General overview of a typical Dutch true sale securitisation – October 2012 1

1 INTRODUCTION
In the mid-1990s the first Dutch public securitisation transactions came alive. Since then, the
Netherlands has become one of the markets in Europe where the highest volume of residential
mortgage-backed securities (RMBS) transactions take place.

In structuring securitisation transactions a number of credit, legal, tax and regulatory issues must
be taken into consideration. The choice of a particular securitisation transaction structure is primarily
dependent on the reasons for setting up the transaction.

In recent years, a number of initiatives by international and local governments, organisations and
regulatory authorities have been and/or are in the process of being developed in response to the
market turmoil. Taking into account such market turmoil (and the role that structured products have
played therein) and the resulting (anticipated) regulatory changes, the landscape of securitisation has
changed – and is expected to change further and rapidly – in both Europe and the USA. Although
securitisation techniques have shown to be useful tools to mitigate or eliminate credit risk, it remains
to be seen what impact such regulatory changes will have on the market for securitised products.

The following paragraphs intend to give a general overview of a typical Dutch true sale
residential mortgage-backed securitisation (Dutch RMBS) structure and related issues, main
participants and their respective roles in such transaction in particular.2

2 True Sale Transaction

Securitisation can be described as a financing transaction whereby certain identified cash
flows are applied to repay debt financing that has been attracted by, typically, a special purpose
vehicle (SPV), through the issuance of debt securities. Recourse of the creditors of the SPV is limited
to these cash flows and the assets that generate these cash flows.

A true sale transaction is the traditional form of securitisation. An SPV acquires receivables or
other assets from one or more sellers (which are often but not necessarily the originator of the assets)
and pays a purchase price for these receivables. The 'true sale' element means that the assets are
transferred by the seller to the SPV and, as a result of which, the SPV becomes entitled to the cash
flows that are generated by the assets (including those resulting from a subsequent sale of the assets).
The legal arrangements should ensure that, in the event of insolvency of the seller, the cash flows
remain the property of the SPV and, therefore, that the seller's creditors cannot challenge the validity
of the transfer. This is typically achieved through an effective legal transfer of the assets or a
perfected security interest created over such assets. The SPV finances the purchase price of the assets
through the issuance of debt securities.

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The basic structure of a typical Dutch true sale transaction is set out in Figure 1.

Figure 1. Dutch True Sale Transaction

Cash Manager/ Security

Foundation
Administrator Trustee

100% Shareholding
Security

Sale of SPV (Tranches of)

Originator Investors
Assets (Issuer) debt securities

Services Swap Liquidity

Swap Liquidity
Servicer
Provider Facility

2.1. FUNDING OF DUTCH TRUE SALE TRANSACTION

2.1.1. TYPE OF SECURITIES

True sale securitisations are typically financed through the issue of debt securities. Depending on the
type of underlying assets that are being securitised and the funding that is required, these securities
can include securities with a short term (such as commercial paper) as well as securities with a
medium to long term (such as medium-term notes and bonds). The securities can be publicly or
privately issued.

In the case of a public issuance, the securities will typically be transferable and often be
listed. Given the complexity of the transaction and the risks embedded in the securities, the securities
are generally not offered to the public but to professional or otherwise sophisticated investors. This
means that often the securities have a high denomination (e.g., EUR 100,000 or more) and that
appropriate selling restrictions are imposed on any offering of these securities, so that they cannot be
offered to retail investors.

The debt securities can in certain circumstances be used as collateral by financial investors for
financing transactions with their central bank. In those circumstances, the securities (although listed)
are typically not offered to the public but acquired by the originating financial institutions, which will
then offer the securities as collateral to the relevant central bank.

A typical Dutch RMBS can be characterised as a term securitisation.

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Term securitisations are transactions that provide financing (as the name already suggests) for
a fixed term. This term can relate to the term or life of the asset that is being securitised or it can
involve a shorter term, in which case arrangements will need to be made that ensure that at the time
the transaction terminates, the SPV has funds available to repay the debt securities that it issued to
fund the acquisition of the assets.

Because the debt securities issued in the context of a term securitisation typically have a
medium to long-term maturity, they are suitable for listing and trading on securities markets. The
debt securities issued by the SPV will be rated by credit rating agencies. Apart from the quality of the
securitised assets, this credit rating is also dependent on the counterparties of the SPV, such as swap
counterparties and liquidity providers. The credit rating agencies have specific criteria that apply to
these counterparties. They also impose requirements on the terms of the swaps and liquidity
arrangements into which the SPV may enter. The main purpose of these requirements is to ensure
that the counterparty continues to meet the applicable credit rating criteria and that the SPV can use
these arrangements when required. The documentation will therefore include fewer conditions
precedent and events of default than can be found in ordinary lending or derivatives transactions.

If the term of the debt securities would be equal to the life of the securitised assets (e.g., mortgage
loans with a term of thirty years or more), these securities may be less interesting for investors who
may prefer securities with a shorter term. Therefore, many true sale term securitisations involving
long-term assets contain features that allow the debt securities issued by the SPV to be redeemed prior
to their legal maturity. There may even be an incentive to redeem the debt securities early by
providing that after a certain period after issuance of the securities, for example five years, the interest
rate on the securities will increase. This increase affects the cash flow in the transaction, and the
amount that will be available to the originator after deduction of the funding costs incurred by the
SPV will be reduced as a result. The originator will therefore have an interest in refinancing the
transaction at that point in time, for example, by arranging a replacement transaction at cheaper
interest rates.

If in a true sale transaction the securitised receivables are redeemed, this will in principle
result in a corresponding redemption of the debt securities issued by the SPV. The terms of these
transactions therefore sometimes provide for a period during which the SPV can apply the redemption
proceeds to acquire new receivables that meet the relevant eligibility criteria. This mitigates the risk
that the investors receive redemption payments prior to the expected maturity of the debt securities.
The originator benefits from this arrangement because it can still use the full amount of the funding
proceeds of the securitisation during this initial period.

The holders of the debt securities will normally be represented by a note trustee, which will
be obliged to take certain actions (such as calling an event of default) if a minimum number of debt
securities holders require the note trustee to do so. In this way one avoids the situation that a single
debt securities holder can take action against the SPV. The note trustee can also act as representative
of debt securities holders if certain minor changes are to be made to the terms of the transaction.3 It
is, therefore, not necessary to organise meetings of debt securities holders to effect these minor
changes.

In order to ensure that the debt securities obtain the appropriate risk profiles, the SPV will also
typically enter into liquidity facility and hedging contracts to address temporary cash flow
interruptions and potential mismatches between the (usually) floating interest rates to be paid on the
debt securities and the fixed or floating interest rates paid on the securitised receivables.4

In order to ensure that the debt securities will not immediately default in cases of unforeseen
liquidity shortages, the SPV will have the benefit of liquidity arrangements with an appropriately
rated financial institution. This liquidity arrangement is intended to cover temporary cash shortfalls
and not to assume any default risk in relation to the securitised assets. The liquidity arrangement is

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typically provided for a period of 364 days to ensure that it receives an advantageous regulatory
capital treatment. The arrangement can, however, be renewed at the option of the SPV at the end of
the 364-day period.

The SPV will normally enter into derivatives transactions that hedge the mismatch between, on
the one hand, the income received on the portfolio of securitised assets and, on the other hand, the
interest it has to pay on the debt securities. This hedge arrangement can relate to specific cash flows
(e.g., floating rate on the debt securities against an agreed fixed interest percentage) or to substantially
all cash flows of the SPV (e.g., the SPV's funding costs against the income received by the SPV on
the securitised assets). The swap counterparty of the SPV must be an appropriately rated financial
institution in order to comply with the credit rating agency criteria that apply to the transaction.

