Exigent Circumstances

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Last week, the Fed added new programs and upsized many of the loan and bond buying programs it had already announced over the past several weeks. It is now traveling on a road without an exit in sight. It’s almost certain that withdrawal of this new support will be slow. In the near-term, it has already significantly dislocated (tightened) both investment grade and (to a lesser extent) high yield (HY) prices relative to their fundamental cash flow profiles.

Let’s call out these new “liquidity programs” for what they really are. The PMCCF and SMCCF (Primary and Secondary Corporate Credit Facilities) are targeted to help large, low-investment grade companies like Ford, whose bonds popped from 70 to 83 on the news of an upsize to the facility. The program extends support without the political fallout a new TARP (Troubled Asset relief Program) might cause.

PMCCF and SMCCF are TARP in disguise.

While extensive, I believe these varied programs will not prevent the default cycle that is coming in the BB+ and below universe. Default rates will be lower than without these programs, but not low enough to support current risk-asset values. The “exigent circumstances” to which the Fed is responding are unlikely to be short-lived, especially because corporate leverage was already so high before the pandemic began and earnings were already so weak. After today’s tightening in high yield spreads (CDX to ~500bps and HYG YAS ~600bps), we continue to believe there is little upside to ownership of U.S. high yield – even after the announcement of these expanded programs (likely to expand even more).

We believe risk-reward to U.S. equities in particular is still skewed massively to the downside, and for the Fed to take the action it took today, it must see circumstances as being dire indeed.

Squeeze Stock Photos, Pictures & Royalty-Free Images - iStock

We wrote on March 29th that a rally to 2700 to 2,800 could occur and that it would be a fade. We expected short squeezes in credit and equities on program announcements – those program announcements came faster than expected. We maintain that view.[1] For the S&P to trade at 2,800, it requires a 19.5x forward earnings-per-share multiple on $145 in EPS (down a mere 10% YoY). That EPS estimate is probably far too conservative and earnings could easily fall 20% (with average recession EPS down between 20% to 30%). At S&P EPS down 20% ($130), 2,800 on the S&P requires a 21.5x forward multiple. Can large cap equities really sustain that multiple given the risks to cash flows? Can small cap stocks (Russell 2000) sustain a forward multiple of almost 40x given the inevitable defaults that will occur in BB+ credits and below? We don’t think so. Recall that equity is the residual in every capital structure and is first loss.[2]

While the buying is currently occurring across the universe of high yield bonds, we believe worsening fundamentals will drive dispersion amongst high yield credits over time. The sub-BB+ universe will become an orphan… at least until the Fed buys it, too. Moreover, the speculative grade loan market was already strained before the pandemic began; loan volumes are likely to continue to fall – albeit even faster now. Fed programs will prevent disaster, but they won’t continue to support current equity and credit valuations as fundamentals deteriorate. HY spreads have fallen from just under 900 (CDX HY) to 530bps (as low as 475bps) on Fed euphoria.[3] So, lets query something. Even with Fed support, do HY spreads at 500bps make sense on the cusp of the most severe recession since 1929? We think not.

Overview

Since 2008, in order to justify extraordinary policy actions (including company bailouts), the Fed has been using the Section 13(3)’s exigent circumstances exception to the specific direction provided for open market operations under Section 14 of the Federal Reserve Act (FRA). The Fed began again on March 15th by establishing numerous Treasury-funded SPVs (Special Purpose Vehicles) that it will lever to provide financing under TALF, two investment grade buying programs, and CPFF amongst others, which we summarize below. Today, it upsized many of those programs. These corporate bond buying programs will be extended through September of 2020. There are nine programs in total.

For years, the conversation around the prospect for “Japanification” of U.S. monetary policy was almost universally met with extreme skepticism. The use of Section 13(3) now places the U.S. almost side-by-side with Japanese policymakers, and it is incumbent upon us to understand the implications of this progression. Where will it eventually lead U.S. monetary policy? Certainly, there is no policy space left. Monetary policy has been come completely palliative rather than stimulative. Will continued intervention destroy the very free market system it is attempting to save? We would argue that now is precisely the right time to ask this question. Japan serves as a vision of one possible future self for the US.

