THE VIABILITY OF ASSET BACKED SECURITISATION IN EMERGING MARKETS WITH REFERENCE TO SOUTH AFRICA. STEWART MAKURA A research report submitted in partial fulfillment of the requirements for the degree of MASTER OF BUSINESS ADMINISTRATION in the INSTITUTE OF FINANCIAL MANAGEMENT UNIVERSITY OF WALES BANGOR AND UNIVERSITY OF MANCHASTER OCTOBER 2002 1
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The Viability of Asset Backed Securitisation in Emerging Markets With Reference to South Africa:Stewart Makura 2002
A brief comparison of regulation, conditions for the successfull establishment of securitsation business in emerging markets and the developed world
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THE VIABILITY OF ASSET BACKED SECURITISATION IN EMERGING MARKETS
WITH REFERENCE TO SOUTH AFRICA.
STEWART MAKURA
A research report submitted in partial fulfillment of the requirements for the degree of
MASTER OF BUSINESS ADMINISTRATION
in the
INSTITUTE OF FINANCIAL MANAGEMENT
UNIVERSITY OF WALES BANGOR AND
UNIVERSITY OF MANCHASTER
OCTOBER 2002
1
ACKNOWLEDGEMENT
I wish to express my appreciation and gratitude to the following persons and without
whom this project would not have been completed:
• Colleagues at Standard Corporate and Merchant Bank for the provision of data,
discussions and support provided towards the success of this research report.
• Mr Ismail Erturk of the Manchester Business School, my supervisor for his guidance
and support.
• My family and friends especially my late sister Gennis Varaidzo for their
encouragement and support during my period of study.
2
TABLE OF CONTENTS
1. THE MECHANICS OF ASSET BACKED SECURITISATION 6
1.1 Research Objectives and Methodology 7
1.2 The parties and processes in Asset Backed Securitisation 7
1.3 Development of Asset Backed Securitisation 14
1.3.1 The United States of America 14
1.3.2 Europe 15
1.3.3 South Africa and Other Emerging markets 17
2 REGULATORY ENVIRONMENT 21
2.1 Regulatory framework in the Developed World 21
2.1.1 United States of America 21
2.1.2 Developed markets in Europe 22
2.1.2.1 United Kingdom 22
2.1.2.2 Germany 24
2.1.2.3 France 26
2.2 Regulatory Environment in Emerging markets 27
2.2.1 Malaysia 27
2.2.2 Hong Kong 28
2.2.3 South Africa 30
3 LEGAL,TAXATION AND ACCOUNTING FRAMEWORK 34
3.1 Legal and Taxation 34
3.1.1 United Kingdom 34
3.1.1.1 Legal 34
3.1.1.2 Taxation 36
3.1.2 The French Credit Foncier de France (“FCC”) 38 3.1.3 Australia 38
3
3.1.4 Hong Kong 39
3.1.5 Malaysia 40
3.1.6 South Africa 41
3.1.6.1 Legal 41
3.1.6.2 Taxation 45
3.2 Accounting 49
3.2.1 United Kingdom 49
3.2.2 Australia 50
3.2.3 South Africa 50
4 ASSET AND ORIGINATOR CHARACTERISTICS 54
4.1 Residential Mortgage Loans 54
4.2 Asset Backed Commercial Paper (ABCP) Conduits 58
4.2.1 Credit Enhancement in ABCP 61 4.2.2 Non eligible assets 64
initiatives and pubs were securitised.” (Morgan Stanley Dean Witter, 2001)
Europe's largest economy German has approximately DM1.9 trillion of mortgages,
thousands of banks, and some of the world's most powerful and sophisticated industrial
and service corporations, and all the more, one of the leading financial centres in
Europe. It is ranked only third in the European ABS market. The stumbling block that
seemed to inhibit the growth of securitisation markets in Germany seems to have been
removed. Asset-backed financing was considered to be in its infancy as an alternative to
traditional banking instruments in Germany. One of the reasons is deemed to be the
16
uncertainty regarding the legal structure, validity, and enforceability of the many
transactions involved in a securitisation program. The Bundesaufsichtsamt fhr das
Kreditwesen, the German Supervisory Authority for the Banking and Capital Markets
Industry has recently passed a rule which gives securitisations their official blessing
and will contribute to the acceptance of securitisation as an effective commercial law
financing instrument under German law.
1.3.3 South Africa and Other Emerging markets
The history of securitisation in South Africa dates back to 1989 when the first
securitisation issue a R250 million mortgage-backed issue by the then Allied Building
Society (United Bank of South Africa Limited). Another public issue took place in 1991
offered by Sasfin Limited comprising the securitisation of lease rentals from leasing of
machinery and equipment for R30 million. In South Africa, the concept of
securitisation was not widely accepted despite the two issues, noted above and the
other worth an estimated R3,5bn placed on the market in the late 1980s and early
1990s through private placements. The limited success of the earlier securitisation
transactions was due to little interest from the banks. Most of the banks felt no need
to securitise their assets, as they were not faced with capital constraints and had little
or no pressure from shareholders to improve on returns.
In addition a weak regulatory environment, significant limited sovereign issuance and a
generally illiquid and undeveloped corporate debt market hindered the development of
asset backed securitisation in South Africa.
Toward the end of 1997 The National Housing Finance Corporation, (NHFC) a South
African Government sponsored body decided to employ securitisation to provide
liquidity to the mortgage market to support home ownership in the medium to lower end
of the market. The ideas were based on a structure similar in nature to the Fannie Mae
structure of the United States. The intention was to have the securitised assets
17
housed in Gateway (Pty) Ltd a subsidiary of NHFC formed to create housing
opportunities for low and moderate income borrowers in 1999, from where funding
would be sourced directly from the capital markets. Several originators were
identified, generally tier two banks to originate a pool of qualifying loans using funding
provided by the NHFC. By the end of 1999 approximately R750 million worth of home
loans were in the special purpose vehicle and the originating banks were facing large
constraints in attracting deposits to write further loans. This was mainly due to the
lack of confidence in tier two banks. The need to access the capital markets funding
was more crucial than ever before. An arranger was mandated by the NFHC, who
managed to put in place the various parties to the transaction. It was however felt that
an additional amount of money would be required to increase the pool value to about R1
billion to reduce the liquidity premium associated with smaller issuances. However the
national government was not willing to issue guarantees to possible “warehouse” funding
providers (funders that facilitate building of a portfolio prior to approaching investor
markets). This led to the collapse of the Gateway program as some large banks, which
held shareholdings in the tier two banks ended up purchasing the assets from the pool
as the originator banks were closed or absorbed into their parent entities.
South African Home Loans (SAHL) commenced operations in 1999 as the first non-bank
securitised mortgage loan provider. The business model is based on an Australian
equivalent.
The business strategy is to capture a share of the homeloan market by offering low
cost mortgages to highly creditworthy borrowers. The current portfolio of SAHL is
less than 0,5% in a market where over 90% of the country’s mortgage market is
controlled by the country’s largest five banks. At the end of 2001 The Thekwini Fund 1
Limited a securitisation SPV issued R1,2 billion worth of asset backed bonds. The notes
were structured into three tranches 92% Class A notes, 6% Class B notes supported by
a 2% reserve/equity fund and were heavily oversubscribed in the capital markets
despite the absence of major bank investors due to the lack of regulatory stimulation.
18
Shortly after the issuance of SAHL securities the South African Reserve Bank (SARB)
issued regulations which designate securitisation as an activity not falling within the
meaning of "the business of a bank", and gives guidelines as regards securitisation
schemes in December 2001. These mandatory guidelines form the first step towards
the prospect of creating asset backed securities which would in turn attract large
amounts of capital, which they would otherwise not have been able to attract, from
countries such as the United States of America and Japan. Although demand for
securitised assets from large institutional investors is already immense and growing,
there are many features, such as, transfer duties, value-added tax ("VAT") at the
special-purpose vehicle level and VAT on custodial and trustee services which continue
to impede development of asset backed securitisation in emerging markets. Other
regulators in South Africa are clearly faced with a challenge to review the impediments
to legitimate and prudent securitisation within their jurisdiction and to work towards
removing such impediments where appropriate. Other limitations include ignorance on
the part of investors who prefer to invest in listed companies with established track
records. There are also legislative and accounting problems.
In most emerging markets in Asia asset backed securitisations have been characterised
by novel, one –off means of fund raising. The main characteristics responsible for the
limited growth include uncertain or unhelpful legal and regulatory environments.
In Korea for example the Act on Asset Backed Securitisation came into being in
September 1998 prior to this act issues by Korean companies and banks were few and
restricted to non-Korean assets. Many attempts to securitise loan and lease
receivables were unsuccessful due to practical and legal issues particularly security
issues. Korea has taken the first step towards providing certainty for the development
of asset backed securitisation. It is hoped that increased utilisation of this alternative
funding method will be the result contrary to Thailand where an equivalent
securitisation decree was issued but remains largely unused in 1997.
19
Activity of ABS has been slow to develop in New Zealand in comparison to other
jurisdictions. This is partly due to the small size of the New Zealand market, but
however new entrants are building significant asset pools suitable for securitisation.
And increasingly New Zealand originated assets are being sold into international
portfolios. There are few regulatory issues in this country and it is unlikely to be
required since there are no regulatory agencies that restrict the origination of assets.
