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Securitizations: Legal and Regulatory Issues.
ALM Media, LLC, May 2013, Pages: 1234
Securitizations: Legal and Regulatory Issues is a much-needed guide to one of the most strategically important areas of structured finance. Written by over two dozen experts with hands-on experience, this timely and insightful work explains the benefits—and risks—of securitization, and the legal, tax, accounting, and other issues involved. It includes: detailed discussion of the assets that can be securitized; rating agency considerations; the legal structure of securitization transactions; tax consequences for issuers and investors; the effect of an issuer' bankruptcy; contractual restrictions; regulatory concerns; cross-border and future-flow transactions; financial guaranty insurance; insurance securitizations; and securitization issues unique to specific foreign countries. For newcomers to the field, Securitizations: Legal and Regulatory Issues quickly brings you up to speed. For the experienced practitioner, it serves as an essential companion and reference as new techniques arise and new markets emerge.
CHAPTER 1
Introduction
- 1.01 Introduction
CHAPTER 2 Bankruptcy Issues in Securitizations
- 2.01 Overview
- 2.02 Understanding Bankruptcy Risks
- 2.03 Legal Forms and Structure
- 2.04 Fiduciary Duties of Directors
- 2.05 Recovery of Transferred Assets for the Benefit of the Transferor's Creditors
[1] Substantive Consolidation
[2] “True Sale” Analysis
[3] Fraudulent Conveyance
[4] Success of the “Bankruptcy Remote” Safeguards
- 2.06 Conclusion
CHAPTER 3
Application of Securities Laws to Securitization Transactions
- 3.01 The Securities Act of 1933
[1] Comprehensive Regulation
[2] Definition of Security
[3] The Definition of Issue
[4] Integration of Asset-Backed Offerings
[5] Relevant Exemptions from Registration
[6] Registration
[7] Informational and Computational Materials
[8] Prospectus Delivery
[9] Interpretation of Various SEC Rules in the Context of Delayed Offerings
- 3.02 Securities Exchange Act of 1934
[1] Period Reporting
[2] Suspension of Periodic Reporting Obligation
[3] Historical Approach of SEC to Periodic Reporting
[4] Comprehensive Regulation
- 3.03 Investment Company Act of 1940
[1] Definition of Security
[2] Rule 3a-7
CHAPTER 4
Selected Federal Income Tax Aspects of Asset-Backed and Mortgage-Backed Securities
- 4.01 Overview
[1] Choosing an Entity to Minimize Taxes
[2] Sale vs. Loan
[3] Tax Treatment of Investors
[4] Why Taxes Matter
- 4.02 Tax Aspects of Common Securitization Structures
[1] Grantor Trusts (Pass-Through Trusts)
[2] Partnerships and Disregarded Entities (Owner Trust)
[3] FASITs (Financial Asset Securitization Investment Conduit)
[4] SPE Issuing Debt With Trust as Security Device (“Credit Card Trusts”)
[5] REMICs (Real Estate Mortgage Investment Conduits)
CHAPTER 5
Securitizations and the Uniform Commercial Code
- 5.01 The Structure of the UCC
- 5.02 New Categories and Characterization of Property Subject to Article 9
[1] Deposit Accounts
[2] Investment Property
[3] Promissory Notes
[4] Payment Intangibles
[5] Letter-of-Credit Rights
[6] Health-Care-Insurance Receivables
[7] Personal Property Interests Secured by Interests in Real Property
[8] Secured Interests Granted by a State or Other Governmental Unit
[9] Redefining “Accounts”
- 5.03 Creation of a Security Interest
[1] Creation of a Security Interest by the Sale of an Asset
[2] Creation of a Security Interest by Contract
- 5.04 Perfection and Priority of a Security Interest
[1] Law Governing the Perfection, Effect of Perfection or Nonperfection and Priority of a Security Interest