Depending on the portfolio characteristics of the assets forming part of the transaction and the
envisaged capital structure of the transaction, reserve fund or similar structures are often used to
provide for liquidity buffers for unforeseen liquidity shortages.

2.1.2. INFORMATION ABOUT DUTCH TRUE SALE TRANSACTIONS

Listed debt securities are subject to disclosure rules and disclosure requirements of investors.
Information about these transactions is generally available in the form of a prospectus that was
prepared as part of the listing as well as investors' reports that disclose information about the
performance of the transaction on a regular basis. If the debt securities are rated, then the relevant
credit rating agencies will also have prepared reports.5

3 DUTCH SPECIAL PURPOSE VEHICLES

3.1. ORPHAN VERSUS ORIGINATOR SPV

Dutch true sale securitisations are generally structured around an entity that is specifically set up for
such purpose, the SPV, whose role is effectively limited to acquiring a portfolio of assets and
obtaining financing for such acquisition and entering into agreements in connection with, and useful
to, such acquisition and financing (e.g., hedging and cash management and administration contracts).
The aim of the transaction is usually to legally separate the assets to be securitised from the other
assets and business undertakings of the originator (or seller] that initiates the transaction. 6 By
separating the assets from the originator, the originator's credit risk becomes less relevant.7 This is
necessary so that acceptable risk profiles for the relevant debt securities issued by the SPV are
obtained (i.e. so-called 'de-linkage' is achieved), and therefore ensure that such debt securities have
lower interest rates.8 Such risk profiles are linked to the quality and performance of the assets and the
cash flows they produce.

In order to ensure that the SPV itself is not regarded an asset of the originator, the SPV is usually
set up as an orphan company (Orphan SPV). In Dutch RMBS most Orphan SPVs take the form of a
Dutch private limited liability company (besloten vennootschap met beperkte aansprakelijkheid, BV
or Dutch SPV).9

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3.2. MANAGEMENT

In order to ensure that the SPV is managed independently from the originator and other participants in
the transaction, usually an independent corporate service provider with the appropriate licence under
the Dutch Trust Companies Supervision Act (Wet toezicht trustkantoren), is introduced to act as sole
director of the SPV. The terms of such management are incorporated in a management contract
entered into between the corporate services provider and the SPV and – in addition to the terms
relating to the scope of services to be provided and the remuneration of such services – aim to protect
the interests of the SPV as a separate and independent legal entity. Such terms would typically
include (without limitation) a covenant of the corporate services provider that: (i) the SPV (and its
parent) will not undertake any business except the relevant transaction; (ii) the corporate services
provider will manage the SPV in accordance with proper and prudent business practices; and (iii) the
corporate services provider shall not resign as managing director except in pre-agreed circumstances.

Given that the business undertakings of corporate services providers are often limited to
providing corporate housekeeping and management services, the SPV will have to appoint other third-
party service providers to perform certain functions in respect of the transaction entered into by the
SPV (e.g., servicing and administration of the relevant assets acquired by the SPV and providing cash
management and administration services). Such service providers are usually third parties but are
often also originators or affiliates of such originators. If originators or their affiliates are appointed as
service providers by the SPV, the relevant agreements governing the terms of such agreements will
have to include appropriate safeguards to avoid originators or employees of originators being held as a
de facto director (feitelijk bestuurder) of the SPV or otherwise being held to have control over the
SPV, which may have adverse tax and/or accounting consequences, and which may pierce the
corporate veil.

Because of its limited purpose and function, the SPV will itself not have the infrastructure or
experience to service and administer the acquired assets. Therefore, but also for commercial reasons,
the originator (or seller) is usually appointed by the SPV to service and administer the assets. This
means, for example, that in respect of loan receivables acquired by the SPV, the originator will
continue to have direct contact with the debtors and will collect the payments from such debtors
directly. For similar reasons the SPV will also enter into cash management and administration
contracts providing for the appointment of third parties to perform certain cash management functions
in connection with the cash flows received by the SPV and to be distributed to the investors and other
creditors of the SPV.

3.3. BANKRUPTCY REMOTENESS

The transaction must be set up in a way that the SPV will be able to comply with its obligations under
the various transaction documents, including the debt securities issued by it, and therefore to operate
on a solvent basis. The predicted cash flow models in a transaction are essential: the expected cash
flow generated by the assets (and the proceeds of a sale of such assets) must be sufficient to enable the
SPV to service its debts. Therefore, as safeguard, the SPV is financed on a limited recourse basis, that
is the payments under the debt securities issued by the SPV are either only due upon the SPV's receipt
of payments under the securitised portfolio or the collateral, or only recoverable from and to the
extent of the security interests created by the SPV over the securitised portfolio or collateral (and over
any credit enhancement) in favour of the investors and other secured parties. Consequently, the
investors (and other secured parties) are exposed to certain risks on the performance of the securitised
portfolio and to the insolvency of the SPV. The extent of this risk will depend on the security granted

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to the investors, and the strength of the credit enhancement (such as guarantees or insurances)
provided by third parties.

Because of the adverse consequences connected with the SPV's bankruptcy and to preserve the
status and priority of the relevant creditors of the SPV participating in the transaction (including the
investors), the SPV is made 'bankruptcy remote' (i.e., isolated from compulsory or voluntary
insolvency proceedings). In the event that a Dutch SPV is used, bankruptcy remoteness would
normally involve a combination of any of the following measures:

(a) first, the arrangers of the transaction would select a corporate services provider to
incorporate the foundation, which in turn incorporates the SPV (see also paragraph 3.1
above). The corporate services provider can also serve as managing director of the SPV and
gives certain covenants in the relevant management agreement in relation to the restrictive
business undertakings of the SPV (see also paragraph 3.2 above);
(b) secondly, the SPV's articles of association should have a very limited objects clause dealing
specifically with the relevant transaction (see also paragraph 3.1 above). This restriction
should be repeated in the principal contracts to which the SPV is a party;
(c) thirdly, all parties contracting with the SPV would covenant that they will not take any
action to have the SPV liquidated, dissolved, or declared bankrupt until such time as all
amounts payable in respect of the debt securities have been paid; and
(d) fourthly, the only creditors that the SPV should have which would not be bound by a non-
petition for bankruptcy provision would be the relevant chamber of commerce in whose
commercial register the SPV is registered (for annual registration fees), external advisers of
the SPV and the tax authorities. As regards these creditors, it is common practice to ensure
that the taxes and fees payable by the SPV to them on an ongoing basis can be met from the
SPV's earnings and are listed high in the so-called waterfall of payment priorities.
Furthermore, the SPV should not have employees.

As to paragraph (c), under Dutch law parties can contractually prohibit or limit a party's right to
petition for the bankruptcy (faillissement) of its counterparty. However, it is possible that a Dutch
court would deal with a petition for bankruptcy, notwithstanding that such petition has been presented
in breach of such non-petition covenant. The court in dealing with the petition may arrive at the
conclusion that the SPV has ceased to pay its debts as they fall due (being the legal ground for
bankruptcy in the Netherlands10). A Dutch court may also deal with a petition for suspension of
payments (surseance van betaling), which can only be requested by the debtor (i.e., SPV) itself.11

4 Regulatory Position
4.1. DUTCH BANKING REGULATIONS

In respect of Dutch SPVs, under the current Dutch banking regulations as laid down in the Dutch
Financial Supervision Act (Wet op het financieel toezicht, FSA) and various implementing decrees:

(a) an SPV is not subject to these regulations if it issues debt securities with a denomination of
at least EUR 100,000 or equivalence in other currency;12
(b) there is no minimum maturity requirement applicable to the funding of the SPV;
(c) in relation to monies that an SPV borrows under normal loan facilities (e.g., liquidity
facilities), the SPV may solicit and borrow such monies if the aggregate facility amount and
the minimum drawdown amount are at least EUR 100,000;13 and

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(d) the SPV will be permitted to grant and to purchase (interests in) loans made to, and other
receivables relating to indebtedness of, Dutch and foreign corporate borrowers (for
consumer borrowers, see paragraph 4.3 below), and the SPV will also be permitted to invest
in other assets.