We investigate both the Fed’s authority  to implement BoJ-style policy as well as the practical near and long-term implications. We’ll review each of the policies the Fed has undertaken or is likely to undertake (alongside and in coordination with fiscal policy). On March 20th and just prior its re-implementation, we had already suggested that the 2008 playbook would reemerge.[4] Next, we’ll touch on the next stop on the slippery slope – the Fed buying equities and a broader swath of high yield corporate bonds. It can presumably continue to justify such actions as the next extension of its Section 13(3) powers.

We conclude that, while monetization of deficits serves a legitimate purpose of helps prevent unintended consequences in rates markets, buying equities would do little but further distort asset prices. This already extant distortion (due largely to quantitative easing) helped to create the fragility and lack of policy space that makes the current Covid-19 Tsunami so hard to combat. At this point, monetary policy alone can’t combat the 100-year disaster. It must work as the mechanism to monetize the debt required to fund the fiscal policy response. Importantly, this means Fed action should receive additional checks and balances from the legislature. In our view, Treasury-only supervision just doesn’t cut it. Our system is one of checks and balances… yet, there are none in this instance. Should there not be?

Slippery Slopes

Throughout history, liberty is almost always denied when governments assert that exigent circumstances require it. Let’s look at a constitutional analogue. The Fourth Amendment to the U.S. Constitution prohibits ‘unreasonable’ searches and seizures. Said differently, the Fourth Amendment prevents the government from unreasonably taking or infringing upon an individual’s property or privacy rights. To that end, it sets requirements for issuing warrants: warrants must be issued by a judge or magistrate, justified by probable cause, supported by oath or affirmation, and must specify the place to be searched and the persons or things to be seized.[5]

Exigent circumstances may provide an exception to the Fourth Amendment’s protections when circumstances are dangerous or obviously indicate probable cause. The application of exigent circumstances has been highly adjudicated – meaning, the courts found it necessary to rule often on its application to assure the government’s propensity to overreach was checked. One such permissible example of justifiable exigent circumstance is the Terry stop, which allows police to frisk suspects for weapons. The Court also allowed a search of arrested persons in Weeks v. United States (1914) to preserve evidence that might otherwise be destroyed and to ensure suspects were disarmed.

The health of the public and of the police officers justified the infringement on privacy. Other circumstances might justify police to enter private property without a warrant if they have plain sight evidence that a violent crime is taking place. Importantly, there are many examples of situations in which exigent circumstances were ruled insufficient to justify the infringement on personal or property rights. For example, even if a suspect was carrying a gun (an exigent circumstance), while reasonable to ‘stop and frisk,’ it would not necessarily justify the extreme action of locking him/her up indefinitely until a search of his home could be conducted.

We think this 4th Amendment construct is an incredibly useful analogy for understanding the danger in the Fed’s actions now; there’s a reason the very same phase – exigent circumstances – is used in 4th Amendment cases as well as in the Federal Reserve Act. We are not arguing that the present economic circumstances are not exigent, but we are arguing that there must be due process to assure that a valid justification does not lead to overreach. That overreach arguably started today as the Fed expanded its program into HY. Unlike legal challenge under the Fourth Amendment, Section 13(3) is not subject to a well-defined process by which it may be challenged and by which ‘lines may be drawn.’ Lack of due process almost invariably leads to government overreach.

The current Japanification of policy – if gone unchecked by Congress – is the beginning of the socialization and consequent destruction of free capital markets.

In our piece Monetize It – Monetize All of It, we suggested it would be necessary for the Fed to monetize all the upcoming deficits that would be needed to fund coronavirus relief programs. We were clear to suggest that the coordination should be explicit and with the appropriating authority – i.e. – Congress. Dodd Frank amendments to the Federal Reserve Act did not have the foresight to modify 13(3) checks and balances beyond Treasury approval. The Fed is now using this loophole to skirt the explicit mandate provided for in Section 14 – without due process to ascertain where the line ought to be drawn.