20
2 REGULATORY ENVIRONMENT
Regulators’ understanding of the concepts and their facilitation through regulations
particularly pertaining to the financial industry with emphasis on the banking regulator
have a strong influence on the state of the development of securitisation markets
across the world. In this chapter brief description of the various changes experienced
in the US, Europe and some emerging markets are discussed and comparisons drawn
including the environment and other events which influenced such decisions.
2.1 Regulatory framework in the Developed World
2.1.1 United States of America
As previously alluded to in Chapter 1, the onset of securitisation in the US where it was
first used as a major source of funding was fully backed by the US government. Central
to the regulatory requirements regarding securitisation in the US is the Securities Act
of 1933. It provides that public offerings of securities including ABS must be
registered with the Securities and Exchange Commission (“SEC”). As such the
prospectus used to offer these securities must meet specified disclosure standards.
Private placements can also be made under the guidance of Rule 144 of the SEC, which
stipulates that the level of disclosure is dependent on the number of issuers and the
number of investors. It also takes into consideration the level of sophistication of the
investors also known as accredited investors who have the necessary knowledge to
judge the offered securities without the level of disclosure required in a registered
offering. This rule is complemented by Rule 144a, which provides the framework for
promoting secondary trading of the securities including ABS.
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2.1.2 Developed markets in Europe
However in Europe the development of ABS was slow and cumbersome in most countries
prior to the introduction of laws, regulations and guidelines from the respective bank
supervisors. The absence of such guidelines excluded and restricted the participation
of regulated entities such as banks that now form the largest group of originators of
assets used in ABS. Spectacular growth has been witnessed post 1998 as various
securitisation techniques have emerged across Europe. Some of the more important
developments in specific countries and their impact on the development of the ABS
markets in Europe are discussed in turn below.
2.1.2.1 United Kingdom
The UK, which is the largest securitisation jurisdiction in Europe and has also, hatched
exotic applications of securitisation. Guidance for securitisation regulations affecting
financial institutions emanates from the capital adequacy requirements in relation to
the transfer of assets. The Financial Services Authority (“FSA”) has issued a number
of notes relating to the use of securitisation by regulated entities. The most recent
being the chapter on “Securitisation and Loan Transfers”, which forms part of a new
Guide to Banking Supervisory Policy. As the capital requirements in financial
institutions have become very important partly due to the increased regulatory capital
prescriptions. And the trend towards increased emphasis on return on capital employed
as opposed to asset building. The guidelines as provided by FAS allow the structuring
of transactions in ABS to restructure the risk profiles of assets and consequently
lower risk weighting for these assets.
It also makes provision for allowing for the assets to be removed from the regulatory
balance sheet of the financial institution, in accordance with the guidelines, thus leaving
the institution with more capital for new lending activities. This is all done without any
serious implications for the underlying customers since the originator would continue to
service and collect these assets. The guideline sets out a number of primary and
22
secondary conditions that must be met to effect a securitisation. These also include
requirements in relation to the provision of swaps and the pricing thereof.
In addition bank originators of mortgage loans for example also have to comply with the
Department of Environment Statement of Practice on the transfer of mortgages issued
in November 1989. This deals with the issue of obtaining consent of the underlying
borrowers to the securitisation scheme. It lays down rules relating to whether a
general or specific consent would be required from the underlying mortgagors. In
instances were the underlying borrowers are individuals consumer protection legislation
and data protection legislation may be relevant and transactions would have to be
structured to ensure compliance with relevant regulations.
Two of the most common statutes in the UK are the Consumer Credit Act, 1974 and the
Data Protection Act, 1998.
In the case of revolving assets such as credit card backed securitisation increased legal
and moral risks have attracted additional requirements which are stipulated in section 7
of the “Securitisation and Loan Transfers” structure. These include guidelines for
ensuring equal terms of interest, principal, expenses, losses, and recoveries between
the originator and the investors in securities backed by credit card receivables. Such
schemes may be eligible for off balance sheet treatment by the FSA on meeting
predetermined regulations. In addition the FSA requires conviction that the originator
has proper plans to manage it’s liquidity to cope with funding requirements on the
occurrence of scheduled or early termination of the scheme.
The introduction of the guidelines and regulations amongst other factors contributed to
the jump starting of significant securitisation in the UK in 1988. Subsequent changes in
the guidelines and the introduction of FAS has largely been responsible for the
exponential growth experienced in the ABS market in the UK between 1996 and present
as illustrated in Figure 2.1.
23
The growth experienced in the UK was across various sectors including residential,
commercial mortgage, credit cards, operating companies private finance initiative and
housing associations, student loans and pubs. The bulk of these transactions occurred
in residential mortgage backed securitisations (52%), with the remainder being
introduced on the back of familiarity of the RMBS. The market developed rapidly until
1995, when it experienced a decrease in mortgage lending and the securitisation of
other loans became more significant. As more asset classes were introduced the size of
fluctuations due to a decline in one asset class has been minimised.
Source: Morgan Stanley Dean Witter
Figure 2.1 Growth of the UK ABS Market
The S terling AB S M arket H as G row n D ram atica lly
0.05 0
1
2.7 2.8 2.6
3.6
1
2.42.9
0.6
9.5
7.1
8.5
13.6
15.1
0
2
4
6
8
10
12
14
16
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
Y ears
Ster
ling
(bill
ions
)
2.1.2.2 Germany
In 1997 the German Banking Supervisory Authority (Bundesaufsichtsamt für das
Kreditwesen or BAK) published a 'Circular Regarding the Sale of Customer Receivables
of Credit Institutions in Connection with ABS Transactions'. The Circular was designed
to provide credit institutions with planning and legal certainty in respect of ABS
transactions and to enable their completion without the prior involvement of the BAK.
It provides banking supervisory guidance on two main issues (i) the possibility of capital
relief for the originator; and (ii) safeguarding the interests of the debtors of the
receivables sold, particularly data protection and bank secrecy.
24
Other important factors that are highlighted in the German regulations include,
• a legal valid transfer of the receivables to the SPV (a 'true sale');
• limited recourse against the originator;
• repurchase of the receivables sold to the SPV is only permitted for the purposes of
finalising the transaction and is limited to a rest-portfolio of less than 10% of the
receivables sold to the SPV at their then current value (the clean up call option).
• restrictions for the originator nor any of its affiliates to participate in the
financing of the SPV during the transaction. And purchases of ABS by the
originator in the secondary market must be at the current market price and must
not involve the granting of credit to the SPV.
• to avoid the deterioration of the originators’ risk profile due to the sale and
transfer of high quality receivables in ABS transactions, the BAK requires that the
receivables be selected randomly from the originator's receivables portfolio. The
auditor's report on the audit of the annual accounts of the originator must comment
on any material deterioration of the portfolio caused by an ABS transaction. This
may lead the BAK to assess whether 'special circumstances exist, requiring a
revision of the own funds assessment; and
• To facilitate ABS transactions by credit institutions, the Circular provides that no
consent from the debtor of the receivable is required for the transmission of data.
The introduction of the regulations in Germany saw an increase in the assets being
securitised. In particular diversification to a range of assets comprising mainly trade
receivables, credit card transactions and other ‘exotic’ assets. The clear guidelines and
resultant transactions catapulted Germany into second place behind the UK,
contributing 17% and 18% in ABS issuance in Europe for 1999 and 2000 respectively.
This excludes the residential mortgage issuances, which are mainly in the form of the
traditional Pfandbrief.
25
With an outstanding of almost DEM 2 trillion, the overall German Pfandbrief market is
the largest capital market segment in the world's non-government sector.
2.1.2.3 France
Recent legal developments have taken place aimed at advancing securitisation markets in
France. The original French legislation on securitization was implemented by the Act of
1988. Under this legislation, credit institutions, insurance companies and the Caisse des
dépôts et consignations (a public entity) were permitted to sell their receivables to a
vehicle, the fonds commun de créances or FCC (equivalent of the SPV known in other
markets), which would be financed by issuing units on the market. Amendments in 1997
extended the scope of the legislation by taking into account most of the objections of
market practitioners. It allowed an FCC to purchase and issue from time to time any
type of receivables (including doubtful receivables or receivables of different types),
whether denominated in French francs or in other currencies. The 1998 amendments
have further expanded the scope of securitisation by making it possible for commercial
companies to also use FCC to securitise their assets - earlier, the facility was limited to
financial intermediaries such as credit institutions and insurance companies alone.
Second, the originator is no longer required to notify the debtors of the assigned
receivables of the transfer of their receivables - which was required earlier and was
found to be detrimental to the interests of the originator.
Until 1993 securitisation of bank to bank loans dominated the French market accounting
for up to 70% of total transactions. The securitisation law was adopted with the main
objective of promoting the securitisation of mortgage loans. However the market has
been dominated by personal loan transactions. These assets are easier to securitise
mainly due to high margins that could afford to pay transaction fees and still offer the
underlying investors a good spread. With issuers gaining experience and modifications
in the law in 1995. FFr 5 billion worth of residential mortgage backed securities were
issued. Up to 1998 more than 120 FCC's had been set up by way of public offering,
representing approximately 150 billion French francs. The market has continued to grow
accounting for about 10% of the ABS issuance in Europe 1999.
26
2.2 Regulatory Environment in Emerging markets
The introduction of regulations and their subsequent influence in the developed world
on ABS advancement as discussed above has generally been positive. Evolvement of
similar regulations in emerging markets is examined and discussed below with the aim of
establishing influence on the development of securitisation in these markets.
