Insolvency laws are a major consideration in securitisation in Hong Kong, where the insolvency laws enable a securitisation structure to be commercially feasible and act to protect all parties concerned. Typically, the assets backing and securing the notes or other asset-backed securities to be issued to investors, such as loans and trade receivables, will need to be insulated from the financial and credit risks of the originator (ie, the seller of the assets) so that they will not form part of the originator's estate if the originator becomes insolvent, and thus will not be subject to insolvency proceedings in respect of the originator. In this chapter, the terms “originator” and “seller” refer to the seller of the assets in securitisation, while the terms “issuer” and “buyer” refer to the buyer of these assets.
To achieve such insulation and hence bankruptcy remoteness, a “true sale” of the assets should be made by the originator (as the seller) to the issuer (as the buyer). After the true sale, the relevant assets would no longer be the assets of the originator, so will not form part of the originator’s estate.
There are a number of fundamental differences between a true sale and a transfer of rights by way of security under a secured loan. In determining whether a transaction constitutes a true sale, a Hong Kong court would look at a number of factors, including the parties' intention and the substance of the transaction rather than the labels the parties put upon it. More specifically, the court would take the following distinguishing features into account in its determination, without limitation:
A transaction will not be treated as a true sale just because it is labelled as such by the relevant parties. Judging by the above factors, if the court finds that the transaction resembles a secured loan rather than a true sale, it may recharacterise the transaction as a secured loan. The court may also consider other relevant factors in the overall circumstances of a securitisation transaction, but no absolute criteria or definitive guidelines have been established in the determination of whether a transaction constitutes a true sale or a secured loan.
Upon the transfer of the assets to the issuer in a true sale, the originator will cease to be the beneficial owner of the assets, which will therefore not form part of the originator’s estate nor be subject to any insolvency proceedings in respect of the originator. If the court finds the sale transaction to be a sham or fraud, then the transfer would be a true sale and thus no ownership in the assets would be transferred.
In the case of a secured loan, the assets being charged in favour of the issuer will remain the assets of the originator, subject to the security interest created over the assets, whereas the originator is entitled to an equity of redemption.
True sale opinions
A true sale opinion may be requested by and delivered to the arrangers, investors and auditors, to provide comfort to these parties, for investing purposes and/or for accounting treatment. A true sale opinion normally relates to the effectiveness of the sale of the assets to the issuer and states that the assets will not form part of the originator's assets after the sale. A true sale opinion would be subject to usual and fair assumptions, such as the capacity and corporate authority of the originator to enter into the transaction and the legal title of the originator to the assets being sold. Depending on the nature of the originator or seller and related assets, the opinion may be subject to additional qualifications and assumptions.
Where the originator is a Hong Kong incorporated company and becomes insolvent, there is the possibility that the court may unwind the sale transaction if it finds that the sale of the receivables was either:
In practice, transaction parties would conduct due diligence to check that there are no legal grounds for the sale transaction to be unwound prior to entering the sale transaction. On closing, the issuer (and the guarantor, if any) may also be required to provide directors' certificates certifying, inter alia, that the originator is not subject to any insolvency proceedings or aware of any circumstances that could result in the contemplated sale transaction being unwound or set aside, and that it is entering into the transaction in good faith, for value and on an arm's-length basis.
An SPE is typically used in securitisation transactions in Hong Kong, and acts as the beneficial owner of the assets transferred from the originator and the issuer of the asset-backed notes. Therefore, the SPE is used to insulate the assets from the financial and credit risks of the originator.
Requirements and Structure
Hong Kong does not impose any specific requirements for an SPE in a securitisation transaction. An SPE is typically structured as an orphan entity and is usually a separate legal entity with limited liability, which is not part of the originator or any corporate group, and whose shares are held by a charitable trust so that the SPE becomes bankruptcy remote. Depending on the transaction structure, the transaction parties often seek to incorporate the following aspects when establishing the SPE.
Under such structure, the originator will not normally be able to exercise influence or control over the SPE.
Although the SPE can be incorporated in Hong Kong, the transaction parties will more commonly use an offshore SPE (such as a Cayman Islands limited liability company) for various benefits, including more favourable tax treatments, simpler administration, lower regulatory and compliance costs, and as a commonly preferred jurisdiction of the transaction parties and the investors.