[2] Methods of Perfection and Priority of a Security Interest Under Article 9
- 5.05 Revised Assignability Provisions and Securitizations
- 5.06 Transition Issues
- 5.07 2010 Amendments
CHAPTER 6
Securitization Accounting Under FASB 140
- 6.01 Introduction
- 6.02 Determining if a Securitization Meets the Sale Criteria
[1] Securitization Accounted for as Sales
[2] QSPE Criteria
[3] QSPE/SPEs and Consolidated Financial Statements
[4] The Effect on QSPE Status of Servicer Activities Including Sales of QSPE Assets
[5] Put and Call Options
[6] Knowing the ROAPs
[7] Debt-For-Tax and Sale of GAAP
[8] Off-Balance Sheet Warehouse Funding Arrangements
[9] Converting Loans to Securities
[10] Two-Tier Structures
[11] Lawyer's Opinion Letters
[12] Two-Step Transfers Required for Banks by FASB 140; Extended Effective Date for Banks
[13] Abandoning Gain on Sale Accounting
- 6.03 Determining Gain or Loss on Sales
[1] Calculating Gain or Loss with Bond Classes and Residuals
[2] Calculating Gain or Loss in a Revolving Structure
[3] A Gain on Sale Calculation Template
[4] A Revolving Credit Card Securitization Calculation Example
[5] A Lease Securitization Example
[6] Fair Value
[7] Auditor's Responsibilities for Fair Value
[8] Estimating Fair Value
[9] Recording an Asset for Servicing
[10] Recording Retained Credit Risk
[11] Cash Reserve Accounts—The Cash-Out Method
[12] Desecuritization Transactions
- 6.04 Investor Accounting: Prepayment and/or Credit Risk
[1] In General
[2] Determining Periodic Interest Income
[3] Determining Whether an Impairment Charge is Required
[4] Changing the Yield and Recognizing a Write-Down on an Investment Covered by EITF 99-20
[5] How to Account for Investments in Beneficial Interests Issued in the Form of Equity
- 6.05 FASB's Required Disclosure
[1] In General
[2] Securitizations as Sales
[3] Additional Considerations About Disclosures
- 6.06 Securitization Accounting in Other Countries
[1] Canada
[2] Japan
[3] United Kingdom
[4] European Union
CHAPTER 7
Commercial Paper Conduit Securitizations
- 7.01 Typical Transaction Structure
[1] Purchase Agreements and Transfer and Administration Agreements
[2] Administration Agreements
[3] Parallel Purchase Commitments
[4] Credit Enhancement and Liquidity
- 7.02 Advantages to Using a Commercial Paper Conduit
- 7.03 Investment Company Act Issues
[1] Investment Company Act Exemption
[2] Diversification Requirements
- 7.04 Securities Law Considerations
[1] Securities Exemption and Transaction Exemption
[2] Conduits as Investors in Securitizations
- 7.05 Bank Regulatory Issues
[1] Affiliate Issues
[2] Risk-Based Capital Guidelines
- 7.06 Accounting Treatment
- 7.07 Tax Issues
[1] Taxable Mortgage Pool Rules
[2] Debt for Tax Treatment
[3] Transfer Taxes
- 7.08 Rating Agency Considerations
- 7.09 Legal Opinions
- 7.10 Interest Rate Protection Agreements
- 7.11 Due Diligence
- 7.12 Arbitrage Commercial Paper Conduits
- 7.13 Structured Investment Vehicles
- 7.14 Conclusion
CHAPTER 8
Commercial Mortgage Loan Securitizations
- 8.01 Introduction
- 8.02 Background
[1] Pioneering Steps
[2] The Guaranteed Deals
[3] The Non-Guaranteed Deals
[4] The Resolution Trust Corporation
[5] The First Post-RTC Private Deal
[6] The Early Conduits
[7] Current Conduits
- 8.03 The Current Market—Regulatory Matters and Common Structural Features
[1] Regulatory Issues
[2] Structural Issues
- 8.04 Current Single Property Deals
- 8.05 Current Multiple Property Deals
- 8.06 Special Accounting Concerns
- 8.07 Special Issues
- 8.08 Conclusion
CHAPTER 9
Collateralized Bond Obligations and Collateralized Loan Obligations
- 9.01 Introduction
- 9.02 Distinguishing CBOs and CLOs
