federal Reserve Bank of New York (FRBNY) broadened the range of eligible Asset-Backed Securities (ABS) that may be pledged as collateral, and has revised certain loan terms in an apparent response to concerns raised by potential investors. The US Treasury Department also announced on March 23 that the TALF will be expanded to fund purchases of certain securities issued prior to 2009, as part of its public-private investment initiative to address the problem of distressed assets. Specific details of such expansion, such as the definition of eligible collateral and the terms of the TALF loans backed by such collateral, have yet to be released. On March 24, the FRBNY announced that it will begin to accept applications for the second round of TALF loans on April 7. Funds for those loans will be disbursed on April 14. Expanded Eligible Collateral Types of ABS Newly Permissible On March 19, 2009, the FRBNY released revised terms and conditions for the TALF that extended eligibility to four additional categories of ABS. In addition to the auto loans, student loans, credit card loans and SBA-guaranteed small business loans that were included as eligible collateral in the first round of TALF funding this month, permissible underlying credit exposures now also include: Mortgage servicing advances; Loans or leases relating to business equipment; Leases of vehicle fleets; and Floorplan loans. The expected life for the ABS backed by these receivables cannot exceed five years. Mortgage servicing advances. Eligible servicing advance receivables must be related to residential mortgage loan securitizations that grant the servicer first priority in any insurance or liquidation proceeds from a loan and, if those proceeds are insufficient, grants the servicer a first priority to general collections of the related securitization. Latham & Watkins operates as a limited liability partnership worldwide with affiliated limited liability partnerships conducting the practice in the United Kingdom, France and Italy and an affiliated partnership conducting the practice in Hong Kong. Under New York s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY , Phone: Copyright 2009 Latham & Watkins. All Rights Reserved.

2 The servicing agreement related to every trust must give the servicer the right to assign, transfer or pledge its rights to be reimbursed and must provide that all advances are reimbursed on a first-in first-out basis. The servicing advances underlying the ABS must have been originated on or after January 1, 2007, and all or substantially all of such advances must be related to a US-domiciled obligor. Servicing advance receivables against commercial real estate remain ineligible for the TALF at this time. Loans or leases relating to business equipment. Eligible equipment-related receivables will include loans and leases relating to business, industrial and farm equipment. Such equipment includes, but is not limited to, agricultural, construction or manufacturing equipment; trucks other than light trucks; smaller ticket items such as communications, office and medical equipment, computers, copiers and security systems; and other equipment types which have collateralized equipment-related receivables that have been securitized in the past. The credit exposures underlying eligible equipment ABS may include a mixture of loans and leases on a mixture of types of equipment. Leases of vehicle fleets. ABS backed by commercial, government and rental fleet leases will be added to the existing set of eligible auto-related receivables a category which previously only included retail leases and loans. Such ABS may include loans or leases related to any type of vehicle that has collateralized fleet securitizations in the past. Floorplan loans. Eligible floorplan receivables will include revolving lines of credit used to finance dealers inventories of items, including, but not limited to, vehicles such as cars, trucks, recreational vehicles, trailers, boats and sports vehicles; agricultural, construction or manufacturing equipment; manufactured housing; large appliances; and electronic equipment. These revolving lines of credit may be collateralized by assorted types of inventory, including any type of inventory that has collateralized securitized floorplan loans in the past. Auto floorplan receivables include revolving lines of credit used to finance dealer inventories of cars and light trucks. Corresponding Pricing Terms The interest rates and haircuts for the newly eligible or expanded categories of ABS are currently set as follows: Interest Rates Sector Subsector Fixed Floating Auto Equipment Floorplan Servicing Advances Residential Mortgages 2 Number 842 March 26, 2009

3 Haircut Rates Sector Auto Subsector Commercial and government fleets ABS Expected Life (years) 0-1 >1-2 >2-3 >3-4 >4-5 >5-6 >6-7 9% 10% 11% 12% 13% Auto Rental fleets 12% 13% 14% 15% 16% Equipment Loans and Leases 5% 6% 7% 8% 9% Floorplan Auto 12% 13% 14% 15% 16% Floorplan Non-Auto 11% 12% 13% 14% 15% Servicing Advances Residential Mortgages 12% 13% 14% 15% 16% Legacy Securities That May Become Eligible On March 23, the US Treasury Department in conjunction with the Federal Deposit Insurance Corporation and the Federal Reserve announced that the TALF would expand to fund purchases of certain legacy securities i.e., securities issued prior to 2009 pursuant to the Legacy Securities Program, a component of the federal Public-Private Investment Program (PPIP). The Legacy Securities Program is designed to draw new private capital into the market for securities tied to residential real estate, commercial real estate and consumer credit. Under the Legacy Securities Program, certain assets in the following categories are expected to become eligible for TALF financing: Non-agency residential mortgagebacked securities (RMBS) that were originally rated AAA; Outstanding AAA-rated commercial mortgage-backed securities; and Outstanding AAA-rated ABS that initially did not qualify for the TALF, perhaps due to origination-date restrictions. Lending rates, minimum loan sizes and loan durations have yet to be determined. These and other terms of the program will be informed by discussions with market participants. However, according to the Treasury release, the Federal Reserve is working to ensure that the duration of these loans takes into account the duration of the underlying assets. While this indicates that officials may be responsive to investor concerns about maturity mismatches, no statements have been made regarding the similar issues related to student loan asset-backed securities new and recent originations of which are already eligible for the TALF. Revised Terms and Conditions In addition to expanding the types of ABS that are eligible collateral under the TALF, the FRBNY revised certain terms and conditions of the TALF program in an apparent attempt to address various issues raised by potential TALF 3 Number 842 March 26, 2009