Offshore SPEs are also subject to Hong Kong local regulatory requirements. In particular, business registration is required if the SPE's business amounts to any form of trade, commerce, craftsmanship, profession, calling or other activity carried on for the purposes of gain in Hong Kong.
Currently, “substantive consolidation” is not a concept recognised under Hong Kong law or by Hong Kong courts. Each company (including an SPE) incorporated under Hong Kong law will be treated as a separate legal entity. Where the originator becomes bankrupt, an insolvency official would not have the power to consolidate the issuer's assets with those of the originator, unless there are exceptional circumstances, such as fraud.
A transaction opinion will be provided in respect of the SPE's capacity and corporate authority to enter into the transaction documents and the securitisation transaction generally. The transaction opinion also reports the results of public record searches in respect of any insolvency and analogous proceedings or corporate actions taken with respect to the issuer.
The insolvency law of the jurisdiction of the SPE (if not Hong Kong) would apply in the event of the insolvency of the SPE. However, insolvency courts in Hong Kong are not bound to recognise or enforce the laws of the SPE's jurisdiction, especially if they are considered contrary to public policies, for instance.
Conditions for a Legal Assignment
In order for the transfer of the financial assets (such as trade or loan receivables) to be valid and enforceable, the originator will transfer the assets to the issuer by way of an assignment, which can be legal or equitable. Certain conditions will need to be satisfiedin order to achieve a legal assignment, including the following:
If an assignment fails to meet any of the above conditions, it would still be enforceable but instead would be an equitable assignment until all these conditions are satisfied. In particular, although the transfer would not be ineffective solely because of a failure to notify the obligor, the issuer (being the buyer of the assets) will not be able to enforce its rights directly against the obligor in the event of default by the obligor; rather, the issuer would be required to join the originator in the proceedings against the obligor by adding the name of the originator as a claimant to any claim against the obligor.
Other than being an express written notice to the obligor, there are no other requirements as to the form of the notice of assignment, except that the obligor must be informed with reasonable certainty that there has been an absolute and irrevocable assignment of the assets so that the obligor knows who it has to pay in the future, and the notice must be unconditional. It would be prudent to ensure the notice was in English or Chinese, where necessary or applicable. A notice cannot be served on the obligor prior to the transfer of the assets, as the transfer has not yet occurred.
A legal assignment is perfected once the obligor of the receivables is notified of the assignment in writing. The requirements of a legal assignment are more specifically set forth in Section 9 of the Law Amendment and Reform (Consolidation) Ordinance (Cap. 23). Although there is no prescribed time limit for serving the notice of assignment on the obligor, in practice the notice is served immediately or as soon as practicable after an assignment is made so as to protect the assignee's (ie, the issuer's) priority over the assigned receivables.
It is also typical to put in place a trust provision in the assignment (and also in the written notice of assignment to the obligor), expressly providing that any payments received by the originator from the obligor shall be promptly deposited into a designated account held in the name of the issuer, and if not deposited are deemed to be held on trust for the issuer.
In practice, the transaction parties will review the underlying contracts in respect of the financial assets (eg, the relevant facility agreement) to determine whether there is any restriction on transfers (eg, a negative pledge restriction). These restrictions are generally enforceable under Hong Kong law. If such restrictions exist, unless otherwise consented to by the obligor, the originator may be in default of these contracts for making the transfer, and the transfer could be challenged as void by the obligor.
Under Hong Kong law, security can be granted through an assignment by way of security or by way of a charge.
Assignment by Way of Security
In such cases, the assets (eg, loan receivables) will be assigned to the secured party with a condition for reassignment of the assets when the underlying obligations being secured are fully fulfilled. Assignment by way of security can be legal or equitable, depending on whether the assignment has been perfected by notifying the obligor of the receivables. The perfection requirements are the same as those set out above.
Security by Way of a Charge
This essentially creates an encumbrance over the receivables and therefore no ownership right over the receivables is transferred to the secured party at the time the charge is created. Note that a charge is perfected when it is properly registered with Hong Kong's Companies Registry within one month of the creation of the charge if the chargor is a Hong Kong company or a foreign company registered with the Companies Registry to do business in Hong Kong as a non-Hong Kong company under Part 16 of the Companies Ordinance (Cap. 622 of the Laws of Hong Kong) (Companies Ordinance) and creating security over a wide range of assets in Hong Kong including a charge over book debts (but excluding a charge over account in relation to a deposit of money with another person, because a charge on the chargor's right to repayment of the deposited money is not regarded as a charge on book debts of the chargor and is therefore not registrable as a charge under the Companies Ordinance).