4.2. PROSPECTUS REQUIREMENTS

The Prospectus Directive (2003/71/EC), as amended by Directive 2010/73/EU, has been implemented
in the FSA, which imposes prospectus and continuous disclosure requirements on an SPV issuing debt
securities. These requirements do not apply if the debt securities issued by the SPV have a
denomination of at least EUR 100,000 or equivalence in other currency unless such debt securities are
(to be) listed on a regulated market (e.g., NYSY Euronext in Amsterdam), in which case a prospectus
will have to be made available by the SPV satisfying the relevant disclosure requirements of the
Prospectus Directive as implemented in the FSA.

4.3. CONSUMER CREDIT REGULATIONS

By acquiring consumer receivables, the SPV in Dutch RMBS is deemed to provide consumer credit,
which is a licensable activity under the FSA.14 The SPV can rely on an exemption from this licence
requirement if the SPV outsources the servicing of the consumer receivables and the administration
thereof to an entity which is adequately licenced under the FSA to act as consumer credit provider or
intermediary and which complies with certain information duties towards debtors of consumer
receivables.15 Usually a servicing contract is entered into by the SPV with the originator (or any other
party to which the originator had already outsourced the servicing and administration of the consumer
receivables) pursuant to which the SPV outsources the servicing and administration of the consumer
receivables to such party. In the servicing contract the relevant servicer, amongst other things, would
represent and warrant that it is, and covenant that it shall remain, adequately licenced under the FSA
to act as consumer credit provider or intermediary, and furthermore covenant that it shall comply with
the information duties towards the debtors under the FSA. In addition, such servicing contract would
contain provisions in respect of termination of the appointment of the servicer and the requirement for
the SPV to appoint a substitute servicer prior to such termination becoming effective.

4.4. DATA PROTECTION AND CONFIDENTIALITY REGULATIONS

In respect of true sale transactions (in particular transactions involving consumer receivables) data
protection rules, including those laid down in the Dutch Data Protection Act (Wet bescherming
persoonsgegevens), and confidentiality arrangements, may be relevant and may restrict the provision
of (personal) data of debtors in the securitised portfolio by the originator to the various parties
involved in the transaction (e.g., SPV, security trustee, verification agents and credit rating agencies),
and/or may require the prior consent of such debtors for the provision of such data and/or a
notification to the relevant public authorities. To ensure compliance with data protection rules,
transactions often include escrow arrangements pursuant to which personal data of debtors in the
securitised portfolio will be provided by the originator or servicer to an escrow agent in encrypted
form, which data may only be released by the escrow agent to the SPV and security trustee in default
scenarios under the transaction, or otherwise in connection with the enforcement of the securitised
portfolio.

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4.5. CERTAIN MANDATORY REPORTING REQUIREMENTS16

On 1 January 2009 new rules further implementing the EU Transparency Directive (2004/109/EC)
came into force in the Netherlands. They are incorporated in the FSA and various implementing
decrees. Pursuant to the FSA the (periodic) financial reporting requirements do not apply to an issuer
exclusively of debt securities with a denomination of at least EUR 100,000 or equivalence in other
currency. However, the requirements of the DCC, in particular those regarding the publication and
filing of the annual financial accounts and annual reports will nevertheless apply to any company with
its official corporate seat in the Netherlands. Also, pursuant to the requirements of the DCC, a Dutch
SPV must have its accounts audited if its securities are listed on a regulated market. In addition, if the
securities issued by the Dutch SPV are listed on a regulated market, the relevant rules also contain
incidental reporting obligations (e.g., changes in the rights attaching to securities and price sensitive
information), provisions on the equal treatment of securities holders, and certain specific information
requirements (e.g., maintaining a website).

4.6. LICENSING ISSUES

Any party which provides securities, banking or insurance services to a Dutch SPV should be
authorised to conduct business in the Netherlands, either by having a licence or – for EU entities – by
having the relevant services passported under the relevant EU directives. This would typically apply
to all hedging counterparties.

5 Legal Structure
5.1. TRANSFER TECHNIQUES

The appropriate method of transferring receivables under Dutch law is by way of assignment
(cessie).17 A transfer of receivables can either take the form of a disclosed assignment (openbare
cessie)18 or, provided that the receivables exist or arise from a legal relationship existing at the time of
such transfer, undisclosed assignment (stille cessie). 19 A disclosed assignment, in order to be
effective, must be notified to the debtor of the receivable. For an undisclosed assignment to be
effective, the deed of assignment should either be included in a notarial deed or registered with the
Dutch tax authorities. In the case of an undisclosed assignment, notification to the debtor will still be
required to avoid such debtor validly discharging its obligations (bevrijdend betalen) by making a
payment to the assignor of the receivable.

In particular in transactions involving consumer receivables, the transfer of receivables is usually

for commercial reasons effected by way of silent assignment and will therefore not be notified to the
debtors of receivables, except if certain events (e.g., payment defaults, insolvency events and credit
ratings downgrades) in respect of the transferor (i.e., the originator) occur. As long as no notification
of the assignment of the receivables from the originator to the SPV has taken place, payments made
by the debtors under the receivables must continue to be made to the originator.

To protect the interests of the SPV (and the security trustee), the relevant purchase contract
would usually contain, in addition to representations and warranties in relation to the receivables,
covenants from the originator pursuant to which the originator on-pays to the SPV any proceeds
received (or deemed received, for example as a result of set-off) in respect of the receivables until
notification of the assignment of the receivables has been given to the debtors. Furthermore, the
originator would agree not to transfer or encumber the receivables to, or in favour of, any third party
(other than the SPV).

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It has been debated in respect of Dutch RMBS whether such transactions are at risk to be re-
characterised as a secured loan (rather than a sale) as a result of which a transfer of receivables in
respect thereof would be void as a matter of Dutch law.20 As long as the parties indeed intend to
accomplish a sale by the originator of the receivables to the SPV and, in connection with such sale, a
transfer of the receivables from the originator to the SPV resulting in the SPV receiving full title to
the receivables (which one would typically intend if the SPV is required to pledge the acquired
receivables in favour of the security trustee as security for the SPV's obligations and the SPV is free to
dispose of the receivables once acquired) rather than merely some form of security interest, there is, in
principle, no reason for concern that such transfer would be void as a matter of Dutch law.21

5.1.1. TRANSFER RESTRICTIONS

In determining the legal feasibility of a true sale transaction it is particularly relevant to determine
whether the relevant contract pursuant to which the receivable is originated does not restrict or
prohibit an assignment or transfer of such receivables. Under Dutch law, a party to a contract may
assign its rights under such contract unless such transfer is prohibited or restricted by law or contract,
or such right is a personal right (which by its nature is non-transferable). 22 As part of the due
diligence process, a relevant contract or, in respect of large portfolios, a representative sample or
standard form contract, would usually be reviewed to determine whether an assignment of rights
under such contract is allowed without involvement of the debtor of the receivable. 23 If a
securitisation transaction would nevertheless be intended in respect of (a portfolio of) receivables the
transfer of which is contractually restricted or prohibited, depending on the purpose of such
transaction, a synthetic structure may be a suitable alternative.