Japanification

In the case of Japan, we can see what we’d consider an undesirable monetary policy outcome orchestrated by a stealthy government takeover of large swaths of private industry. Last year, the Bank of Japan (BoJ) bought just over ¥6 trillion ($55 billion) of ETFs and now holds close to 80% of outstanding Japanese ETF equity assets. Total purchases to date represent around 5% of the Topix’s total market capitalization. According to  the latest Nikkei calculations, not only has the BOJ also become the top shareholder in 23 companies, including Nidec, Fanuc and Omron, through its ETF holdings, it was among the top 10 holders for 49.7% of all Tokyo-listed enterprises.[6] In other words, the BOJ has gone from being a top-10 holder in 40% of Japanese stocks last March to 50% just one year later.

The BoJ is not an independent central bank, so it receives explicit legislative authority to act when it buys non-governmental assets. We doubt Congress would allow that here – as Congress might actually recognize the Constitutional implications. Surely, the courts would.

Monetary policy in its Japanified form has mutated into an incredibly stealthy ‘taking’ of Japanese citizens’ private property under the auspices of the public good.

Arguably, if unchecked, the BoJ could end up owning all private assets under the auspices of supporting the economy. Is this something we should tolerate here in the US, the greatest capitalist democracy the world has ever seen? We say no.

The Fed Facilities

So, thus far, what has the Fed done? We predicted much of it. On March 20th in Monetize It – Monetize All of It, we wrote:

“To state the obvious, today’s crisis differs from 2008. Thus, the policy response should also differ. As we know, many of the Fed-provided credit facilities from 2008-era were designed to bail out banks, but the powers of section 13(3) of the Federal Reserve Act were also extended to companies. Banks remain key as that’s how all policy is transmitted (at least in part), so we’ve suggested clients expect facilities like CPFF (Commercial Paper Funding Facility – already done), TLGP (Temporary Liquidity Guarantee Program) and others. We might also expect an expansion of the PDCF (Primary Dealer Funding Facility) collateral or a modification to haircuts. Under 13(3) we might also expect a TALF-like facility (Term Asset-Backed Securities Loan Facility) and a TARP (Troubled Asset Relief Program).”

If the Fed extends it logic under Section 13(3), all high yield bonds (not just fallen angels and the HYG ETF) and equities will be next. This would be pure folly with the drastic unintended consequences that Japan has already begun to face.[7]

Let’s get granular around what facilities the Fed has established, how much liquidity they provide, and what authority allows the. We will include a discussion of the collaboration between the Fed and Treasury through the Exchange Stabilization Fund (ESF) and how the Treasury funds the ESF through special purpose vehicles (SPVs) which it may then leverage based on collateral provided.


Commercial Paper Funding Facility (CPFF) – March 17th.

The CPFF facility is structured as a credit facility to a SPV authorized under section 13(3) of the Federal Reserve act. The SPV serves as a funding backstop to facilitate issuance of commercial paper. The Fed will commit to lending to the SPV on a recourse basis. The US Treasury Dept., using the ESF (Exchange Stabilization Fund) will provide $10 billion of credit protection to the Federal Reserve Bank of New York in connection to the CPFF.  The SPV will purchase 3-month commercial paper through the New York Fed’s primary dealers.  The SPV will cease purchases on March 17th, 2021 unless the facility is extended.


Primary Dealer Credit Facility (PDCF) – March 17th.

The PDCF offers overnight and term funding for maturities up to 90 days. Credit extended to primary dealers can be collateralized by a range of commercial paper and muni bonds, and a range of equity securities. The PDCF will remain available to primary dealers for at least six months, and longer if conditions warrant an extension.


Money Market Mutual Fund Liquidity Facility (MMLF) – March 18th.

The MMLF program was established to provide support and liquidity of crucial money markets. Through the program, the Federal Reserve Bank of Boston will lend to eligible financial institutions secured by high-quality assets purchased by financial institutions from money market mutual funds. Eligible borrowers include all U.S. depository institutions, U.S. bank holding companies, and U.S. branches and agencies of foreign banks.No new credit extensions will be made after September 30th, 2020 unless the program is extended by the Fed.


Primary Market Corporate Credit Facility (PMCCF) – March 23rd as amended April 9th.