- 9.03 Advantages of CBOs and CLOs
- 9.04 Structure
[1] Cash Flow
[2] Market Value
- 9.05 Legal Issues Involved in Structuring CBO/CLO Transactions
[1] Securities Act of 1933
[2] Investment Company Act of 1940
[3] Bankruptcy and Insolvency Issues
[4] Validity and Perfection of Security Interest in the Collateral
[5] Legal Issues Relating to Loans
[6] Tax Issues
[7] Co-Issuer
[8] ERISA Issues
- 9.06 Rating Agency Credit Risk Evaluation Methodology
[1] General
[2] Credit Risk Analysis for “Cash Flow” Structures
[3] Credit Risk Analysis For “Market Value” Structures
[4] Evaluation of Service Providers
[5] Other Rating Agency Considerations
- 9.07 Project Finance CLOs—an Emerging Asset Class
[1] General
[2] Rationale
[3] Structure of a Project Finance Loan CLO
[4] Differences Between Project Loans and Corporate Loans
[5] Risks Associated with Project Loans
- 9.08 Synthetic CDOs
[1] In General
[2] Differences Between Synthetic CDOs and CBOs/CLOs
- 9.09 Private Equity Funds and Hedge Funds
[1] Private Equity Funds
[2] Hedge Funds
CHAPTER 10
Cross Border Future Flow Securitization
- 10.01 Introduction
- 10.02 Insolvency Risk and True Sale
[1] Seller Insolvency
[2] Determination of Sale
[3] Sovereign Risk
- 10.03 Tax Issues
[1] The General Principle of Tax Neutrality
[2] The Potential Problems Raised by Cross Border Securitizations
[3] Profit Extraction
- 10.04 Rating Cross Border Future Flow Securitizations
[1] Procedure
[2] Risk Analysis
- 10.05 Conclusion
CHAPTER 11
Credit Card Receivables Securitization
- 11.01 Introduction
- 11.02 The Collateral: Credit Card Receivables
[1] Credit Cards
[2] The Receivables
- 11.03 The Traditional Structure: Master Trusts
[1] General Characteristics of a Master Trust
[2] The Receivables in the Master Trust
[3] Allocations of Collections and Payments to Investors
[4] Credit Enhancement
- 11.04 Recent Developments
CHAPTER 12
Auto Loan Securitization
- 12.01 Introduction
- 12.02 The Origination Process
- 12.03 The Securitization Process
[1] Grantor Trust
[2] Owner Trust
[3] FASIT
- 12.04 Post Securitization Management of the Auto Loan ABS Portfolio
[1] Servicer Duties
[2] Trustee Duties
- 12.05 Other Legal Considerations
[1] Security Interest in the Automobile
[2] Security Interest in the Chattel Paper
CHAPTER 13
Securitization of Lottery Receivables and Structured Settlement Payments
- 13.01 Introduction
- 13.02 Lottery Receivables
[1] General
[2] Purchase and Sale of Lottery Receivables
[3] The Legal Structure of Lottery Receivable Securitizations
- 13.03 The Securitization of Structured Settlement Payments
[1] Introduction
[2] Purchase and Sale of Structured Settlement Payments
[3] The Legal Structure of Structured Settlement Securitizations
- 13.04 Conclusion
CHAPTER 14
Stranded Cost Securitizations
- 14.01 Introduction
- 14.02 Electric Utility Deregulation
- 14.03 Statutory Prerequisites to a Stranded Cost Securitization
- 14.04 Regulatory Issues
[1] Regulatory Order
[2] Servicing by the Utility
[3] Retail Wheeling Market Participants
- 14.05 Bankruptcy Issues
[1] True Sale
[2] Substantive Consolidation
[3] Bankruptcy Remoteness
- 14.06 Tax Issues
[1] Federal Tax Treatment
[2] Tax Exemption for Interest on the Securities
- 14.07 Accounting Issues
- 14.08 Corporate Securities Issues
[1] Securities to Be Issued
[2] Exemption from Registration
[3] Utility Registrant Liability
[4] Trust Indenture Act of 1939
[5] Pre-existing Utility Indenture
- 14.09 Miscellaneous Issues
[1] State Involvement
[2] Credit Enhancement
[3] Documentation
- 14.10 Conclusion
CHAPTER 15
Home Equity Loan Securitizations
- 15.01 Introduction
- 15.02 What Are Home Equity Loans?
