海归论坛 :: 阅读跟帖 - 一些关于TRUE SALE，SPE等的摘录。

论坛首页 | 排行榜 | 在线私聊 | 专题 | 版规 | 搜索 | RSS | 注册 | 活动日历


主题: 通知：《回国训火记》第十一集：《底牌摊开、乾坤初定》（下）已经发表 —— 第一次高潮！

海归论坛首页 -> 海归商务焦点讨论 | 精华区 | 嘉宾沙龙 | 白领丽人沙龙

分屏

表形显示

阅读上一个主题 :: 阅读下一个主题

作者

通知：《回国训火记》第十一集：《底牌摊开、乾坤初定》（下）已经发表 —— 第一次高潮！

所跟贴

Bob Sun's interpretation of asset securitization -- 游客 - (804 Byte) 2005-7-10 周日, 21:40 (878 reads)

安普若
[博客]
[个人文集]

头衔: 海归元勋
声望: 大师
性别: 性别:男

加入时间: 2004/02/21
文章: 26038
来自: 中国美国的飞机上
海归分: 4196257

标题: 一些关于TRUE SALE，SPE等的摘录。 (698 reads) 时间: 2005-7-11 周一, 10:33

作者：安普若 在海归商务发贴, 来自【海归网】 http://www.haiguinet.com

What's different between securitization and loan?

What are the features of a securitization?

There are two features are common to most legitimate securitizations: (i) the transaction was one where financial assets (such as accounts receivable) were "sold . . . with the intention of removing them from the estate of the debtor,", and (ii) at least one tranche or class of securities to be issued in the securitization was rated "investment grade" by one or more nationally recognized statistical rating organizations (NRSRO), when the securities were initially issued.

The "originator" of financial assets in a securitization transfers those assets to a "special purpose entity" (SPE), which is usually owned completely or substantially by the originator. When it works — and it appears to work much of the time — securitization is attractive because it eliminates the risk that these financial assets will be subject to the claims of the originator's other creditors. In theory, reduced risk results in cheaper financing.

What is "true sale"?

For risk to be truly reduced, the transfer of financial assets must be a "true sale." The problem for securitization providers is that courts have struggled for many years and in many different contexts to determine when a transfer of financial assets is a "true sale."

Variants of the true sale problem animated decisions such as Benedict v. Ratner, 268 U.S. 353 (1925), Octagon Gas Sys. Inc. v. Rimmer (In re Meridian Reserve Inc.) , 995 F.2d 948 (10th Cir. 1993), and In re LTV Steel Co., 2001 Bankr. Lexis 131 (Feb. 5, 2001).

In all three cases, the courts held that the transfers were not what they purported to be. Thus, the financial assets remained property of the debtors' (that is, originators') bankruptcy estates, and the debtors' creditors had access to these financial assets after all.

Perhaps the most disquieting aspect of the treatment of the true sale problem is the so-called "put" feature: A transaction would qualify as a statutory securitization even if the originator retained the obligation to repurchase defaulted assets from the SPE. For example, the originator retained the obligation to repurchase the assets when they did not perform.

This creates two problems. First, it defies economic reality. It would treat a securitization transfer as a "true sale" even if the originator bore risks typically associated with a loan, because the SPE could "put" defaulted assets back to the originator.

Defying reality (economic otherwise) is not, however, necessarily a problem. Our law is generally indifferent to a contract where you and I agree to call my cat a dog. Rather, the second, and more troubling, aspect of the "put" would flow from the fact that third parties would undoubtedly rely on the (misleading) contractual characterization rendered by the parties.

Enron Case:

According to the Enron Report, Enron used hundreds of SPEs to hide assets and liabilities from public scrutiny. An article in the New York Times explained the problem concisely: "The same financial tools used to create asset-backed securities [securitizations] were also used to construct the elaborately camouflaged and booby-trapped partnerships that have been blamed for Enron's collapse." Diana B. Henriques, "The Brick Stood Up Before. But Now?," New York Times (March 10, 2002).

Enron's Chewco, JEDI and LJM partnerships, for example, all appeared to involve SPEs and financial transfers or sales of Enron financial assets in what were characterized as "true sales" by Vinson & Elkins, Enron's law firm. What is unknown is whether any of these transactions were rated investment grade by an NRSRO. A recent story in the New York Times suggested that some may have been. "Enron's Deals Were Marketed to Companies By Wall Street," New York Times, C1, C9, Feb. 14, 2002.

If so, then at least some of the Enron partnership transactions would meet the two statutory criteria for securitization treatment: They would have involved (i) "true" sales, in (ii) transactions rated (presumably investment grade) by an NRSRO.

作者：安普若 在海归商务发贴, 来自【海归网】 http://www.haiguinet.com

相关主题
通知：《回国训火记》第十一集：《底牌摊开、乾坤初定》（中）已经发表...	海归论坛	2005-6-24 周五, 17:47
通知：《回国训火记》第十一集：《底牌摊开、乾坤初定》（上）已经发表	海归论坛	2005-5-22 周日, 13:07
通知：《回国训火记》第二十八集：《星雨心愿、情长梦短》（上）已经发表！	海归主坛	2010-2-20 周六, 14:20
通知：《回国训火记》第二十七集：穿越火线、香港初战——已经发表！	海归主坛	2008-7-12 周六, 21:31
安氏案例分析（文化娱乐产业）：【漫画】《回国训火记》改编成成人连环...	海归主坛	2008-6-10 周二, 15:50
通知：《回国训火记》第十七集：出境受限、计划生变（下）——下集已经...	海归主坛	2007-10-18 周四, 01:24
通知：《回国训火记》第十七集：出境受限、计划生变（中）——这集是关...	海归主坛	2007-6-20 周三, 01:54
通知：《回国训火记》第十七集：出境受限、计划生变（上）——17了！...	海归主坛	2007-5-27 周日, 17:24