Securitisation Guide

Transcription

1 Securitisation Guide

2 Resavska Belgrade, Serbia T E [email protected] 1. Legal framework 1.1 Is there a special securitisation law (and/ or special provisions in other laws) in place, establishing a legal framework for securitisation transactions in Serbia? No, there is no special securitisation law (or special provisions in other laws) in Serbia. Note that a draft securitisation legislation was prepared in 2008, but it was not adopted. Since 2008, no specific law or proposals towards adopting such a law have been made. 2. Sale and assignment of receivables 2.1 Is a true sale of receivables, which will be effective even in the insolvency of the assignor, in principle, possible under existing legislation? (a) Generally, a true sale of receivables is possible under Serbian law. (b) Under the general rules of Serbian contract law, the following receivables cannot be assigned: (i) (ii) receivables whose assignment is prohibited by the law; receivables that are related to the personal capacity of the creditor; (iii) receivables whose nature prohibits their assignment; and (iv) receivables whose assignment is prohibited by the contract between the creditor and the debtor. (c) On the other hand, there are specific rules which apply to certain types of creditors (eg banks or factoring companies), debtors (eg individuals/natural persons) or receivables (eg those arising from power purchase agreements or consumer credit agreements), which might override these general rules. (d) In addition, all ancillary rights related to the receivables (eg security interests) will be transferred to the assignee upon the assignment of receivable. Under the general rules of Serbian contract law, in order for the assignment to be effective against the obligor, the obligor must be informed of the assignment. The assignor is obliged to notify the obligor on the assignment. Note that giving no notice of the assignment will not render the assignment invalid, but the obligor must perform its contractual obligations to the assignor and not the assignee. (e) In the event of the insolvency of the assignor, the insolvency administrator or any of the insolvency creditors can generally set aside (nullify) any agreement that has been signed prior to the initiation of the insolvency proceedings if the terms and conditions set out in paragraph 4.1 below are met. 2.2 Is disclosure of the assignment to the obligor or the consent of the obligor necessary? No, the assignor does not need to obtain the consent of the obligor under the general rules of Serbian contract law, but it must notify the obligor of the assignment of receivables in order for the assignment to take effect against such obligor. As mentioned above, if notice is not given to the obligor, the obligor would validly discharge its contractual obligations by performing those to the assignor instead of the assignee. 86 Securitisation Guide, April 2014

3 2.3 Are there any other formalities for the assignment to be effective (perfection)? (a) No, under the general rules of Serbian contract law the only formalities relate to the: (i) agreement on assignment of receivables which has to be always made in writing; and (ii) notification of the obligor on the assignment. (c) However, certain additional formalities might apply under specific regimes applicable to, for example, banks or factoring companies, as mentioned above. 2.4 To what extent is the individual identification of receivables required to assign them effectively? Under general rules of Serbian contract law, both existing and future receivables may be assigned. When existing receivables are assigned, the assignor shall provide evidence, ie it shall hand over all documents related to the assigned receivables to the assignee. In addition, when receivables are assigned for consideration, the assignor is liable for the existence of the receivables in the moment of assignment. 2.6 Do ancillary rights, such as security interests, guarantees or rights under related insurance contracts, transfer with the receivable without any additional formalities? Yes, a transfer of receivables would also include transfer of the ancillary rights, as mentioned above. Note that due to the nature of certain ancillary rights (eg certain security interests which are perfected only upon registration with relevant registers), specific perfection formalities might apply. 2.7 Will the assignment be valid even if the contract creating the receivable prohibits assignment? No, in this event, the assignment will not be valid, as contractual prohibitions restrict the assignability under the general rules of Serbian contract law. However, specific rules applicable to, for example, factoring transactions provide that such prohibitions would not be deemed as binding, thus making assignment made contrary thereto valid. 2.5 Can future receivables be effectively assigned? Yes, future receivables may be effectively assigned. Although it is not explicitly regulated by the general rules of Serbian contract law, under the current court practice, future receivables can be assigned under the condition that they are at least sufficiently specified and that there is sufficient certainty in respect of the identity of future debtor. Freshfields Bruckhaus Deringer llp 87