- 15.03 B/C Loans
[1] Introduction
[2] Legal Structure
[3] Credit Support
[4] Cash Flow Attributes
[5] Tax Structure
[6] Securities Law Issues
[7] ERISA Issues
- 15.04 125 Loans
[1] Introduction
[2] Legal Structure
[3] Credit Support
[4] Cash Flow Attributes
[5] Tax Structure
[6] Offshore “BB” Note Structure
[7] Securities Law Issues
[8] ERISA Issues
- 15.05 Compliance Issues
CHAPTER 16
Principal Mexican Legal Issues of Securitization
- 16.01 Introduction
- 16.02 Transfer of Assets
[1] General Issues
[2] Formalities
- 16.03 Bankruptcy Considerations
[1] Legal Overview
[2] Bankruptcy of the Originator
[3] Bankruptcy of the Trustee
- 16.04 Other Legal Considerations
[1] Existing Contractual Limitations
[2] Specific Regulation Applicable to the Originator
[3] Taxation Issues
[4] Securities Laws
CHAPTER 17
Derivatives and Securitization
- 17.01 Roles of Derivatives in Asset-backed Structures
[1] Interest Rate Risk Hedges
[2] Currency Risk Hedges
[3] Commodity Value Hedges
[4] Cash Flow Alteration and Yield Enhancement
[5] Credit and Market Value Derivatives
- 17.02 Rating Agency Issues
[1] Credit Risk
[2] Market Risk
- 17.03 Structural Effects on Securitization Documentation
[1] Executory Contracts
[2] Asset/Liability Hedging
[3] Documentation—The ISDA Master Agreement
[4] Status of Derivative Contract in the Transaction Documentation
- 17.04 Enforceability Issues
[1] Ultra Vires
[2] Commodities Laws
[3] Securities Laws
[4] Regulation AB
[5] Other Regulating Issues
- 17.05 Bankruptcy Considerations
[1] Definitions
[2] Contractual Right to Liquidate, Terminate, or Accelerate a Swap Agreement
[3] Setoff and Liquidation of Collateral
[4] Preferential and Fraudulent Transfers
- 17.06 Tax Treatment
[1] Notional Principal Contracts
[2] Timing
[3] Character
[4] Source and Withholding of Payments
CHAPTER 18
ERISA Issues in Securitizations
- 18.01 Overview
- 18.02 Kinds and Regulation of Benefit Plans
- 18.03 ERISA Fiduciary Duties
[1] Introduction
[2] Securitization Impact
- 18.04 Prohibited Transactions
[1] Introduction
[2] Securitization Impact
- 18.05 The Plan Asset Regulation
[1] Introduction
[2] The Plan Asset Regulation Exceptions
- 18.06 Prohibited Transaction Exemptions
[1] Introduction
[2] Class Exemptions
[3] Individual Exemptions
CHAPTER 19
Commercial Mortgage-Backed Securities and the Rating Agency Process
- 19.01 Overview
- 19.02 How the Rating Agency Review Process is Conducted
- 19.03 General Substantive Features of the Rating Process
- 19.04 Detailed Analysis of the CMBS Rating Agency Process
[1] The General Rating Process: CMBS Secured by Fixed Rate Performing Loan Pools
[2] Rating CMBS Secured by Floating-Rate Loan Pools
[3] Rating CMBS secured by a Single-Borrower Transaction
- 19.05 Conclusion
CHAPTER 20
United Kingdom Commercial Property Securitization
- 20.01 Introduction
- 20.02 Shopping Centre Securitizations
[1] Rental Terms
[2] Turnover Rents
[3] Rent Review
[4] Bunching of Breaks and Rent Reviews
[5] Keep Open Provisions
[6] Possible Misrepresentations by Property Developer
- 20.03 Synthetic Sale and Leasebacks
- 20.04 Pool Cutting
- 20.05 Lease Terms in Synthetic Deals
- 20.06 Commercial Mortgage Securitizations Conduits
[1] Special Purpose Vehicles
[2] Fixed and Floating Charges—The Risk of Recharacterization
[3] Lockboxes
[4] Springing Lockbox
[5] Leaping Lockbox
- 20.07 Limited Partnerships
- 20.08 Combination and Set-Off
- 20.09 Obligation to Make Further Advances—Assignability of Contract
- 20.10 Contaminated Land Regime
- 20.11 Conclusion
CHAPTER 21
Securitizations in Ireland
- 21.01 Introduction
- 21.02 Domestic Securitization in Ireland
[1] Introduction
[2] Transfer of Assets
[3] Perfection of the Assignment
[4] Effecting a True Sale
[5] Challenging Transfers
[6] Secured Loan Transactions
- 21.03 The International Structured Finance Market in Ireland
[1] Introduction
[2] Why Ireland?
