EASE OF RECOVERY FOR NBFCS?

–  Ministry of Finance relaxes the criteria for NBFCs to be eligible for enforcing security interest under SARFAESI

-Richa Saraf (richa@vinodkothari.com)

 

The Ministry of Finance has, vide notification[1] dated 24.02.2020 (“Notification”), specified that non- banking financial companies (NBFCs), having assets worth Rs. 100 crore and above, shall be entitled for enforcement of security interest in secured debts of Rs. 50 lakhs and above, as financial institutions for the purposes of the said Act.

BACKGROUND:

RBI has, in its Financial Stability Report (FSR)[2], reported that the gross NPA ratio of the NBFC sector has increased from 6.1% as at end-March 2019 to 6.3% as at end September 2019, and has projected a further increase in NPAs till September 2020. The FSR further states that as at end September 2019, the CRAR of the NBFC sector stood at 19.5% (which is lower than 20% as at end-March 2019).

To ensure quicker recovery of dues and maintenance of liquidity, the Finance Minister had, in the Budget Speech, announced that the limit for NBFCs to be eligible for debt recovery under the SARFAESI is proposed to be reduced from Rs. 500 crores to asset size of Rs. 100 crores or loan size from existing Rs. 1 crore to Rs. 50 lakhs[3]. The Notification has been brought as a fall out of the Budget.

Our budget booklet can be accessed from the link below:

http://vinodkothari.com/wp-content/uploads/2020/02/Budget-Booklet-2020.pdf

ELIGIBILITY FOR INITIATING ACTION UNDER SARFAESI

To determine the test for eligible NBFCs, it is first pertinent to understand the terms used in the Notification.

The Notification provides that NBFCs shall be entitled for enforcement of security interest in “secured debts”. Now, the term “secured debt” has been defined under Section 2(ze) of SARFAESI to mean a debt which is secured by any security interest, and “debt” has been defined under Section 2(ha) as follows:

(ha) “debt” shall have the meaning assigned to it in clause (g) of section 2 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and includes-

(i) unpaid portion of the purchase price of any tangible asset given on hire or financial lease or conditional sale or under any other contract;

(ii) any right, title or interest on any intangible asset or licence or assignment of such intangible asset, which secures the obligation to pay any unpaid portion of the purchase price of such intangible asset or an obligation incurred or credit otherwise extended to enable any borrower to acquire the intangible asset or obtain licence of such asset.

Further, Section 2(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993, provides that the term “debt” means “any liability (inclusive of interest) which is claimed as due from any person by a bank or a financial institution or by a consortium of banks or financial institutions during the course of any business activity undertaken by the bank or the financial institution or the consortium under any law for the time being in force, in cash or otherwise, whether secured or unsecured, or assigned, or whether payable under a decree or order of any civil court or any arbitration award or otherwise or under a mortgage and subsisting on, and legally recoverable on, the date of the application and includes any liability towards debt securities which remains unpaid in full or part after notice of ninety days served upon the borrower by the debenture trustee or any other authority in whose favour security interest is created for the benefit of holders of debt securities.”

Therefore, NBFCs having asset size of Rs. 100 crores and above as per their last audited balance sheet will have the right to proceed under SARFAESI if:

  • The debt (including principal and interest) amounts to Rs. 50 lakhs or more; and
  • The debt is secured by way of security interest[4].

EFFECT OF NOTIFICATION:

An article of Economic Times[5] dated 07.02.2020 states that:

“Not many non-bank lenders are expected to use the SARFAESI Act provisions to recover debt despite the Union budget making this route accessible to more such lenders due to time-consuming administrative hurdles as well as high loan ticket limit.”

As one may understand, SARFAESI is one of the many recourses available to the NBFCs, and with the commencement of the Insolvency and Bankruptcy Code, the NBFCs are either arriving at a compromise with the debtors or expecting recovery through insolvency/ liquidation proceedings of the debtor. The primary reasons are as follows:

  • SARFAESI provisions will apply only when there is a security interest;
  • NBFCs usually provide small ticket loans to a large number of borrowers, but even though their aggregate exposure, on which borrowers have defaulted, is substantially high, they will not able to find recourse under SARFAESI;
  • For using the SARFAESI option, the lender will have to wait for 90 days’ time for the debt to turn NPA. Then there is a mandatory 60 days’ notice before any repossession action and a mandatory 30 days’ time before sale. Also, the debtor may file an appeal before Debt Recovery Tribunal, and the lengthy court procedures further delay the recovery.

While the notification seems to include a larger chunk of NBFCs under SARFAESI, a significant question that arises here is whether NBFCs will actually utilise the SARFAESI route for recovery?

 

[1] http://egazette.nic.in/WriteReadData/2020/216392.pdf

[2] https://m.rbi.org.in/Scripts/PublicationReportDetails.aspx?UrlPage=&ID=952

[3] https://www.indiabudget.gov.in/doc/Budget_Speech.pdf

[4] Section 2(zf) “security interest” means right, title or interest of any kind, other than those specified in section 31, upon property created in favour of any secured creditor and includes-

(i) any mortgage, charge, hypothecation, assignment or any right, title or interest of any kind, on tangible asset, retained by the secured creditor as an owner of the property, given on hire or financial lease or conditional sale or under any other contract which secures the obligation to pay any unpaid portion of the purchase price of the asset or an obligation incurred or credit provided to enable the borrower to acquire the tangible asset; or

(ii) such right, title or interest in any intangible asset or assignment or licence of such intangible asset which secures the obligation to pay any unpaid portion of the purchase price of the intangible asset or the obligation incurred or any credit provided to enable the borrower to acquire the intangible asset or licence of intangible asset.

