Minimum Capital Requirements for Credit Risk

To help ensure clarity for securitization note holders of their rights and ability to control and enforce on the underlying credit claims or receivables, upon insolvency of the originator or sponsor, all voting and enforcement rights related to the credit claims or receivables should be transferred to the securitization. Investors’ rights in the securitization should be clearly defined in all circumstances, including the rights of senior versus junior note holders. Criterion B11: Documentation Disclosure and Legal Review 18.89 To help investors to fully understand the terms, conditions, legal and commercial information prior to investing in a new offering 89 and to ensure that this information is set out in a clear and effective manner for all programmes and offerings, sufficient initial offering 90 and draft underlying 91 documentation should be made available to investors (and readily available to potential investors on a continuous basis) within a reasonably sufficient period of time prior to pricing, or when legally permissible, such that the investor is provided with full disclosure of the legal and commercial information and comprehensive risk factors needed to make informed investment decisions. Final offering documents should be available from the closing date and all final underlying transaction documents shortly thereafter. These should be composed such that readers can readily find, understand and use relevant information. To ensure that all the securitization’s underlying documentation has been subject to appropriate review prior to publication, the terms and documentation of the securitization should be reviewed by an appropriately experienced third party legal practice, such as a legal counsel already instructed by one of the transaction parties, e.g. by the arranger or the trustee. Investors should be notified in a timely fashion of any changes in such documents that have an impact on the structural risks in the securitization. 89 For the avoidance of doubt, any type of securitization should be allowed to fulfil the requirements of 18.894018.89 once it meets its prescribed standards of disclosure and legal review. 90 Eg offering memorandum, draft offering document or draft prospectus, such as a “red herring” 91 Eg asset sale agreement, assignment, novation or transfer agreement; servicing, backup servicing, administration and cash management agreements; trust/management deed, security deed, agency agreement, account bank agreement, guaranteed investment contract, incorporated terms or master trust framework or master definitions agreement as applicable; any relevant inter-creditor agreements, swap or derivative documentation, subordinated loan agreements, start-up loan agreements and liquidity facility agreements; and any other relevant underlying documentation, including legal opinions. Criterion B12: Alignment of Interest 18.90 In order to align the interests of those responsible for the underwriting of the credit claims or receivables with those of investors, the originator or sponsor of the credit claims or receivables should retain a material net economic exposure and demonstrate a financial incentive in the performance of these assets following their securitization. Criterion C13: Fiduciary and Contractual Responsibilities