July 17, 2013 Newsletter
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Structured Finance Industry Group


Issue Spotlight

Recent Developments



SFIG will begin the final planning process for its inaugural annual conference, ABS Vegas 2014, in the next few weeks. The conference will be held January 21-24, 2014, at the Cosmopolitan in Las Vegas, Nevada. As of today, 19 industry participants have signed up as “platinum sponsors,” 9 as “gold sponsors” and 9 as “silver sponsors,” with several others acting as sponsors of special events and items.

Registration is now open for the conference.Registration fees are as follows:



Standard – SFIG Member

Standard – Non-Member

Investor – SFIG Member

Investor – Non-Member

Issuer – SFIG Member

Issuer – Non-Member

Government Employee









If you are interested in participating in ABS Vegas 2014 as a sponsor, or have ideas relating to content, please contact SFIG at Richard.Johns@sfindustry.org.

Click here for more information about ABS Vegas 2014, and to register for the conference.



SFIG encourages all recipients of its Newsletter to share it with others in your organization, as well as other industry participants.

If you are aware of individuals who are not currently receiving the Newsletter directly from SFIG and wish to do so, please send that individual’s contact information to SFIG at Richard.Johns@sfindustry.org, with a note to please add that person to the Newsletter distribution list.




On July 10, 2013 the Securities and Exchange Commission (SEC) approved final rules (General Solicitation Rules) eliminating the prohibition against general solicitation and general advertising in all Rule 144A offerings and certain Regulation D transactions, as required by Title II of the Jumpstart OurBusiness Startups Act (JOBS Act). The General Solicitation Rule will be effective sixty days after publication in the Federal Register (likely mid-September).

Implications for Securitization Industry

Although aimed at increasing capital availability for emerging growth companies, the General Solicitation Rule applies to all securities including, asset-backed securities (ABS). Much of the General Solicitation Rule relates to changes to Rule 506 of Regulation D – an exemption from registration not commonly used by ABS issuers. The General Solicitation Rule also has implications for the registration exemptions that ABS issuers more commonly use: Rule 144A, Section 4(a)(2), Regulation S, Sections 3(c)(1) and 3(c)(7) of the Investment Company Act of 1940 (Investment Company Act), and CFTC Rule 4.13(a)(3).

Rule 506 of Regulation D

The General Solicitation Rule permits general solicitation and advertising in unregistered offerings made pursuant to Rule 506 of Regulation D so long as all purchasers are accredited investors. Specifically, the amendment to Rule 506 under Regulation D adds new subsection 506(c) that permits an issuer to engage in general solicitation or general advertising in connection with an offer and sale of securities provided that (i) all purchasers of the securities are “accredited investors” or the issuer reasonably believes that all purchasers are accredited investors at the time of the sale of the securities and (ii) the issuer takes reasonable steps to verify that all purchasers of offered securities are accredited investors.

The General Solicitation Rule does not impact the effectiveness of the “old Rule 506” which has been redesignated as Rule 506(b). Any issuer may issue securities under the “old Rule 506” provided that the issuer refrains from engaging in general solicitation or advertising.

Rule 144A

Section 201(a) of the JOBS Act required the SEC to amend Rule 144A to permit offers to persons other than qualified institutional buyers (QIBs), provided that the securities are sold only to persons that the seller and any person acting on behalf of the seller reasonably believe are QIBs. Rule 144A is a safe harbor that permits a person other than the issuer to resell securities without registration if the transaction meets specified conditions. Prior to the General Solicitation Rule, one of the specified conditions was that the securities be offered only to persons the seller and any person acting on the seller’s behalf reasonably believe are QIBs. As a result, prior to the new rule, Rule 144A effectively prohibited general solicitation.

The revised Rule 144A will no longer refer to “offers” and “offerees” in the conditions to be met under paragraph (d)(1) of Rule 144A. Consequently, after the revised rule becomes effective, a seller will be permitted to rely on Rule 144A even if the securities are offered to non- QIBs (but not sold to non-QIBs) and even if there has been general solicitation. As a result general solicitation will be permitted in all Rule 144A transactions.

Since most non-registered ABS offerings are made pursuant to the Rule 144A exemption, the General Solicitation Rule adds certainty to the availability of an exemption for offerings by reducing the risk that the exemption will not be available due to actions that inadvertently constituted general solicitation.