[5] https://economictimes.indiatimes.com/industry/banking/finance/banking/not-many-nbfcs-may-use-sarfaesi-act-to-recover-loan/articleshow/74012648.cms

SEBI introduces enhanced disclosure and standardized reporting for AIFs

Timothy Lopes, Executive, Vinod Kothari Consultants Pvt. Ltd.

finserv@vinodkothari.com

SEBI has vide circular dated 5th February, 2020[1] introduced a standard Private Placement Memorandum (PPM) and mandatory performance bench-marking for Alternative Investment Funds (AIF). The move is part of SEBI’s initiative to streamline disclosure standards in the growing AIF space. The changes are made based on the recommendations of the SEBI Consultation Paper[2] on ‘Introduction of Performance Bench-marking’ and ‘Standardization of Private Placement Memorandum for AIFs’.

Template for Private Placement Memorandum (PPM)

The SEBI (AIF) Regulations, 2012 specified broad areas of disclosures required to be made in the PPM. This led to a significant variation in the manner in which various clauses, explanations and illustrations are incorporated in the PPMs. Hence, this led to concerns that the investors receive a PPM which provides information in a manner which is too complex to easily comprehend or with too little information on important aspects of the AIF, e.g. potential conflicts of interests, risk factors specific to AIF or its investment strategy, etc.

Thus, SEBI has mandated a template[3] for the PPM providing certain minimum level of information in a simple and comparable format. The template for PPM consists of two parts –

Part A – Section for minimum disclosures, which includes the following –

  • Executive Summary –

This lays down the summary of the parties and terms of the transaction. In effect, it is a summary term sheet of the PPM, laying down essential features of the transaction.

  • Market opportunity / Indian Economy / Industry Outlook;

The theme of this section includes a general economic background followed by investment outlook and sector/ industry outlook. This section may include any additional information as well which may be relevant. An illustrative list of additional items which may be included has been specified in the template.

  • Investment Objective, Strategy and Process;

A tabular representation of the investment areas and strategy to be employed is laid down in under this head. Further, a flow chart depicting the investment decision making process and detailed description of the same is required to be specified. This will give investors a comprehensive idea of the ultimate investment objective and strategy.

  • Fund/Scheme Structure;

A diagrammatic structure of the Fund/ Scheme which discloses all the key constituents and a brief description of the activities of the Fund/ Scheme.

The diagrammatic representation shall specify, for instance, the sponsor, trustee, manager, custodian, investment advisor, offshore feeder, etc. 

  • Governance Structure; 

To enhance the governance disclosures to investors and ensure transparency this section mandates disclosures of all details of each person involved in the Fund/ Scheme structure, including details about the investment team, advisory committees, operating partners, etc.

  • Track Record of the Manager;

The track record of the Fund Manager is of great significance since investors would like to know the skill, experience and competence of the Manager before making an investment.

The template mandates disclosures about the manager including explicit disclosure of whether he is a first time manager or experienced manager.

  • Principal terms of the Fund/ Scheme;

Explicit disclosures about the principal terms such as minimum investment commitment, size of the scheme, target investors, expenses, fees and other charges, etc. are required to be disclosed as per the template.

Major terms and disclosures are covered under this section. 

  • Principles of Portfolio Valuation;

This section would broadly lay down the principles that will be used by the Manager for valuation of the portfolio company.

The investors would get a fair idea of the manner in which valuation of the portfolio would be undertaken, in this section.

  • Conflicts of interest;

All present and potential conflicts of interests that the manager would envisage during the operation of the Fund/ Scheme at various levels are to be disclosed under this section.

This would enable investors to factor in the conflicts of interests existing or which may arise in the future of the fund and make an informed decision.

  • Risk Factors;

All risk factors that investors should take into account such as specific risks of the portfolio investment or the fund structure are required to be disclosed in the PPM.

These risks would include operational risks, tax risks, regulatory risks, etc. among other risk factors. 

  • Legal, Regulatory, and Tax Consideration;

This section shall include standard language for legal, regulatory and tax considerations as applicable to the Fund/Scheme, including the SEBI (AIF) Regulations, 2012, Takeover Regulations, Insider Trading Regulations, Anti-Money Laundering, Companies Act, 2013. Taxation aspects of the fund are also to be disclosed.

  • Illustration of fees, expenses and other charges;

A tabular representation of the fees and other charges along with the expenses of the Fund are required to be disclosed for transparency of investors and no hidden charges. 

  • Distribution Waterfall;

The payment waterfall to different classes of investors is required to be disclosed in detail.

  • Disciplinary History.

Any prior disciplinary action taken against the sponsor, manager, etc. will be required to be disclosed for better informed decision making of investors.

Part B – Supplementary section to allow full flexibility to the Fund in order to provide any additional information, which it deems fit.

