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On Dec. 9, 2021, the staff of the Securities and Exchange Commission (“SEC Staff”) issued a statement (“Statement”) to (i) remind investment professionals of their obligations when recommending LIBOR-linked securities (and securities referencing LIBOR as a benchmark) and investment strategy recommendations involving other LIBOR-linked investments such as interest rate swaps, municipal securities or securitizations; and (ii) remind companies and issuers of asset-backed securities of their disclosure obligations related to the transition from LIBOR, which the SEC Staff states is “in light of the now-certain transition away from LIBOR as a reference rate for a number of different types of investments, including securities.” LIBOR will cease to be published after Dec. 31, 2021, except for certain U.S. dollar tenors which will continue through June 30, 2023.

The SEC Staff highlighted that if transaction documents for LIBOR-linked securities contain language contemplating only a temporary cessation of LIBOR, or no fallback language at all, the operation of those securities and their expected returns will likely experience material changes when the rate is discontinued. Even for newer issuances of LIBOR-linked securities which likely contain fallback language, such as the fallback language recommended by the Alternative Reference Rates Committee (“ARRC”), because no replacement rate is a perfect match for LIBOR, the value of LIBOR-linked securities, and consequently their potential returns, may experience material changes upon LIBOR’s discontinuation.

The SEC Staff further noted that valuation measurements that use LIBOR as an input are also likely to be impacted in a variety of ways by the transition to an alternative reference rate: (i) LIBOR reflects perceived bank credit risk, while the Secured Overnight Financing Rate (“SOFR”), the ARRC’s recommended alternative reference rate for USD LIBOR, does not, (ii) each alternative reference rate may differ in currency, maturity, and basis, and (iii) while the ARRC has recommended forward-looking “SOFR Term Rates,” credit agreements using alternative reference rates like SOFR may be drafted such that market participants will not know an investment’s overall interest rate until near the end of an investment period. By contrast, it noted, when LIBOR is used the interest rate is known at the beginning of the period. There may also be changes in market liquidity and trading volumes during the transition both in the LIBOR market and with investments tied to alternative reference rates.

Finally, the SEC Staff offered some considerations for broker-dealers, registered investment advisors, funds and other parties in recommending and in underwriting or investing in LIBOR-linked securities. Advisors should consider their fiduciary duties and the disclosure obligations of investment companies, whether LIBOR-linked securities are consistent with a client’s goals and whether contracts have robust fallback language and the implications of any economic differences that may result from an alternative rate. Issuers of asset-backed securities should consider the relevant disclosure requirements under Regulation AB, which necessitates an issuer must disclose how the interest rate of an asset-backed security is determined, how frequently it will be determined and provide asset level information at the time of the offering as well as on an ongoing basis, which may dictate change based on the LIBOR transition.

Key Publication

The SEC Staff’s Statement