Securitization laws: United States of America

• New SEC disclosure norms (proposals) for ABS/MBS transactions 2004
• Rule 3a-7 of SEC
• Article 9 of the UCC - see our page here
• Sec. 912 of Bankruptcy Reforms Act of 2001

New SEC disclosure norms for ABS/MBS:

The SEC recently proposed enhanced disclosure for ABS/MBS issuers. We present comprehensive materials on the same:

• Text of the proposed rules of Federal Register
• Cadwalader, Wickersham & Taft

• Mayer, Brown, Rowe & Maw LLP

• Nomura - Update 1
• Nomura - Update 2
• Nomura - Update 3
• Nomura - Update 4

• Orrick, Herrington and Sutcliffe, LLP

• Sidley Austin Brown & Wood LLP

• Stroock & Stroock & Lavan LLP
• Article by Jones Day
• Analysis on McKey Nelson website
  

US SEC rules on Securitization - reference Investment Company Act of 1940

US Rule 3a-7 -- Issuers of Asset-Backed Securities

1. Notwithstanding section 3(a) of the Act, any issuer who is engaged in the business of purchasing, or otherwise acquiring, and holding eligible assets (and in activities related or incidental thereto), and who does not issue redeemable securities will not be deemed to be an investment company; Provided That:
1. The issuer issues fixed-income securities or other securities which entitle their holders to receive payments that depend primarily on the cash flow from eligible assets;
0. Securities sold by the issuer or any underwriter thereof are fixed-income securities rated, at the time of initial sale, in one of the four highest categories assigned long-term debt or in an equivalent short-term category (within either of which there may be sub-categories or gradations indicating relative standing) by at least one nationally recognized statistical rating organization that is not an affiliated person of the issuer or of any person involved in the organization or operation of the issuer, except that:
1. Any fixed-income securities may be sold to accredited investors as defined in paragraphs (1), (2), (3), and (7) of rule 501(a) under the Securities Act of 1933 and any entity in which all of the equity owners come within such paragraphs; and
0. Any securities may be sold to qualified institutional buyers as defined in rule 144A under the Securities Act and to persons (other than any rating organization rating the issuer's securities) involved in the organization or operation of the issuer or an affiliate, as defined in rule 405 under the Securities Act, of such a person;
   
   Provided, That the issuer or any underwriter thereof effecting such sale exercises reasonable care to ensure that such securities are sold and will be resold to persons specified in paragraphs (a)(2) (i) and (ii) of this section;
0. The issuer acquires additional eligible assets, or disposes of eligible assets, only if:
1. The assets are acquired or disposed of in accordance with the terms and conditions set forth in the agreements, indentures, or other instruments pursuant to which the issuer's securities are issued;
0. The acquisition or disposition of the assets does not result in a downgrading in the rating of the issuer's outstanding fixed-income securities; and
0. The assets are not acquired or disposed of for the primary purpose of recognizing gains or decreasing losses resulting from market value changes; and
0. If the issuer issues any securities other than securities exempted from the Securities Act by section 3(a)(3) thereof, the issuer:
1. Appoints a trustee that meets the requirements of section 26(a)(1) of the Act and that is not affiliated, as that term is defined in rule 405 under the Securities Act, with the issuer or with any person involved in the organization or operation of the issuer, which does not offer or provide credit or credit enhancement to the issuer, and that executes an agreement or instrument concerning the issuer's securities containing provisions to the effect set forth in section 26(a)(3) of the Act;
0. Takes reasonable steps to cause the trustee to have a perfected security interest or ownership interest valid against third parties in those eligible assets that principally generate the cash flow needed to pay the fixed-income security holders, provided that such assets otherwise required to be held by the trustee may be released to the extent needed at the time for the operation of the issuer; and
0. Takes actions necessary for the cash flows derived from eligible assets for the benefit of the holders of fixed-income securities to be deposited periodically in a segregated account that is maintained or controlled by the trustee consistent with the rating of the outstanding fixed-income securities.
0. For purposes of this section:
1. Eligible assets means financial assets, either fixed or revolving, that by their terms convert into cash within a finite time period plus any rights or other assets designed to assure the servicing or timely distribution of proceeds to security holders.
0. Fixed-income securities means any securities that entitle the holder to receive:
1. A stated principal amount; or
0. Interest on a principal amount (which may be a notional principal amount) calculated by reference to a fixed rate or to a standard or formula which does not reference any change in the market value or fair value of eligible assets; or
0. Interest on a principal amount (which may be a notional principal amount) calculated by reference to auctions among holders and prospective holders, or through remarketing of the security; or
0. An amount equal to specified fixed or variable portions of the interest received on the assets held by the issuer; or
0. Any combination of amounts described in paragraphs (b)(2) (i), (ii), (iii), and (iv) of this section;
   