The template requires enhanced disclosures mandatorily required to be made by the AIF, such as risk factors, investment strategy, conflicts of interest and several other areas that may affect the interest of the investors of AIFs.

This will standardize disclosures across the AIF space and increase simplicity of information to investors in a standard reporting format. Enhancing disclosure requirements will increase investor understanding about AIF schemes.

Further there is a mandatory requirement to carry out an annual audit of the compliance of the PPM by either an internal or external auditor/ legal professional. The findings arising out of the audit are required to be communicated to the Trustee or Board or Designated Partners of the AI, Board of the Manager and SEBI.

Exemption has been provided from the above PPM and audit requirements to the following classes of funds:

  1. Angel Funds as defined in SEBI (Alternative Investment Funds), Regulations 2012.
  2. AIFs/Schemes in which each investor commits to a minimum capital contribution of Rs. 70 crores (USD 10 million or equivalent, in case of capital commitment in non-INR currency) and also provides a waiver to the fund from the requirement of PPM in the SEBI prescribed template and annual audit of terms of PPM, in the manner provided at Annexure 3 of the SEBI Circular.

These requirements are however applicable from 01st March, 2020.

Bench-marking for disclosure of performance

Considering that investments by AIFs have grown at a rate of 75% year on year in the past two years, a need was felt to introduce disclosures by AIFs indicating returns on their investments. Prior to the SEBI circular there was no disclosure requirement for AIFs on their investment performance.

There was no bench-marking of returns disclosed by AIFs to their prospective or existing investors. However, returns generated on investment is one of the most important factors taken into consideration by potential investors and is also important for existing investors in order to be informed about the performance of their investment in comparison to a benchmark.

Therefore, it is felt that there is a need to provide a framework to bench-marking the performance of AIFs to be available for the investors and to minimize potential misselling.

In this regard SEBI has introduced the following –

  1. Mandatory bench-marking of the performance of AIFs (including Venture Capital Funds) and the AIF industry.
  2. A framework for facilitating the use of data collected by Bench-marking Agencies to provide customized performance reports.

The new bench-marking framework prescribes that each AIF must enter into an agreement with a Bench-marking Agency (notified by an AIF association representing at least 51% of the number of AIFs) for carrying out the bench-marking process.

The agreement between the Bench-marking Agencies and AIFs shall cover the mode and manner of data reporting, specific data that needs to be reported, terms including confidentiality in the manner in which the data received by the Bench-marking Agencies may be used, etc.

Reporting to the Bench marking Agency –

AIFs are required to report all the necessary information including scheme-wise valuation and cash flow data to the Bench-marking Agencies in a timely manner for all schemes which have completed at least one year from the date of ‘First Close’. The form and format of reporting shall be mutually decided by the Association and the Benchmarking Agencies.

If an applicant claims a track-record on the basis of India performance of funds incorporated overseas, it shall also provide the data of the investments of the said funds in Indian companies to the Benchmarking Agencies, when they seek registration as AIF.

PPM and Marketing material –

In case past performance of the AIF is mentioned in the PPM or any marketing material the performance versus benchmark report provided by the benchmarking agencies for such AIF/Scheme is also required to be provided.

Operational Guidelines for the benchmarking criteria is placed in Annexure 4 to the SEBI Circular.

Further there is an exemption from the above requirements to Angel Funds registered under sub-category of Venture Capital Fund under Category-1 AIF.

Conclusion

These changes are likely to bring about higher disclosure and transparency in the AIF space, especially for existing as well as potential investors of AIFs. Standardization of PPM will eliminate any variance from the manner of disclosures made by various AIFs.

Links to related write ups –

http://vinodkothari.com/2018/03/can-aif-grant-loans/

http://vinodkothari.com/wp-content/uploads/2018/03/PPT-on-financial-and-capital-markets_27-02-18_final.pdf

http://vinodkothari.com/aifart/

[1] https://www.sebi.gov.in/legal/circulars/feb-2020/disclosure-standards-for-alternative-investment-funds-aifs-_45919.html

[2] https://www.sebi.gov.in/reports-and-statistics/reports/dec-2019/consultation-paper-on-introduction-of-performance-benchmarking-and-standardization-of-private-placement-memorandum-for-alternative-investment-funds_45215.html

[3] https://www.sebi.gov.in/sebi_data/commondocs/feb-2020/an_1_p.pdf

NBFC Allied Activities: Corporate Insurance Agency and Mutual Fund Distribution

– Harshil Matalia, Executive, Vinod Kothari Consultants Pvt Ltd

finserv@vinodkothari.com

Introduction

Non-Banking Financial Companies (NBFCs) are companies that are principally engaged in financial activities. Financial activities include the activities that result into creation of financial assets in the books of the company or generation of financial income for the company undertaking such activity. NBFCs can engage in non-financial activities as well, as long as such non-financial activity doesn’t become the principal business of such NBFC.[1]

Apart from the financial activities, there are certain other allied activities that NBFCs are allowed to do, subject to certain guidelines prescribed by the Reserve Bank of India (RBI). The RBI Master Directions[2] for NBFCs permit an NBFC to undertake following allied activities:

  1. Insurance Business
  2. Issue of Credit cards
  3. Issue of Co-branded Credit cards
  4. Distribution of Mutual Fund Products.