4 2.8 What are the legal requirements to assign receivables that are secured by a mortgage so that the assignee remains secured by the mortgage? In particular: does the assignment of receivables that are secured by a mortgage require registration with a land registry? If so, what are the registration costs? How long does the registration of a mortgage take? Additionally, what are the legal requirements in Serbia to foreclose on a mortgage and how long does the foreclosure process usually take? Mortgages securing receivables are assigned together with the receivables under the assignment contract, as the mortgage cannot be transferred to the assignee without the secured receivable being assigned as well. In addition, the assignment of the mortgage in favour of the assignee must be registered with the Real Estate Cadastre in order to be perfected. The registration costs consist of an administrative fee and an additional fee that varies depending on the value of the secured receivable. The registration process generally takes a couple of weeks. Foreclosure could be carried out either in court or out-of-court proceedings, depending on the type of the mortgage that was established. Generally, the foreclosure procedure usually lasts from several weeks up to few months. 3. Servicing 3.1 May the Originator continue to service the assigned receivable (including enforcement of the receivable before a court in the Originator s own name and enforcement of security relating to the receivable)? Yes, although it is not explicitly regulated. The Originator could be able to service the original receivables acting as security agent if such receivables are secured by a non-possessory pledge. 3.2 May the Purchaser enforce the receivables once the obligor has received notification of the assignment? Yes. Moreover the assignor is liable to the assignee for the enforceability of the assigned receivables under the general rules of Serbian contract law. 3.3 Will the Servicer and/or a back-up Servicer need to be a licensed bank/ require any other licences? This largely depends on the type of the assigned receivable. For example if it is arising from a consumer credit agreement, such license would be needed as such receivables could be transferred only to licensed banks. In any case, payments in all assignment transactions would have to be effected through bank accounts. 88 Securitisation Guide, April 2014

5 4. Insolvency 4.1 Will the assignment be respected in the bankruptcy/other insolvency of the Originator (also see paragraph 2.1 above)? In particular: would the Originator s bankruptcy receiver have to surrender any proceeds from assigned receivables that have arrived on the bankrupt estate s accounts after the opening of the bankruptcy proceedings? (a) Generally, the assignment will be accepted in the insolvency proceedings, however, as mentioned above, the insolvency administrator or any of the insolvency creditors can generally set aside (nullify) any agreement that has been executed before the initiation of the insolvency proceedings. (b) More specifically, an insolvency administrator and creditors can request the insolvency court to declare that payments or other legal actions are null and void and order the return of any disposed asset made by the Originator in certain period up to five years prior to the commencement of insolvency proceeding. In particular, a legal transaction or another action taken within six months before filing the petition initiating insolvency proceedings, providing security or settlement to a creditor, may be contested if the Originator was insolvent at the time, and the creditor knew or had to know of its insolvency. Also, a legal transaction entered into or taken with the intent to damage one or more creditors within five) years before submitting the petition for initiating insolvency proceedings or after that may be contested if the counterparty of the Originator knew of the intent of the Originator. If such challenge in insolvency proceeding is successful, the entire challenged amount has to be returned to the insolvency estate of the Originator, whilst the creditor remains entitled to claim the appropriate indemnification amount in accordance with its [ ] from the insolvency estate. (c) In addition, the assignee may generally request that any proceeds of the assigned receivables received by the Originator after the opening of the insolvency proceedings be transferred to the assignee. 4.2 What is the risk of bankruptcy avoidance (clawback) of the true sale upon Originator insolvency? Please refer to the answer to the previous question. 4.3 Will the Purchaser be entitled to notify the obligors of the assignment and to advise them to discharge the receivables to the Purchaser s order in the Originator s insolvency? Generally yes, subject to the approval of the insolvency administrator if the assignment is carried out after opening of the insolvency proceedings of the Originator. In case the assignment is carried out before, general contract and insolvency law rules referred to above shall apply (eg obligation to notify the obligor and right of other creditors to set aside the assignment contract). Freshfields Bruckhaus Deringer llp 89

6 5. Choice of law and procedural matters 5.1 Can the parties choose a law other than Serbian law to govern the sale of receivables? Yes, parties are generally free to choose the governing law for the sale of receivables. 5.2 Would an agreement by the Originator and further parties to subordinate and/or refrain from enforcing their claims, if any, against the Purchaser and not to file a bankruptcy petition against the Purchaser until termination of the transaction (non-petition covenant) be enforceable? Non-petition covenants would not be enforceable in respect to procedural matters, as waiver of procedural rights is not permitted under the Serbian law. On the other hand, subordination arrangements are permitted under general corporate and insolvency law rules. 6. Security structures 6.1 Does Serbia recognise the establishment of escrow accounts? Yes. Although not specifically regulated by law, escrow accounts are commonly used in practice. 7. Data protection/banking secrecy 7.1 Are there restrictions on the information that the Originator can provide to the Purchaser, a third-party (back-up) Servicer and/ or investors regarding the receivables and the obligors (notably, if the receivables are generated under consumer loans generated by a bank)? 8. Securitisation vehicles (SPVs) 8.1 Is it possible to set up an onshore SPV to act as Purchaser? If so, in which corporate form? Generally yes, save for the receivables whose transferability is restricted (eg those arising from the consumer credit agreements). Such SPVs may be freely set up in any form provided by company law. 8.2 Does the SPV need a licence to be allowed to purchase and securitise receivables (eg consumer loans granted by an Originator that is a licensed bank)? Will the SPV need to maintain a minimum level of capital? There are no specific requirements for the SPVs in terms of licensing, save for certain receivables whose transferability is restricted (eg those arising from consumer credit agreements). 8.3 May the SPV issue asset-backed securities on the domestic and/or foreign capital markets? May securities be issued in different tranches of seniority? Generally yes, although it should be noted that Serbian capital markets are still not familiar with asset-backed securities, and their feasibility is therefore yet to be tested in practice. Yes, and these restrictions are twofold, ie arising both from general banking law and regulations (relating to all types of receivables), and from the consumer credit law (relating to receivables of natural persons/individuals arising from consumer credit agreements). In practice, it is common to provide consent for disposal with such restricted information in advance, ie in the original agreement. 90 Securitisation Guide, April 2014