Regulators’ attitudes and levels of understanding of ABS is on the increase in most
emerging markets. Basic securities laws are being passed, a trend is emerging to
redefine laws governing capital reserve requirements for lenders and investors. Most
regulators also perceive securitisation as the tool that will add impetus to the
development of capital and money markets, especially increasing the size of corporate
loans.
2.2.1 Malaysia
Securitisation started in Malaysia in 1986 with the establishment of the government-
owned National Mortgage Corporation. This is a secondary mortgage market agency,
which issues debt securities commonly known as Cagamas Bonds. Cagamas is by far the
largest issuer of ABS in Malaysia. The Malaysian government presented Budget 2000,
which was hailed as expansionary, and growth oriented. Among a number of measures to
boost capital markets, there is a proposal to encourage companies to opt for
securitisation. The budget 2000 proposed that the instrument used in the transfer of
assets be exempted from stamp duty. Subsequently ABS guidelines were released in
April 2001.
The regulations seek to provide clear and transparent criteria for securitisation
transactions. Some of the key aspects include;
27
• Requirement for all securities issued to be approved by the Malaysian Securities
Commission based on standards setout in the guidelines on the Offering of Private
Debt Securities;
• The originator should have had at least six months interest in the debts prior to
securitising them.
• Transfer of assets to the SPV should be by way of a true sale to ensure a
bankruptcy remote characteristic.
• ABS guidelines prohibit an originator from, holding a direct or indirect equity stake
in the SPV.
• Purchase of securities by originators in a securitisation transaction without
Malaysian Securities Commission permission is limited to10%.
The positive developments in terms of the regulatory environment in Malaysia and the
region have been met with limited action. There was increased interest and mandates in
the period leading up to the Asian financial crisis, however most of these deals had to
be abandoned. Since 1999 there has been a re-invigoration of the market. Like in the
UK over 50% of the deals completed are backed by mortgages and new asset classes
are being introduced. However, largely due to the macro economic environment
potential remains far greater than the activity. The pullback in lending during the Asian
crisis produced strong bank liquidity. In Malaysia there is also a concern over the
potential for the unexpected reintroduction of capital controls similar to the foreign
exchange controls recently introduced. More changes are in the pipeline from the
regulators to facilitate securitisation. Another important factor is that whilst the
regulations are in place, most issuers tend to see securitisation as a sign of weakness,
as the market will think they are under pressure to sell assets.
2.2.2 Hong Kong The Hong Kong Monetary Authority's (“HKMA”) supervisory policy towards asset
securitisation and mortgage backed securities enacted in 1990 includes policy guidelines
that set out;
28
• the supervisory tests applied to asset securitisation schemes to decide if the assets
concerned can be excluded from the seller's balance sheet for capital adequacy
purposes; and
• the criteria for MBS to qualify for a 50% risk weight;
• Authorised institutions intending to conduct any securitisation transaction have to
inform the HKMA of their intention well in advance.
• How to determine whether the assets have transferred in the form of a “clean
sale”;
• An institution may undertake the role of servicing the pool of assets held under the
securitisation scheme.
• It is the HKMA’s view that the concessionary risk weighting of 50% should not be
applied to the subordinated tranches of any MBS issue. The purpose of
subordinated tranches of MBS is to absorb the credit losses, which may arise in the
mortgage portfolio which support the MBS. They should accordingly be weighted at
100%.
Whilst Hong Kong clearly has an advantageous regulatory environment, issuance levels
are much less than in the developed world. There is a significant lack of issuers in Hong
Kong due to the strong balance sheets that corporates generally have, and can
therefore fund at relatively low cost in the traditional bank market. In Hong Kong
securitisation began with a few residential mortgage backed security issuances and
some credit card deals. This was later complemented by several commercial mortgage
deals after the Asian crisis. Hong Kong has managed to generate approximately 60% of
the Asian market.
Many analyst believe that the Hong Kong market has reached stagnation as most of the
banks now look at property securitisation mainly for liquidity management as opposed to
capital reserve reduction since the passing of the new laws which prescribe a 50% risk
weighting for mortgage backed securities.
29
2.2.3 South Africa
In many respects development of asset backed securitisation in South Africa followed
in the framework of the European securitisation market particularly that of the UK. In
1991 the Office For Deposit Taking Institutions at the South African Reserve Bank
issued a paper on the Guidelines Regarding Securitisation. This paper acknowledged the
need for a proper regulatory framework for securitisation stating that, “securitisation
is a desirable financial market development tool in that it broadens the funding base
and profitability of deposit taking institutions whilst enhancing liquidity in the market
through the creation of negotiable asset backed instruments.” The key issues
discussed in these guidelines related to the legal status of transfer of the assets,
outlining of the risks associated with a securitisation scheme, recourse with respect to
the assets transferred to the SPV and the general management aspects of the SPV.
Following the paper discussed in the above paragraph, a Securitisation Schedule, Notice
153 of 3 January 1992 was gazetted under paragraph cc within the Banks Act 94/90
under the definition of the business of the bank. Whilst the general reference in the
Act implied that the business of securitisation was not limited to banks alone, the
definition of the originator only made reference to banks. The associated amendment
to the Banks Act under the same paragraph cc further enforced the limitation of
securitisation to banks. It stated that a finance entity other than a bank is not
permitted to issue debt instruments to fund its operations. The net result was that
securitisation had to be routed through a bank.
During the early 1990s the South African financial sector was characterised by
majority shareholders that are corporate conglomerates. This structurally resulted in
easier and greater accessibility to capital for the banks, making securitisation a less
attractive option to raise capital. The general measure for competitiveness for banks in
South Africa was relative size and headline earnings. This again discouraged the
development of securitisation, which results in a reduction of the size of the balance
30
sheet. Further the strict foreign exchange regulations restricted the outflow of
capital from South Africa with the result that the banking industry as a whole was
adequately capitalised. Securitisation was also considered as off balance sheet
financing for the bank involved, therefore attracting 100% risk weighting for
calculating capital adequacy. This provided no incentives for bank to securitise their
mortgage loan assets for example, which were risk weighted 50% on the balance sheet.
Similar to most European countries, the introduction of legislation managed to stimulate
discussions and interest in the subject in South Africa. But due to the economic
arguments presented above and the technical nature of the regulations which were
cumbersome to interpret no public transactions were completed after the introduction
of the regulations. By the end of the 1990s, SARB realised that the existing regulatory
criteria were diverging from the standardised approach being adopted by the majority
of the G10 countries. For example, an originating bank was restricted in providing
credit enhancement and liquidity facilities to securitisation schemes. In addition, the
growth in demand for credit-related instruments, particularly short-dated credit linked
notes and deposits, had led to market participants requesting regulatory action to help
increase the liquidity of the South African corporate debt market. The new capital
adequacy framework of 1999 from Basle Accord (Bank of International Settlements)
introduced a new impetus for securitisation in South Africa. Of particular interest was
the guidance on the treatment of capital relief derived from the application of
different risk weightings on rated financial assets. A working group including
interested and affected parties was established to make the necessary changes to the
existing legislation to stimulate and facilitate asset backed securitisation.
On 13 December 2001, the South African Reserve Bank ("SARB") published in the
Government Gazette (Vol. 438, No. 22948) new regulations governing securitisation in
South Africa (the "Regulations"). The Regulations were developed and agreed after a
detailed review by SARB of different international regimes, including the draft capital
adequacy proposals of the Bank of International Settlement ("BIS") in June 1999.
31
The Regulations encompass all institutions, whether or not within a banking group.
Nevertheless, where an institution, which is a member of a banking group, is involved in
a securitisation scheme, there are a number of additional rules, which apply. The main
aspects of these regulations are highlighted below:
• Provisions under which institutions within a banking group and other institutions not
within a banking group may participate in securitisation schemes are clearly outlined.
• no transactions other than transactions directly relating to the securitisation
scheme shall be entered into by, or on behalf of, the special-purpose institution.
• Conditions relating to limitation of association with assets for the originator
particularly with respect to banking institutions.
• Conditions relating to the provision of liquidity facilities and credit enhancement
facilities as well as underwriting.
• The applicable risk weightings based on the Basle Accord for rated commercial
paper are also adopted in the regulations, which are as follows:
Since the inception of the latest amendment in the Banks Act of November 2001, a hive
of activity has been experienced in the asset backed securitisation market. JP Morgan
and Standard Bank brought the first MBS transaction, Thekwini Fund 1, a domestic
Rand 1.25 billion to the market in November 2001. The first-ever
Commercial Paper Rating Risk Weighting AAA to AA- (or the equivalent) 20% A+ to A- (or the equivalent) 50% BBB+ to BBB- (or the equivalent) 100% BB+ to BB- (or the equivalent) 150% B+ (or the equivalent) or below First-loss credit enhancement facility for capital purposes Unrated Similar risk weighting to the underlying assets being securitised Source: SARB
Figure 2.3: Risk weighting applicable to banks investing in ABS in South Africa
synthetic collateralised debt obligation was launched by FirstRand Bank Limited, called
Fresco 1, which totals Rand 12.5 billion (U.S. $12.3 million) of which R1 billion was placed
in the market.
