Special purpose vehicle
Common international names ( English Special Purpose Company (SPC) , Special Purpose Vehicle (SPV) and special purpose entity (SPE)) within the meaning of special purpose vehicle (also English Single Purpose Entity (SPE) and Limited Purpose Entity (LPE)) are preferably used in Contracts used.
Special purpose vehicles are used primarily for private equity transactions and structured financing . Access to the investor's assets by financing creditors should be avoided - so-called non- or limited recourse financing - and the object of financing should be shielded against insolvency risks from the investor's sphere ( English bankruptcy remote , German "insolvenzfern" or English ring fenced , German "Shielded" ). In these cases, special purpose vehicles are usually founded in the legal form of a GmbH or a similar one in the respective customary form.
Types of special purpose vehicles
The main types of special purpose vehicle are:
- Securitization transactions: conduits and structured investment vehicles (SIVs) are SPEs for refinancing . Buy once or continuously demands ( english assets ) and refinance the purchase price via securitization through the issuance of securities ( asset backed securities ). SPVs are also used by banks to pass on financial risks to the capital market or to outsource them from their annual financial statements . This succeeds if the legal threshold of the consolidation regulations is not exceeded. The special purpose vehicle can either be transferred a loan portfolio subject to default risk or it concludes a credit default swap with a bank in which it assumes default risks for the loan portfolio as protection seller . This carries the special purpose vehicle or its creditors for a risk premium , the credit risk of the bank, these risks therefore no longer needs to be accounted for. Catastrophe bonds offer a new form of risk transfer , with which insurance companies can sell risks for natural disasters through special purpose vehicles in the capital markets.
- Project financing : Special purpose vehicles are also set up when several companies join forces to implement a project such as the construction of a large property, a power plant or the development of a technical innovation. This allows the risk of the lender and the entrepreneur to be limited to this project.
- Acquisition financing ( leveraged buy-out ).
- Working group (Arge) , a form of cooperation common in the construction industry to carry out major projects in which each partner is responsible for defined partial services.
- Leasing real estate companies act as leasing providers in order to carry out the construction or acquisition, financing and "leasing" of a specific property or large property . The sole business purpose of the property company is this single transaction, which is why it is often referred to as a single property company. This ensures for the lessee that no risks arise from other transactions at the property company that cannot be influenced by the lessee himself and are also not related to the individual transaction.
Financial-purpose entities have their headquarters often in countries with more favorable tax laws ( low-tax jurisdictions , tax havens ) or small start-up barriers, so-called off-shore financial centers such as the Bahamas , the Cayman Islands or the Isle of Man . This seat has earned them the derogatory designation letter box company .
The special purpose vehicle in German law
Special purpose vehicle is not a fixed, defined term under German law. It is particularly unknown in corporate law ; this only knows a legally precisely defined selection of company forms in the legal sense, which does not include a “special purpose vehicle”. The term “special purpose vehicle” is therefore only used to describe the company's limited purpose or purpose.
The special-purpose vehicles are named in HGB . They must be included in the consolidation as long as they have a close economic relationship with the consolidating parent company and this also bears the majority of the risks and opportunities from an economic perspective.(2) No. 4
The legal term “ special purpose vehicle” is used in German laws, in particular in the German Banking Act ( (26) KWG) and in the Solvency Regulation ( (2) SolvV old version). According to this, a securitization vehicle is an enterprise that was set up for the sole purpose of carrying out one or more securitization transactions with the intention of "isolating the obligations of the securitization vehicle from those of the originator and whose shareholders have the right to those associated with their share in the securitization vehicle To pledge or exchange rights without restriction ”.
In the context of accounting , special purpose entities are not necessarily to be included in the consolidated financial statements simply because of the regulations of IAS 27 . For this reason, the Standing Interpretations Committee (SIC) of the IASB published SIC 12 “Consolidation - Special Purpose Entities” in June 1998, which deals with the definition and possible consolidation of a special purpose vehicle. According to SIC 12.8, an SPE must be consolidated if the accounting company controls it from an economic point of view. This substance over form principle of IAS 27 is supplemented in SIC 12 by the risk and rewards approach. SIC 12.9 abstracts from an equity participation required for control and a majority of voting rights. In SIC 12.10 (a) - (d), circumstances to be fulfilled that individually indicate control are listed. According to SIC 12.10 (a), control is assumed if, from an economic point of view, the activities of the SPE are carried out for the benefit of the special needs of a company so that this could benefit from the business activities of the SPE. If the company has the management power to derive the majority of the benefits from the business activities of the SPE, control must also be assumed under SIC 12.10 (b). According to SIC 12.9, a company can also delegate this management power through a statutory pre-determination of the business activity (so-called autopilot), without this conflicting with control. Furthermore, according to SIC 12.10 (c), control is to be assumed if a company is entitled to derive the majority of the benefits from the business activities of the SPE and at the same time is exposed to the inherent risks of the SPE activities. If the company bears the majority of the residual or ownership risks of the SPE in order to derive a benefit from the activities of the SPE, the SPE is to be consolidated in accordance with SIC 12.10 (d). Since these criteria are not conclusive and are only seen as indicators of control, an overall assessment of all relevant factors depending on the individual case must be carried out from an economic perspective according to SIC 12.9.
The practice of outsourcing significant assets and / or liquidity risks to special purpose vehicles without consolidation ( conduit ) has been widely criticized by the public . This can be misused to rid annual financial statements of risks that would trigger or exacerbate a corporate crisis. Such disguises were uncovered after the corporate collapse at Enron , Parmalat or the crises at IKB Deutsche Industriebank and Sachsen LB. Financial institutions around the world used this form of balance sheet reduction during the financial crisis from 2007 onwards in order to be able to continue to meet the regulatory requirements.
- Hans-Peter Bär: Asset Securitization. Verlag Paul Haupt, Bern 2000, ISBN 3-258-05894-6 , pp. 104-109. (Functions and legal forms of the special purpose vehicle.)
- Wienand Schruff : For the consolidation of special purpose entities in the consolidated financial statements according to US-GAAP, IAS and HGB. In: The auditing. 2002, pp. 755-765.
- Sighard Wilhelm: Casinos are closing! The lesson. In: The time. 47/2008.