The PMCCF will serve as a funding backstop for corporate debt issued by eligible parties. The Federal Reserve Bank will lend to a SPV on a recourse basis. The SPV will purchase the qualifying bonds as the sole investor in a bond issuance. The Reserve Bank will be secured by all the assets of the SPV. The Treasury will make a $75 (up from $10) billion equity investment in the SPV to fund the facility and the SMCCF (below), allocated as $50 billion to the facility and $25 billion to the SMCCF. The combined size of the facility and the SMCCF will be up to $750 billion (the facility leverages the Treasury equity at 10 to 1 when acquiring corporate bonds or syndicated loans that are IG at the time of purchase. The facility leverages its equity at 7 to 1 when acquiring any other type of asset).Eligible issuers must be rated at least BBB-/Baa3 as of March 22nd by a major NRSRO (nationally recognized statistical rating org). If it is rated by multiple organizations, the issuer must be rated BBB-/Baa3 by two or more as of March 22nd.The program will end on September 30th, 2020 unless there is an extension by the Fed and the Treasury.


Secondary Market Corporate Credit Facility (SMCCF) – April 9th.

Under SMCCF, the Fed will lend to a SPV that will purchase corporate debt in the secondary market from eligible issuers. The SPV will purchase eligible corporate bonds (must be rated BBB-/Baa3, see above for full criteria) as well as ETF’s that provide exposure to the market for U.S. investment grade corporate bonds. Today, the Fed also indicated that purchases will also be made in ETF’s whose primary investment objective is exposure to U.S. high-yield corporate bonds. The Treasury will make a $75 (up from $10) billion equity investment in the SPV to fund the facility and the PMCCF (above), initially allocated as $50 billion to the PMCCF and $25 billion to the SMCCF. The combined size of the facility will be up to $750 billion (the facility leverages the Treasury equity at 10 to 1 when acquiring corporate bonds or syndicated loans that are IG at the time of purchase. The facility leverages its equity at 7 to 1 when acquiring corporate bonds that are below IG, and in a range between 3 to 1 and 7 to 1 depending on the risk in any other type of eligible asset).The program will end on September 30th, 2020 unless there is an extension by the Fed and the Treasury.


Municipal Liquidity Facility (MLF)April 9th.

The MLF, authorized under Section 13(3) of the Federal Reserve Act will support lending to U.S. states and cities (with population over 1 million residents) and counties (with population over 2 million residents). The Federal Reserve Bank will commit to lend to a SPV on a recourse basis, and the SPV will purchase eligible notes from issuers at time of issuance. The Treasury, using funds appropriated to the ESF, will make an initial equity investment of $35 billion in the SPV in connection with the facility. The SPV will have the ability to purchase up to $500 billion of eligible notes (which include TANs, TRANs, and BANs). The SPV will stop making these purchases on September 30th, 2020 unless the program is extended by the Federal Reserve and the Treasury.


Paycheck Protection Program Lending Facility (PPP) – April 6th.

The PPP facility is intended to facilitate lending by all eligible borrowers to small businesses. Under the facility, Federal Reserve Banks will lend to eligible borrowers on a non-recourse basis, and take PPP loans as collateral. Eligible borrowers include all depository institutions that originate PPP Loans. The new credit extensions will be made under the facility after September 30th, 2020.


Term Asset-Backed Securities Loan Facility (TALF) – March 23rd.

The TALF is a credit facility that intends to help facilitate the issuance of asset-backed securities and improve asset-backed market conditions generally. TALF will serve as a funding backstop to facilitate the issuance of eligible ABS on or after March 23rd. Under TALF, the Federal Reserve Bank of NY will commit to lend to a SPV on a recourse basis. The Treasury will make an equity investment of $10 billion in the SPV. The SPV initially will make up to $100 billion of loans available. Eligible collateral includes ABS that have credit rating in the long-term, or in case of non-mortgage backed ABS, short-term investment grade rating category by two NRSROs.No new credit extensions will be made after September 30th, 2020, unless there is an extension.


The Main Street New Loan Facility (MSNLF) and Expanded Loan Facility (MSELF) – April 9th.

The MSNLF and MSELF are intended to facilitate lending to small and medium-sized businesses by eligible lenders. Under the facilities, a Federal Reserve Bank will commit to lend to a single common SPV on a recourse basis. The SPV will buy 95% participations in the upsized tranche of eligible loans from eligible lenders. The Treasury will make a $75 billion equity investment in the single common SPV that is connected to the facilities. The combined size of the facilities will be up to $600 billion. Eligible borrowers are businesses up to 10,000 employees or up to $2.5 billion in 2019 annual revenues. The SPV will cease purchasing participations in eligible loans on September 30th, 2020 unless there is an extension by the Fed and Treasury.