This article intends to give a brief introduction to Insurance Business and Mutual Fund Distribution activities along with the associated guidelines. With regards to the issue of credit cards, the same is covered under separate article.[3]

Corporate Agent

Overview

According to Section 2(f) of IRDAI (Registration of Corporate Agents) Regulations, 2015[4]  (‘the Regulations’), “Corporate Agent” means any applicant who holds a valid certificate of registration issued by the IRDAI under these regulations for solicitation and servicing of insurance business for any of the specified category of life, general and health.

As per Chapter IV of the Insurance Laws (Amendment) Act, 2015[5], the definition of intermediary or insurance intermediary as specified under Section 2(1)(f) of IRDA Act, 1999 was amended and pursuant to such amendment, ‘Corporate Agent’ had been included in the definition. Therefore, Corporate Agents is considered as an Insurance Intermediary under IRDA Regulations.

Registration requirement

In compliance with Regulation 4(4) of the regulations, NBFC being registered with RBI, is required to obtain NOC from RBI before filing application of becoming Corporate Agent. On receiving NOC, the applicant can ascertain the eligibility norms and directly apply for registration as Corporate Agent with IRDA under any one of the following categories and under each category the company can have an arrangement with a maximum of three insurers to solicit, procure and service their insurance products.

  • Corporate Agent (Life)
  • Corporate Agent (General);
  • Corporate Agent (Health)
  • Corporate Agent (Composite)

Corporate Agent can hold a valid certificate to act as an agent of either life insurers or health insurers or general insurers or combination of any two or all of three in case of composite category.

Corporate Agent is required to appoint a principal officer exclusively for supervising the activities of the Corporate Agent. All the employees of the Corporate Agent who are   proposed to be engaged in soliciting and procuring insurance business are known as ‘specified persons’ and such specified persons and principal officer are required to  fulfil the requirements of qualification, training, passing of examination as specified in the regulations by IRDA from time to time.

RBI guidelines on Corporate Agents activity

NBFC can undertake the insurance agency business without taking approval of RBI by merely complying with following conditions:

  1. An NBFC should not force its customers to purchase insurance products of any specific company of whose assets are financed by such NBFCs.
  2. The publicity material distributed by the NBFC should clarify that participation by the customers in insurance products is on a voluntary basis.
  3. The premium payment cannot be routed  through the NBFC.
  4. Any  risk involved in Insurance business cannot be transferred to NBFC business.

Requirements under FEMA

Para F.8 of Schedule I to Foreign Exchange Management (Non-Debt Instruments) Rules, 2019 (NDI Rules) provides as under:

F.8 Insurance
Sl. No Sector/ Activity Sectoral Cap Entry Route
F.8.1 a)      Insurance Company

b)      Insurance Brokers

c)      Third Party Administrators

d)     Surveyors and Loss Assessors

e)      Other Insurance Intermediaries appointed under the provisions of Insurance Regulatory and Development Authority Act, 1999 (41 of 1999).

 49% Automatic
F.8.2 Other Conditions

(a)    Foreign investment in this sector shall be subject to compliance with the provisions of the Insurance Act, 1938 and subject to necessary license or approval from the Insurance Regulatory and Development Authority of India for undertaking insurance and related activities.

 

(c) Where an entity like a bank, whose primary business is outside the insurance area, is allowed by the Insurance Regulatory and Development Authority of India to function as an insurance intermediary, the foreign equity investment caps applicable in that sector shall continue to apply, subject to the condition that the revenues of such entities from their primary (i.e., non-insurance related) business must remain above 50 percent of their total revenues in any financial year.

Accordingly, the NBFC shall additionally comply with IRDA guidelines in relation to extent and conditions for foreign investment in Indian Insurance Companies.

Mutual Fund Distribution

Overview

Mutual Fund Distributor (MFD) facilitates buying and selling of mutual fund units by investors. MFDs act as a link between MFs and investors. They help investors by guiding them to carry out investment transactions and also provide relevant information related to performance of their investment. They earn upfront commission from empanelled asset management companies for bringing investors into the mutual fund schemes.

Association of Mutual Funds in India (AMFI) is a nodal association of mutual funds across India. It is non-profit organisation established with the purpose of developing Indian Mutual Fund industry. It provides useful knowledge and insights regarding mutual funds and investments. Any person who wants to become a MFD should approach AMFI for registration.

Registration requirement

The applicant for MFD must comply with procedural guidelines[6] provided by AMFI. The applicant must obtain AMFI Registration Number (ARN) and its employees that would be engaged in selling and distribution of mutual fund units are required to pass requisite NISM certification and obtain Employee Unique Identification Number (EUIN) from AMFI.

RBI guidelines on MFD activity

In order to become an MFD, an NBFC must comply with the RBI directions along with AMFI procedural guidelines. As per RBI Master Directions[7], NBFCs are required to adhere to the following:

  1. Compliance with SEBI guidelines / regulations, including its code of conduct, if any;
  2. Abstain from forcing its customers to trade in specific mutual fund product sponsored by it;
  3. Clarify in the publicity material distributed by the NBFC that participation by the customers in MF products is on a voluntary basis.
  4.  Act as a link between customer and MF by forwarding application for purchase or sale of units and payment instruments.
  5. Abstain from acquiring units of MFs from the secondary market for sale to its customers and from buying back MF units from its customers;
  6. Ensure distinction between its own investment and investment of customer in cases where NBFC is holding custody of units on behalf of customer.
  7. Frame a Board approved policy regarding undertaking MF distribution and adhere to Know Your Customer (KYC) Guidelines.

