NORWAY Law and Practice Contributed by: Markus Nilssen, Vanessa Kalvenes and Marcus Cordero-Moss, BAHR
has purchased a third party’s financial assets on its own account and then securitised them. 2.4 Underwriters and Placement Agents To fund the acquisition of the underlying portfolio in a securitisation, the SPE issues notes in the capital markets. In this process it is assisted by placement agents and underwriters, commonly referred to as arrangers and/or managers (usu - ally investment banks). They are responsible for structuring the securitisation transaction, mar - keting the notes and may also act as underwrit - ers. If the originator itself is an investment bank, it may act on its own behalf in this role. 2.5 Servicers The servicer manages the pool of purchased receivables or the underlying credit exposures on a day-to-day basis. To protect the rights and interests of the debtors under securitised loans, Norwegian legislation requires the servicer of a securitised loan portfolio to be either a bank, a non-banking credit institution or a finance com - pany if the originator is a financial institution and the transaction is structured as a traditional (true sale) securitisation. The requirement ensures that the servicer is proper and fit to service and collect the securitised loans. As a general rule, there are no restrictions on the replacement of the servicer with another entity, for example if the servicer does not comply with its contractual obligations or becomes insolvent. The Norwegian Ministry of Finance (the “Minis - try of Finance”) noted in the preparatory works to the Norwegian legislation that the replace - ment should be executed in an orderly manner. Among other things, this entails protecting the rights and interests of the debtors and providing for continued reporting under the Norwegian Act on Debt Information following a replacement.
The servicer is under an obligation to take nec - essary steps to protect the rights and interests of the debtors under the securitised loans and to secure that the debtors are not treated differently than if the underlying loans had been transferred to a financial institution. To ensure a sound treatment of complaints from debtors under the securitised loans arising after the transfer of the loans to the SPE, the servicer must represent the SPE in non-judiciary dispute resolution proceedings relating to securitised loans. 2.6 Investors By subscribing for the issued notes, investors of securitisation positions fund the SPE’s acqui - sition of the corresponding underlying financial assets. Further, the investors assume the credit risk of the securitised portfolio as investors only have recourse to the cash flows generated by the portfolio. The Securitisation Regulation includes a number of due diligence and monitoring requirements for investors. 2.7 Bond/Note Trustees The trustee is appointed to safeguard the note - holders’ rights and interests and to be their rep - resentative in dealings with the issuer. Further, the trustee monitors the conduct of other parties during the life of the transaction and the distribu - tion of cash flows generated by the underlying pool of assets. In an enforcement scenario, the trustee will act on behalf of the noteholder com - munity. 2.8 Security Trustees/Agents The role of the security agent is to create, man - age and, if necessary, enforce security on behalf of the noteholder community.
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