Capital Markets Act
30H. Interpretation
30H. Interpretation
For the purposes of the Part—"asset backed securities" means—(a)any securities including promissory notes but does not include shares or entitlements under a collective investment scheme;(b)any rights or interests, debentures or certificates evidencing the legal, equitable or beneficial interest or entitlement of its holder to a share of the assets of a special purpose vehicle or to entitlement to payment from such assets where payments or distributions of capital, income, principal or interest to investors accrue principally from the assets of the special purpose vehicle as a consequence of the establishment or operation of a securitization transaction; and(c)any other right, interest, instrument of security or class of securities prescribed to be asset backed securities;"asset” means any asset or property whether moveable or immoveable, tangible or intangible, financial, or non-financial, including any rights, benefits or entitlements sold, transferred or to be transferred or assigned by an originator or seller to special purpose vehicle or originated into an special purpose vehicle, including where permitted under any written law future assets, and includes any or all other assets, rights, benefits and entitlements in law or in equity of the special purpose vehicle supporting the asset backed securities or the payment of any obligations or expenses in respect thereof or in respect of the special purpose vehicle or the securitisation transaction and anything else prescribed to be an asset;"issuer or offeror" means an originator or seller of assets to a securitisation trust, any securitisation arranger and transaction adviser but not does not include a trustee;"limited investor" means any qualified investor which is not—(a)a retirement benefit fund or pension fund formed or established under the laws of Kenya;(b)an insurance company formed or established under the laws of Kenya;(c)a collective investment scheme formed or established under the laws of Kenya;(d)any other investor as the Authority may prescribe."limited restricted offer" means an issue or offer made only to a limited investor;"obligor" means any person having an obligation to make payment in relation to or in connection with the assets sold, transferred or assigned to a special purpose vehicle and may, where permitted by law, include persons having a future payment obligation;"offer" in relation to asset backed securities, except where the context otherwise requires, includes sales or transfers of asset backed securities by the originator but shall not include the issue of asset backed securities to an originator or seller in exchange for or consideration for the sale, transfer or assignment of assets to the trustee for the purpose of establishing or maintaining the operation of the securitisation trust or in accordance with the transaction documents;"offering memorandum” means any a notice, circular, material, advertisement, publication or other invitation offering for subscription or purchase of any asset backed securities in restricted or limited restricted offers;"originator” means a person who directly or indirectly originates assets into a special purpose vehicle or arranges for the acquisition, sale, transfer or assignment of the assets previously owned by that person to the special purpose vehicle and may, where the context permits, include a seller of the assets;"qualified investor” in relation to asset backed securities, means—(a)any originator or seller of the assets of the securitisation trust;(b)any professional investor;(c)a bank;(d)an insurance company;(e)a pension fund or a retirement benefit fund;(f)a corporation or authority which meets the asset tests for a professional investor;(g)the Central Bank;(h)the Government; and(i)any other person prescribed to be a qualified investor;"rating" means a public rating issued from time to time by a credit rating agency and where the context permits includes any subsequent review, update or modification;"restricted offer" means an issue or offer made only to a qualified investor;"securitisation arranger” means a person, who is appointed by the trustee under section 30O from amongst persons who are not employees of the originator or seller or who are acting solely in the capacity of a legal adviser or the auditor of the originator or the seller or who sponsor or assist in—(a)the formation of a securitisation trust;(b)the preparation of the structure of a securitisation transaction;(c)its financial or cash flow models; or(d)a prospectus or an offering memorandum in asset backed securities;"securitisation manager” means any person appointed by a trustee under section 30N to assist in the administration of assets, the management or operation of the securitisation transaction;"securitisation transaction” means a transaction which involves offer or issue of asset backed securities to any investor other than a seller or originator and includes all the ancillary, incidental or related arrangements which are entered into, in relation to, or in connection with the—(a)sale;(b)transfer or assignment of assets;(c)appointment of a trustee;(d)establishment of a trust;(e)appointment of a servicer; or(f)entering into all or any arrangements, necessary or desirable to provide any structural or credit support or manage risks or other arrangements to operate or give effect to the securitisation transaction or issue or offer of asset backed securities;"securitisation trust" means a trust settled, formed or established to act as a special purpose vehicle for a securitisation transaction;"seller” means a person who sells, assigns or transfers any assets into a special purpose vehicle and who may be the originator of the assets;"servicer" means a person appointed by the trustee under section 30P to be primarily responsible for—(a)the day to day administration functions of the cash flow of the securitised assets;(b)the ongoing relationship with any obligor;(c)the provision of service to obligors;(d)cash management;(e)collection and remission of funds to the trustee; or(f)the conduct such other activities as are specified in the transaction documents,and includes any successor or alternative servicer from the time that such alternative servicer becomes primarily responsible as servicer and trustee if that alternative servicer undertakes those functions and may include a securitisation manager;"special purpose vehicle" means a securitisation trust established in accordance with a trust deed subject to the laws under which asset backed securities are issued;"transaction document” means a trust deed and any other documents prescribed to be transaction documents;"trustee" means a person appointed under the trust deed as a trustee of the securitisation trust and any successor;"unrestricted offer" means an issue or offer to the public or which is not a restricted offer or a limited restricted offer.[Act No. 48 of 2013, s. 24.]Source: Kenya Law