32
The two deals took more time to complete than in other markets because they were of
the first in the jurisdiction and also because there were some issues that had not been
previously encountered in the local market. The South African asset backed
securitisation market has become very active and the volume has picked up significantly
this year. According to Fitch Ratings, there are several deals in the pipeline. "The
market in South Africa is almost exploding, from the point of view of comparing it to
some of the other markets that we work on in the emerging markets sector. It's very
busy in terms of the local participants in South Africa that are actively pursuing a
number of opportunities in their market. It's an increasing realisation by the local
participants that this is a form of funding that is available for them or in this case, an
opportunity for capital relief by the major banks." (Alex McKay, Fitch Ratings)
33
3 LEGAL,TAXATION AND ACCOUNTING FRAMEWORK
Securitisation has become an acceptable funding technique for well over a decade in the
United States and in Europe the technique has enjoyed increasing popularity since
inception and is becoming more complicated with the use of synthetic securitisations
and credit derivative arrangements. Synthetic securitisation transactions are in many
respects similar to traditional securitisation transactions without the necessity for
asset transfer through the use of credit derivatives. The capability to execute the
increasingly complex and diverse asset backed securitisation transactions require an in
depth understanding of the legal, accounting and taxation frameworks operating in
these jurisdictions. This chapter provides an outline of the necessary legal, accounting
and taxation frameworks in various nations, which facilitate the implementation of ABS
programs. Some details relating to common changes that have been implemented and
the difficulties encountered by the authorities are compared.
3.1 Legal and Taxation
From a legal perspective there are several common components which require
clarification and legal opinion prior to the execution of a securitisation transaction.
Treatment of these components which includes the method of transfer, true sale,
funding methodologies, solvency considerations, security, enforceability of securities
and documentation, as well as duties which differ between the various jurisdictions.
The main similarities and differences are discussed in turn below to highlight the
disparities between the developed and developing markets.
3.1.1 United Kingdom
3.1.1.1 Legal
The English legal system is known world over as common law. English common law
distinguishes between tangible and intangible property commonly expressed as choses in
possession and choses in action.
34
The latter are transferable only by a written conveyance. Hence, the Law of Property
Act 1925 required a written agreement to transfer actionable claims and a notice to
debtors was also required. However, traditional English law has always recognised
equitable transfers, that is, transfers that do not comply with the legal requirement of
law, but would be recognised as setting up a legal relationship between the transferor
and transferee. This means that the right of the assignee under an equitable transfer
is a right against the assignor, and not a independent right against any and all.
In almost all securitisations the legal mechanism for transferring assets varies with the
underlying asset classes and the most convenient method of achieving such transfer.
Such methods include assignment, novation, and declaration of trust, subrogation and
contractual participation. Inevitably the most appropriate method of achieving a valid
transfer will be detected by the terms of the underlying contracts which result in the
receivables being considered for securitisation. To ensure that the transfer of assets
is a valid transfer which is isolated from the credit risks of the originator it is normally
structured as a true sale which is not capable of being set aside by the insolvency
officer of the originator or by a court. In most cases a robust legal opinion, which
states that the risk is either non existence or negligible is sought.
Other legal requirements in the UK pertain to the funding method and the regulations,
which govern them. A range of funding mechanisms have been utilised which range from
bank market funding, or the use commercial paper and bond issuances including
Eurobonds. The various compliance regulations, which govern all the various funding
options, have to be complied with, to attain a structure with the least legal risk. In
addition the requirements of the regulator as discussed in Chapter 2 also need to be
legally complied with. And finally all the associated documentation and agreements
between the various parties in a securitisation transaction have to be valid and
enforceable under English law.
35
3.1.1.2 Taxation
Securitisation transactions in the UK attract stamp duty. A stamp duty of 3.5% to 4%
is payable on assignment of receivables. There is no stamp duty imposed on the sale of
mortgage receivables, but there is one on sale of non-mortgage receivables.
Generally parties to a securitisation get around this additional cost by executing
documents outside the jurisdiction, as the duty is payable at the place where the
agreement is executed. However, there is a common stamp law provision that if an
agreement executed outside the country but relating to property in the country comes
to the country after execution, it will be stampable then. Thus, execution of the
agreement outside the country defers the stamp duty implication till it is necessary to
bring the document into the country for the purpose of enforcement.
A transfer within the group can also obtain stamp duty relief, that is, by establishing
the SPV as a subsidiary of the originator. In UK practice, however, stamp duty is not
paid, as most securitization transactions are structured as equitable assignments and
not perfected legal transferes. When the transaction were to be perfected into a full
fledged sale of receivables, the document will attract stamp duty: therefore, the
originator is required to provide for full payment of duty. But this is usually regarded as
a theoretical tax - very rarely have circumstances arisen where the duty has actually
become payable.
As far as withholding tax on interest is concerned, the payer of interest is required to
withhold tax at the basic rate, unless the lender is a bank. Since securitisation SPVs are
not banks, transfer of loans to SPVs surely gives rise to the problem of withholding tax.
To get around these onerous withholding taxes a number of securitisation transactions
are structured as "participation" transfers, rather than true sales.
Value Added Tax is not applicable on sale of receivables in the UK.
36
There are no pre-defined income-tax rules on securitization in the UK but the tax
treatment is understood with reference to general tax law and practice. The basic
question to be decided for the originator is whether the disposition of the receivables
will be taken as a sale or financing. The question would, in most cases, be decided by
reference to the originator's accounting treatment. If the assets in question are
business assets, and they are being transferred, business profits/loss may arise. In
certain cases, the asset being transferred may be held as capital assets - for example,
in case of lease transactions. Ideally, in such cases, the physical asset and the
receivables therefrom should be split, and the receivables should only be transferred
rather than the physical asset. The other significant tax issue for the originator is the
deductibility of the initial fees of the issue. Incidental costs of raising finance may, if
properly structured, be deductible by the issuer under the FA 1996 rules. Accounting
Standard FRS4 will generally require issue costs, and thus the tax deductions, to be
amortised over the period of the notes.
An investor's UK tax position will be reasonably straightforward. Notes will generally
fall within the withholding tax exemption for quoted Eurobonds. In general, it is
believed that the accounting method employed by the investor for books will be adopted
for taxation too.
It is important that the SPV tax status is neutral. This can be achieved by matching
incomes and expenses. The payments made by the SPV will be principal and interest on
the bonds, of which interest will be tax deductible - principal will not be. Interest paid
by the SPV on a participating loan, that is, a loan with a right to participate in profits
(normally given by the originator as his contribution-credit enhancement) is not tax
deductible. Such interest is also not taxable in the hands of the originator.
37
3.1.2 The French Credit Foncier de France (“FCC”) The French legal process to facilitate the conduct of securitisations is the FCC. The
creation and operation of an FCC requires the participation of (i) investors (ii) a bank or
financial institution where the funds of the FCC will be deposited and (iii) a management
company to conduct the investment policy of the FCC. The FCC is a legal concept, not a
legal entity. With this system assets of FCC are regarded as the joint ownership of the
investors. Interest in an FCC, that is, the interest held by the investors, is itself a
transferable property. The activities of the FCC must consist exclusively of the co-
ownership of receivables and not of other types of securities such as shares. The
transfer mechanism provided for in the securitization law is inspired by the Loi Dailly
mechanism. Title to the receivables is transferred by the execution and dating of a
certain instrument, called bordereau.
3.1.3 Australia
As in other jurisdictions the law plays a vital role in the structure and regulation of
many securitisation programs that have been implemented in Australia. In the
Australian market both equity and debt securities are issued in lieu of asset backed
securitisations. However due to prohibitive stamp duty requirements on equities the
debt instruments are more popular. The main difference between the issuance of notes
in Australia compared to the rest of the world is that asset backed securities are
issued by the trustees as opposed to SPV’s. The trustee holds the securitised assets
on trust and the liabilities under the notes are limited to the proceeds from the
underlying assets that are available. The use of trusts to issue debt securities
introduces a series of unique trust issues, which include the roles of the trustees and
the indemnities, and liabilities that affect the trustees. Further the Australian
Corporations Law regulates all asset backed securities issued to the extent that they
are debentures, or an interest in a managed investment scheme.
38
It is an obligation of the Corporations Law to ensure that prospectus that are used to
canvass investments make a minimum set of positive disclosures and outlines the civil
liabilities associated with breach of these provisions.
Securitization SPVs will be taxed as per the general law applicable to taxation of
companies or trusts, whichever way the SPV is organised. If organized as trusts, the
trust can qualify for taxation a "flow through" vehicle, that is, as a pass through or tax
transparent entity provided all the unitholders are currently entitled to the entire
income of the trust. That is to say, if the trust is non-discretionary as to its income, it
will be a tax transparent entity. If the trustees have discretion as accumulation of the
income or reinvestment of cashflows, the trust will be liable to normal income tax
principles.
3.1.4 Hong Kong
Hong Kong is one of the most securitization-friendly jurisdictions in Asia. The legal
system is based in general terms on English Law. This makes it quite straightforward to
structure "true sale" transactions from a legal, regulatory and accounting perspective.
The legal framework, in particular bankruptcy law, is well developed, with a mixture of
legislation and case law. Most securitisation transactions in Hong Kong follow the
"equitable assignment" route, without giving a notice to the obligors. Registration of
equitable assignments is not insisted upon. However, transfer of mortgages would
require registration with the Land Registry offices.
Unlike other Asian countries in Hong Kong there is no withholding tax on interest
payments to a non-resident, making the securitization offshore of interest-bearing
receivables much simpler. Stamp duties, which are generally required in other
countries, are not applicable on equitable assignments. However, transfer of mortgages
would be treated as transfer of interests in land, and would attract duty of 2.75%.
Hong Kong does not have any Value-added tax.