Requirements under FEMA

As per Para F.10.1 of Schedule I to NDI Rules, ‘Other Financial Service’ means financial services activities regulated by financial sector regulators, viz., Reserve Bank, Securities and Exchange Board of India, Insurance Regulatory and Development Authority, Pension Fund Regulatory and Development Authority, National Housing Bank or any other financial sector regulator as may be notified by the Government of India. Foreign investment in ‘Other Financial Services’ activities is subject to conditionalities, including minimum capitalization norms, as specified by the concerned Regulator/Government Agency.

‘Other Financial Services’ activities need to be regulated by one of the Financial Sector Regulators. In all such financial services activity which are not regulated by any Financial Sector Regulator or where only part of the financial services activity is regulated or where there is doubt regarding the regulatory oversight, foreign investment up to 100 percent will be allowed under Government approval route subject to conditions including minimum capitalization requirement, as may be decided by the Government.

Conclusion

While RBI has permitted NBFCs to undertake several allied acitivites, there is a need to comply with the specific guidelines provided in relation to each of the activity as well as RBI specific directions/ conditions in this regard.

 

[1] Our presentation that deals with principal business criteria- http://vinodkothari.com/wp-content/uploads/2018/09/Non-Banking-Financial-Companies-An-Overview.pdf

[2] https://rbidocs.rbi.org.in/rdocs/notification/PDFs/MD44NSIND2E910DD1FBBB471D8CB2E6F4F424F8FF.PDF

[3] http://vinodkothari.com/2018/07/credit-cards-and-emi-cards-from-an-nbfc-viewpoint/

[4] http://dhc.co.in/uploadedfile/1/2/-1/IRDAI%20(Registration%20of%20Corporate%20Agents)%20Regulations%202015.pdf

 

[5]https://financialservices.gov.in/sites/default/files/The%20Insuance%20Laws%20%28Amendment%29%20Act%202015_0.pdf

 

[6] https://www.amfiindia.com/distributor-corner/become-mutual-fund-distributor

[7] https://rbidocs.rbi.org.in/rdocs/notification/PDFs/MD44NSIND2E910DD1FBBB471D8CB2E6F4F424F8FF.PDF

SEBI brings in revised norms for Portfolio Managers

Timothy Lopes, Senior Executive

Harshil Matalia, Assistant Manager

finserv@vinodkothari.com

corplaw@vinodkothari.com

Updated as on 27th August, 2020

The securities market regulator has recently introduced the new SEBI (Portfolio Managers) Regulations, 2020 (PMS Regulations), bringing in several changes to the Portfolio Management industry, including doubling the ticket size for investments and increasing the net-worth requirement of Portfolio Managers.

The Portfolio Management Services (PMS) industry has witnessed substantial growth in its Assets Under Management (AUM) in the last 5 years as shown in the data below. There has also been a substantial increase in the number of clients, indicating that the PMS industry plays a significant role in managing funds of High Net-worth Individuals.

Read more

An all-embracing guide to identity verification through CKYCR

-Kanakprabha Jethani | Executive

(kanak@vinodkothari.com)

Updated as on January 19, 2022

Introduction

Central KYC Registry (CKYCR) is the central repository of KYC information of customers. This registry is a one stop collection of the information of customers whose KYC verification is done once. The Master Direction – Know Your Customer (KYC) Direction, 2016 (KYC Directions)[1] defines CKYCR as “an entity defined under Rule 2(1) of the Rules, to receive, store, safeguard and retrieve the KYC records in digital form of a customer.”

The KYC information of customers obtained by Reporting Entities (REs) (including banks) is uploaded on the registry. The information uploaded by an RE is used by another RE to verify the identity of such customer. Uncertainty as to validity of such verification prevails in the market. The following write-up intends to provide a basic understanding of CKYCR and gathers bits and pieces around identity verification through CKYCR.

Identity verification through CKYCR is done using the KYC identifier of the customer. To carry out such verification, an entity first needs to be registered with the CKYCR. Let us first understand the process of registration with the CKYCR.

Registration on CKYCR

The application for registration shall be made on CKYCR portal. Presently, Central Registry of Securitisation Asset Reconstruction and Security Interest (CERSAI) has been authorized by the Government of India to carry out the functions of CKYCR. Following are the steps to register on CERSAI:

  1. A board resolution should be passed for appointment of the authorised representative. The registering entity shall be required to identify nodal officer, admin and user.
  2. Thereafter, under the new entity registration tab in the live environment of CKYCR, details of the entity, nodal officers, admin and users shall be entered.
  3. Upon submission of the details, the system will generate a temporary reference number and mail will be sent to nodal officer informing the same along with test-bed registration link.
  4. Once registered on the live environment, the entity will have to register itself on the testbed and test the application. It shall have to test all the functionalities as per the checklist provided at https://www.ckycindia.in/ckyc/downloads.html. On completion of the testing, the duly signed checklist at helpdesk@ckycindia.in shall be e-mailed to the CERSAI.
  5. The duly signed registration form along with the supporting documents shall be sent to CERSAI at – 2nd Floor, Rear Block, Jeevan Vihar Building, 3, Parliament Street, New Delhi -110001.
  6. CERSAI will verify the entered details with physical form received. Correct details would mean the CERSAI will authorize and approve the registration application. In case of discrepancies, CERSAI will put the request on hold and the system will send email to the institution nodal officer (email ID provided in Fl registration form). To update the case hyperlink would be provided in the email.
  7. After completion of the testing and verification of documents by CERSAI, the admin and co-admin/user login and password details would be communicated by it.