In the case of a foreign obligor not registered under Part 16 of the Companies Ordinance or if the security is created over assets outside Hong Kong, the charge will be perfected by fulfilling the registration requirements in the relevant registries of the foreign obligor's place of incorporation.
There is no other requirement for an assignment to be registered at any registries in Hong Kong; the only perfection requirement is the obligor of the receivables being notified of the assignment in writing.
As noted above, an assignment that fails to comply with any requirements in respect of a legal assignment will be an equitable assignment, with the following characteristics:
Although there are certain alternatives to effect the transfer of the subject assets, such as through a declaration of trust or through synthetic swaps, these alternatives may not necessarily achieve the bankruptcy remoteness desired in a securitisation, depending on how they are constructed.
In Hong Kong, there are no capital gains or other taxes in connection with the transfer of receivables. The potential tax involved in transfers from the originator and any intermediary operating companies or SPEs before the financial assets are finally lodged in the ultimate transferee would be stamp duty. Whether stamp duty is payable for the transfer of the subject assets depends on the nature of those assets.
Generally, a transfer of receivables (whether trade or lease receivables) is not subject to stamp duty, while a transfer of interests in land and Hong Kong stocks could be subject to the payment of stamp duty.
Hong Kong stock is defined to include not only equities but also debentures, loan stocks, funds, bonds or notes denominated or redeemable in Hong Kong currency, the transfer of which is registered in Hong Kong (Section 2 of the Stamp Duty Ordinance (Cap. 117)). Generally, most loans and receivables would not be regarded as “Hong Kong stock” for Hong Kong stamp duty purposes and, as such, no Hong Kong stamp duty would be chargeable in relation to their transfers in a securitisation.
However, where a Hong Kong dollar debt instrument is in registered form, the transfer may attract stamp duty, which is payable in respect of contract notes for the transfers or sales of shares or stock. The applicable rate of stamp duty with effect from 1 August 2021 is 0.26%, which is charged on the consideration or the fair market value of the shares or stock transferred, whichever is higher. In addition, there is a fixed duty of HKD5 per instrument, duplicate and counterpart.
The stamp duty requirements are more specifically set forth in the Stamp Duty Ordinance (Cap. 117).
In previous decades, profits tax was only chargeable on a person who was carrying on a trade, profession or business in Hong Kong in respect of such person's assessable profits arising in or derived from Hong Kong for any tax assessment year, while foreign-sourced income (even received in Hong Kong) was exempt. This longstanding rule of taxing income based on the locality of the profits derived is about to be changed.
The Inland Revenue (Amendment) (Taxation on Specified Foreign-sourced Income) Bill 2022 (the Amendment Bill) was gazetted on 28 October 2022, and introduced into the Hong Kong Legislative Council on 2 November 2022 for review. The Amendment Bill came into operation on 1 January 2023 and brings in a new regime for taxing specified foreign-sourced income, meaning any interest, dividend, disposal gain from the sale of equity interests in an entity (Disposal Gain) and IP income arising in or derived from outside Hong Kong.
Under the new regime, specified foreign-sourced income will be deemed to be sourced from Hong Kong and chargeable to profits tax if:
Nevertheless, as the SPE is normally a foreign company and will not normally undertake any business in Hong Kong other than purchasing the assets and issuing the notes, it might not be deemed to be carrying on a trade, profession or business in Hong Kong.
Hong Kong does not generally impose a withholding tax, except in limited circumstances (eg, royalties) that would not generally be applicable in a securitisation.
Tax issues in Hong Kong are normally handled by accountants.
Hong Kong legal opinions may cover issues regarding withholding tax on payments under the notes or other asset-backed securities and stamp duty on the issuance of such notes or securities and the execution of the relevant documentation.
Whether a securitisation transaction can receive off-balance sheet treatment from the originator’s group is subject to the auditor’s accounting analysis.
Lawyers in Hong Kong do not usually give legal opinions in this respect.
There are no disclosure requirements specifically relating to securitisation under Hong Kong law. However, please see 4.2 General Disclosure Laws or Regulations for certain general disclosure rules that are applicable to securitisations.
Where a securitisation involves the issuance of debt securities, such issuance may be subject to the disclosure/registration regime under the Companies Ordinance, the Companies (Winding Up and Miscellaneous Provisions) Ordinance (CWUMPO) and the Securities and Futures Ordinance (Cap. 571) (SFO), as applicable.