39
3.1.5 Malaysia
The Malaysian legal system is partly based on Roman Dutch law and partly on English
common law. Sec. 4 (3) of Malaysian Civil Law Act, 1956 requires that the assignment of
a debt be notified to the debtor. This requirement generally acts as a hindrance to
execution of securitisation transactions and discourages originators from participating
since it is very onerous and usually not cost effective. An alternative based on the
British concept of equitable assignment has been introduced in Malaysia. (Assignment
of receivables, that is, transfer of a debt, can either be full fledged legal transfer or
can be a transfer not documented as a legal transfer but recognised by courts as an
effective transfer for purposes of enforcement. "Equity" means fairness, that is, to
meet the ends of justice. In English law, there were separate courts of Equity, which
would deal with equitable claims. In the Malaysian legal system, equity courts do not
exist: yet, courts do follow principles of equity to enforce claims, which are otherwise
not contractually enforceable.)
The Malaysian companies law contains provisions for avoiding a transfer made in
contemplation of bankruptcy. This, however, can be resolved by establishing that the
transfer took place at fair values. In case of an offshore SPV, numerous exchange
control issues will also arise - the Malaysian Exchange Control Act 1953 will be
applicable.
There was a stamp duty implication of 4% on transfer of receivables. In an attempt to
encourage securitisation transactions and to develop the corporate debt capital
markets Stamp duty has been abolished. For property transactions capital gains tax on
transfer of assets, has also been exempted in case of SPVs. To qualify for exemption
the SPV require exemption from the Securities Commission.
40
There are no specific provisions in the income-tax law on securitisation. Pass through
SPVs are expected to be tax exempt based on conduit rules, but other securitization
SPVs are likely to come for entity-level taxation. Malaysia currently does not have any
tax on capital gains. Hence, if the sale of receivables or assets by the originator can
qualify for a capital gains treatment, it can escape upfront taxation of profits on
securitization.
A withholding tax of 15% is applicable on interest payments to non-resident persons.
Normal practice for Malaysia is to incorporate the SPV in Labuan, an offshore financial
centre, in which case the withholding tax is not applicable.
3.1.6 South Africa
3.1.6.1 Legal
The legal system in South Africa is mainly based on Roman Dutch law with large
influences from the English common law. Aspects of the law that are generally taken
into consideration when concluding a transaction in South Africa include incorporation,
validity and enforceability of documentation, transfer and security, and restrictions..
It is essential to ensure that the SPV issuing asset backed securities is a company that
has been duly incorporated and validly existing under the laws of South Africa. And to
the extent that it is owned by a trust that such trust(s) are also legally incorporated.
The company and all other parties should also have the legal capacity and corporate
power to perform the functions required to execute its obligations under the
agreements.
41
There are no governmental or regulatory consents, approvals, authorisations or orders
required in the Republic of South Africa by the Issuer or registration, filing or similar
formalities in connection with the issue of asset backed securities to ensure the
legality, validity or enforceability with the exception of the following;
• the approval of the listing of the asset backed securities by the Bond
Exchange of South Africa ("BESA") for listed securities. BESA should also
make an application to the Financial Services Board ("FSB") for the Notes to
be declared a financial instrument by notice in the Government Gazette by
the FSB in terms of the definition of "financial instrument" in the Financial
Markets Control Act, 1989 ("FMCA"). The instruments should then be
included in the list of financial instruments, which may be dealt in on BESA.
• approval of the Offering Circular by the Central Depository Limited; and
• the lodging with the Registrar of Companies in terms of the Companies Act,
of the Subscription Agreement by the placement agents who are usually the
arranging banks.
Under South African law, in order to sell a personal right, the seller and the purchaser
must enter into an agreement of sale (the obligatory agreement) in terms of which the
identity of the parties, the personal right to be sold and the price at which it is to be
sold are agreed. In order for the seller to transfer ownership of the personal right to
the purchaser, the parties must have the intention to transfer ownership coupled with
delivery of the personal right. A personal right is delivered by way of cession and the
seller and the purchaser can thus give effect to the transfer of ownership by an
agreement of cession (the transfer agreement) between the transferor (the cedent)
and the transferee (cessionary). The consequence of a valid sale and cession by the
seller of the receivables is that such seller is divested of its right to payment (and all
other rights), which will vest in the purchaser (SPV). A creditor of the seller can no
longer attach the right and, the subsequent liquidation of the seller will not affect the
situation.
42
A creditor of the relevant seller would only be able successfully to challenge the sale
and cession if any of the following apply;
• where the person granting the security ("the debtor") (such as a surety,
insurance company, guarantor or mortgagor) and the creditor have agreed
that the latter may not cede or transfer the right then, if this agreement
forms an integral part of the agreement creating the right, South African
law may treat the right as inherently limited and incapable of transfer
without the express consent of the debtor;
• under common law restrictions a transfer will be unenforceable to the extent
that it weakens the debtor's position or renders it more onerous than it was
prior to the cession. For this reason, in general a transfer of a portion of a
debt is invalid except with the consent of the debtor;
• where a debtor and a creditor have agreed that a debt can be transferred
only if certain formalities are complied with, a transfer effected in defiance
of these agreed formalities will be legally ineffectual unless the formalities
are waived by the party in whose favour they are stipulated (usually the
debtor);
• where the contract creating the right is of an intensely personal nature (in
the sense that whether the transferor or, alternatively, the transferee
exercises the right makes a reasonable or substantial difference to the
debtor's position) the rights may not be transferred (for instance, an
employment or partnership contract);
• statutory restrictions prohibiting the transfer of incorporeal rights include
the Insolvency Act, 1936 ('the Insolvency Act") (for instance, an insolvent’s
rights to his earnings cannot be transferred), the Statutory Pensions
Protection Act, 1962 (a pensioner’s right to his pension may not be
transferred), the Alienation of Land Act, 1981, the Matrimonial Property Act,
43
1984 (a spouse’s right to share in the accrual may not be transferred) and
the Public Service Act, 1994.
As a general rule, cession takes place without the co-operation, consultation or consent
of the debtor. In addition to not requiring the prior consent of the debtor for the sale
and cession of the right to repayment it is also not necessary for the validity of a
cession that the debtor be given notice of the cession after it has taken place. Despite
the fact that the cession of a personal right is valid as between cedent and cessionary
without notice to the relevant debtor, the debtor under an agreement that is ceded
(such as a Loan Agreement and its Related Security) may validly continue to discharge
his obligations to the cedent under such cession if the debtor has not been provided
adequate notice of such cession. Similarly, the debtor may apply set-off in respect of
amounts owed to him by the seller (to the extent that set-off is not precluded by the
agreement between the debtor and the seller) until such time as the debtor is given
notice of the cession.
In securitisation transactions to give effect to the priority of payments and ranking of
creditors applied to the rated asset backed securities the parties undertake not to
take legal proceedings that may lead to bankruptcy of the SPV (non petition language).
A contractual undertaking not to sue another person or not to institute action for the
winding up of a person for a specified period or until the occurrence of some
contingency is referred to in South Africa as the "pactum de non petendo" and is a well
established principle in South African case law. An undertaking not to sue does not
affect the wrongfulness of the action, it merely excludes the remedy which the
plaintiff would otherwise have had.
South African law recognises the concept of a ring-fenced, bankruptcy remote entity,
which is formed to perform a specific function ("an SPV"). Such an entity may take the
form of a company or of a trust.
44
3.1.6.2 Taxation
In terms of section 3 of the Stamp Duties Act, 1968 any "instrument" described in
Schedule 1 to the Stamp Duties Act will be subject to stamp duty in South Africa if it
is executed in the Republic of South Africa or if it is executed outside the Republic and
relates to "the transfer or hypothecation of any property situated in the Republic or to
any matter or thing to be performed or done therein". Prior to the alterations of this
act in 2002 (encouraged by developments in other countries) Stamp duty was payable on
cessions of bonds in the amount of R0,20 per R100 of the maximum amount of the debt
secured under the bond. Further Stamp duty was payable on the issue of the asset
backed securities registered at an exchange in the amount of R0,05 per R20 or part
thereof of the issue price. These changes have been made mainly to encourage the
development of the corporate capital market and to encourage trading of assets as is
facilitated through securitisation.
In terms of the Marketable Securities Tax Act, 32 of 1948, as amended, (the "MST
Act"), a tax is imposed on the purchase of marketable securities through the agency of
or from a person admitted as a member of the Stock Exchange at the rate of 0,25
percent of the consideration for which those securities are so purchased. Section 3(d)
of the MST Act exempts the purchase of any interest-bearing debentures listed on a
financial exchange as defined in the FMCA Act from the payment of such marketable
securities tax. Accordingly, the purchasers of the asset backed securities will not be
liable for the payment of the marketable securities tax.
Stamp duty of R0,50 per cession is, in terms of item 18(7) of schedule 1 to the Stamp
Duties Act, levied on the cession of an insurance policy or of any interest under such a
policy.
In terms of section 7 of the Stamp Duties Act, the person liable for stamp duty in the
case of a cession is the cedent. Failure to stamp an instrument when required does not
necessarily render such instrument invalid, an instrument which is not duly stamped may
45
not be produced or given in evidence or be made available in any court of law. The court
is given discretion under the section to direct that, subject to the payment of a
penalty, the instrument be stamped and to admit it in evidence once this has been done.
This opens structuring opportunities similar to those undertaken in the UK, although it
will be largely unnecessary considering the cancellation on stamp Duty Requirements
introduced in South Africa in 2002.