5.1.2. SECURITY

In a true sale transaction it is relevant to determine whether upon an assignment of a receivable by the
originator to the SPV, the SPV shall also have the benefit of any security rights granted to secure such
receivable (e.g., a mortgage securing a loan). According to section 3:7 DCC accessory rights
(afhankelijke rechten) are rights which are connected to another right in such a manner that they
cannot exist without the other right, such as security rights. Accessory rights connected to a
receivable are also ancillary rights (nevenrechten). Section 6:142 DCC describes ancillary rights by
giving examples: security rights, privileges, the right of enforcement and the right to stipulated
interest or a penalty. This list is not exhaustive. Accessory rights follow the right with which they are
connected. Consequently, if a receivable is transferred, in principle the accessory rights and the
ancillary rights pass by operation of law to the transferee of the receivable, except if the relevant right
by its nature is, or has been construed by the parties as, a purely personal right of the transferor. This
means that upon an assignment of a receivable by the originator to the SPV, the SPV shall also have
the benefit of a security right granted to secure such receivable unless such security right is a personal
right of the originator.

Dutch banks generally use bank (or all-monies) mortgages (bankhypotheken) and/or credit
mortgages (krediethypotheken) in their secured financing arrangements with their borrowers. 24
Contrary to fixed mortgages (vaste hypotheken), which only secure a relevant loan or other type of
credit, bank mortgages not only secure a relevant loan but also any other amounts that are or may
become due from such borrower to the bank as a result of loans, current account claims or claims of
whatever nature. Credit mortgages are similar to bank mortgages but are usually restricted to current
account or similar types of credit claims.

It is not clear in all circumstances whether, in the case of an assignment or pledge of a receivable
secured by a bank mortgage, the mortgage rights created by the bank mortgage will follow such

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receivable. Relevant case law indicates that the question of whether the mortgage rights created by
the bank mortgage will follow the receivables is dependent on the intention of the parties at the time
that they entered into the mortgage deed. 25 In determining whether a bank mortgage follows the
receivable to which it is connected, the wording of the relevant mortgage deed is a clear indication of
the intentions of the parties. If the relevant mortgage deed does not contain any explicit provision as
to whether the mortgage right partially follows the receivable upon assignment or pledge of such
receivable to a third party (e.g., an SPV or a security trustee), the mortgage right, taking into account
the nature of a mortgage right as an ancillary right rather than a personal and an independent right,
will partially follow the receivable upon assignment or pledge of such receivable to a third party,
unless the parties to the mortgage deed actually intended the mortgage right to be a personal and
independent right of the mortgagee rather than a right that is ancillary to the receivables it purports to
secure.

As a consequence of a transfer by the originator of a receivable secured by a bank mortgage (or

fixed mortgage if not all receivables which are secured by such mortgage are transferred) to the SPV,
the relevant mortgage right would be co-held by the SPV and the originator.26 This would mean that
in the case of foreclosure of the relevant mortgage, the relevant originator and the SPV in principle
need to act jointly and share the proceeds pro rata on the basis of their respective shares in the joint
estate (gemeenschap). Therefore, the relevant purchase contract in a Dutch RMBS would typically
contain arrangements between the relevant originator, the SPV and security trustee (in connection
with the right of pledge created by the SPV over the receivables to the security trustee) as to the
management, administration and enforcement of such joint security rights. However, such
arrangements may not be enforceable in all respects to the extent that they are inconsistent with the
Dutch mandatory rules applying to co-held interests.27

Furthermore, under Dutch law no statutory provision exists on the issue of whether upon the
creation of a right of pledge on a receivable and notification thereof to the relevant debtor, the pledgee
is entitled to exercise the accessory rights and the ancillary rights connected to the receivable upon the
exercise of the pledged rights. In Dutch legal literature the most commonly held view is that security
rights, such as mortgage rights, can be exercised by the relevant pledgee, either because a right of
pledge should be regarded as a partial transfer of the receivable and that the accessory and ancillary
rights follow in as far as they are connected to the powers transferred to the pledgee, or because the
person who is entitled to collect the receivable (inningsbevoegde) (e.g., in respect of a disclosed right
of pledge, the pledgee) is also deemed to be entitled to enforce the related security. This view is also
supported by a recent decision of the Dutch Supreme Court (Hoge Raad der Nederlanden) on the
attachment (beslag) of a claim secured by a right of mortgage.28

5.2. SELECTED LEGAL ISSUES

5.2.1. IMPACT OF INSOLVENCY ON ASSIGNMENT

Registration of a deed of assignment (in the case of an undisclosed assignment) and notification of a
deed of assignment to a debtor (in the case of a disclosed assignment) after the transferor (e.g., an
originator) has been declared bankrupt (failliet verklaard) or has become subject to a suspension of
payments (surseance van betaling) or, as the case may be, emergency regulations (noodregeling)
within the meaning of the FSA, in the Netherlands (together insolvency proceedings), will not be
effective and, consequently, in such event the receivables will not have been validly transferred from
the transferor to the transferee (i.e., the SPV).29 Assuming that an assignment has been perfected
either by registration of the relevant deed of assignment with the Dutch tax authorities (in the case of
an undisclosed assignment) or by notification of the relevant deed of assignment to the debtor of the
receivable (in the case of a disclosed assignment) prior to insolvency proceedings becoming effective
in respect of the transferor, the validity of such assignment will not be affected as a result of such

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transferor being subsequently subjected to insolvency proceedings. However, this does not mean that
(the validity of) such transaction could be challenged for any other reason, for example, because the
transaction is held not to be in the originator's corporate interests30 or held to be prejudicial to the
interests of other creditors of the originator, and the originator and SPV are or should have been aware
of this at the time that they entered into such transaction.31

As long as no notification of the assignment has taken place, any payments made by the debtor
under a receivable must continue to be made to the relevant originator. In respect of payments so
made prior to insolvency proceedings of the relevant originator, the SPV will be an ordinary, non-
preferred creditor, having an insolvency claim (voor verificatie vatbare vordering). In respect of
post-insolvency payments, the SPV will be a creditor of the estate (boedelschuldeiser), and will
receive payment prior to creditors with insolvency claims, but after preferred creditors of the estate.
Creditors of insolvency claims have to share in the general insolvency costs and have to await
finalisation of a (provisional) distribution list ((voorlopige) uitdelingslijst). Notification of a perfected
undisclosed assignment of receivables can be validly given to the debtors of such receivables after the
transferor has been subjected to insolvency proceedings.

5.2.2. SET-OFF AND DEDUCTION

Set-off risk often plays an important role in structuring a securitisation, in particular if banks as
originators are involved, since an SPV after having purchased a receivable from the originator may
not receive all proceeds to which it is entitled in respect of such receivable if the debtor of such
receivable invokes a setoff right (verrekeningsrecht) or similar deduction right against such originator.
For example, this can be relevant in respect of deposits or savings held by a debtor with an originator
or damages claims of a debtor against an originator as a result of acts performed by such originator
(e.g., in relation to providing inappropriate investment advice, etc.).