Section 4(a)(2)

In the final release, the SEC confirmed that the General Solicitation Rule does not alter the parameters of the statutory exemption from registration pursuant Section 4(a)(2) (formerly Section 4(2)) of the Securities Act of 1933 (Securities Act). The SEC’s position is that an issuer relying on Section 4(a)(2) to exempt its offering from registration is restricted in its ability to make public communications to attract investors for its offering because public advertising is inconsistent with a claim of exemption under Section 4(a)(2). The SEC noted in the final release that Congress considered, but did not enact bills that would have amended Section 4(a)(2) directly, rather than requiring the SEC to amend Rule 506, to permit the use of general solicitation.

Rule 506 is a non-exclusive safe harbor under Section 4(a)(2) of the Securities Act meaning, except as discussed below, failure to comply with Rule 506 does not preclude the availability Section 4(a)(2) as a “fall back” exemption. The implication of the new changes to Rule 506 adopted in Rule 506(c) is that an issuer that makes a general solicitation and fails to comply with the terms of Rule 506(c) will be unable to “fall back” on the statutory exemption in Section 4(a)(2) because public advertising will continue to be incompatible with a claim of exemption under Section 4(a)(2).

Since 144A is technically a secondary marketing exemption, the issuer’s “first step” sale in a Rule 144A offering ordinarily relies on Section 4(a)(2) of the Securities Act, while the “second step” resale relies on Rule 144A. In other words, the role of the Section 4(a)(2) exemption is integral to the offering and not a “fall back” in case the parameters of a safe harbor are not met. The adopting release confirms that the use of general solicitation in the “second step” of a Rule 144A offering will not affect the availability of the Section 4(a)(2) exemption for the “first step” sale by the issuer to the initial purchaser so long as no general solicitation is made in connection with the “first step.”

Regulation S

The General Solicitation Rule confirms that offerings done in compliance with Regulation S will not be integrated with U.S. offerings that are conducted in compliance with Rule 506 or Rule 144A. As a result, the use of general solicitation or general advertising for the U.S. offering will not constitute “directed selling efforts” in connection with the Regulation S offerings. This is important because the Regulation S safe harbor exemption from registration is available only if there are no “directed selling efforts” with respect to the offering in the United States.

Section 3(c)(1) and 3(c)(7) Investment Company Act Exemptions

In the final release for the General Solicitation Rule, the SEC explicitly confirms that private funds are permitted to engage in general solicitation in compliance with the new Rule 506(c) without losing the exemption from registration provided by either Section 3(c)(1) or Section 3(c)(7) of the Investment Company Act. Although the final release only discusses these Investment Company Act exemptions with respect to private funds and Rule 506(c), the SEC specifically references ABS in a footnote to that discussion noting: “[m]any ABS issuers also rely on the exclusions contained in Section 3(c)1 or 3(c)7 of the Investment Company Act. These ABS issuers frequently participate in Rule 144A offerings.” Furthermore, in the section of the final release discussing Rule 144A, the SEC provides no indication that the Investment Company Act exemptions are inapplicable to Rule 144A offerings.

CFTC – Exemption From Registration as Commodity Pool Operators

Issuers that rely on the exemption from registration as “commodity pool operators” provided in CFTC Rule 4.13(a)(3) are subject to certain other CFTC regulations that prohibit marketing to the public. While the JOBS Act instructed the SEC to revise its rules to remove the prohibitions against general solicitation made pursuant to Regulation D, it did not instruct the CFTC to make any similar changes to its regulations. Absent future guidance from the CFTC to the contrary, issuers relying on CFTC Rule 4.13(a)(3) exemption may not be able to use general solicitations.

Removal of Risks Related to Inadvertent General Solicitation

Prior to the General Solicitation Rule, the risk of inadvertently running afoul of the ban existed because the terms “general solicitation” and “general advertising” were not defined in Regulation D. Rule 502(c) provided examples of general solicitation and general advertising: advertisements published in newspapers and magazines, communications broadcast over television and radio, and seminars where attendees have been invited by general solicitation and general advertising. The SEC confirmed that other uses of publicly available media, such as unrestricted websites, also constituted general solicitation and general advertising.