Other taxes that are applicable to securitisation in South Africa include income tax,
value added tax (“VAT”), transfer duties, and even capital gains tax. Unlike other
countries that have actively promoted securitisation, and have provided clear guidelines
and frameworks for such transactions. An example of this is the United States tax
provisions (Sections 860H through 860L) which treat a trust which has been formed as
an SPV and which satisfies certain conditions, as a tax transparent entity. A trust
which satisfies these conditions is know as a “Financial Assets Securitisation
Investment Trust”, or FASIT. If a FASIT is used in a securitisation transaction, the
sale versus loan, and tax issues relating to the SPV, do not arise under United States
taxation legislation. This means that various tax issues are based on interpretation of
existing laws in the context of the securitisation transaction. There is also no case law
as far as taxation of securitisation transactions in South Africa is concerned, which
could cause potential originators to be more cautious about entering into these
transactions.
Capital Gains Tax (“CGT”) in South Africa became effective from 1 October 2001. CGT
is a tax on an increase in the value of a capital asset, where the proceeds on the selling
price of such asset, above the original cost, have not been subject to normal income tax.
This is thus an additional tax, which traps an increase in the value of capital assets,
which would previously have been treated as capital gains not subject to any form of
taxation.
There are not many situations where CGT will be applicable, since in most cases the
asset being sold should have decreased in value, due to a portion of the debt having
46
been paid off. Where the asset being physically transferred is fixed property, then it
is quite possible that the asset will have increased in value, and the surplus above
original cost will be liable for CGT. However, securitisation of fixed property normally
involves the securitisation of the rental stream, or else of the outstanding loan
commitment, and not of the asset itself. There is thus no physical transfer of the
asset, but merely a transfer of the right to the lease payments, or alternatively to the
loan obligation with the mortgage bond being used as security.
Value Added Tax (VAT) is an indirect tax which was introduced in South Africa in 1991,
and is applicable to all enterprises with a turnover in excess of R300,000 per annum.
Where an institution that is registered for VAT sells an asset or supplies services it is
legally obliged to levy VAT on the transaction, unless it has supplied an exempt supply.
Exempt supplies are defined in Section 12(a) of the VAT Act, and include “the supply of
financial services”. Financial services include “the transfer of ownership of a debt
security” and “the provision of credit under an agreement by which money is provided to
another person who agrees to pay in the future a sum exceeding in the aggregate the
amount of such money. ”It can therefore be interpreted that the sale of a debt or a
debt security or of an income stream based on the debt (a financial service so long as
the income stream comprises solely of interest), would not be subject to VAT. Rights
arising out of mortgage bonds or pledge are also exempt from VAT.
The net result should be that the South African Receiver of Revenue (SARS), for VAT
purposes, is placed in the same position he would have been in had the securitisation not
taken place. It can surely be argued that Revenue should not get more, since there has
been no value added, but merely a transfer of the ownership of an asset, which is a
financial transaction. Should the Receiver, through some mechanism employed in the
structuring of the transaction, receive less than he would have been entitled to before
the securitisation, then he will in all likelihood attempt to remedy the situation.
The SPV is in effect nothing more than a conduit, providing a source of income to a
number of investors, and providing a source of financing for the originator, who uses
47
the receivables as collateral in order to reduce the funding cost. As such the SPV
should not be subjected to income tax, but should remain in a neutral tax paying
position. This should not be difficult to achieve, since all the income derived by the
SPV is distributed to the investors. It would not be acceptable to structure the
transaction is such a way that the receipts from the originator’s debtors are treated as
income, whilst the disbursements to the investors are disallowed as a deduction. The
investor would be the loser in this transaction, since the receipts will have been taxed
in the hands of the SPV, and will then probably also be taxed in the investors hands.
The net result of the double taxation will mean that the investment would not be viable
to an investor, since the amount paid for the receivable would not have priced in a
double taxation liability. Alternatively, pricing in a double deduction would in all
likelihood have resulted in the originator not wanting to enter into the transaction, due
to the low price being offered for the assets.
As there are no specific tax laws governing the taxation of securitisation transactions,
nor any taxation cases on which to base most of the subjective issues, it would be
beneficial to obtain rulings from SARS. These rulings would simplify matters for all
concerned, and would help assure investors that problems such as double taxation,
which will materially affect the viability of the investment, will not occur. Presently
most arrangers rely on opinions on the interpretation of the tax laws that are
expressed by lawyers.
To assist the promotion of securitisation transactions, and to avoid lengthy court cases
which may occur as a direct result of taxpayers interpreting the tax laws incorrectly.
The SARS should take cognisance of the efforts of other countries, such as the United
States of America, and provide relevant guidelines or rulings. These rulings could be
similar to the tax laws relating to FASIT, as has already been discussed, and would
clear up a number of issues regarding taxation of the SPV, especially those relating to
VAT. Uncertainty regarding double taxation could be an obstacle in obtaining investors,
and rulings from the SARS should go a long way towards increasing investor confidence.
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3.2 Accounting
3.2.1 United Kingdom
Depending on the originator’s objectives the effect on his balance sheet and the
accounting treatment is generally discussed and thoroughly investigated by the
auditors. In most UK securitisations, the SPV is structured as "an orphan subsidiary"
with the shareholding transferred to a charitable trust. Therefore, even though there
is no direct control of the originator on the SPV. This ownership structure of the SPV
is devised to avoid consolidation, both from bankruptcy as well as accounting viewpoint.
If the transaction has been properly structured, the accounting treatment should
follow the requirements of the UK Accounting Standards Board’s Financial Reporting
Standards 5 (“FRS 5”) through a linked presentation. The main tests for whether or
not the assets sold by the originator should be shown on their balance sheet depends on
whether not the significant benefits and risks associated with these assets have been
transferred to the SPV. Derecognition of assets in part is allowable on a pro-rata basis
or on the transfer of a legally separable portion of an asset. When the conditions for
derecognition have been met a gain or loss is recognised for the difference between
the carrying value and the fair value of the proceeds.
Whether or not the originator should consolidate the SPV based on ownership. FRS 5
requires consolidation of ‘quasi subsidiaries’ which are controlled entities but do not
meet the legal definition of a subsidiary. Through the concept of linked presentation
the securitised assets are shown on the face of the balance sheet net of the non
recourse portion of the securitisation proceeds. Any transfers that do not meet the
criteria for derecognition or linked presentation continue to be shown as assets at their
original amount and the proceeds received are shown as liabilities.
However, as far as accounting consolidation is concerned, International Accounting
Standards Board (“IASB”) SIC 12 has given an interpretation according to which a
consolidation is almost inevitable if the originator provides credit enhancements. To
49
avoid consolidation from legal and accounting viewpoint, the originator must hold no
equity interest, and no residual interest in the SPV. Therefore, very convoluted
methods are followed in UK practice for extraction of the originator's profit from the
transaction. These include: deferred consideration, an intermediary trust holding legal
interest on behalf of both the originator and the issuing SPV, interest rate swap,
retained interest, management fee, brokerage, etc.
3.2.2 Australia
Australian accounting standards do not directly deal with accounting for securitisations,
but Australia has generally adopted international accounting standards and most
Australian accountants follow the International Accounting Standards (“IAS”) 39 which
provides the rules covering recognition and derecognition. Following the issuance of
SIC 12 regarding consolidation of securitization SPVs, the Australian Urgent Issues
Group (UIG) in July 1999 issued UIG 28 to narrate the circumstances under, which a
securitisation SPV will be consolidated with the parent. SIC 12 refers to quasi-
subsidiaries and says that if the effective control over an SPV is being exercised by
the originator, the SPV ought to be consolidated with the parent.
3.2.3 South Africa In South Africa Generally Accepted Accounting Practice (GAAP) is applied for the
accounting treatment of Asset Backed Securitisation Transactions. Since ABS
transactions generally involve sale of assets and SPV’s two main statements namely AC
133 dealing with de recognition and AC 412 dealing with consolidation of special purpose
entities apply.
Following on the guidance from IAS 39 and FRS5 the South African standard AC412
proceeds on the basis of substance over form, and hence the SPV should be
consolidated when the substance of the relationship between an originator and the SPV
indicates that the SPV is controlled by that originator. In determining the substance
50
over form principle, which may lead to consolidation the SPV the following tests are
applied:
• If the activities of the SPV are in substance being conducted on behalf of the
enterprise directly or indirectly created on the SPV according to its specific
business needs. For example if the SPV is principally engaged in providing a funding
source to the originator to support its ongoing operations. Or if the SPV provides
goods or services that are consistent with the originator’s ongoing operations, which
without the existence of the SPV would have to be, provided by the originator
itself.
• If the originator, in substance has the power to control or obtain control of the
SPV or its assets including certain decision making powers coming into existence
after the formation of the SPV. Such powers may also have been delegated by
establishing an auto pilot mechanism. This includes the power to dissolve the SPV
unilaterally, to change the SPV’s charter or bylaws or the power to veto any of the
above powers.
• If the originator has rights to obtain a majority of the benefits of the SPV. An
indication of control may also be obtained by evaluating the risks of each party
engaging in transactions with the SPV.
AC 133 from South African GAAP is entitled Financial Instruments: Recognition and
Measurement deals with amongst other things the derecognition of assets sold to the
SPV to effect the securitisation transaction. AC 133 requires that an enterprise should
derecognise a financial asset (such as the receivables) when, and only when, the
enterprise loses control of the contractual rights that comprise the financial asset. AC
133 recognises that determining whether an enterprise has lost control of a financial
asset depends both on the enterprise's position and that of the transferee.