In a true sale transaction, the relevant purchase contract would typically provide that an
originator shall pay amounts equal to the difference between the amounts which are set-off by the
relevant debtor and which should have been received by the SPV and the amounts that have actually
been received by the SPV in respect of the relevant receivable. However, such covenant to pay of the
originator would mean that the SPV incurs credit risk on the originator. Transactions involving large
loan portfolios therefore usually contain concentration limits in respect of categories of debtors in
respect of which set-off risk is believed to be material (e.g., residential mortgage loans granted to
employees of the originator).

Unless such set-off right is validly waived by the debtor in the relevant loan contract,32 under
Dutch law a debtor will be entitled to set-off amounts due by the originator with amounts the debtor
owes to the originator in respect of the relevant receivable, provided that the legal requirements (such
as mutuality) for set-off are met.33 After an assignment or pledge of the relevant receivable to the SPV
or security trustee, as the case may be, and notification to the debtor, the debtor will also be entitled to
such set-off rights – again provided that the legal requirements for set-off are met – and furthermore
provided that:

(a) the counterclaim of the debtor results from the same legal relationship (rechtsverhouding) as
the relevant transferred (or pledged) receivable; or
(b) the counterclaim of the debtor came into existence and became due and payable prior to the
transfer (or pledge) of the relevant receivable and notification thereof to the debtor.34

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Similar deduction risks often play a role in Dutch RMBS in respect of mortgage loans that are
combined with insurance products. It is usually intended that the relevant mortgage loan is repaid at
its maturity with the income generated by the insurance product during the life of the mortgage loan
which is paid out at maturity of the mortgage loan. These risks could materialise if the relevant
insurance company – for example, as a result of its insolvency – would not pay out such insurance
proceeds and as a result thereof the debtor would try to invoke set-off rights or similar defences.
Whilst the mutuality requirement for set-off may not be met if the insurance company is a separate
legal entity, a debtor could also argue, based on the applicable mortgage and insurance conditions and
other documents (or oral statements) relating to the marketing and origination of the mortgage loan,
and the intention of the parties involved, that the relevant mortgage loan and insurance policy are to
be regarded as one inter-related legal relationship and that as a result thereof the debtor does not have
to repay (part of) the mortgage loan if the debtor has failed to receive the relevant insurance proceeds.

This deduction risk is often mitigated in respect of certain types of mortgage loans through a sub-
participation arrangement pursuant to which the relevant insurance company or originator participates
in the relevant receivables acquired by the SPV, for a purchase price equal to the premium received
under the related insurance policies.

5.2.3. INTEREST RATE RESET

In Dutch RMBS involving Dutch law governed loan receivables bearing a fixed or floating interest
rate for a fixed period, it is uncertain whether the right to reset the interest rate upon termination of the
relevant interest period is transferred to the SPV upon a transfer of the relevant loan receivable. The
reason for uncertainty is that neither statute nor case law explicitly deals with this question. It is often
argued that such interest reset rate is an ancillary right which by nature follows the right to which it is
connected (i.e., the relevant loan receivable) unless it is a personal right of the initial creditor (i.e., the
originator). This argument is based on the fact that section 6:142 DCC explicitly refers to the right to
stipulated interest as an example of an ancillary right. If the right to reset the interest rate should be
considered as a right to further determine the content of the right to stipulated interest it would qualify
as an ancillary right. If the loan receivable itself cannot be considered a personal right of the initial
creditor (e.g., because the relevant loan contract is silent on this matter) it is difficult to argue that the
right to stipulated interest and the interest rate reset right in respect of such loan receivable should
themselves be considered personal rights.

If such interest reset right should instead be considered as an independent right which is not
connected to the relevant loan receivable it would have to be considered to what extent such right is
itself transferable. Since one would expect an interest rate reset right to be at the discretion of the
relevant creditor, subject to any conditions stipulated in the loan contract, it should in this view
probably be regarded as a discretionary right (wilsrecht), which if considered a proprietary right
(vermogensrecht), is in principle transferable. The transferability of a discretionary right is dependent
on the transferability of the related receivable.35

If an interest rate reset right should not be regarded a discretionary right or proprietary right it
should upon a transfer of the related loan receivable either remain with the initial creditor or terminate
by operation of law. If it were to remain with the initial creditor, the initial creditor would, in
principle, have to comply with the interest reset instructions given by the transferee of the relevant
loan receivable, subject to the conditions stipulated in the loan contract, since the initial creditor
would itself no longer be legally entitled to the loan receivable. Any discretion exercised by such
initial creditor without taking into account the instructions of the transferee could result in abuse of
power (misbruik van bevoegdheid) and expose the initial creditor to liability against the transferee,
either on the basis of tort or breach of contract.

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If the interest rate reset right were to terminate by operation of law, this would change the
identity and characteristics of the related (interest bearing) loan receivable, which would be contrary
to the principle that upon a transfer of a receivable the identity and content of such receivable shall
remain unchanged.36

6 CREDIT ENHANCEMENT
6.1. GENERAL

The creditworthiness of an SPV or the quality of the debt securities issued by the SPV can be
enhanced by using various financing techniques that reduce the likelihood of default by the SPV or on
the debt securities issued by the SPV.

The credit rating agencies have established models and credit rating requirements to determine
the credit rating of the debt securities issued by the SPV. These models and requirements will take
account of the credit enhancement included in a transaction. As a result, the credit rating of the debt
securities issued by the SPV can be increased if on the basis of these models and requirements, the
credit rating agencies conclude that the creditworthiness of the SPV or the debt securities issued by
the SPV has been sufficiently increased. A higher credit rating (and the lower risk profile) should
correspond to lower interest rates. However, credit enhancement also comes at a cost. An originator
will need to consider whether, when the costs of credit enhancement are taken into account, the lower
interest rates will indeed result in overall cheaper funding costs.

The techniques that are most frequently used in a Dutch RMBS are described below. A
transaction will typically include a combination of these techniques.

6.2. SUBORDINATION

Credit enhancement can be provided to one or more tranches of debt of the SPV by subordinating
other debt obligations of the SPV to the obligations of this tranche or tranches. This implies that in
the event of losses on the portfolio of assets, rather than having such losses allocated to all
outstanding debt of the SPV on a pro rata basis, such losses are first absorbed by the lower ranking
debt obligations. As a result, the chances of repayments in full of the senior tranches of debt are
higher than on the lower tranches, and the credit ratings attributed to the debt will reflect this risk
allocation. Because of this risk allocation, interest rates on the lower ranking tranches will be higher
than the interest rates on the more senior tranches.

Given the higher interest rate that is generally paid on the junior debt, it may be attractive to
certain sophisticated investors that are willing to assume the risk. In transactions that do not already
intend to achieve regulatory capital relief, the junior debt can also be held by the originator itself (or
an affiliated company). In these circumstances the originator (or such affiliated company) is
providing the credit enhancement.

The terms of the subordination will provide that the holders of junior debt are not entitled to
payments of interest and principal until interest and principal on the senior debt obligations have been
paid. In addition, they will also provide that the junior debt holders cannot take any enforcement or
other action under their debt arrangements unless the holders of the senior debt agree. Amendments
to any of the terms of the junior debt arrangements will require the approval of the senior debt
holders.

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Under Dutch law, the legal basis for subordination can be found in section 3:277(2) DCC.37 The
relevant provision states that a creditor can agree with the debtor that the creditor's claim against the
debtor will be given a lower ranking in relation to all or specific creditors than the law provides. The
agreement must be made between the relevant debtor and the creditor and not between the creditors
concerned only. The SPV must therefore be a party to the subordination arrangements, and the
creditors should ensure that the subordination agreement cannot be amended without the consent of
all affected creditors by for example stipulating that the debtor is not allowed to enter into different
arrangements with one or more creditors unless all other creditors approve.