7 8.4 May the SPV enter into currency and/or interest hedging arrangements with third parties? (a) Yes, subject to certain restrictions imposed by Serbian foreign exchange regulations to crossborder hedging arrangements, primarily related to the type and purpose of these arrangements. For example, some of the major restrictions include the following: (i) Non-bank domestic SPVs may conclude cross-border OTC financial derivatives transactions solely for hedging purposes, or, in relation to one or more of the following risks; (ii) foreign exchange risk; (iii) interest rate risk; (iv) securities price fluctuation risk; (v) commodities price fluctuation risk; and (vi) stock exchange index value fluctuation risk. (b) An additional limitation applicable to non-bank domestic SPVs is that financial derivative transactions performed for the purpose of hedging against exchange rate risk, and relating to forward and swap contracts, may be performed by non-bank domestic SPVs for the purpose of future foreign currency payments or collections, and/or for the purpose of reconciling open foreign currency balance sheet positions. 8.5 Can ABS investors be contractually privileged with respect to specific pools of receivables held by the SPV (and will such privilege hold valid in the SPV s insolvency)? Yes, such arrangements would generally be allowed under the subordination rules of Serbian corporate and insolvency laws, although they would not override statutory priorities in insolvency. 8.6 Can the SPV be structured as a fund (ie a pool of assets without legal personality, as is the case in France and Spain)? Please note that this would be very unusual for Serbian market standards, although it is not explicitly prohibited for receivables whose assignment is unrestricted. 8.7 Does Serbia recognise the passporting of banking activities, as is generally permissible in EU member states? No. Serbia is not yet a EU member state (ie it is in the accession process), and therefore passporting is not yet recognised. 8.8 Does the assignment of receivables to a foreign SPV require a foreign exchange permit from your central bank (or similar authority) and if so, is it generally perceived as feasible to obtain such a permit? No, there are no such requirements. However, crossborder payments need to be effected through a bank having a foreign exchange permit that is granted by the National Bank of Serbia. 9. Tax treatment 9.1 Are any stamp or transfer taxes or duties assessed at any level of the transaction? No. Generally, the assignment of receivables is not subject to taxation. 9.2 What is the VAT treatment of the transaction? Notably, will: (a) the sale of the receivables; (b) the servicing of the receivables, whether effected by the Originator or a back-up Servicer; or (c) the assumption, if any, of the default risk of the receivables by the Purchaser, be subject to VAT? Freshfields Bruckhaus Deringer llp 91

8 Under Serbian VAT law, neither the sale of the receivables is VAT taxable, nor the assumption of the default risk of the receivables by the assignee. However, the servicing of the receivables might be subject to VAT taxation. 9.3 How will the SPV be taxed? Will the servicing of assets by the Originator make the SPV liable for tax in the Originator s jurisdiction (assuming the SPV is offshore)? Please note that taxation of the SPV under Serbian law depends on a number of matters, and cannot be assessed in advance on general terms. 9.4 Will withholding tax be assessed at any level in the transaction (notably on: (a) payments by the obligors to the Servicer; (b) payments of collections by the Servicer to the Purchaser; and (c) payments of interest by the SPV to investors)? Similar to the above, withholding taxation under Serbian law depends on a number of matters, and cannot be assessed in advance on general terms. 10. Accounting and regulatory treatment 10.1 Will the sale be treated as a sale for accounting purposes (potentially leading to a gain/loss on sale), taking the receivables off the Originator s balance sheet? Yes, under the accounting regulations and practice applicable in Serbia Will the Purchaser need to show the receivables on its balance sheet? Yes, under the accounting regulations and practice applicable in Serbia Will the Originator have to consolidate the Purchaser on its balance sheet? We are not aware of such requirement under the accounting regulations and practice applicable in Serbia If the Originator is a bank, will the sale remove the receivable from the Originator s balance sheet for capital adequacy purposes? Yes. 92 Securitisation Guide, April 2014