[3] Facilitation of SPVs in Ireland
[4] On-Shore v. Off-Shore
[5] Qualifying Companies
[6] Transaction Size
[7] Withholding Tax on Notes Issued by an SPV
[8] Deduction of Expenses
[9] Value Added Tax
[10] Revenue Opinions and Notifications
Appendix Taxes Consolidation Act (selected portions) Companies Act (selected portions)
CHAPTER 22
Principal Legal Issues of Italian Securitization
- 22.01 Introduction
- 22.02 Legislative Framework
[1] General
[2] The Vehicle
[3] Bankruptcy
[4] Securities Laws
[5] Securitization Through Loans
[6] Developments
- 22.03 Transfer of Assets and Servicing
[1] The Assignment
[2] Securitizable Assets
[3] The Originator
[4] Servicing the Receivables
- 22.04 Tax and Accounting Issues
[1] Assignment of Receivables
[2] The Tax Regime Applicable to the Issuer
[3] Servicing and Collection Activity—VAT Regime
[4] Interest Payable on Italian Notes
[5] Early Redemption of the Italian Notes
CHAPTER 23
Principal Legal Issues of German True Sale Securitization
- 23.01 Introduction
- 23.02 Legal Issues In True Sale Securitizations
[1] Sale, Transfer And Isolation Of Assets
[2] Insolvency of the Originator
[3] Legal Services Act
[4] Commingling
[5] Data Protection and Banking Secrecy
- 23.03 Tax and Accounting Issues
[1] German Trade Tax Liability
[2] German VAT Liability
[3] True Sale for Accounting Purposes
- 23.04 Regulatory Issues
Appendix Selected German Codes and Statutes (translation) BaFin—Federal Financial Supervisory Authority (translation)
CHAPTER 24
Financial Guaranty Insurance
- 24.01 Introduction
- 24.02 What is Financial Guaranty Insurance?
- 24.03 Benefits of Financial Guaranty Insurance
- 24.04 The Policy
[1] Insured Amount
[2] Draw Mechanics for a Primary Policy
[3] Reimbursement
[4] Policy Termination
[5] Exclusions from Coverage
- 24.05 Documentation
[1] The Insurance and Reimbursement Agreement
[2] The Premium Side Letter
[3] The Indemnification Agreement
- 24.06 Secondary Market Programs
[1] Introduction
[2] Program Mechanics
[3] Documentation for Secondary Market Programs
- 24.07 Securities Law Issues
[1] Securities Act of 1933
[2] Regulation AB
- 24.08 Special Issues Common to Insurers
[1] Zero Loss Underwriting
[2] Control Rights
[3] FIN 46R
[4] Waiver of Defenses
Appendix: New York State Financial Guaranty Insurance Corporations Statute
CHAPTER 25
The Law of Securitization in Australia
- 25.01 Introduction
- 25.02 General Overview of the Issuers and Securitized Instruments in Australia
[1] Introduction
[2] Issuers
[3] Securitized Instruments
[4] The Form of Debt Securities
- 25.03 The Regulation of Securitization Under the Australian Corporations Act 2001
[1] Introduction
[2] The Classification of Securitized Instruments Under the Corporations Act
[3] The Regulation of Participants in the Securities Industry
[4] Conclusion
- 25.04 The Disclosure and Civil Liability Regimes for Information Memorandums in Australia
[1] Introduction
[2] The Disclosure Obligations of the Corporations Act
[3] Civil Liability for a Defective Information Memorandum
[4] Conclusion
- 25.05 The Assignment of Receivables in Australia
[1] Introduction
[2] Legal and Equitable Assignments and Receivables
[3] The Main Risks Associated With Not Giving Notice of Assignment to a Debtor
[4] Conclusion
- 25.06 Set-off and Securitization in Australia
[1] Introduction
[2] Statutory Set-Off
[3] Equitable Set-Off
[4] Contractual Set-Off
[5] Insolvency Set-Off
[6] Mutuality
[7] Contractual Exclusion of Set-Off
[8] Customer's Ability to Set-Off Against an Insolvent Deposit-Taking Institution
[9] Conclusion
- 25.07 Insolvency and Securitization in Australia
[1] Introduction
[2] Insolvent Companies
[3] Insolvent Trusts and Trustees
[4] Secured Obligations
[5] Transactions Void or Voidable Due to Insolvency
[6] Segregated Issuers
[7] Rating Agencies Criteria
[8] Conclusion
- 25.08 Taxation Issues for Securitization in Australia
[1] Introduction
[2] Income Tax Issues for Securitization Programs
[3] Interest Withholding Tax and Securitization
[4] The Debt/Equity Rules
[5] Thin Capitalization
[6] Foreign Exchange Gains and Losses
[7] Consolidation
[8] Goods and Services Tax Issues Relevant to Securitization
- 25.09 Stamp Duty and Securitization in Australia
[1] Introduction
[2] Duties Act: General Overview
[3] Creation of a Securitization Trust
[4] Transfers of Mortgages and Other Assets
[5] Charge Over Property