Under the Companies Ordinance, if the issuer is a Hong Kong company or a registered non-Hong Kong company, it is required to file a Form on Return of Allotment of Debenture or Debenture Stock within one month of the issue of the debt securities.
Under the CWUMPO, an offer of debt securities to the public in Hong Kong – unless exempt – must be authorised by the Securities and Futures Commission (SFC) and also issued with a prospectus that complies with the mandatory requirements set forth in the CWUMPO. For instance, the prospectus must specify the general nature of the business of the issuer, the investors' rights in respect of interest, security and redemption, and other information that is sufficient to enable a reasonable person to form a valid and justifiable opinion on investing in such debt securities.
Nevertheless, the CWUMPO and the SFO provide a number of exemptions in respect of the above requirements. The following two exemptions are often sought by the parties in a securitisation.
Separately, with effect from 1 November 2020, the Listing Rules on the listing of debt securities offered to professional investors of the Hong Kong Stock Exchange set out new disclosure and publication requirements applicable to new issuances and new continuing obligations (applicable to both new and existing issuances). For example, issuers (and guarantors, where applicable) are required to:
The Code on Unlisted Structured Investment Products promulgated by the SFC also sets forth certain disclosure requirements that might be applicable in a securitisation transaction in Hong Kong as securitisation is considered a structured investment. For instance, the prospectus for the debt securities should contain a description of the key components of the transaction structure, a description of the events of default in which the debt securities may be terminated before the scheduled maturity and the rights of the investors in the event of such termination.
As noted above, a prospectus is used to satisfy the disclosure requirements. The prospectus typically summarises the transaction structure, describes the relevant parties, the characteristics of the securitised assets and the terms and conditions of the notes, and lays out the materially important risks that potential investors should consider when deciding whether or not to invest in the notes or securities.
Where a prospectus is not explicitly required under the law (eg, in certain private issuances), an offering circular or offering memorandum is normally produced for disclosure to investors. Contents typically follow those in public transactions.
The principal regulator is the SFC (and also the Hong Kong Stock Exchange in the case of listed debt issuances). For authorised institutions, the Hong Kong Monetary Authority (HKMA) is the principal regulator.
Where the prospectus contains mis-statements that cause an investor to incur loss or damage, civil liability may arise under Section 40 of the CWUMPO, and the following persons could be liable to pay compensation to the investor for such loss or damage:
In addition to this civil liability, Section 40A of the CWUMPO states that any person who authorised the issuance of the prospectus that contains untrue statements can also be liable for criminal liability, including imprisonment and a fine. Nevertheless, such person would not be liable for criminal liability if they can prove that the statement in question is not material or that they had reason to believe and did believe that the statement was true.
On the other hand, under Section 103(4) of the SFO, a person who makes a public offering of securities without the SFC's authorisation or exemption can be subject to a fine of HKD500,000 and imprisonment for three years. Where there is a continuing offence, such person can be subject to a further daily fine of HKD20,000 for each day that such offence continues.
Public Market v Private Market
There are no significant differences between the public market and the private market in terms of the size of securitisation or the types of investors. As noted above, a public offering of asset-backed notes will be subject to the disclosure and registration requirements under the CWUMPO, the SFO and the Hong Kong Stock Exchange, as applicable, while a private offering may be exempted from such requirements. Most securitisation transactions, however, involve an issuance in the private market to professional investors.
A Hong Kong law legal opinion does not normally specifically state whether the content of the prospectus satisfies the above disclosure and registration requirements.
There is no specific credit risk retention requirement under Hong Kong law. The HKMA has published a supervisory policy manual module (CR-G-12) on “Credit Risk Transfer Activities”, providing guidance to authorised institutions (eg, banks) on the vital elements of an effective risk management system for credit risk transfer activities.
In particular, where an authorised institution acts as the originator in a securitisation, it is required to carry out the following actions, among others:
In addition, unless otherwise agreed with the HKMA, an authorised institution such as a bank should refrain from making investments in, or incurring exposure to, a securitisation transaction where the originator has not disclosed its compliance with applicable risk retention requirements – ie, requirements designed to ensure originators in securitisations retain certain economic exposure to the transactions for the purposes of aligning the parties' interests.
Module CR-G-12 is a non-statutory guideline issued as a guidance note, and the above actions are recommendations by the HKMA. No penalties are stipulated for non-compliance with Module CR-G-12.
