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Legal issues in securitization: an analysis of the legal position after Kingston Square ruling

Substance DOES Count:
The Efficacy of Independent Directors
In Bankruptcy Remote Structures

By Michael F. Wurst

[Michael Wurst is currently associated with Meridian Capital Corporation, Dallas, USA. He can be reached at 214-651-4006 (telephone) 214-651-4001 (telecopy) mwurst@meridiancap.com]

Relevant links:

  • See our page under Encyclopaedia on Legal issues
  • See our page on consolidation
  • More articles on bankruptcy-remoteness and the Kingston Square rulingFor a number of articles on the subject matter covered by this articles, click here

 

SUMMARY: Independent director requirements and other bankruptcy remote provisions contained in borrower organization documents may not be effective in preventing the commencement of bankruptcy cases if corporate procedures are not properly respected and followed. Investors, rating agencies, and servicers should tighten their surveillance as to organizational formalities now, while CMBS and underlying loan performance is at or near its probable peak, and well before the inevitable downturn begins. Originators should tighten reporting and certification requirements in