Because the General Solicitation Rule eliminates the need to determine whether certain activities would be considered general solicitation, it adds certainty to the availability of an exemption for offerings that are not intended to involve general solicitation and reduces the possibility of exemption unavailability due to an inadvertent “general solicitation.”

Ability To Solicit Investors Through the Internet

As a result of the lifting of the ban on general solicitation, ABS issuers may be able to use the internet and other media to solicit investors in a manner that was previously prohibited. However, the extent to which market participants will use these media channels and broader solicitations rights will yield a deeper and more liquid investor pool remains unclear. The reason for this is that most ABS purchasers are QIBs who are familiar with and regularly active in the ABS market. Companies which issue ABS often have repeated contact with their ABS investors. ABS investors often invest in several deals sponsored by such companies. In addition, many unregistered offerings of ABS are the result of reverse inquiries by investors. Thus, the ABS market is a very different market than the emerging company market where securities offerings by a particular company are less frequent and broader solicitations privileges will likely allow many more investors who would have otherwise never heard of the emerging company to have the opportunity to invest in it.

Bad Actors Rule and Proposed Rules

On July 10, 2013, the SEC (i) adopted final rules preventing felons and other bad actors from participating in Rule 506 offerings (Bad Actors Rule) and (ii) proposed rules imposing additional requirements for issuers engaging in general solicitation under Rule 506 (Proposed Rules). The Bad Actors Rule will be effective sixty days after publication in the Federal Register (likely mid-September). The Proposed Rules are open for comments for sixty days after publication in the Federal Register.

Click here for the General Solicitation Rule. Click here for the Bad Actors Rule. Click here for the Proposed Rules.




Richard Cordray’s nomination to serve as the Director of the Consumer Financial Protection Bureau (CFPB) was confirmed on July 16, 2013 by the U.S. Senate. The confirmation was reportedly part of a consensus reached by Senators in both parties over several of President Obama’s pending nominations and the U.S. Senate’s procedures for the use cloture under Senate Rule XXII, commonly referred to as the “filibuster.”

Mr. Cordray was the subject of a “recess appointment” by the President as CFPB Director in January, 2012. That appointment has been clouded by legal uncertainty, as several other recess appointments under similar circumstances as Mr. Cordray’s have been the subject of a lawsuit that is expected to be heard by the U.S. Supreme Court. That uncertainty could have cast doubt on actions of the CFPB since his appointment (including the promulgation of the “ability-to-pay/qualified mortgage” rule). Now that he has been confirmed, he will probably have the authority, as a matter of administrative law, to ratify those prior actions.

President Obama’s nominee to be Director of the Federal Housing Finance Agency, Rep. Mel Watt (D-NC) was not included in the Senators’ actions resolving the filibuster issue. According to press reports, the U.S. Senate’s Committee on Banking will vote on Mr. Watt’s nomination on July 18, 2013.



On July 12, 2013, the Internal Revenue Service (IRS) delayed by six months the effective date for withholding tax under the Foreign Account Tax Compliance Act (FATCA).  FATCA withholding tax on U.S.-source passive income (such as interest and dividends) now will not begin until July 1, 2014.  In addition, the IRS extended by six months the grandfathered obligation period.  Debt instruments, swaps (and associated collateral) and other non-equity instruments issued or entered into on or before June 30, 2014, and not significantly modified after that date, will not be subject to FATCA withholding taxes.  The effective date for FATCA withholding tax on principal repayments and gross proceeds from the sale or exchange of debt and equity instruments remains January 1, 2017.

The IRS also announced changes to (i) the timeline for financial institutions to implement new financial account opening procedures and complete due diligence on preexisting obligations, (ii) the information required to be reported by a financial institution with respect to U.S. accounts beginning in 2015, and (iii) the accessibility date for the IRS’s FATCA registration portal.  Currently the FATCA registration portal is projected to be accessible to financial institutions on August 19, 2013.

If you are interested in participating in SFIG’s Tax Policy Committee, please contact SFIG at Richard.Johns@sfindustry.org.

Click here for IRS Notice 2013-43.