4 investors. Several of the revisions appear to provide benefits to borrowers under the TALF. First, the FRBNY limited the circumstances under which the nonrecourse feature of a TALF loan will become inapplicable. Previously, a borrower was required to repay the loan or post new eligible collateral if either the borrower or the collateral was found to be ineligible. Under the revised terms, the non-recourse feature will become inapplicable only if a borrower who has participated in the program is found to be ineligible, is found to have knowingly breached a representation related to the eligibility of the collateral, or fails to surrender the collateral for a loan it did not repay by delivering a Collateral Surrender and Acceptance Notice by the Maturity Date. Under those limited circumstances, the borrower must repay the TALF loan. On the other hand, if only the collateral is found to be ineligible, absent the knowing misrepresentation described above, the non-recourse feature of the loan is no longer affected, i.e., the borrower is no longer required to replace ineligible collateral or repay the loan. Instead, the FRBNY reserves the right of indemnity against the sponsor in the event damages are suffered in relation to the collateral, and further remedy is available if there is evidence of fraudulent activity. Second, on a related note, the FRBNY added a qualification to one of the representations and warranties that the borrower is required to make in the Master Loan and Security Agreement (MLSA) regarding the collateral. Specifically, the borrower s representation that the collateral is Eligible Collateral under the TALF is now limited to the borrower s knowledge based on its review of the applicable offering materials. Third, the MLSA has been revised so that the FRBNY s inspection rights with respect to the borrower shall apply only if they relate to the borrower s loans and collateral or its obligations under the MLSA. Previously, the FRBNY had an unqualified right to visit, audit and inspect the financial records of borrowers, and discuss the affairs, finances and condition of borrowers with directors, officers and employees of such borrowers, as well as independent accountants for such borrowers. Fourth, the FRBNY has added a grace period of five days before certain events will constitute Collateral Enforcement Events under the MLSA. Upon the occurrence of a Collateral Enforcement Event, the FRBNY is authorized to pursue various remedies, including declaring all loan amounts immediately due and payable, taking possession of any collateral and liquidating such collateral to repay the loan. The revised version of the MLSA contains new language which gives the borrower a grace period of five days in the event that: (i) the borrower fails to perform or observe any of its obligations under the MLSA or any other instrument delivered or executed in connection with the MLSA; or (ii) an encumbrance arises upon the borrower s pledged collateral. Fifth, the FRBNY modified the MLSA so that interest will no longer accrue on the unpaid amount of any Monthly Interest Shortfall Amount (defined as the excess of the interest the borrower owes on the loan over the interest the FRBNY receives with respect to the pledged collateral). Instead, the unpaid portion of each Monthly Interest Shortfall Amount will simply be added to the interest amount owed by the borrower to the FRBNY on the following payment date. Finally, the FRBNY provided assurance to potential investors in the TALF Frequently Asked Questions that it 4 Number 842 March 26, 2009

5 will indeed fund most, if not all, TALF loan requests from eligible borrowers pledging eligible collateral. However, the FRBNY reserved the right not to fund in exceptional cases, such as upon revelation of materially adverse information about the borrower prior to settlement. In order to enhance the certainty of TALF financing, the FRBNY clarified that primary dealers may submit names of prospective TALF borrowers for pre-certification review in advance of the subscription date. If you have any questions about this Client Alert, please contact one of the authors listed below or the Latham attorney with whom you normally consult: Kevin T. Fingeret New York Gregory S. Feder Washington, D.C. Office locations: Abu Dhabi Barcelona Brussels Chicago Doha Dubai Frankfurt Hamburg Hong Kong London Los Angeles Madrid Milan Moscow Munich New Jersey New York Northern Virginia Orange County Paris Rome San Diego San Francisco Shanghai Silicon Valley Singapore Tokyo Washington, D.C. Client Alert is published by Latham & Watkins as a news reporting service to clients and other friends. The information contained in this publication should not be construed as legal advice. Should further analysis or explanation of the subject matter be required, please contact the attorney whom you normally consult. A complete list of our Client Alerts can be found on our Web site at If you wish to update your contact details or customize the information you receive from Latham & Watkins, please visit to subscribe to our global client mailings program. Asset Management Vicki E. Marmorstein Angelo Lombardo Derivatives Carlos Alvarez Guy Dempsey Executive Compensation James D.C. Barrall David T. Della Rocca Financial Regulation Brian W. Smith Gregory S. Feder Insolvency David S. Heller Litigation Peter K. Rosen Secured Lending Larry Safran Securities Disclosure John J. Huber Structured Finance Kevin T. Fingeret Ellen L. Marks Kevin C. Blauch Number 842 March 26, 2009