The $2.3 trillion in loans announced this morning is made up of the Fed’s nine programs, including leverage on the Treasury’s equity contribution to SPVs under the ESF. Specifically, the Commercial Paper Funding Facility accounts for $100 billion of loans, while the Primary and Secondary Market Corporate Credit Facilities account for $500 billion and $250 billion respectively. The Municipal Liquidity Facility (MLF) adds another $500 billion, while TALF makes up another $100 billion. Finally, the Main Street New Loan Facility (MSNLF) amounts to approximately $600 billion. Together, these specified facilities account for ~$2.05 trillion of the announced $2.3 trillion. As we understand it, the remainder of the contribution flows to the Paycheck Protection Program (PPP), the Money Market Mutual Fund Facility (MMLF), and the Primary Dealer Credit Facility (PDCF).

Conclusion

The Fed is using a potentially dangerous (from a Constitutional standpoint) exception to Section 14 of the Federal Reserve Act.

Throughout history and across the world, these sorts of exigent circumstances have led to breakdowns in process and liberty. That is what we face as a country now. Make no mistake, when we look at what is happening in Japan, it is fairly clear to us that the central bank is engaged in a kind of taking that in the United States, should be considered an infringement on individual liberty. When taken to its logical extreme, the BoJ will eventually own all private assets. In the United States, the stealthy takeover of private assets by the government stands diametrically opposed to  the unfettered right of individuals to own private property and for markets to set the price they pay for such property. Japan does not have our Constitution. We should hold ours dear.

Ours is a system of checks and balances. While the Fed’s current actions up until today were reasonable responses to clearly exigent circumstances, we ask: where is the line?

For us, a reach to low-grade high-yield and equities would cross the line. It is a line for which due process must be established – Congress or another adjudicating authority ought to serve as a check and balance. The combination of fiscal and monetary policy programs being implemented will impact generations of Americans. The new New Deal won’t look like the old new deal. In fact, many may not immediately notice the ultimate consequences. That’s what’s so troubling, as the cost will be just as high with a Fed balance sheet ultimately at about $10 trillion and with persistent multi-trillion dollar deficits.


[1] We will admit, we’d thought we’d get another push lower before seeing those levels.

[2] We’ve written extensively that a conservative fair value on the S&P 500 is 2,340. Far from being supported by the best economy ever, U.S. markets faced significant challenges before the pandemic – from a flat to inverted yield curve and no corporate loan growth, to meager real wage growth, high levels of corporate leverage (especially in the loan market), and screamingly high asset valuations – all of which made for a fragile backdrop

[3] HYG ETF’s YAS is currently ~620bps from just under 1000bps.

[4] Please see Monetize It – Monetize All of It.

[5] A like analogy can be drawn using the Fifth Amendment’s Takings Clause, which requires the government provide reasonable compensation when property is taken in the name of the public good.

[6] https://asia.nikkei.com/Business/Markets/Bank-of-Japan-to-be-top-shareholder-of-Japan-stocks

[7] Some legislative history is useful. The Glass Steagall Act of 1932 permitted Fed to authorize “advances” to member banks “in exceptional and exigent” circumstances. As 1932 progressed some deemed it too limiting and an amendment was offered to expand lending “to any person.” It passed but was vetoed by President Hoover. Section 13(3) was offered as an amendment to Emergency Relief/Construction Act which passed. The Section permits any Fed Reserve bank to “discount for any individual, partnership or corporation, notes, drafts and bills of exchange of the kind s and maturities made eligible under other provisions of this Act when such are endorsed and otherwise secured to the satisfaction of the Fed bank.” This was deemed limited to short term commercial paper and became part of Federal Reserve Act Section 13(3). Congress removed the limitation in 1991. This enabled much of the activity after 2008 and into the Financial Crisis – including JP Morgan Baer sterna purchase, AIG, TSLF,TALF,CPFF. Dodd frank narrowed the presumed authority saying cannot be used to “aid a failing financial company” or “borrowers that are insolvent” but any lending only in connection with “a program or facility with broad based eligibility”


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cartoox
cartoox
5 months ago

Very thorough explanation …..Thanks !
yes, this path, if continued unchecked will lead the US to a crony capitalist state…..and the corruption and stagnation that goes along with that….
Lets hope it stops before that….