If acting as underwriters or investors, authorised institutions incorporated in Hong Kong are required to comply with statutory limitations on exposures and risk concentrations. In summary, an authorised institution must not incur exposures to a single counterparty or a group of linked counterparties that exceed 25% of its Tier 1 capital as per the Banking (Exposure Limits) Rules (Cap. 155S). The HKMA may vary the prescribed limit on an authorised institution.
As noted above, the HKMA is the principal regulator for authorised institutions such as banking institutions. The HKMA reviews and enhances the regulatory regime constantly to ensure that it is in line with international standards and that it addresses the latest market developments.
The Code on Unlisted Structured Investment Products requires continuing reporting in respect of certain matters.
Under the Code on Unlisted Structured Investment Products, the issuer must comply with certain requirements throughout the period during which any of its obligations remain outstanding. For instance, the issuer shall inform the SFC and all investors if it ceases to meet any of the core requirements specified in this code (including that the issuer should have a net asset value of not less than HKD2 billion and that it should not be the subject of any winding-up, dissolution or bankruptcy proceedings). The issuer should also notify the SFC and all investors, to the extent permitted by applicable law, of changes in circumstances (including financial conditions) that could reasonably have a material adverse effect on the ability of the issuer (or the guarantor, if any) to perform its obligations in connection with the securitisation.
The SFC is the principal regulator. If the issuer fails to meet any of the above requirements, it might be required to cease advertising to and inviting offers from the public in Hong Kong, and to rectify the situation as soon as possible.
Code of Conduct for Persons Providing Credit Rating Services (the CRS Code)
The activities of rating agencies (RAs) are subject to the regulations under the CRS Code.
The CRS Code provides for certain requirements that must be met by an RA that is licensed in Hong Kong, including that an RA may not undertake any business that could potentially cause any conflict of interest in relation to its credit rating business. In connection with this, representatives of an RA are prohibited from making recommendations regarding the structural design of structured finance products, including securitisations.
In addition, an RA is obliged to encourage the issuer of a securitisation to disclose all relevant information regarding securitisations for the purposes of enabling the investors and other RAs to conduct independent analysis. In respect of rating announcements, the RA is required to disclose whether the issuer has informed the RA that it is disclosing all relevant information or whether any information remains non-public.
The SFC is the principal regulator. The CRS Code is a guiding document for the SFC in considering whether an RA satisfies the requirement of being fit and proper to be or to remain licensed or registered. The CRS Code does not have the force of law.
Hong Kong is expected to implement the Basel III requirements fully by 2024. The HKMA has announced that, in order to give the industry additional time to prepare for the implementation of the new/revised capital standards in the Basel III final reform package, the target effective dates of the standards in Hong Kong are intended to be revised as follows.
The Banking (Capital) Rules (Cap. 155L) require banks to hold adequate capital, and set out the various capital adequacy ratios and the framework for the calculation of such ratios. The rules are applicable to securitisation transactions, among other things. Furthermore, an authorised institution incorporated in Hong Kong (eg, a bank) is currently required to disclose certain information relating to its securitisation transactions, including:
More specific disclosure requirements are set forth in the Banking (Disclosure) Rules (Cap. 155M), which will be further updated (the effective date is to be confirmed) to reflect the new/revised disclosure requirements associated with the Basel III final reform package. Consequential amendments to the Banking (Capital) Rules (Cap. 155L) will also be made accordingly.
The HKMA is the principal regulator in respect of such requirements.
There are no specific laws or regulations that apply to the use of derivatives in securitisations or with regard to SPEs, although there are regulations relating to derivatives generally (such as regulations relating to disclosure and margins).
The SFC's Code of Conduct for Persons Licensed by or Registered with the SFC (the Code of Conduct)
In Hong Kong, the debt securities market is almost entirely private. The Code of Conduct provides for general investor protection in Hong Kong, although it is not applicable specifically to securitisations.
The Code of Conduct provides some major protections for investors of investment products (including securitisations). For instance, a licensed person (eg, an arranger) is required to take all reasonable measures to establish the following characteristics of an investor:
When making any investment recommendation or solicitation, the arranger is also required to ensure that the suitability of such recommendation or solicitation is reasonable in all the circumstances for the investor.