Obligations in relation to CKYCR

The establishment of CKYCR came with added obligations on banks and REs.  The KYC Directions require banks and REs to upload KYC information of their customers on the CKYCR portal. As per the KYC Directions – “REs shall capture the KYC information for sharing with the CKYCR in the manner mentioned in the Rules, as required by the revised KYC templates prepared for ‘individuals’ and ‘Legal Entities’ as the case may be. Government of India has authorised the Central Registry of Securitisation Asset Reconstruction and Security Interest of India (CERSAI), to act as, and to perform the functions of the CKYCR vide Gazette Notification No. S.O. 3183(E) dated November 26, 2015.

…Accordingly, REs shall take the following steps:

  • Scheduled Commercial Banks (SCBs) shall invariably upload the KYC data pertaining to all new individual accounts opened on or after January 1, 2017 with CERSAI in terms of the provisions of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005.
  • REs other than SCBs shall upload the KYC data pertaining to all new individual accounts opened on or after from April 1, 2017 with CERSAI in terms of the provisions of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005.”

Further, para III and IV of the Operating Guidelines of CKYCR require reporting entities (including banks) to fulfill certain obligations. Accordingly, the reporting entities shall:

  • Register themselves with CKYCR
  • Carry out due diligence and verification KYC information of customer submitting the same.
  • Upload KYC information of customers, in the KYC template provided on CKYCR portal along with scanned copy of Proof of Address (PoA) and Proof of Identity (PoI) after successful verification.
  • Communicate KYC identifier obtained from CKYCR portal to respective customer.
  • Download KYC information of customers from CKYCR, in case KYC identifier is submitted by the customer.
  • Refrain from using information downloaded from CKYCR for purposes other than identity verification.
  • In case of any change in the information, update the same on the CKYCR portal.

In and around verification

Registered entities may download the information from CKYCR portal and use the same for verification. Information can be retrieved using the KYC identifier of the customer. Before we delve into the process of verification and its validity, let us first understand what a KYC identifier is and how would a customer obtain it.

KYC identifier

A KYC Identifier is a 14 digit unique number generated when KYC verification of a customer is done for the first time and the information is uploaded on CKYCR portal. The RE uploading such KYC information on the CKYCR portal shall communicate such KYC Identifier to the customer after uploading his/her KYC information.

Obtaining KYC identifier

When a customer intends to enter into an account-based relationship with a financial institution for the very first time, such financial institution shall obtain KYC information including the Proof of Identity (PoI) and Proof of Address (PoA) of such customer and carry out verification process as provided in the KYC Master Directions. Upon completion of verification process, the financial institution will upload the KYC information required as per the common KYC template provided on the CKYCR portal, along with scanned PoI and PoA, signature and photograph of such customer within 3 days of completing the verification. Different templates are to be made available for individuals, and on the CKYCR portal. Presently, only template for individuals[2] has been made available.

Upon successful uploading of KYC information of the customer on the CKYCR portal, a unique 14 digit number, which is the KYC identifier of the customer, is generated by the portal and communicated to the financial institution uploading the customer information. The financial institution is required to communicate the KYC identifier to respective customer so that the same maybe used by the customer for KYC verification with some other financial institution.

Verification through CKYCR

When a customer submits KYC identifier, the RE, registered with CKYCR portal, enters the same on the CKYCR portal. The KYC documents and other information of the customer available on the CKYCR portal are downloaded. The RE matches the photograph and other details of customer as mentioned in the application form by the customer with that of the CKYCR portal. If both sets of information match, the verification is said to be successful.

Identity Verification through CKYCR- is it valid?

The process of CKYCR is not a complete process in itself and is merely a means to obtain documents from the central registry. In the very essence, the registry acts as a storehouse of the documents to facilitate the verification process without having the customer to produce the KYC documents every time he interacts with a regulated entity. Para 56(j) provides that Regulated entities are not required to ask the customer to submit KYC documents, if he/she has submitted KYC Identifier, unless:

(i) there is a change in the information of the customer as existing in the records of CKYCR;
(ii) the current address of the customer is required to be verified;
(iii) the RE considers it necessary in order to verify the identity or address of the customer, or to perform enhanced due diligence or to build an appropriate risk profile of the client.

The above specification is for obtaining the documents from the customer and not for verification of the same. Verification can be done only through physical, digital or V-CIP modes of CDD.