On July 11, 2013, the Board of the Financial Industry Regulatory Authority (FINRA) authorized FINRA staff to file with the Securities and Exchange Commission (SEC) proposed amendments to FINRA’s rules regulating the dissemination of trading information on additional types of asset-backed securities on the Trade Reporting and Compliance Engine (TRACE) system. Trading information dissemination on TRACE is currently limited to agency securities such as Fannie Mae, Freddie Mac, Ginne Mae, TBA trades and certain whole-pool trades.

According to minutes of the July 11, 2013 Board meeting, the new proposal would cover “additional asset-backed securities, such as those backed by credit card receivables, automobile and student loans, and a variety of other credits, including Rule 144A transactions…[but not] collateralized mortgage obligations.”

Click here for the Board minutes.



On July 11, 2013, the Commodities Futures Trading Commission (CFTC) issued updated guidance (July Guidance) on the cross-border application of the derivatives provisions of Title VII of the Dodd-Frank Act. Also, on July 11, 2013, the CFTC issued a release (Path Forward Release) announcing that the European Commission and the CFTC have reached a “common path forward on derivatives.”

The application of the Dodd-Frank Act’s derivatives provisions in the cross-border context has been controversial, especially with regard to timing issues. An exemption from such application expired on July 12, 2013, and the CFTC’s Commissioners were divided on whether to extend the exemption.A number of European regulators favored such an extension.

Press reports indicate that industry observers referred to the CFTC’s actions on July 11 as being “rushed,” due to the expiration of the exemption. Risk magazine reported:

“This process was incredibly rushed, staff were unable to answer many of the questions Commissioner Scott O’Malia put to them, and when they did attempt to answer them, they rambled on. To top it all, this guidance [the July Guidance] is being put out for a 30-day comment period, which raises the question of whether it is final or not. The commission was rushing to get something passed before the current exemptive order expired on July 12, and it really showed at the meeting,” says one derivatives lawyer.”

Commissioner O’Malia has previously stated that he is in favor of delaying application of the cross-border derivatives rules, to allow more time for discussion with European regulators.

In the July Guidance, the CFTC did indicate that it will take an outcomes-based approach to deciding whether foreign regulations are equivalent to the requirements of the Dodd-Frank Act. This approach contrasts with a “rule-by-rule” approach, and would generally be considered by the derivatives industry to be the preferable approach.

In the Path Forward Release, the CFTC announced that it would issue a number of future “no-action” letters on various issues relating to the cross-border application of the Dodd-Frank Act’s derivative provisions.

Click here for the July Guidance.Click here for the Path Forward Release.



Republican members of the U.S. House of Representatives’ Committee on Financial Services (HFSC), led by Committee Chair Rep. Jeb Hensarling, (R-TX), introduced the “Protecting American Taxpayers and Homeowners Act of 2013” (PATH Bill) on July 11, 2013. The PATH Bill will be the subject of a July 18, 2013 hearing conducted by the HFSC.

Similar to the “Housing Finance Reform and Taxpayer Protection Act of 2013” (Corker-Warner Bill) introduced in the Senate on June 25, 2013 by Senators Bob Corker (R-TN) and Mark Warner (D-VA), the PATH Bill would seek to wind down the two Government-sponsored entities (GSEs), Fannie Mae and Freddie Mac. The PATH Act, unlike the Corker-Warner Bill, does not envision any government backstop to the mortgage markets, whether implicit or explicit.It also would not create a new entity (such as the Federal Mortgage Insurance Corporation in the Corker-Warner Bill) that would issue mortgage-backed securities (MBS). The PATH Bill does, however, contemplate the continued existence of the Federal Housing Administration (FHA) and of Ginnie Mae.

The PATH Bill would create a new, non-Government, not-for-profit National Mortgage Market Utility (Utility), regulated by the Federal Housing Finance Agency (FHFA). The GSEs’ existing securitization platforms (Platform) would be transferred to the Utility.

The Utility would develop common “best practice” standards for the private origination, servicing, pooling and securitizing of mortgage loans, and operate a publicly-accessible securitization outlet “to match loan originators with investors.”

The PATH Bill would allow the Utility to create a system of “qualified securities,” which would be MBS consisting of loans meeting specified underwriting guidelines and issued through the Platform. The “qualified securities” would be exempt from the Federal securities laws, and would have their own disclosure regime mandated by the Utility.