In addition, the arranger is required to disclose to the investor information that is relevant to the transaction before or at the point of sale, including the arranger's capacity, affiliation with the issuer (if any), benefits received by the arranger and terms under which the investor may receive a discount on fees. Where a cooling-off period has been incorporated into a securitisation product, the arranger is also required to execute the investor instruction promptly where the investor decides to exercise its right to back out of the transaction, and the arranger should pass on to the investor the refund received from the relevant issuer, although the arranger may charge a reasonable administrative fee for such services.
SFC Rules Governing Bookbuilding and Placing Activities in Hong Kong
In 2022, the SFC added a set of new rules to the Code of Conduct, setting out the standards of conduct expected of intermediaries engaged in bookbuilding or placing activities in debt capital market transactions. From 5 August 2022, intermediaries involved in securitisation transactions engaging in such activities in Hong Kong will need to comply with these new requirements in the Code of Conduct.
The key requirements apply to offerings of listed or unlisted debt securities offered in Hong Kong or otherwise. In-scope activities carried out by intermediaries in Hong Kong include:
For all listed or non-listed debt offerings, intermediaries must comply with these new requirements when engaging in a securitisation transaction that involves the Covered Activities after 5 August 2022, either when the transaction is announced or when they are appointed as a capital market intermediary (CMI) to such transaction and, where applicable, when the listing application is made.
Capital market intermediaries
The new requirements apply to CMIs and the overall co-ordinator (OC). A CMI is a licensed or registered person (a licensed corporation or a registered institution – eg, a bank) engaged in the Covered Activities. A CMI can be either a syndicate CMI (which is appointed by the issuer in the debt offering) or a non-syndicate CMI (which is not appointed by the issuer but is involved in the Covered Activities to certain extent).
An OC is usually a syndicate CMI that conducts the overall management of the offering, co-ordinates the bookbuilding or placing activities conducted by other CMIs, has control over the bookbuilding activities, and makes allocation or pricing recommendations to the issuer client. Also, if a CMI conducts any activities of the OC, it will also be considered an OC itself and be subject to the same obligations as the OC with respect to the updated Code of Conduct.
In terms of compliance, the distinction between a syndicate or a non-syndicate CMI is essential as it dictates the different obligations or expected standards of conduct for compliance with the new requirements.
In respect of debt offerings, a non-syndicate CMI is only required to comply with the following requirements:
A syndicate CMI is required to comply with the following additional requirements:
The obligations and standards of conduct expected of an OC in debt offerings are as follows:
Notably, certain types of activities are excluded from the new requirements, as they are not considered to fall within the scope of the Covered Activities, such as:
The new requirements also do not apply to financial advisers and other professionals appointed by the issuers – to the extent they do not participate in the Covered Activities.
In addition to the SFC's Code of Conduct, investors may also rely on the protections provided in relation to disclosure laws and regulations applicable to the issuance of debt securities (see 4.2 General Disclosure Laws or Regulations).
The SFC is the principal regulator.
If debt securities are issued publicly, they are usually listed on the Hong Kong Stock Exchange (although they could be listed on a foreign stock exchange) and subject to the Listing Rules of the Hong Kong Stock Exchange (HKEx) relating to the listing of debt securities, including:
More specific requirements for the listing of debt securities are contained in the Listing Rules of the HKEx.
There are also disclosure and continuing obligations applicable to the issuer and guarantor (if there is any) of the listed debt securities. For example, under Chapter 37 of the Listing Rules, issuers and guarantors are required to:
The HKEx is the principal regulator.
While banks in Hong Kong are generally required to comply with various HKMA rules and regulations, there are no laws in Hong Kong that apply specifically to securitisations involving banks.
Recently, Hong Kong has followed other major jurisdictions in putting in place the Financial Institutions (Resolution) (Contractual Recognition of Suspension of Termination Rights – Banking Sector) Rules (Cap. 628) (the Stay Rules), which came into operation on 27 August 2021.
The purpose is to prevent contractual counterparties of a bank from terminating or closing out their positions solely as a result of the bank’s entry into resolution (eg, when they fall into financial distress) so as to prevent disorderly early termination of contracts on a mass scale, which could frustrate resolution actions taken by the HKMA resolution authority and thus result in significant systemic risks.
The Stay Rules require the insertion of a “suspension of termination rights provision” into the Covered Contracts (as defined below), such that the contractual counterparties agree to be bound by any temporary stay that the resolution authority may impose pursuant to Section 90(2) of the Financial Institutions (Resolution) Ordinance (Cap. 628).
