Complex Securitizations: What Originators and Investors Must Know

A securitization begins with an originator transferring a pool of financial assets to a special purpose vehicle structured to be bankruptcy remote, meaning that a bankruptcy court cannot consolidate the SPV's assets with the originator's assets or avoid the transfer as a fraudulent conveyance. Bankruptcy remoteness is achieved through the true sale characterization of the transfer, the limited purpose restrictions of the SPV, and the non-petition covenants.

Capital markets and securities and debt finance counsel can advise on the SPV structure most appropriate for the specific securitization and develop the transaction structure and documentation strategy.

A true sale is a transfer of assets that constitutes an absolute sale of ownership rather than a secured loan, and a court evaluating whether a transfer constitutes a true sale examines whether the parties intended an outright sale and whether the economic substance is more consistent with a sale or a loan. If a court recharacterizes the transfer as a secured loan, the assets remain on the originator's balance sheet and are available to the originator's creditors in a bankruptcy.

Capital markets and securities and fund finance counsel can advise on the securitization structure most appropriate for the specific asset class and develop the transaction structure and compliance strategy.

Capital markets and securities and insolvency and restructuring counsel can advise on the true sale analysis and develop the transaction documentation strategy.

Tranching divides the securities issued by the SPV into multiple classes that receive principal and interest payments according to a defined payment priority, and the most senior tranches receive payments first and bear losses last while the most subordinate tranches receive payments last and bear losses first. The payment waterfall typically includes performance triggers that divert cash flows from junior to senior tranches if the collateral deteriorates.

Capital markets and securities and investment fund regulation counsel can advise on the tranching structure most appropriate for the specific securitization and develop the investor documentation strategy.

Credit enhancement provides additional protection to investors against losses, and the most common forms of internal credit enhancement include subordination, excess spread, and overcollateralization, which involves transferring more assets to the SPV than the face amount of the securities issued. External credit enhancement includes financial guaranty insurance, letters of credit, and reserve accounts.

Capital markets and securities and debt finance counsel can advise on the credit enhancement mechanisms most appropriate for the specific securitization and develop the credit enhancement structure and negotiation strategy.

Publicly offered securitizations must be registered under the Securities Act of 1933 on Form SF-3, and the registration statement must include the transaction documents, the asset-level data required by Regulation AB II, and the prospectus disclosing the material terms and risks. Private placements under Rule 144A or Regulation D are exempt from registration but remain subject to the anti-fraud provisions.

SEC compliance and capital markets and securities counsel can advise on whether the specific securitization requires registration and develop the registration and disclosure strategy.

The Dodd-Frank Act's risk retention rules require sponsors of most securitizations to retain at least five percent of the credit risk of the securitized assets, and the retained interest cannot be hedged or transferred for the required retention period. The rules include exemptions for securitizations of qualified residential mortgages, qualified auto loans, qualified student loans, and qualified commercial real estate loans.

SEC regulations and capital markets and securities counsel can advise on the risk retention requirements and develop the risk retention compliance strategy.

The most significant litigation risks in a securitization transaction arise from challenges to the true sale characterization in a bankruptcy proceeding of the originator, from repurchase demands based on breaches of the representations and warranties made by the seller, and from servicer liability for failures to follow the required servicing standards.

Securities litigation and capital markets and securities counsel can advise on the litigation risks and develop the litigation risk management and dispute resolution strategy.

If the originator files for bankruptcy after the securitization closes, the bankruptcy trustee can attempt to avoid the transfer of assets to the SPV as a fraudulent conveyance if the originator received less than reasonably equivalent value and was insolvent at the time of the transfer, or as a preference if the transfer occurred within ninety days before the filing. A well-structured securitization protects against these risks by ensuring fair market value is received and the SPV satisfies all bankruptcy remoteness requirements.

Insolvency and reorganization and capital markets and securities counsel can advise on the impact of originator insolvency and develop the insolvency risk management strategy.