[6] Issue of Securities to Investors
[7] Transfer of Securities Between Investors and the Secondary Market
[8] Relief for Mortgage-Backed Securities in New South Wales
[9] Relief in Other States
[10] Conclusion
- 25.10 The Regulation of the Participation by Banks and Other Deposit-Taking Institutions in Securitizations in Australia
[1] Australian Prudential Regulation Authority Guidelines
[2] The Grant of Collateral by Australian ADIs
[3] Covered Bonds
[4] Basel II
[5] Conclusion
CHAPTER 26
Structured Insurance Finance
- 26.01 Overview
[1] Emergence of Structured Insurance Finance
[2] Using Structured Insurance Finance for Risk Transfer
[3] Using Structured Insurance Finance for Cost-Effective Financing
[4] Using Structured Insurance Finance to Address Regulatory Capital Requirements
[5] Using Structured Insurance Finance in the Acquisition of Insurance Policy Portfolios
- 26.02 Using Structured Insurance Finance to Provide Regulatory Capital Relief
[1] Overview of Reserve-Funding Transactions
[2] Regulation XXX: Changes in Reserve Requirements and Impact on the Reinsurance Market
[3] Reinsurance Structure
[4] Captive Reinsurers
[5] Regulatory Approvals
[6] Reinsurance Trusts
[7] Tax Benefits
[8] Guideline AXXX Reserve-Funding Securitizations
- 26.03 Pure Risk Transfer Securitizations—Cat Bonds
[1] Business Objectives
[2] Typical Structure
[3] The Collateral Account
[4] Recent Growth
- 26.04 Financing with a Block of Business Securitization
[1] Business Objectives
[2] Structure of Open Block Securitizations
[3] Structure of Closed Block Securitizations
- 26.05 Securitizations of Acquired Insurance Portfolios
[1] Life Settlement Financings
[2] Investor Initiated Transactions
- 26.06 Conclusion
CHAPTER 27
French Issues on Securitization
- 27.01 Introduction
[1] Definition
[2] Legislative Framework
- 27.02 Structure of the Fonds Communs de Créances
[1] Legal Status
[2] The Object of a Fonds Commun de Créances
- 27.03 Setting up a Fonds Commun de Créances
[1] The Management Company
[2] The Custodian
- 27.04 Protection of Unit-Holders
[1] Protection Against Default of Payment
[2] Protection Against the Management Risks
- 27.05 Liquidation Issues
[1] Liquidation Upon Maturation of Receivables
[2] Liquidation Prior to Maturation of Receivables
- 27.06 Tax and Accounting Issues
[1] Tax Treatment
[2] Accounting Principles
CHAPTER 28
U.S. Operating Asset or Whole Business Securitization
- 28.01 Introduction
- 28.02 Background
- 28.03 Legal and Economic Structure
[1] Structuring Strategies
[2] Role of Issuer
[3] Role of Servicer
[4] Control of Intellectual Property
- 28.04 Legal Issues
[1] Bankruptcy
[2] Exposure of Issuer
[3] Corporate Governance Issues
[4] Taxation of Issuer
- 28.05 New Directions
CHAPTER 29
Canadian Issues On Securitization
- 29.01 Introduction
[1] Dual Legal Traditions
[2] Federal System
[3] Regulators
- 29.02 Structuring Issues
[1] The Insolvency Legislation Landscape
[2] True Sale
[3] Substantive Consolidation
- 29.03 Special Statutory and Regulatory Issues
[1] Interest
[2] Laws Respecting the Collection of Debts
[3] Financial Administration Act
[4] OSFI Guideline B-5
[5] National Instrument 45-106
- 29.04 Cross-Border Issues
[1] Bank Act
[2] Income Tax Act
- 29.05 Policies of Rating Agencies
- 29.06 Conclusion
CHAPTER 30
Securitizations in Brazil
- 30.01 Overview
- 30.02 Securitization of Receivables
[1] Introduction
[2] Organization of a Special Purpose Entity
[3] Conclusion
- 30.03 Receivable Funds
[1]Standard Receivable Fund
[2] Non-Standardized Credit Rights Investment Fund
- 30.04 Real Estate Credit Securitization
[1] General Aspects
[2] Distribution and Operation
[3] Segregation Mechanism
[4] Registration of Publicly-Held Company and Registration of Public Offering of CRIs
- 30.05 Real Estate Investment Funds
[1] General Aspects
[2] Distribution and Operation
- 30.06 Tax Issues for Securitization in Brazil
[1] Special Purpose Entity
[2] Securitization Companies
[3] Securitization by Means of an FIDC
[4] Securitization by means of a FII
[5] Tax Treatment of Investment in Real Estate-Backed Securities (CRI)
- 30.07 Liquidation/Bankruptcy Considerations
[1] General provisions
[2] Special Purpose Companies
[3] Funds
CHAPTER 31
Term Asset-Backed Securities Loan Facility
- 31.01 Introduction
- 31.02 What is an Asset-Backed Securities Loan Facility and How Does it Operate?