The affected entities are AIs, their holding companies and any other group companies that are not themselves a Hong Kong AI (the Covered Entities); the affected contracts are their non-Hong Kong law-governed financial contracts containing a termination right exercisable by a counterparty (other than an excluded counterparty) (the Covered Contracts).
Covered Entities are required to comply with the Stay Rules by the end of the relevant initial period (ie, the period of 24 or 30 months beginning on 27 August 2021), which differs depending on the type of Covered Contracts and the type of counterparties involved.
Such financial contracts include the following, among others:
Such termination right refers to:
Implications for Securitisations
If AIs (either as issuer or investor, or in any other capacity) enter into non-Hong Kong law-governed bond documents after 27 August 2021, such as subscription agreements, underwriting agreements, placement agreements, dealer manager agreements and agency agreements, they will need to examine carefully whether such contracts contain a termination right exercisable by a counterparty; if so, they will need to include the required contractual provision for contract parties to be bound by any temporary stay that the resolution authority (HKMA) may impose.
For issuers that are AIs or group companies that are not themselves an AI, the range of bond documentation that may fall within the ambit of the Stay Rules may be much wider, and each securitisation transaction involving banks or their group companies as issuers will therefore need to be considered on a case-by-case basis.
Implications for the Use of Derivatives in Securitisations
Where derivatives are used in securitisations or by the issuer in its underlying loan contracts and receivables, and where a Covered Entity (Hong Kong AI) is a counterparty, the Stay Rules will also apply, which could have the effect of temporarily suspending the rights of acceleration, close-out, set-off or netting obligations of the counterparties in the underlying derivatives contracts. This could adversely impede bondholders' rights to close out the positions in a derivative contract under a default situation in a securitisation transaction.
There are no specific rules or restrictions that apply to the form of SPEs or other entities used in securitisations. For the typical features of an SPE, please see 1.2 Special-Purpose Entities (SPEs).
SPEs are typically incorporated in offshore jurisdictions (such as the Cayman Islands).
Typically, the material factors include tax treatment, bankruptcy remoteness and that there are no particular current problems regarding enforcement in Hong Kong.
The business undertaken by SPEs is usually restricted.
Typically, unless the transaction specifically requires it, SPEs will avoid activities that require appropriate licensing, such as advising on or dealing in securities.
A typical securitisation structure would not require the SPE to obtain any licences.
Depending on the applicable laws and regulations, the regulators involved may vary; these may include the HKMA and/or the SFC.
Depending on the transaction structure and the goal that the originator is trying to achieve (eg, off-balance sheet treatment), various forms of credit enhancement may be used in a securitisation. Typically, the bank accounts and assets of the issuer are charged in favour of the noteholders and the note trustee to secure the payments under the notes. The originator can also provide liquidity support to the issuer (eg, letter of credit) if the issuer becomes unable to fulfil its repayment obligations under the notes, and the originator (or an affiliate of the originator) may also provide a guarantee or other collateral to the noteholders and the note trustee.
Government-sponsored entities do participate in the securitisation market. For example, the Hong Kong Mortgage Corporation Limited (an entity wholly owned by the Hong Kong government through Hong Kong's exchange fund) has participated in a securitisation to provide a platform for banks to convert illiquid assets (eg, mortgage portfolios) into more liquid assets, among other purposes.
Investors in securitisations include various financial institutions and private funds. There is no law specifically prohibiting or limiting investment in securitisation products by any type of entity, other than the generally applicable banking regulations to which authorised institutions (eg, banks) are subject.
As loan receivables are a major type of asset being securitised in Hong Kong, they will be used as an example for the purpose of this section. The assignment of receivables in a securitisation is usually effected in the form of a sale agreement signed by the originator and the issuer, setting out the terms of the assignment and the receivables (and the security rights attached or relating thereto, if any) that are the assigned assets.
The principal subject matters in a sale agreement include the following:
Typical warranties made by the originator include its capacity and corporate authority to enter into the sale transaction. The originator will also provide warranties as to its legal title to the subject receivables and its compliance with any eligibility criteria relating to the nature or quality of the receivables, including that the originator is not subject to any winding-up, dissolution or bankruptcy proceedings or equivalent actions, and that there are no circumstances or legal grounds upon which the obligations of the seller can be set aside.