Consequently, if the position of either enterprise indicates that the transferor has
retained control, AC 133 requires that the transferor should not remove the asset from
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its balance sheet. In such a case, the transferor should account for the transaction as
a collateralised borrowing.
The situations envisaged by AC 133 in which the transferor retains control are those
where the transferor has a contractual right to reacquire the transferred assets (or
related benefits) or has retained substantially all of the risks and rewards of
ownership. The tests applied are based on the following extracts from the IAS 39
Implementation Guidance provides a basis for determining whether the seller has
retained control of the receivables:
• Question 35-2 of the IAS 39 Implementation Guidance deals with the situation
where the transferor retains the right and obligation to service the underlying
financial assets, which may indicate that the transferor has retained control of
those assets. However, provided that the servicing agreement precludes the
transferor from using or benefiting from the cash it collects on behalf of the
transferee and requires the transferor to remit the cash on a timely basis, the
transferor is regarded as providing the servicing activities in the capacity of agent
for the beneficial owners of the assets.
• Question 37-1 of the IAS 39 Implementation Guidance specifically deals with the
situation where an enterprise sells receivables, including the transfer to the buyer
of interest rate risk and the rights to receive cash flows from the assets, but
provides a credit enhancement facility. In such a situation, where the receivables
are not only subject to credit risk and substantial interest rate risk is transferred
to the buyer, the transferor has lost control over the receivables because the
transferee has the ability to obtain the benefits of the transferred assets and the
risk retained by the transferor is limited to credit risk in the case of default.
Rather than retain the receivables on its balance sheet, the transferor would
recognise a separate financial liability in respect of the credit enhancement facility.
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AC 133 suggests that the transferor generally has lost control of a transferred
financial asset only if the transferee has the ability to obtain the benefits of the
transferred asset. That ability is demonstrated, for example, if the transferee is an
SPV whose permissible activities are limited, and either the SPV itself or the holders of
beneficial interests in the SPV have the ability to obtain substantially all of the
benefits of the transferred asset.
Until recently most securitisation structures executed in the developed markets have
generally managed to obtain the off balance sheet treatment. However in the wake of
accounting controversies, which have become apparent in the USA during 2001 and
2002 it is increasingly more difficult to attain off balance sheet treatment and
accounting standards are being revised across the world.
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4 ASSET AND ORIGINATOR CHARACTERISTICS
Descriptions of various asset classes and their originators, highlighting the suitable
conditions for asset classes and general originator characteristics. Typical pool sizes,
historical data availability and systems etc. The typical assets that are discussed
include residential mortgages, asset backed commercial paper programmes, commercial
mortgages.
4.1 Residential Mortgage Loans
These are the most common type of assets that have been securitised. Usually they
are also the first to have been securitised in most jurisdictions as discussed in Chapter
1. They are generally monitised through the issuance of residential mortgage backed
securities. Residential mortgage loans are offered to the underlying borrowers through
a variety of options, which include interest-only mortgages, deferred, interest
mortgages hybrid products (i.e., fixed-rate over an initial period, reverting to floating
rate). Despite the numerous product types the mortgages typically have a number of
common variables, including a term of 20 to 40 years, a floating or fixed interest rate,
full amortisation over the life of the loan, and a first charge (i.e., lien/mortgage) on the
property held by the lender as security.
Generally the loans are separately determined by each lender, the interest rate is closely
linked to a specified base rate. For example in the UK the Bank of England’s Monetary
Policy Committee determines the bank base rate (indirectly via changes to its minimum
lending rate to commercial banks) at its monthly meetings. A similar process is also applied
in other countries such as South Africa, Australia and the US.
More recently flexible mortgages, which originated in Australia in the early 1990s, and have
proven extremely popular with consumers in markets like South Africa and UK. In a flexible
mortgage the repayment structure provides for full amortisation of the principal over the
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life of the loan. The core feature of a flexible mortgage is a borrower’s ability to prepay
and subsequently redraw principal without incurring a penalty. Flexible mortgage
prepayments are applied to reduce the outstanding principal balance on the mortgage and
provide borrowers with a means of decreasing future monthly payments and/or reducing the
mortgage’s average life. Most lenders also permit payment holidays, enabling a borrower to
underpay or even temporarily suspend monthly repayments (with certain restrictions on the
timing, length, and frequency of such non-payment periods.).
The other form of mortgage product is the interest-only mortgage whereby principal is
repaid as a bullet at the mortgage’s maturity. The borrower pays the interest cost to
the lender throughout the life of the mortgage, while simultaneously making
contributions to a savings vehicle that will ultimately make the bullet payment. The
savings vehicle is usually held at the lending institution, but not always. A range of
savings vehicles have been used over time including endowment policies, pension plans
and tax-exempt savings accounts, etc.).
Reverse mortgages or equity release mortgages are first lien mortgages secured by a
property. This type of mortgage is designed for older homeowners who do not have
steady income and want to access the equity in their homes. Interest on a reverse
mortgage accrues at a fixed rate and the loan is typically repaid when the borrower
passes away or moves into long-term care (i.e., the house is sold and the proceeds are
used to repay the loan). There is a maximum loan to value (“LTV”) allowed for reverse
mortgages (e.g., approximately 50%) and borrowers must reach a certain minimum age
to apply. Norwich Union Equity Release Limited completed the second reverse mortgage
RMBS transaction (Equity Release Funding No. 1 plc) in March 2001 in the UK. The
analysis of a reverse mortgage RMBS transaction focuses on actuarial methods (i.e.,
mortality tables) to estimate when an originator will receive the proceeds from a home
sale.
Mortgage lenders in most countries fall into three basic categories namely, banks,
building societies, and specialised mortgage lenders. The UK market is dominated by the
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largest lenders, which are primarily banks. At the end of 2000, the top five lenders
owned over 60% of UK mortgage assets and the top ten lenders controlled over 80% of
these assets. For example following the recent merger of Halifax and the Bank of
Scotland (September 2001), HBOS (the merged entity) owns nearly 25% of all UK
residential mortgage assets.
This distribution is similar to that reflected in the South African market, whereby the
four largest banks have captured over 80% of the total home loan mortgage market of
the total outstanding of R194 billion. Other lenders such as large corporations and non
bank organisations like SAHL make up the remainder of the lenders in South Africa.
The distribution of the SA mortgage loans as of December 2001 by lenders are shown
Figure 4.1.
Source: South Africa Reserve Bank
30%
19%16%
12%
10%
12% 1%
A B S AS B S ANedcorFirs t Rand B ankB OEOtherS A HL
Figure 4.1: Distribution of South African Mortgage Lenders Ranked by Mortgage Assets as
of December 2000
Origination of mortgage loans is mainly conducted by the lending bankers. However in
the recent past most countries have experienced an increase in the amount of activity
of brokers participating in residential mortgage based lending. These are generally
firms or individuals that act as intermediaries between estate agents and banks
receiving a commission for services provided in this role.
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Other important characteristics of mortgages that are utilised by rating agencies to
determine the credit quality analysis of the mortgage loan pools to be securitised
include foreclosure frequency predictions and loss severity (loss that would be realised
in the event of a foreclosure). For example Standard and Poor’s in order to quantify
the potential losses associated with the entire pool, they determine the weighted
average foreclosure frequency and a weighted average loss severity at each rating level.
The product of these two variables estimates the required loss protection, which can be
directly related to a rating level. To determine the foreclosure frequency and the loss
severity, rating agencies normally conduct independent analysis of the following factors;
• Loan to value (LTV): This is defined as the ratio of the aggregate mortgage debt
divided by the value of the property. This ratio is a key foreclosure predictor with
low LTV ratios associated with lesser probabilities of loan default. A low LTV ratio
also indicates the amount of equity the borrower has invested in the property as
well demonstrate the borrowers involvement in prior financial management. In
South Africa generally mortgages with LTV values of less than 90% are considered
for securitisation. Typical LTVs in Spain are generally below 60%.
• Loan Repayment type: As discussed above various loan types are offered to
homeowners in the various markets. The overriding principle is that the portfolio of
loans to be securitised need to be homogeneous and underwritten with standardised
loan contracts for ease of analyses. Armotising profiles are perceived to be less
risky compared to interest only loans with a bullet payment risk.
• Loan size: Large loans are considered to have more inherent risk than the smaller
loans owing tot the increased sensitivity of these borrowers to changes in their
financial situation in terms of recession.
• Affordability/ Payment to income ratio (PTI): This is a measure of the
borrower’s long term income available for loan repayment. It is determined by a
borrowers monthly mortgage payment divided by his or her gross monthly salary.
Lower PTI ratios indicate that a borrower can sustain temporary financial set backs
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with out affecting their capability to service their loans. In South Africa PTI
ratios vary between 20% and 30%.
• Seasoning: This is a term used to describe the age of the mortgages that
make up a portfolio. Historical data indicates that the most likely period for a
borrower to default on their loans is in the first 12 to 18 months following
completion. A mortgage that has been outstanding for longer periods and is not in
arrears is considered to have a lower likelihood of foreclosure.
• Geographic Diversification: A geographically diverse pool signifies that a regional
economic downturn will not adversely affect the whole pool. Diversification of
borrowers by employing industry also distributes risk in a pool.