Furthermore, V-CIP as a manner of CDD was introduced through an amendment to KYC Directions introduced on 9th January, 2019[5]. Para 18(b) of the KYC Directions prescribes that documents for V-CIP procedure may be obtained from the CKYCR portal. Logically, if the CKYCR procedure was to be complete in itself, the same would not have been indicated in conjunction with the V-CIP mode of due diligence.

Benefits from CKYCR

While imposing various obligations on REs, the CKYCR portal also benefits REs by providing them with an easy way out for KYC verification of their customers. By carrying out verification through KYC Identifier, the requirement of physical interface with the borrower (as required under KYC Master Directions)[4] may be done away with. This might serve as a measure of huge cost savings for lenders, especially in the digital lending era.

Further, CKYCR portals also have de-duplication facility under which KYC information uploaded will go through de-duplication process on the basis of the demographics (i.e. customer name, maiden name, gender, date of birth, mother’s name, father/spouse name, addresses, mobile number, email id etc.) and identity details submitted. The de-dupe process uses normaliser algorithm and custom Indian language phonetics.

  • Where an exact match exists for the KYC data uploaded, the RE will be provided with the KYC identifier for downloading the KYC record.
  • Where a probable match exists for the KYC data uploaded, the record will be flagged for reconciliation by the RE.

Conclusion

Identity verification using the KYC identifier is a cost-effective way of verification and also results into huge cost saving. This method does away with the requirement of physical interface with the customer. Logic being- when the customer would have made the application for entering into account-based relationship, the entity would have obtained the KYC documents and carried out a valid verification process as per the provisions of KYC Master Directions. So, the information based on valid verification is bound to be reliable.

However, despite these benefits, only a handful of entities are principally using this method of verification presently. Lenders, especially FinTech based, should use this method to achieve pace in their flow of transactions.

[1] https://www.rbi.org.in/Scripts/BS_ViewMasDirections.aspx?id=11566

[2] https://rbidocs.rbi.org.in/rdocs/content/pdfs/KYCIND261115_A1.pdf

[3] https://testbed.ckycindia.in/ckyc/assets/doc/Operating-Guidelines-version-1.1.pdf

[4] Our detailed write-up on the same can also be referred-  http://vinodkothari.com/wp-content/uploads/2020/01/KYC-goes-live-1.pdf

[5] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11783&Mode=0

Our FAQs on CKYCR may also be referred here- http://vinodkothari.com/2016/09/ckyc-registry-uploading-of-kyc-data/

Our other write-ups on KYC:

NBFC Account Aggregator – Consent Gateways

Timothy Lopes, Executive, Vinod Kothari Consultants Pvt. Ltd.

finserv@vinodkothari.com

The NBFC Account Aggregator (NBFC-AA) Framework was introduced back in 2016 by RBI[1]. However the concept of Account Aggregators did exist prior to 2016 as well. Prior to NBFC-AA framework several Account Aggregators (such as Perfios and Yodlee) undertook similar business of consolidating financial data and providing analysis on the same for the customer or a financial institution.

To give a basic understanding, an Account Aggregator is an entity that can pull and consolidate all of an individual’s financial data and present the same in a manner that allows the reader to easily understand and analyse the different financial holdings of a person. At present our financial holdings are scattered across various financial instruments, with various financial intermediaries, which come under the purview of various financial regulators.

For example, an individual may have investments in fixed deposits with ABC Bank which comes under the purview of RBI, mutual fund investments with XYZ AMC which comes under the purview of SEBI and life insurance cover with DEF Insurance Corporation (which comes under the purview of IRDAI.

Gathering all the scattered data from each of these investments and consolidating the same for submission to a financial institution while applying for a loan, may prove to be a time-consuming and rather confusing job for an individual.

The NBFC-AA framework was introduced with the intent to help individuals get a consolidated view of their financial holdings spread across the purview of different financial sector regulators.

Recently we have seen a sharp increase in the interest of obtaining an NBFC-AA license. Ever since the Framework was introduced in 2016, around 8 entities have applied for the Account Aggregator License out of which one has been granted the Certificate of Registration while the others have been granted in-principle[2].

Apart from the above, we have seen interest from the new age digital lending/ app based NBFCs.

In this article we wish to discuss the concerns revolving around data sharing, the reason behind going after an Account Aggregator (AA) license and the envisaged business models.

Going after AA License – The reason

New age lending mainly consists of a partnership model between an NBFC which acts as a funding partner and a fintech company that acts as a sourcing partner. Most of the fintech entities want to obtain the credit scores of the borrower when he/she applies for a loan. However, the credit scores are only accessible by the NBFC partner, since they are mandatorily required to be registered as members with all four Credit Information Companies (CICs).

This is where most NBFCs are facing an issue since the restriction on sharing of credit scores acts as a hurdle to smooth flow of operations in the credit approval process. We have elaborately covered this issue in a separate write up on our website[3].

What makes it different in the Account Aggregator route?

Companies registered as an NBFC-AA with RBI, can pull all the financial data of a single customer from any financial regulator and organise the data to show a consolidated view of all the financial asset holdings of the customer at one place. This data can also be shared with a Financial Information User (FIU) who must be an entity registered with and regulated by any financial sector regulator such as RBI, SEBI, IRDAI, etc. The AA could also perform certain data analytics and present meaningful information to the customer or the FIU.