6.3. OVERCOLLATERISATION

In most true sale transactions, overcollateralisation is being used. It implies that the value of the
assets which the originator transfers to the SPV is greater than the consideration paid by the latter to
the originator. The funding that the SPV requires for paying the consideration will be less than the
value of the assets, so that there is a buffer against defaults under the cash flows received from these
assets.

Given that the transfer of assets is for a consideration less than their value is potentially
prejudicial to creditors of the originator and could result in tax and accounting issues (because the
originator could be deemed to have made a loss on the sale of the assets to the SPV). Therefore the
terms of the sale will provide that the consideration paid by the SPV at the time that the assets are
transferred to the SPV constitutes initial consideration and that the originator is entitled to deferred
consideration as and when the SPV has funds available for this purpose on the basis of the relevant
priority of payments. This deferred consideration will be calculated by reference to the portfolio as a
whole and will not be allocated to particular assets. On the basis that, if the originator had kept the
assets, it will also have suffered the defaults and would have to pay for funding costs, it can be agreed
that in these circumstances, there should be no reason for creditors of the originators to challenge a
transfer of assets on this basis.

A transaction can also involve more than one originator, in which case it would be possible to
introduce a form of cross-collateralisation. This means that for the determination of the available
deferred consideration, the cash flows of the total asset portfolio (including the assets of all
originators) rather than the assets of a particular originator are considered. Each originator will be
entitled to, generally, a pro rata part of the available surplus cash flows by way of deferred
consideration.

If the credit quality of the portfolios of the various originators differs, the originator with the
portfolio of better quality is providing support to the originator with the portfolio of weaker quality.
This could give rise to corporate law (corporate benefit) and voidable preference (pauliana) issues.
These issues must be considered from the perspective of each originator that is involved in the
transaction.

6.4. RESERVES

The SPV typically receives in a true sale transaction more income than the amounts of its
funding costs and expenses. The surplus will normally be paid out to the originator by way of deferred
consideration (see paragraph 6.3 above). The terms of the transaction will normally provide that a part
of this surplus is retained by the SPV and this will be added to, or used as, a reserve. The amount of
the reserve is generally calculated as a percentage of the amounts due under the assets or the SPV's
debt obligations with a minimum (absolute) amount. If the reserve has reached the agreed amounts,

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surplus proceeds will no longer need to be retained. If the agreed reserve amount is reduced (e.g.,
because the amounts due under the assets are reduced through payments), amounts can be released
from the reserve and paid to the originator as deferred consideration.

An SPV can maintain several types of reserves, for example, a default reserve that can be applied
to cover unexpected or expected costs and expenses of the SPV as well as any losses that the SPV
may suffer as a result of a payment or other default.

If the SPV has agreed to swap its cash flows resulting from the securitised assets against the
amount due by it as funding costs, the arrangements can provide that the SPV must retain a certain
part of its cash flows, generally based on a percentage of the amounts due on the assets or the debt
obligations it has outstanding. This amount will be applied to establish and fund a reserve.

In some circumstances (local true sale requirements or tax or accountancy treatment) it may be
preferable that the assets are transferred by the originator to the SPV against their fair market value
and that the originator (or an affiliated company) grants a subordinated loan to the SPV. The proceeds
of this subordinated loan can be used to fund a reserve that can be used to compensate for any losses
incurred on the asset portfolio. The subordinated loan will be repaid at the end of the transaction to the
extent that there are remaining funds to the reserve (or earlier, if the reserve has been funded through
cash flow generated by the assets).

6.5. EXTERNAL SUPPORT TO SPV

There are various other ways in which an SPV can be supported in order to increase its
creditworthiness. For example, the swap agreement pursuant to which income on the assets is
swapped against the SPV's funding costs can provide that the swap counterparty remains obliged to
pay the SPV's funding costs, even if the income in respect of the assets is reduced as a result of
defaults. In these circumstances the swap counterparty will, in fact, be providing credit support to the
transaction. This will, of course, also have an impact on the capital adequacy treatment of the swap.

7 TRANSACTION SECURITY
7.1. LEGAL STRUCTURE

It is usually intended to create an efficient security structure whereby a representative of the

creditors of the SPV (security trustee) is appointed to hold the security for the ultimate benefit of such
creditors to avoid that – at least in respect of Dutch RMBS – a co-shared security right
(gemeenschappelijk zekerheidsrecht) 38 may arise which by operation would be the case if such
security was held by two or more creditors jointly. Co-shared security rights are avoided since the
cooperation of the co-holders of such security could be required should a holder wish to enforce such
security (which could result in undesirable enforcement disputes and/or delays), and such security
would have to be re-created if new additional creditors were to be introduced into the transaction (e.g.,
in the case of a tap or further issue of notes under a securitisation programme).

However, it is uncertain under Dutch law whether a security right can be validly created in
favour of a party that is not the creditor of the claim which the security right purports to secure. 39 To
address this uncertainty in Dutch RMBS, the SPV – as a separate and independent obligation –would
undertake to pay to the security trustee amounts equal to the amounts due by the SPV to the secured
parties. Such arrangement is commonly referred to as a parallel debt arrangement.40 Such parallel
debt in principle creates a claim of the security trustee against the Dutch SPV which can be secured
by a Dutch right of pledge.41 In addition, it would have to be provided that upon enforcement of such

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right of pledge, the security trustee shall distribute the enforcement proceeds to the creditors of the
Dutch SPV in accordance with the pre-agreed waterfall of payment priorities.

7.2. SECURITY TYPES

Even though the SPV is made bankruptcy remote it is common practice for true sale
securitisation transactions to include security arrangements to further strengthen the position of the
investors and certain other creditors of the SPV in the event that the SPV would default on its
payment obligations. In most securitisations all material assets of the SPV serve as collateral for the
SPV's payment obligations. A typical security package in a Dutch true sale securitisation would
include:
(a) a first ranking right of pledge (pandrecht)42 over (Dutch law governed) receivables (and
related rights) acquired by the SPV;
(b) a first ranking right of pledge over the bank accounts (and related rights) of the SPV located
in the Netherlands; and
(c) a first ranking right of pledge over the rights of the SPV under the (most important)
transaction documents (e.g., purchase, servicing, cash management and hedging contracts).

Under Dutch law a right of pledge over receivables and other contractual rights can take the form
of a disclosed right of pledge (openbaar pandrecht) or undisclosed right of pledge (stil pandrecht). In
order for a disclosed right of pledge to be effective, the deed of pledge must be notified to the debtor
of the receivable. For an undisclosed right of pledge to be effective, the deed of pledge should either
be included in a notarial deed or registered with the competent Dutch tax authorities. In the case of an
undisclosed right of pledge, notification to the debtor will still be required to ensure that such debtor
can no longer validly discharge its obligations (bevrijdend betalen) by making a payment to the
pledgor of the receivable (e.g., the SPV). In particular in transactions involving consumer receivables,
the pledge over the securitised receivables is created as a silent right of pledge since the transfer of the
receivables is normally effected by way of silent assignment.

7.3. SECURITY TRUSTEE

In Dutch RMBS a security trustee has effectively two roles, namely: (i) it is appointed by the
investors as their representative (note trustee) to hold the benefit of rights and covenants granted by
the SPV in respect of the debt securities; and (ii) it holds the security granted by the SPV for the
ultimate benefit of the investors and other parties in the transaction whose interests are secured (see
paragraph 7.1 above). The appointment as note trustee and the terms and conditions of such
appointment are provided for in the trust deed, which is the document pursuant to which the debt
securities are issued by the SPV and which will set out the terms and conditions applying to such
securities. In a pre-enforcement scenario the role of a security trustee is limited to considering and – if
deemed appropriate – granting requested waivers and approvals for amendments to the transaction
documentation.43 In a post-enforcement scenario one would expect the security trustee to become
more active, particularly if it is requested by the investors to enforce the relevant security.

