CHEVALIER & SCIALES. law firm. Securitization. Member of the international legal network Worldlink for Law

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1 CHEVALIER & SCIALES law firm Securitization Member of the international legal network Worldlink for Law

2 Gibraltar Isle of Man Guernsey Jersey Andorra Luxembourg Monaco Liechtenstein Holy See San Marino Estonia Latvia Ireland Denmark Lithuania United Kingdom Netherlands Belarus Belgium Poland Germany Luxembourg Czech Republic Ukraine Slovakia France Switzerland Austria Slovenia Hungary Romania Moldova, Republic of Croatia Bosnia and Herzegovina Serbia Portugal Spain Italy Montenegro Albania Macedonia Bulgaria Turkey Greece This publication has been prepared by the law fi rm Chevalier & Sciales and is for general guidance only. Neither the authors nor the publishers can accept any responsibility for any loss whatsoever occasioned to any person acting or refraining from acting as a result of any material in this publication Chevalier & Sciales

3 A new Luxembourg law of 22 March 2004 on Securitizations (the Law on Securitization ) has laid the foundations for the legal, regulatory and tax framework for securitization vehicles in Luxembourg. The main features and advantages of the Law on Securitization as well as a practical application in which the fi rm was involved are discussed hereunder. A securitization is a type of structured financing in which a pool of fi nancial assets (such as loans, mortgages, etc.) is transferred to a special purpose vehicle (SPV) that then issues debt backed solely by the assets (collateral) transferred and payments derived from those assets. While the benefi ts of securitization may vary for different issuers and investors, the common advantage of securitization is that it provides a lower cost of capital, enables a company to convert illiquid assets into cash and transfers the risks related to some assets to third parties. (i) Key features (a) Defi nition The definition of securitization is very broad and encompasses all transactions whereby a SPV acquires (true sale securitization) or assumes (synthetic securitization) any risk linked to an asset. This SPV is financed by the issue of shares, bonds or other securities, whose return value depends on the investment risks. (b) Legal forms share capital The Law on Securitization distinguishes between securitization vehicles that have either been set up under the form of a company (securitization company) or under the form of a fund (securitization fund) run by a management company. The securitization company must adopt one of the following forms, namely (i) a company limited by shares (société anonyme), (ii) a limited liability company (société à responsabilité limitée), (iii) a partnership limited by shares (société en commandite par action) or (iv) a cooperative company organized as a company limited by shares (société cooperative organisée comme société anonyme). A securitization company is not subject to a specific minimum share capital. The minimum share capital depends upon the legal form and ranges between euro (for an S.à r.l.) to euro (for an S.A.).

4 (c) Regulation of securitization companies There is no need to have the approval of a Luxembourg administrative authority, for example the Supervisory Commission of the Financial Sector ( CSSF ), for securitization vehicles issuing securities in a private placement or making a single issue of securities or issue on an irregular basis. However, securitization vehicles which issue securities on a continuous basis to the public must be authorized by the CSSF. The following terms appear to be understood as follows: - continuously means issues more than once per calendar quarter (4 times per year); - to the public means either by public advertising or by investors who do not invest more than 125,000 Euro per person. (d) Asset classes The Law on Securitization allows for the securitization of risks related to the ownership of all assets, whether movable, tangible or intangible, as well as risks resulting from commitments that were assumed by third parties or that are inherent to all or part of the activities undertaken by third parties. As a result, virtually all assets can be securitized such as: mortgages, trade receivables, commercial credits, current accounts, shares, debenture loans, buildings, etc Securitization may be used in various situations. Some potential applications could be: Securitization of a portfolio of securities In order to cancel the negative consequences of the risk inherent of holding securities being accounted for on the balance sheet, a company will transfer this portfolio at current value to a securitization vehicle. This allows companies to convert a portfolio of securities into liquid assets. The investors investing in the securitization vehicle have the benefit of acquiring a significant interest in a portfolio of securities without having to bear the full investment of this portfolio alone. Securitization as structure for intra group financing activities It enables a group company to find a financing source within the securitization vehicle. Holders of the securities of the securitization vehicle will be paid profits owed to them on the financing activity. Unlike normal Luxembourg companies, there is no debt equity ratio that needs to be maintained on a securitization vehicle. A securitization vehicle can thus be financed without having to maintain any minimum capital requirement. This substantially reduces the costs of financing (there is no contribution duty of 1 % due as the SPV is not funded with any capital and the operating companies will have a bigger leverage, as they are able to deduct more interests than is the case when using a common Luxembourg company (soparfi)). (ii) Tax benefi ts No debt equity ratio: As above mentioned, there is no debt-to-equity ratio obligation that needs to be maintained for a securitization vehicle. This is not the case when using a common Luxembourg company (soparfi), where there is a 85/15 debt equity ratio. Furthermore, if capital is contributed to a SPV, C&S

5 the Law provides for a cap on the contribution duty, namely a maximum of euro. This amount also covers any further capital increase. Withholding tax: Interests and royalties paid by securitization vehicles are not subject to any withholding tax. Furthermore payments made to holders of shares (for instance dividends) of a SPV are not subject to any withholding tax. This is a very important advantage in comparison with a common Luxembourg company (soparfi) where there is a 20% withholding tax on dividends. Deductibility of expenses and payments to investors of the SPV: All expenses related to the management of the SPV are fully deductible and the payments made to investors of the SPV (whether in the form of interests or dividends) are further fully deductible from the taxable basis of the SPV. VAT exempt: The management of securitization vehicles are exempt from VAT. No wealth tax: Securitization vehicles are exempt from net wealth tax. This is an important advantage as normal Luxembourg companies (soparfi) are subject to a wealth tax of 0,5 % on the net assets of the company. Benefit from Luxembourg s double tax treaty network: As securitization companies are fully taxable companies, they can benefit form the Luxembourg s double tax treaty network. Liquidation / tax exempt: The liquidation of securitization companies is tax exempt. Registration tax: Any agreement executed in the context of a securitization or any deed related thereto is exempt from the registration formality unless it relates to real estate situated in Luxembourg, aircraft or vessels recorded in a Luxembourg public register. In case of voluntary registration, such agreements and deeds are subject to a fixed registration duty of 12 Euro. It is important to note that for the registration of any agreement or deed relating to a securitization, documents written in English are accepted without the need for a translation into French or German. (iii) Recent fi les Total return share swap transaction of about 260 million euro. We have recently been involved in a transaction whereby a European group invested in stocks through a total return share swap transaction of about 260 million euro in order to record this exposure as an off-balance sheet commitment. We have in relation hereto (i) reviewed and amended the articles of incorporation of the SPV, (ii) drafted the resolutions of the board of the SPV (iii) reviewed and amended the ISDA master agreement and all related documents thereto and (iv) issued a legal opinion. (iv) Conclusion The Law on Securitization will allow Luxembourg to establish itself as a key jurisdiction for securitization transactions. Luxembourg legislators have created a tailored framework for securitization transactions by establishing a well balanced compromise between flexibility of the securitization vehicle on the one hand and investor protection on the other hand whilst at the same time providing a tax neutral environment.

6 CHEVALIER & SCIALES law firm 33, boulevard Grande Duchesse Charlotte BP 588 L-2015 Luxembourg Tel : (+352) Fax : (+352) For further information, please contact : Rémi Chevalier, founding partner remichevalier@cs-avocats.lu Mobile : (+352) Olivier Sciales, founding partner oliviersciales@cs-avocats.lu Mobile : (+352) Chevalier & Sciales Member of the international legal network Worldlink for Law