   Provided, That substantially all of the payments to which the holders of such securities are entitled consist of the foregoing amounts.

 

Sec. 912 of Bankruptcy Reforms Act od 2001

This law seeks to ensure that the transfer of financial assets for the purpose of securitization is regarded as a "true sale" in bankruptcy. Post-Enron collapse, there was a stiff resistance to this proposal and finally this amendment has not been carried. See also our page here

Section 541 of title 11, United States Code, is amended--

(1) in subsection (b), by inserting after paragraph (7), as added by this Act, the following:

'(8) any eligible asset (or proceeds thereof), to the extent that such eligible asset was transferred by the debtor, before the date of commencement of the case, to an eligible entity in connection with an asset-backed securitization, except to the extent such asset (or proceeds or value thereof) may be recovered by the trustee under section 550 by virtue of avoidance under section 548(a);

and (2) by adding at the end the following new subsection:

`(f) For purposes of this section--

`(1) the term `asset-backed securitization' means a transaction in which eligible assets transferred to an eligible entity are used as the source of payment on securities, including, without limitation, all securities issued by governmental units, at least one class or tranche of which was rated investment grade by one or more nationally recognized securities rating organizations, when the securities were initially issued by an issuer;

`(2) the term `eligible asset' means--

`(A) financial assets (including interests therein and proceeds thereof), either fixed or revolving, whether or not the same are in existence as of the date of the transfer, including residential and commercial mortgage loans, consumer receivables, trade receivables, assets of governmental units, including payment obligations relating to taxes, receipts, fines, tickets, and other sources of revenue, and lease receivables, that, by their terms, convert into cash within a finite time period, plus any residual interest in property subject to receivables included in such financial assets plus any rights or other assets designed to assure the servicing or timely distribution of proceeds to security holders;

`(B) cash; and

`(C) securities, including without limitation, all securities issued by governmental units;

`(3) the term `eligible entity' means-- `(A) an issuer; or `(B) a trust, corporation, partnership, governmental unit, limited liability company (including a single member limited liability company), or other entity engaged exclusively in the business of acquiring and transferring eligible assets directly or indirectly to an issuer and taking actions ancillary thereto;

`(4) the term `issuer' means a trust, corporation, partnership, or other entity engaged exclusively in the business of acquiring and holding eligible assets, issuing securities backed by eligible assets, and taking actions ancillary thereto; and

`(5) the term `transferred' means the debtor, under a written agreement, represented and warranted that eligible assets were sold, contributed, or otherwise conveyed with the intention of removing them from the estate of the debtor pursuant to subsection (b)(8) (whether or not reference is made to this title or any section hereof), irrespective and without limitation of-- `(A) whether the debtor directly or indirectly obtained or held an interest in the issuer or in any securities issued by the issuer; `(B) whether the debtor had an obligation to repurchase or to service or supervise the servicing of all or any portion of such eligible assets; or `(C) the characterization of such sale, contribution, or other conveyance for tax, accounting, regulatory reporting, or other purposes.'.

 

 

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