Other aspects of the PATH Bill include:

  • Prohibiting the FHA and the Rural Housing Administration from insuring loans originated in municipalities that have employed an “eminent domain scheme” in the past ten years.
  • Scaling back the FHA’s current mortgage insurance coverage from 100% to 50% of a guaranteed loan’s principal balance, and limiting the FHA program only to first-time and low – and moderate – income borrowers.
  • Mandating that all users of the Platform resolve all representation and warranty disputes through mandatory arbitration.
  • Creating a framework for the issuance of “covered bonds.”
  • Delaying the Dodd-Frank Act’s mortgage rules until 2015.
  • Excluding issuers of asset-backed securities from the proposed definition of “covered funds” in the Volker Rule.
  • Repealing the Dodd-Frank Act’s credit risk retention requirements (Section 941 of the Dodd-Frank Act).
  • Requiring lenders to repurchase loans insured by the FHFA if the loans become more than 60 days delinquent within the first two years following origination.
  • Delaying the implementation of the Basel III capital rules approved by the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency on July 2, 2013 for at least two years while the impact of those rules is further assessed by those agencies.
  • Prohibiting regulators from imposing a liquidity coverage ratio under Basel III that discriminates against residential MBS Collateralized by non-full recourse mortgages as a condition for status as a “high quality asset.”

If you are interested in participating in SFIG’s Residential Mortgage Committee, please contact SFIG at Richard.Johns@sfindustry.org.

Click here for the PATH Bill. Click here for an “Executive Summary” of the PATH Bill.



Senators Elizabeth Warren (D-MA), John McCain (R-AZ), Maria Cantwell (D-WA) and Angus King (I-ME) introduced the “21st Century Glass-Steagall Act of 2013” (Proposed Bill) in the U.S. Senate on July 11, 2013.

The original Glass-Steagall Act was part of the Banking Act of 1933, and separated commercial banking from investment banking. Glass-Steagall Act came under increasing criticism, particularly after 1980, for having an “anti-competitive” effect on U.S. banks.

In 1978, the Office of the Comptroller of the Currency (OCC) ruled that commercial banks could sell their own assets, such as mortgage loans, via securitization. The courts upheld the OCC’s actions, with the result that a commercial bank could securitize, underwrite and distribute asset-backed securities (ABS) backed by the bank’s own assets.

In April 1987, the Board of Governors of the Federal Reserve System (Federal Reserve) approved the establishment by several bank holding companies of subsidiaries to underwrite and deal in residential mortgage-backed securities (RMBS), subject to certain limits. Subsequent actions by the Federal Reserve expanded these subsidiaries’ underwriting authority to a broader range of ABS.

Several of the key provisions of the original Glass-Steagall Act were repealed by the Gramm-Leach-Bliley Financial Modernization Act of 1999.

Senator McCain said in his statement in introducing the Proposed Bill:

Since the core provisions of the Glass-Steagall Act were repealed in 1999, shattering the wall between commercial banks and investment banks, a culture of dangerous greed and excessive risk-taking has taken root in the banking world.

The notion of breaking up the country’s largest banks because they are allegedly “too big to fail” by splitting commercial from investment banking has, according to press reports, received support from a number of commenters, including Sanford “Sandy” Weill, Richard Parson and John Reed, all former executives with Citigroup.

Specifically, the Proposed Bill would:

  • Prohibit an insured depository institution from being affiliated with any insurance company, “securities entity” (a term that includes entities engaged in underwriting and distribution; market making, acting as an investment advisor or as an investment company; or acting as a hedge fund), or “swaps entity” (a term that includes swap dealers; securities based swap dealers; major swap participants or major securities based swap participants.)
  • Limit national banks’ dealing in securities to customer-initiated trades, and preventing national banks from underwriting “any issue of securities or stock.”
  • Prevent national banks from investing in a “structured or synthetic products,” and from extending credit to transactions involving structured or synthetic products.
  • Defining activities that “are so closely related to banking so as to be a proper incident thereto” to exclude the “purchasing, as an end user, any swap [purchased] contemporaneously with the underlying hedged item …[if]…the swap is being used to hedge against exposure to … changes in the value of an individual recognized asset or liability or an identified portion thereof that is attributable to a particular risk;…changes in interest rates; or …changes in the value of currency.”