In Dutch RMBS the security trustee would typically take the form of a Dutch foundation
(stichting). Similar to the (shareholder of a) SPV it has a limited business purpose and is set up as a
bankruptcy remote vehicle. The security trustee is usually set up and managed by a corporate services
provider. The corporate services provider must be independent from the originator and may not be the
same entity as the director of the SPV or its shareholder.

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7.4. SELECTED LEGAL ISSUES

7.4.1. ENFORCEMENT OF SECURITY

As set out in paragraph 7.2 above, the assets of the Dutch SPV are generally limited to
receivables and other contractual rights over which a right of pledge is created by the SPV in favour
of the security trustee as security for the parallel debt.

A pledge of receivables can be enforced under Dutch law by way of collection (inning) of the
related payment either through (a) in respect of undisclosed rights of pledge, notification of the pledge
to the debtor of the receivable (and until such notification the pledgor is authorised to collect the
receivables and the debtors can continue to validly discharge their debts by paying to the pledgor); or
(b) in respect of disclosed rights of pledge, termination of the authorisation that may have been given
by the pledgee thereunder to the pledgor to collect the receivables, after which the debtors can only
validly discharge their debts by paying to the pledgee.44 As set out above, notification of the pledge
(or revocation of the authorisation to the pledgor to collect the receivables) will usually only be made
upon the occurrence of a default at SPV level (e.g., failure to pay amounts due under the debt
securities issued by the SPV, insolvency of the SPV or breach of material covenants of the SPV under
the transaction documents). The pledgee can also foreclose (uitwinnen) the pledged receivables by
selling such receivables, provided that there is a default (verzuim) in the obligations secured thereby.45
This sale must take the form of a public auction or – with approval of the relevant court – a private
sale.46 A foreclosure of rights of pledge by way of a foreclosure sale may be particularly relevant in
circumstances where the pledged receivables have long maturities (e.g., residential mortgage loans).

7.4.2. IMPACT OF INSOLVENCY ON SECURITY

Registration of a deed of pledge (in case of an undisclosed right of pledge) and notification of a
deed of pledge to a debtor of a receivable (in case of a disclosed right of pledge) after the Dutch SPV
has been declared bankrupt (failliet verklaard) or has become subject to a suspension of payments
(surseance van betaling) (insolvency proceedings), will not be effective and, consequently, in such
event the receivables will not have been validly pledged in favour of the security trustee.47 In respect
of payments under pledged receivables made to the Dutch SPV following notification to the debtors
of the assignment of the receivables to the Dutch SPV but prior to notification to the debtors of the
pledge and prior to the Dutch SPV having been subjected to insolvency proceedings, and not on-paid
to the pledgee prior to the insolvency of the Dutch SPV, the security trustee (as pledgee) will be an
ordinary, non-preferred creditor, having an insolvency claim (voor verificatie vatbare vordering). In
respect of post-insolvency payments, the pledgee will be a preferred creditor having an insolvency
claim.48 Creditors of insolvency claims have to share in the general insolvency costs and have to
await finalisation of a (provisional) distribution list (voorlopige) uitdelingslijst).49 A security trustee
can, in the event of insolvency proceedings involving the Dutch SPV, exercise its rights as pledgee as
if there were no insolvency proceedings. 50 However, if the Dutch SPV is subject to insolvency
proceedings, the position of the security trustee as pledgee would be affected in some respects, the
most important of which are, that:
(a) a mandatory 'cool-off' period (afkoelingsperiode) of up to four months may apply in the case
of bankruptcy or suspension of payments involving the Dutch SPV (applicable in respect of
each procedure), which, if applicable, would delay the exercise of enforcement rights under
the right of pledge. However, such cool-off period does not prevent the pledgee from giving
notice to the debtors of any pledged receivables and collecting the proceeds thereof but it
will prevent the pledgee from taking recourse against any amounts so collected during such
period; and
(b) the security trustee could be obliged to enforce its rights of pledge within a reasonable
period as determined by the judge-commissioner (rechter-commissaris) appointed by the

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court in the case of bankruptcy of the Dutch SPV, failing which the bankruptcy receiver
(curator) will be entitled to sell the relevant receivables or assets. In such case, the pledgee
will receive payment prior to ordinary, non-preferred creditors having an insolvency claim
but after creditors of the estate (boedelschuldeisers).

To the extent that rights purported to be pledged by the Dutch SPV to the security trustee under
the Dutch pledge agreements are future rights (toekomstige vorderingen), such rights are no longer
capable of being pledged after insolvency proceedings involving the Dutch SPV taking effect. For
example, amounts from time to time credited to a Dutch SPV's bank account held in the Netherlands
are regarded as future rights and a right of pledge thereon will only become effective at the time the
relevant amount is credited to the bank account. If an amount is credited to such bank account after
insolvency proceedings involving the Dutch SPV taking effect, such amounts would not become
subject to the pledge and would fall in the insolvent estate of the Dutch SPV.51

1
This general overview is, with permission, prepared on the basis of a publication on Securitisation by R.E.G.
Masman and P.N.J. van Welzen, attorneys at law at Clifford Chance LLP, Amsterdam. This general
overview does not necessarily deal with every important topic nor cover every aspect of the topics with
which it deals. It is not designed to provide legal or other advice. Neither the DSA nor any other person
assumes any responsibility or accepts any liability for the content of this general overview.
2
They do not purport to give an exhaustive summary or description of all relevant issues that one can come
across in structuring a securitisation transaction.
3
Often the note trustee (or the security trustee if its function as note trustee is combined with holding the
security interests for the benefit of the investors) will only agree to these changes if the credit rating
agencies have indicated that such changes do not adversely affect the credit ratings of the debt securities.
4
See paras 12.2.4 and 12.7. In addition, in a trade receivables securitisation, appropriate risk profiles can be
obtained through discounted sales of trade receivables. This can also be combined with subordinated
financing provided by the originator to the SPV.
5
These reports can be found on the websites of the credit rating agencies.
6
Although a legal transfer of the assets is intended, the accounting treatment from the originator's perspective
may be different in respect of the assets and, consequently, such assets may remain on the balance sheet of
the originator.
7
Credit rating agencies will not completely ignore the originator's credit risk in a true sale transaction given
that the originator, amongst other things, will likely have certain repurchase obligations in relation to the
assets (e.g., as a result of a breach of the eligibility criteria). If the originator is not able to repurchase
ineligible assets if required, this may result in losses to the investors.
8
Furthermore, the diversity of investors may increase when a range of acceptable risk profiles the relevant
debt securities are obtained, see also para. 12.7.
9
In some Dutch domestic transactions a Dutch foundation (stichting) is used as an SPV, usually for tax
reasons. There is also flexibility for using foreign SPVs in Dutch domestic transactions. The choice of
jurisdiction is often primarily driven by tax reasons. Since the inception of the European ABS market, on
the basis of a favourable Dutch tax (treaty) position, Dutch SPVs have commonly been used as issuing
vehicles in both Dutch domestic transactions as well as cross-border transactions.
10
Section 1 Dutch Bankruptcy Act (Faillissementswet).
11
Generally, there are also limitations on the right of the SPV (and its management) to petition for its
insolvency.
12
Section 3:5(2d) FSA.
13
Section 3(2) Definitions Decree FSA (Besluit definitiebepalingen Wft). If the aggregate facility amount and
minimal drawdown amount are less than EUR 100,000 the SPV can still borrow monies under normal loan
facilities from lenders provided that such lenders (otherwise) qualify as professional market party
(professionele marktpartij) (e.g., a licenced bank) within the meaning of s. 1:1 FSA.