Pete_Cecchini
Pete_Cecchini
5 months ago
Reply to  cartoox

Many might ask, what was the Fed supposed to do? Stand idly by while the country collapsed? Of course not, but it also should not abuse its stated power on a means justifies the ends basis… especially, when this abuse is a threat to the very system it is swore to serve and protect.

KC BBQ Guy
KC BBQ Guy
5 months ago

I recently watched Uncut Gems and it appears the Fed’s policy response and Howard Ratner have a lot in common. Will we get a different ending?

Bob
Bob
5 months ago
Reply to  KC BBQ Guy

It will be longer and more drawn out, much suffering until the townsfolk grab pitchforks and torches and march on Frankenstein’s castle er the FED, Treasury and White House (metaphorically speaking of course), and get the raccoons out of the C-Suites. It’s commonplace that management is regularly doing what “raiders” like “Chainsaw” Al Dunlap, Carl Icann, RonPerlman, Michael Milken and Mitt Romney used to do. Now it’s business as usual, Boeing, IBM, and the $700 billion the F, GM DELL TW and GE alone have borrowed to buy back stock and enrich management. Nothing to see here until they get rated to junk. Panic dumping by pension funds, market freezes. Gain control borrow to the hilt loot the pension fund and go belly up.

vincent black
vincent black
5 months ago

I never understood that dramatic endgame… that of the central bank effectively taking over what were once private markets…. which, I guess, is …. nationalization of the stock market…. I had used that term in regards to how much money they were pumping in to keep the market afloat, but I did not have the actual insight as to the reality that once the CB begins to buy the market….the market is beginning the process of going from private hands to the state’s hands….very powerful insight….it’s gonna be quite a decade….

Bob
Bob
5 months ago

Vernor Vinge put the present and the natural outcome of these actions as follows: “It is a point where our old models must be discarded and a new reality rules. As we move closer to this point, it will loom vaster and vaster over human affairs till the notion becomes a commonplace. Yet when it finally happens it may still be a great surprise and a greater unknown.” I consider myself Smarter than the Average Bear (maybe from Lake Woebegone) but the dizzying array of Potemkin entities to shuffle money around the craps table makes my eyes glaze over. The end of private markets is nigh. What’s sad, I think is that the villagers are so consumed with “Socialist” policies of Sanders et. al., are child’s play compared to the amount of fudgery perpetrated on the good people of the US by the likes of Bernanke, Geitner, Yellen and Powell. Crony Capitalism. #BITFD, all of it

Roy Blanchard
5 months ago

Our author talks about “checks and balances“ yet they are fast disappearing as long as Trump is president. Congress is powerless to act: The Senate does what McConnell tells it to do and the House is in total disarray with special interest A fighting special interest B.

As long as Trump perceives his “base“ as supporting his every move, I fear nothing will change. What scares me most of all is the increasing number of deaths and further damage to the economy that will likely occur as long as Trump is president. #BITFD indeed.

DougENuff
DougENuff
5 months ago

Perhaps the notion that ‘The Fed’ is not ‘The State’, but a private for-profit entity is new to many here.
Given that Central Banks are mostly owned by ‘Global Private Banks’, it is entirely logical that these ‘Central Banks’ will work to own profitable equity and dump the toxic debt on the balance sheet of the host nation.
In this way the taxpayers are liable for the debt and The Banks take possession of everything they deem valuable.
Doing this through a quasi-national institution protects them from any anti-trust or constitutional challenge, see?
And funding the campaigns of every politician insures cooperation and protection.
Watch as these banks set up streamlined foreclosure programs to again displace millions of Americans blindly wandering into forbearance agreements with little hope of making that balloon payment in 90-180 days.
Watch the politicians cry about it and the courts support this ‘en masse’.
Same as it ever was.

steven musick
5 months ago

Reading this I feel like I got hickeyed to death by falling into a pool of ACRONYM carp. Little by little the ACRONYMS suck the life out of me before I can climb out of the pool. They should put out a sign Citizens swim at own risk no life guard or any other checks and balances on duty. Someone should create a visual for this web of intervention.

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