More work required – examining new Article 5a imposing originator diligence obligations
Following publication on 30 September 2015 of the European Commission’s official draft proposal for the new Securitisation Regulation1 , the text of the first Presidency compromise concerning the Securitisation Regulation (the “Presidency Compromise”) was released on 9 November 20152.
As noted in our previous client alert on the topic of the Securitisation Regulation3, the new draft regulation features some crucial differences from the existing regulatory framework for risk retention in Europe (the “Existing Rules”)4; most notably the move from indirect to direct compliance with the Retention Requirement5, which will apply to the European CLO market (and the US CLO market with respect to transactions that aim to be compliant with the Securitisation Regulation), if the Securitisation Regulation is implemented in its current draft form.
The Presidency Compromise proposes a number of predominantly clarificatory amendments to the Securitisation Regulation. However, it also includes a potentially more significant change to the requirements for due diligence to be carried out by originators, sponsors and original lenders.
DESCRIPTION OF PRINCIPAL CHANGES
The Presidency Compromise introduces a new Article 5a (Criteria for credit granting) into the Securitisation Regulation. The main obligation is set out in the first paragraph thereof, requiring originators, sponsors and original lenders to “apply the same sound and well-defined criteria for credit granting to exposures to be securitised as they apply to exposures not securitised” (the “Criteria”).
The Criteria of the first paragraph of Article 5a effectively replicates the corresponding text in Article 408 of the existing Capital Requirements Regulation, with the difference that Article 5a extends application of the Criteria beyond sponsor/originator institutions6 to any entity purporting to act as originator, sponsor or original lender in relation to a securitisation. In practice this means applying a common standard to all originators and sponsors in relation to a securitisation, which is understandable and has the benefit of providing a “level playing field”.
Of greater interest (and concern) is the second paragraph of Article 5a, which applies solely to originators engaged in secondary market origination, i.e. originators that purchase exposures for their own account, and securitise those exposures by onward sale or assignment to an issuer (known colloquially as “limb (b) origination”). The second paragraph of Article 5a requires such originators to ensure that the entity which was, directly or indirectly, involved in the original agreement creating the underlying obligations (i.e. the primary market originator) itself complies with the first paragraph of Article 5a, i.e. that the relevant original lender complied with the Criteria.
We see a number of issues with this which we discuss in more detail below.
Firstly, an originator intending to intermediate a loan between the relevant original lender and ultimate CLO issuer will need to diligence the underwriting standards of that original lender. In the absence of any legislative requirement7 for original lenders to provide the pertinent information on their underwriting standards, originators will be reliant on the goodwill and cooperation of original lenders and so subject to the vagaries of market forces.
Secondly, the proposal becomes still more problematic where there is one or more additional secondary market participants interposed between the originator and the relevant original lender. In such a situation, the second paragraph of Article 5a would require the originator to diligence back up the “chain” to verify the underwriting standards of the original lender – the feasibility of which is highly questionable.
As it stands, compliance with Article 5a of the Presidency Compromise would likely be achieved contractually and involve assurances from the loan seller as to its underwriting processes. However, such a representation would be completely at odds with current market practice. For example, paragraph 7.1 (Credit appraisal by Buyer) of the LMA Standard Terms and Conditions for Par and Distressed Trade Transactions (Bank Debt/Claims) (17 February 2015) reads: “The Buyer agrees that it has satisfied itself as to the creditworthiness of each Obligor and the acceptability of the transaction prior to the Trade Date and the transaction shall not be conditional upon this.”
CONCLUSION & NEXT STEPS
In light of the favourable statements of the European Commission with respect to the Capital Markets Union and the European securitisation market8 and the laudable performance of the CLO industry during the recent financial crisis, this latest addition seems counter-intuitive.
Whether intentional or not, the impact of Article 5a and its potential to eliminate or at least obstruct the secondary market originator structure misunderstands the practicalities of the loan and CLO markets, potentially depriving European businesses and banks of a valuable source of long-term capital. Following the entry into force of the new US risk retention rules, and in light of the missed opportunity to expand the “sponsor” definition in the Securitisation Regulation to include regulated US investment advisers, it will also adversely impact non-European collateral managers seeking to be compliant with both the US and European risk retention regimes, as these managers will need to avail themselves of the originator model in the European market.
Milbank along with other leading law firms in the CLO industry will continue to lobby to improve the Securitisation Regulation.
In our view, the addition of the second paragraph of Article 5a of the Presidency Compromise is superfluous. The underlying legislative aim behind Article 5a is to ensure proper diligence of the quality of the exposures and the creditworthiness of the underlying obligors in a transaction – a task which already in fact occurs in practice as the CLO manager, with its expertise in pricing and assessing credit risk (and, importantly, a remuneration structure predicated on the accuracy of that analysis), applies its own criteria and conducts the relevant processes for approving credits in any given transaction. We would suggest that, given the market has already anticipated and addressed these concerns, this correspondingly obviates the need to impose additional, unrealistic, obligations and liabilities on transaction parties.
In the meantime, as noted in our previous client alert, the Securitisation Regulation does not generally purport to have retrospective effect. Our expectation is that the final Securitisation Regulation will come into force during the summer of 2016. However, transactions that are already at the “warehouse” stage could potentially be caught by Article 5a if the Securitisation Regulation comes into force before the resultant CLO closes. Accordingly, managers of such transactions should give thought now as to their best route to compliance should Article 5a be implemented in its current form.