- 31.03 Eligible Borrowers
- 31.04 Eligible ABS Collateral
[1] Newly Issued Asset-Backed Securities
[2] Newly Issued Commercial Mortgage-Backed Securities
[3] Legacy Commercial Mortgage-Backed Securities
- 31.05 Nationally Recognized Statistical Rating Organizations
- 31.06 TALF Agents and the Custodian Bank
- 31.07 Documentation
[1] Master Loan and Security Agreement
[2] Customer Agreement
[3] Form of Certification as to TALF Eligibility for Non-Mortgage-Backed ABS and Newly Issued CMBS and Form of Indemnity Undertaking
[4] SBA Collateral Undertaking
[5] Form of Auditor Attestation
[6] AUP Report
[7] Form of Agreed Upon Procedures Report
[8] Offering Documents
- 31.08 Non-recourse Loans and Exceptions
- 31.09 TALF Risk Assessment
- 31.10 Haircuts
- 31.11 Loan Subscriptions and Loan Request Procedures
- 31.12 Optional Prepayment of Principal and Pro Rata Release of Security Interest on Pledged ABS
[1] Interest Payments
[2] Principal
[3] Prepayment
[4] Repayment
- 31.13 Permitted Assignments of a Loan
- 31.14 Key Representations and Warranties
- 31.15 Collateral Enforcement Events
- 31.16 Termination of the Facility
CHAPTER 32
Life Settlement Securitization
- 32.01 Overview
- 32.02 Certain Issues Impacting Life Settlement Securitization
[1] Longevity Risk
[2] Insurance Company Financial Strength
[3] Policy Origination
[4] Servicing
- 32.03 SEC Regulation
- 32.03A Life Settlements in New York: A Favorable Court Ruling for Life Settlement Originators and Investors
[1] From the New York Courts: a Favorable Ruling in Kramer v. Phoenix Life Insurance Co.
[2] From the New York Legislature: A Review of the Life Settlement Regulations
[3] Conclusion
- 32.04 Conclusion
- 32.05 Appendix: Life Settlements Task Force Report to the SEC
CHAPTER 33
Tax Lien Securitization: Opportunities and Risks
- 33.01 Introduction
- 33.02 Basics of a Tax Lien Securitization
- 33.03 Notable Tax Lien Securitization Activity
- 33.04 Issues Impacting Tax Lien Securitization
[1] Distressed Property and Collections
[2] Bankruptcy and Interest Rate “Cram-downs”
- 33.05 Other Risks: Conflicts of Interest, Enforcement Actions and Investigations
- 33.06 Summary
CHAPTER 34
European Trade Receivables Securitization: Increased Deal Flow for Continent's Shortest-Term Assets
- 34.01 Re-emergence of Trade Receivables
- 34.02 Location of Issuing Entity
- 34.03 Currency Risk
- 34.04 Auditing, Surveillance, and Back-up Servicing
- 34.05 Value Added Tax
- 34.06 True Sale and Other Legal Considerations
- 34.07 Consumer Privacy
- 34.08 Forms of Payment
- 34.09 Practical Considerations
Index
C. VanLeer Davis III
C. VanLeer Davis III is a Of Counsel to the Philadelphia office of Dechert LLP and a member of the firms domestic tax group. Mr. Davis received his B.A. from Princeton University and his J.D. from Harvard University.
Patrick Dolan
Patrick D. Dolan is a partner at Dechert, an international law firm with approximately 600 lawyers, and is a member of the firms securitization practice group. Mr. Dolan received his B.A. from Swarthmore and his J.D. from the University if Chicago.
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