GHANA Law and Practice Contributed by: Adelaide Benneh Prempeh, Michelle Nana Yaa Essuman, David William Akuoko-Nyantakyi and Audrey Nana Oye Addy, B&P Associates
• made by the company if the payment is later made by the bank to meet cheques drawn by the company; • regarding a debt incurred during the 21-day period; • regarding a secured debt; or • regarding the enforcement (against a third party) of a guarantee, indemnity, mortgage, charge or lien on the third-party’s property. A liquidator is also at liberty to reverse a transac - tion entered into: • in the ten years preceding the winding up order (while the company was insolvent); or • in the two years preceding the winding up order (while the company was solvent or insolvent) (CIRA, Section 122 and Section 123). 6.2 SPEs The most desirable feature of an SPE is its bank - ruptcy-remoteness. Other desirable features of SPEs of this nature are highlighted as follows. • The SPE would ordinarily be incorporated as a Public Company limited by shares under the Companies Act. • The board shall have a majority of non-execu - tive directors who are mostly independent. At the very least, two directors (25%) should be independent, one of whom may be the board chair. • The minimum number of directors is two with at least one being ordinarily resident in Ghana. • There should be independent external audi - tors. • There should be no restriction on the transfer - ability of shares or the number of sharehold- ers and debenture holders.
Since securitisation involves the issuance of securities, SPEs are subject to various laws including the Companies Act, 2019 (Act 992), Securities Industry Act, 2016 (Act 929) as amended, Securities and Exchange Commis - sion (SEC) Regulations, 2003 (LI 1728), Secu - rities and Exchange Commission (Amendment) Regulations, 2019 LI 2387, the GSE listing rules and the SEC Corporate Governance Code. Therefore, the structure and legal form of an SPE must comply with the provisions set forth in these laws. SPEs in securitisation transactions that have occurred in Ghana may be listed on the Ghana Stock Exchange (GSE). To safeguard investors from the risk of consoli - dation during insolvency proceedings that could jeopardise the bankruptcy remoteness of the SPE, the SEC carefully examines the proposed structure and transaction documents presented by the parties involved in the securitisation before granting approval. The SEC ensures, among other things, that the transaction is structured to clearly distinguish the originator from the SPE. Additionally, it verifies that the transaction docu - ments include non-petition and limited recourse provisions, as well as clauses that restrict the powers of the board to initiate voluntary liqui - dation. Furthermore, the SEC ensures that the transfer of financial assets from the originator to the SPE is conducted at arm’s length to prevent Depending on the nature of the financial asset being transferred, steps must be taken to file the transfer with the relevant regulatory author - ity. For example, regarding share certificates, the registrar of companies may have to be notified. Where the financial asset is cash, however, pos - session may suffice as an indication of a valid transfer of ownership. the originator from retaining control. 6.3 Transfer of Financial Assets
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