Perfection requirements and provisions vary depending on the type of assets over which security is created and the place of incorporation of the security providers. In the case of a legal assignment of loan receivables, for example, notice must be given to the original obligor under the loans in respect of such assignment, so that the issuer may take actions directly against the obligor in the event of a default by the obligor under the loan document.
The principal covenants provided by the originator to the issuer are usually set forth in the receivables sale agreement. Typical covenants include that the originator:
The principal covenants provided by the issuer to the noteholders and the note trustee are set forth in the trust deed and include positive covenants, such as that:
The issuer would also provide negative covenants, such as:
Typically in a securitisation, the originator will also take up the role of a servicer (or an “administrator” as it is sometimes called) to provide services with respect to the receivables being transferred to the issuer. The originator will enter into a service agreement with the issuer, which sets forth the detailed services to be provided and the payment arrangements in respect of the servicing fee. The terms and conditions of the service agreement would be on an arm’s-length basis.
Major services provided by the servicer include the following, without limitation:
The principal default events are typically contained in the trust deed or indenture, as applicable, and include the following, without limitation:
The principal default events in receivables sale documentation include the following, without limitation:
The originator (as the seller and servicer of the loans) typically agrees to indemnify the issuer for damages and losses sustained by the issuer in connection with the originator's failure to fulfil its obligations or breach of the contracts.
On the note-level documents, the issuer would agree to indemnify the note trustee against damages and losses caused by the issuer. The issuer would also agree to indemnify the note trustee for other damages and liabilities sustained by the note trustee (and its directors and officers, etc) in connection with the following:
The issuer is often an SPE that is permitted to undertake a restricted scope of business. The issuer’s obligations include acquiring and holding the financial assets, issuing the asset-backed securities and providing security for the benefits of the noteholders and the note trustee. The issuer also pays for the interests under the notes and, at maturity, repays the principal of the notes to the noteholders.
A sponsor is often referred to as an “originator” in securitisations in Hong Kong. The originator is normally the initiator of the securitisation transaction, with the aim of achieving its commercial and financing objectives. In relation to the loan receivables, the originator (or its subsidiaries) would be the lender of the loans to obligors and would sell the loan receivables to the issuer. In Hong Kong, originators are often large commercial enterprises or financial institutions.
An underwriter is often referred to as an “arranger” in securitisations in Hong Kong. Typically, the arranger is an investment bank, with the following functions:
The arranger will also enter into the subscription agreement with the issuer for underwriting. Sometimes, an arranger also invests in the notes, through an affiliate.
See 5.5 Principal Servicing Provisions.
An investor purchases the debt securities (ie, asset-backed notes) from the issuer or underwriter, as applicable. Investors can be financial institutions, private funds or governmental entities.
The note trustee acts under the instructions of the noteholders in respect of the actions being taken by the noteholders. The note trustee also holds the rights in the financial assets for the benefit of the noteholders.
The security trustee, on the other hand, holds the security created over the issuer's assets (eg, receivables, bank accounts and other corporate assets, as applicable) on behalf of the noteholders.
The note trustee and the security trustee can be the same institution with the capability to provide all the above services.
Synthetic securitisation is not expressly prohibited under Hong Kong law and can be achieved under the current legal framework. However, there have been only a few synthetic securitisation transactions in the past two decades.
The laws and regulations that apply to a non-synthetic securitisation would also apply to synthetic securitisations; please see 4. Laws and Regulations Specifically Relating to Securitisation.
Balance sheet synthetic securitisations involve the transfer of credit risks of the assets owned by the originators to investors. The risk transfer can be achieved through an SPE to the investors or directly to the investors, commonly through the use of credit default swaps or total return swaps. Another type of synthetic structure is commonly referred to as an “arbitrage structure”. In an arbitrage synthetic securitisation, the originator does not typically own or have any exposure to assets while credit risks are transferred on said assets. The originator and investors usually engage in an arbitrage synthetic securitisation for speculative purposes. The arbitrage structure is not commonly used in Hong Kong.
Various types of financial assets have been seen in securitisations in Hong Kong, including trade receivables, corporate loan receivables, project loan receivables, consumer loan receivables and property mortgages.
Securitisations in respect of the categories of financial assets listed in 8.1 Common Financial Assets usually adopt a similar structure, unless there are unique features or commercial, accounting or rating factors that require variations on the structure to satisfy the relevant requirements.
10 Chater Road
+852 2843 2211
+852 2845 firstname.lastname@example.org email@example.com www.mayerbrown.com