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14
Section 2:60 FSA.
15
Section 3 Exemption Regulation FSA (Vrijstellingsregeling Wft).
16
It is not intended to give a complete overview of all reporting obligations that may apply to an SPV.
17
If it is also intended to transfer a party's obligations under a contract the method of contract transfer
(contractsoverneming) should be used (s. 6:159 DCC).
18
Section 3:94(1) DCC.
19
Section 3:94(3) DCC. The possibility of silent assignment was re-introduced in the DCC in October 2004.
Dutch domestic transactions entered into prior to October 2004 were based on a conditional assignment
structure, meaning that the transfer of receivables would not be perfected until notification of the
assignment is given to the debtors, to avoid that debtors would have to be notified at inception of the
transaction. As a result of such conditional assignment, the SPV would become exposed to insolvency risk
of the originator. To address this risk such transactions typically included a dual pledge structure pursuant
to which the originator granted first and second ranking rights of pledge over the receivables to the security
trustee and SPV, respectively, as security for, respectively, the originator's and SPV's obligations under the
transaction documents.
20
Section 3:84(3) DCC.
21
This view is supported by HR 19 May 1995, NJ 1996, 119 (Keereweer q.q./Sogelease). In Dutch legal
literature re-characterisation risk is more recently discussed in respect of Dutch covered bond transactions:
see A.F. Salomons & M.G. van 't Westeinde, 'Covered bonds en het fiducia-verbod', WPNR 6758 (2008):
453–460 and R.M. Wibier, 'Reactie op "Covered bonds en het fiducia-verbod" van Prof.mr. A.F. Salomons
en mw. M.G. van 't Westeinde in WPNR (2008) 6758', WPNR 6769 (2008): 715–717. The structure (and
technique) of a covered bonds transaction is similar to (and based on) that of a true sale transaction, other
than that in a covered bonds transaction: (i) the issuer of the covered bonds is the relevant (originating) bank
(instead of an SPV) whose obligations under the covered bonds are guaranteed by an SPV; and (ii) the title
(titel) for the transfer of receivables by an originator to an SPV is that of a 'guarantee-support' instead of a
sale.
22
Section 3:83 DCC.
23
Pursuant to s. 6:159 DCC a contract transfer (contractsoverneming) requires the cooperation of the relevant
counterparty unless it has given its consent in advance to such contract transfer (in which case notification
of the transfer is still required for the transfer to become effective). However, such consent given in
advance may not necessarily be enforceable if given by a consumer (s. 6:236(e) DCC).
24
Pledges can also take the form of bank or credit pledges and are also generally structured as such by Dutch
banks. The analysis in respect of bank and credit mortgages similarly applies to bank and credit pledges.
25
See HR 16 Sep. 1988, NJ 1989, 10 (Onderdrecht/FGH&PHP). In legal literature the view has also been
defended that a bank mortgage would only follow the receivables which it secures if the relationship
between the lender and the borrower has been terminated in such a manner that, following the transfer of the
receivables, the lender can no longer acquire new receivables that would be secured by the bank mortgage.
See also W. Ruys, 'Securitisation en bankhypotheken: problemen en mogelijke oplossingen', in
Onderneming en effecten, ed. S.C.J.J. Kortmann et al., vol. 13 of serie Onderneming en Recht (Deventer:
W.E.J. Tjeenk Willink, 1998), 511–524. In line with this view, Dutch residential mortgage-backed
transactions typically provided for a partial termination of the bank mortgage by the lender to the extent that
it related to receivables that were not securitised. However, in line with the more recent view that a
mortgage right as dependent right in principle follows the receivable it secures, this is no longer considered
necessary. See also L. Timmerman, 'Bankhypotheek en afhankelijkheid', in Onderneming en 10 jaar nieuw
burgerlijk recht, ed. S.C.J.J. Kortmann et al., vol. 24 of serie Onderneming en Recht (Deventer: Kluwer,
2002), 411–424.
26
Sections 3:166 et seq. DCC.
27
For example, s. 3:170(3) DCC.
28
HR 11 Mar. 2005, JOR 2005, 131. See also S.C.J.J. Kortmann, 'Inning van andermans gesecureerde
vordering', TvI (2005/19): 67–69.

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 General overview of a typical Dutch true sale securitisation – October 2012

29
Sections 23 and 35 Dutch Bankruptcy Act (Faillissementswet). See also para. 12.8.4.2. in respect of rights
of pledge.
30
Section 2:7 DCC. See also para. 12.5.3.4(a).
31
Sections 3:45 et seq. DCC (pre-insolvency) and ss 42 et seq. Dutch Bankruptcy Act (Faillissementswet)
(post-insolvency), respectively. See also para. 12.5.3.1.
32
A waiver of statutory set-off rights by a consumer may not necessarily be enforceable (s. 6:237(g) DCC).
33
Section 6:127 DCC.
34
Section 6:130 DCC.
35
TM Parl. Gesch. Book 3, 314.
36
M.P. van Achterberg, Overgang van vorderingen en schulden en afstand van vorderingen, vol. B44 of Mon.
Nieuw BW (Deventer: Kluwer, 1999), 11.
37
See B. Wessels, Achtergestelde vorderingen, vol. 6 of Mon. Privaatrecht (Deventer: Kluwer, 2006).
38
Sections 3:166 et seq. DCC.
39
See S.C.J.J Kortmann, M.H.E. Rongen & H.L.E. Verhagen, 'Zekerheidsrechten op naam van een ''trustee''
(I)', WPNR 6459 (2001): 813–823 and S.C.J.J Kortmann, M.H.E. Rongen & H.L.E. Verhagen,
'Zekerheidsrechten op naam van een ''trustee'' (II, slot)', WPNR 6460 (2001): 840–846, who argue that there
is no reason for such uncertainty.
40
There are other alternatives available (e.g., a surety structure (borgtocht-constructie) and a joint creditorship
(actieve hoofdelijkheid) structure). However, in the Dutch syndicated loan and capital markets a parallel-
debt structure is generally considered to be the most efficient structure with which investors have become
familiar.
41
See also S.C.J.J Kortmann, M.H.E. Rongen & H.L.E. Verhagen, 'Zekerheidsrechten op naam van een
''trustee'' (II, slot)', WPNR 6459 (2001): 819.
42
Sections 3:227 et seq. DCC.
43
The market turmoil and other circumstances have resulted in a number of credit rating downgrades of debt
securities in securitisation transactions and credit rating downgrades of participants in such transactions
(e.g., liquidity and swap providers). These events and other credit related events have already resulted in a
more active involvement of security trustees in securitisation transactions.
44
Section 3:246 DCC.
45
Section 3:248 DCC.
46
Sections 3:250 and 3:251 DCC.
47
Sections 23 and 35 Dutch Bankruptcy Act (Faillissementswet).
48
HR 17 Feb. 1995, NJ 1996, 471 (Mulder q.q./CLBN).
49
Section 182 Dutch Bankruptcy Act (Faillissementswet).
50
Section 57 Dutch Bankruptcy Act (Faillissementswet).
51
Sections 23 and 35 Dutch Bankruptcy Act (Faillissementswet). See also para. 12.5.3.3.

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