Définition des Asset-Backed Securities donnée
par la SEC (Regulation en date du 18 janvier 2005,
- "Definition of ABS. The term "asset-backed security"
is currently defined in Form S-3 to mean a security that is
primarily serviced by the cash flows of a discrete pool of
receivables or other financial assets, either fixed or
revolving, that by their terms convert into cash within a
finite time period plus any rights or other assets designed
to assure the servicing or timely distribution of proceeds
to the security holders. The SEC staff has historically
interpreted the phrase "convert into cash by their terms" to
exclude from the definition most assets that require
positive action to be realized upon – such as non-performing
assets and physical property. It has also interpreted the "discrete
pool" requirement in such a way as to disqualify most
securities issued in transactions where the composition of
the pool is not set on the date of issuance or can change
over time. The new rules modify these existing
interpretations in certain respects while codifying them in
others.
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- Lease-Backed Securities. The new rule expands the
definition of "asset-backed security" to include lease-backed
securities as long as the residual value of the leased
property is less than 50% of the original securitized
pool balance (or less than 65% in the case of motor
vehicle leases). However, such securities may be shelf-registered
on Form S-3 only if the residual value of the leased
property represents less than 20% of the original
securitized pool balance (or less than 65% in the case
of motor vehicle leases).
-
- Delinquent and Non-performing Assets. The new
rules provide that a security may be considered to be an
"asset-backed security" even if the underlying asset
pool has total delinquencies of up to 50% at the time of
the proposed offering as long as the original asset pool
does not include any "non-performing" assets. However,
consistent with current practice, shelf registration on
Form S-3 will be available only if delinquent assets
constitute 20% or less of the original asset pool. An
asset is considered to be non-performing if it satisfies
the charge-off policies of the sponsor (or applicable
bank regulatory agencies) or if it would be considered a
charged-off asset under the terms of the applicable
transaction documents.
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- Exceptions to the "Discrete Pool" Requirement.
The new rules generally codify the SEC staff’s position
that a security must be backed by a discrete pool of
assets in order to be considered an ABS. However, the
new rules establish the following exceptions to address
market practices.
-
- (1) Any security issued in a master trust
structure would meet the definition of "asset-backed
security" without limitation.
-
- (2) "asset-backed securities" will also include
securities with a prefunding period of up to one year
during which up to 50% of the offering proceeds (or, in
the case of master trusts, up to 50% of the aggregate
principal balance of the total asset pool whose cash
flows support the ABS) may be used for subsequent
purchases of pool assets.
-
- (3) The new rules also include within the
definition of "asset-backed security" securities with
revolving periods during which new financial assets may
be acquired. In the case of revolving assets such as
credit cards, dealer floorplan and home equity lines of
credit, there is no limit to the length of the revolving
period or the amount of new assets that can be purchased
during that time. For securities backed by receivables
or other financial assets that do not arise under
revolving accounts, such as automobile loans and
mortgage loans, an unlimited revolving period will be
permitted for up to three years. However, the new assets
added to the pool during the revolving period must be of
the same general character as the original pool assets.