It is unclear what effect the Proposed Bill’s passage in the form introduced would mean for the continued validity of the earlier regulatory rulings allowing banks to sell their own assets via bank-sponsored and underwritten securitizations or to act as an underwriter for ABS issue by others.

Click here for the Proposed Bill. Click here for the “fact sheet” prepared by Senator Warren’s office on the Proposed Bill.



Two new lawsuits have been filed challenging both the circumstances of the conservatorship imposed on the two Government-sponsored entities (GSE), Fannie Mae and Freddie Mac, by the Federal Housing Finance Agency (FHFA), as well as the terms of the U.S. Department of the Treasury’s (Treasury) preferred stock investment in each GSE.

On July 7, 2013, Perry Capital LLC (Perry), a hedge fund, filed suit (Perry Complaint) in the United States District Court for the District of Columbia against the FHFA and Treasury. On July 9, 2013 Fairholme Funds, Inc. (Fairholme), a mutual fund manager, filed two suits (Fairholme Complaint). One Fairholme Complaint was filed in the United States District Court for the District of Columbia against the FHFA and Treasury, and is primarily based on administrative law claims. The other Fairholme Complaint was filed in the United States Court of Federal Claims against the United States of America and is based on the “takings” provision of the Fifth Amendment to the U.S. Constitution.

The lawsuits challenge the circumstances surrounding, and the legal basis for, the FHFA’s imposition of the conservatorship on the two GSEs. In connection with the conservatorship, Treasury entered into a senior preferred stock (Preferred Stock) purchase arrangement with each GSE (Purchase Agreement). The Purchase Agreements were the mechanism by which Treasury injected approximately $187 billion into the GSEs during the financial crisis. Pursuant to the original terms of the Preferred Stock, Treasury was to receive a 10% dividend.

On August 17, 2012, Treasury and Fannie Mae and Freddie Mac, acting through their conservator, the FHFA, entered into an amendment (Third Amendment) to the Purchase Agreement that increased the 10% dividend rate to effectively capture all profits. The Fairholme Complaint defines this dividend feature as the “Net Worth Sweep,” and asserts that it represents a claim to 100% of the all current and future profits of the GSEs.

According to press reports, these and similar lawsuits are being filed by investors which own GSE common or subordinate preferred stock. According to Reuters, Fairholme owns $2.4 billion in GSE subordinate preferred stock (which is junior to Treasury’s senior Preferred Stock).

If you are interested in participating in SFIG’s Residential Mortgage Committee, which is following developments in the GSE Reform process, please contact SFIG at Richard.Johns@sfindustry.org.

Click here for the Perry Complaint. Click here and here for the Fairholme Complaints. Click here for the Third Amendment.



In their accompanying reports (Senate Report and House Report) to an appropriations bill for the U.S. Department of Housing and Urban Development (HUD) and other agencies, the U.S. Senate’s Committee on Appropriations (Senate Appropriations Committee) and the U.S. House of Representative’s Committee on Appropriations (House Appropriations Committee) both requested further information on the proposed use of the doctrine of eminent domain to seize “underwater mortgages” (mortgage loans in which the current unpaid principal balance of the mortgage note exceeds the current fair market value of the related property).

The Senate Appropriations Committee noted that it would “continue to monitor” developments relating to this proposed use of eminent domain, and stated that it expects the Federal Housing Administration (FHA) to keep the Committee informed of any policies it will propose if such a program is implemented.

The House Appropriations Committee stated that it was “concerned about proposals for local governments to use eminent domain to seize mortgages,” and directed HUD to conduct and submit to the Committee a study “on the effect that risk of using eminent domain for these purposes will have on the housing market, including the FHA primary and refinancing market, as well as the broader mortgage market,” by April 1, 2014.

If you are interested in participating in SFIG’s Residential Mortgage Committee, which is following the eminent domain developments, please contact SFIG at Richard.Johns@sfindustry.org.

Click here for the Senate Report. Click here for the House Report.



SFIG has a number of Committees and Task Forces meeting and working on many topics of interest to the securitization industry.Please visit our website for more information, including how to join.


SFIG is pleased to share this edition of its newsletter with our members, as well as our supporters in the structured finance community.To ensure that you receive future editions of the newsletter, please visit our website (www.sfindustry.org) to learn about membership opportunities.


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