4.2 Asset Backed Commercial Paper (ABCP) Conduits
An ABCP conduit is a limited-purpose finance company that issues commercial paper to
finance the purchase of assets. Some asset types include receivables generated from
trade, credit card receivables, auto loan, auto and equipment leasing obligors, as well as
collateralised loan, obligations and collateralised bond obligations. Asset-backed
commercial paper conduits are typically established and administered by major
commercial banks. The main aim of these originators is to provide flexible and
competitive low cost financing to their customers. Unlike stand-alone term
securitisations, asset-backed commercial paper conduits are ongoing concerns and do
not wind down after a few years. In a typical asset backed commercial paper conduit,
maturing commercial paper is paid down with the proceeds of newly issued commercial
paper. This type of securitisation is the second most common type following RMBS in
the world in terms of assets under securitisation.
To evaluate these programs rating agencies normally analyze the risks associated with
credit, liquidity, interest rates, foreign currencies, the financial viability of the asset
originator, legal issues, structural features, and cash flows. The conduits can either be
partially enhanced, or fully enhanced through the use of credit enhancement facilities.
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These credit enhancement facilities are generally provided by financial institutions to
cover partial or 100% of the credit, liquidity, and legal risks. The 100% enhancement
also covers other risks that may be present such as interest rate, servicer, and program
administrator risks. In these conduits, the risk to commercial paper investors is that
the credit enhancer will become insolvent, not that the assets will default. On the
other had investors in partially enhanced asset-backed commercial paper programs are
exposed to the losses on the underlying receivables if these losses exceed the partial
credit enhancement.
Asset-backed commercial paper conduits may also be described as being single-seller or
multiseller programs. Single-seller programs are set up to benefit an individual asset
originator by providing a way to finance its receivables pool. Multiseller programs on
the other hand acquire receivables from numerous asset originators and are typically
sponsored by large commercial banks. A single-seller, asset-backed commercial paper
conduit is a limited-purpose, bankruptcy remote company that issues commercial paper
as a way to finance the assets of a single originator. Such conduits are most suitable
for asset originators with large pools. Single-seller conduits provide credit
enhancement consistent with the commercial paper rating and 100% liquidity support
from providers rated at least as high as the conduit. Expressed another way these
programs are fairly similar to commercial paper programmes of the originator, except
they are backed by specified assets and not the balance sheet of the originator.
Multiseller commercial paper conduits serve the financing needs of several unaffiliated
originators by combining their assets into one diverse portfolio supporting commercial
paper issuance as illustrated in Figure 4.2. The multiseller conduit is a bankruptcy-
remote, special purpose vehicle.
The asset portfolio is managed for the asset-backed commercial paper conduit by a
program administrator (typically the sponsoring bank) according to the conduit’s credit
and investment guidelines. The program administrator, who is in many cases a provider
of credit enhancement and/or liquidity lines, is key to the analysis of these programs
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for purposes of rating. The program administrator’s role is to originate and refer new
asset originators to the conduit, to negotiate with third-party credit enhancement and
liquidity banks, and to closely monitor the performance of each transaction in the
conduit. Because the multiseller conduit finances assets from a variety of sellers, the
administrator also manages the conduit’s
Source: Standard and Poor’s Figure 4.2 An illustration of the parties and cashflows in multi-seller ABCP
portfolio risk and cash flows. A review of each new pool is made before it is funded.
Review of transactions entering the conduit is based on the following factors:
• the conduit’s portfolio diversification,
• the amount of program wide enhancement,
• the liquidity funding formulas,
• the strength of conduit management and operating procedures,
• the target customer base,
• the credit and investment policies,
• the experience of the underwriting and surveillance staff,
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• the conduit track record regarding portfolio performance and adherence to
underwriting guidelines,
• the maximum commercial paper maturity, and
• the transaction amortization events and conditions for issuing commercial paper.
4.2.1 Credit Enhancement in ABCP Generally, there are two levels of credit enhancement in asset-backed commercial paper
conduits (1) pool-specific enhancement and (2) program wide level enhancement. Pool-
specific enhancement should include protection against losses, dilution and in the case
of non interest bearing assets, carrying costs. Pool-specific enhancement is generally
provided in the form of overcollateralisation, third-party credit enhancement, excess
cash flow, or recourse to the asset originator. Pool-specific enhancement only covers
defaults on a specific originator’s receivables and cannot be used to fund losses on any
other pool. Levels of pool specific credit enhancement are determined based on the
historical performance of the pool and the associated expected losses. Detailed
modelling methods can then be applied to assess the amount of pool credit enhancement
also known as first loss credit enhancement.
Programwide enhancement is made available to pay for losses in excess of pool specific
enhancement. It covers all pools in the conduit and is generally in the form of a bank
letter of credit, bond insurance policy, cash collateral, or some combination. The
programwide enhancement provider rating has to be rated as high as the commercial
paper program. Fitch Ratings has been assigning credit enhancement levels for
programmes with the highest short term rating (F1+) of 5% for conduits that have been
in existence for more than three years in Europe and the US.
However for newly established ABCP conduits such as the newly established Blue
Titanium in South Africa a 10% level was considered appropriate until such time the
asset performance levels become ascertained.
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Credit risks arise in a conduit when the credit quality of a transaction deteriorates and
when in some cases the financial condition of the asset originator erodes. An analysis
of a pool of receivables for an originator relies on the transaction summary provided by
the program administrator. The transaction summary includes the asset originator’s
overall risk profile, underwriting standards, collection procedures, pool selection
process, historic receivable performance statistics, and the receivable characteristics.
To date no ABCP programme in the world has resulted in investors loosing their money
since inception of this asset class.
The asset originator’s risk profile includes its historic and expected financial
performance, competitive strengths and weaknesses, and competitive position and
strategy in the business line from which assets are being sold. Underwriting and
collection policies include historic and current lending criteria, as well as audit
procedures and accounting systems. The review of standard asset types, such as credit
card receivables and auto loans, will usually rely on the program administrator’s review
of the asset originator. In some cases, particularly for new asset types, for asset
originators in new markets, and for conduits that do not have program enhancement,
rating agencies particularly Standard & Poor’s may meet with the asset originator’s
management to review business and financing strategies, credit and collection polices,
and computerized receivable management systems.
Experiences in the South African market for ABCP assets has shown that most
potential originators do not have well documented procedures detailing the
requirements set out above. This generally results in increased pool credit
enhancement requirements, which occasionally makes the securitisation transaction
unprofitable for the originator.
Another major issues is the lack of data dating back to the required three to five year
period. This is mainly due to the legacy computer systems that were used for data
storage, which are not compatible with the newer systems.
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Default risk is analyzed in all asset types, starting with a review of pool data provided
by the program administrator. The pool data includes;
• customer concentrations,
• historic and prospective value of tangible assets securing the receivables,
• historic pool origination and payment characteristics,
• delinquency and loss characteristics of the receivables pool.
Provided underwriting standards and target markets have not changed, historic
delinquencies and write-off performance are considered the best indicators of current
pool credit quality.
In sizing a transaction’s credit enhancement, an expected loss case is first established.
Expected loss performance is then increased by an appropriate stress factor to
determine the levels of credit enhancement needed to arrive at the desired rating. The
stress factor is a function of the asset type, volatility of historic loss rates, and the
rating level. Typically, the higher the volatility of historic loss rates the higher the
stress multiple used for sizing the level of enhancement.
Obligor concentration is another factor that is incorporated into the sizing of
enhancement. Some receivable pools contain substantial obligor concentrations, which
add credit risk to the transaction. For example, if a pool has one obligor that
represents 20% of the total pool, and that obligor were to become insolvent, the
transaction could risk losing the entire receivables amount of that large obligor.
Therefore, it is important to establish concentration limits that prevent obligors from
becoming too large a percentage of a transaction. In some cases, limitations on industry
concentration may also be required.
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4.2.2 Non eligible assets
Assets falling in the following categories are generally defined as non eligible assets
and may not be purchased into the conduit;
Delinquent and defaulted accounts: These are generally defaulted receivables and
receivables that are past due beyond a specified delinquency category.
Excess concentration: To limit investor exposure to a default by a large obligor,
most structures set size limitations for individual obligors. Such concentration limits
are generally set on the basis of the credit rating of the obligor.
Unperformed contracts: Receivables billed before completion of service or delivery
of a product are generally limited for two reasons. First, obligors are less likely to pay
for a service or product that has not been received. Second, the receivables may be
considered an executory contract that could be rejected by the originator on its
insolvency.
Bill and hold receivables: In these instances, the supplier sells the goods to the
customer, but holds the inventory until the customer needs it. In the event of an
insolvency of the supplier, the customer may attempt to stop payment on products that
have not been shipped. In addition, collecting payment on other shipments to the
customer may be difficult if there is bill and hold inventory that has been paid for, but
is not in the possession of the customer.
Tenor: The tenor of the receivables is limited to lower credit risk. For example,
for an auto lease transaction, eligible leases might be limited to leases with an original
tenor of 24 months. Generally, 60-month leases have more credit risk than 24-month
leases because the originator is exposed to the default risk of the obligor for a longer
period of time.
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Obligor characteristics. Eligibility criteria also define obligor characteristics. For
example, a pool may exclude receivables from affiliates of the originator or receivables
from obligors who are past due on other receivables. A pool may also exclude
receivables from obligors in a jurisdiction where it may be difficult to perfect the
conduit’s lien interest in such receivables. In a revolving structure, the pool is screened
periodically and receivables that have become high risk are continually removed from
the eligible pool. The conduit is typically entitled to receive a share of all collections. If
the pool of eligible receivables falls below the conduit’s net investment (amount paid by
the conduit to the seller) plus the required reserves and is not topped up within a cure
period (one to five days), the transaction will enter early amortization. As with early
pool amortization events, a strong set of eligibility criteria will help to lower credit