All of the above is possible only and only with the consent of the customer, for which the NBFC-AA must put in place a well-defined ‘Consent Architecture’.

This data would be a gold mine for NBFCs, who would act as FIUs and obtain the customer’s financial data from the NBFC-AA.

Say a customer applies for a loan through a digital lending app. The NBFC would then require the customer’s financial data in order to do a credit evaluation of the potential borrower and make a decision on whether to sanction the loan or not. Instead of going through the process of requesting the customer to submit all his financial asset holdings data, the customer could provide his consent to the NBFC-AA (which could be set up by the NBFC itself), which would then pull all the financial data of the customer in a matter of seconds. This would not only speed up the credit approval and sanction process but also take care of the information sharing hurdle, as sharing of information is clearly possible through the NBFC-AA route if customer consent is obtained.

The above model can be explained with the following illustration –

What about the Fintech Entity?

Currently the partnership is between the fintech company (sourcing partner) and the NBFC (funding partner). With the introduction of an Account Aggregator as a new company in the group, what would be the role of the fintech entity? Can the information be shared with the fintech company as well as the NBFC?

The answer to the former would be that firstly the fintech company could itself apply for the NBFC-AA license, considering that the business of an NBFC-AA is required to be completely IT driven. However, the fintech company would require to maintain a Net Owned Fund (NOF) of Rs. 2 crores as one of the pre-requisites of registration.

Alternatively the digital lending group could incorporate a new company in the group, who would apply for the NBFC-AA license to solely carry out the business of an NBFC-AA. This would leave the fintech entity with the role of maintaining the app through which digital lending takes place.

The above structures could be better understood with the illustrations below –

To answer the latter question as to whether the information can be shared by the NBFC-AA with the fintech entity as well? The answer is quite clearly spelt out in the Master Directions.

As per the Master Directions, the NBFC-AA can share the customers’ information with a FIU, of course, with the consent of the customer. A FIU means an entity registered with and regulated by any financial sector regulator. Regulated entities are other banks, NBFCs, etc. However, fintech companies are not FIUs as they are not registered with and regulated by any financial sector regulator. An NBFC-AA cannot therefore, share the information with the fintech company.

How to register as an NBFC-AA?

Only a company having NOF of Rs. 2 crores can apply to the RBI for an AA license. However there is an exemption to AAs regulated by other financial sector regulators from obtaining this license from RBI, if they are aggregating only those accounts relating to the financial information pertaining to customers of that particular sector.

Further the following procedure is required to be followed for obtaining the NBFC-AA license –

Consent Architecture

Consent is the most important factor in the business of an NBFC-AA. Without the explicit consent of the customer, the NBFC-AA cannot retrieve, share or transfer any financial data of the customer.

The function of obtaining, submitting and managing the customer’s consent by the NBFC-AA should be in accordance with the Master Directions. As per the Master Directions, the consent of the customer obtained by the NBFC-AA should be a standardized consent artefact containing the following details, namely:-

  1. Identity of the customer and optional contact information;
  2. The nature of the financial information requested;
  • Purpose of collecting such information;
  1. The identity of the recipients of the information, if any;
  2. URL or other address to which notification needs to be sent every time the consent artefact is used to access information
  3. Consent creation date, expiry date, identity and signature/ digital signature of the Account Aggregator; and
  • Any other attribute as may be prescribed by the RBI.

This consent artefact can also be obtained in electronic form which should be capable of being logged, audited and verified.

Further, the customer also has every right to revoke the consent given to obtain information that is rendered accessible by a consent artefact, including the ability to revoke consent to obtain parts of such information. Upon revocation a fresh consent artefact shall be shared with the FIP.

The requirement of consent is essential to the business of the NBFC-AA and the manner of obtaining consent is also carefully required to be structured. Account Aggregators can be said to be consent gateways for FIPs and FIUs, since they ultimately benefit from the information provided.

Conclusion

There are several reasons for the new age digital lending NBFCs to go for the NBFC-AA license, as this would amount to a ‘value added’ to their services since every step in the loan process could be done without the customer ever having to leave the app.

However the question as to whether this model fits into the current digital lending model of the NBFC and Fintech Platform should be given due consideration. The revenue model should be structured in a way that the NBFC-AA reaps benefits out of its services provided to the NBFC.

The ultimate benefit would be a speedy and easier credit approval and sanction process for the digital lending business. Data coupled with consent of the customer would prove more efficient for the new age digital lending model if all the necessary checks and systems are in place.

Links to related write ups –

Account Aggregator: A class of NBFCs without any financial assets – http://vinodkothari.com/2016/09/account-aggregator-a-class-of-nbfc-without-any-financial-assets/

Financial Asset Aggregators: RBI issues draft regulatory directions – http://vinodkothari.com/wp-content/uploads/2017/03/Financial_asset_aggregators_RBI-1.pdf

[1] https://www.rbi.org.in/Scripts/BS_ViewMasDirections.aspx?id=10598

[2] Source: Sahamati FAQs (Sahamati is a collective of the Account Aggregator System)

[3] http://vinodkothari.com/2019/09/sharing-of-credit-information-to-fintech-companies-implications-of-rbi-bar/

Sixth Bi-monthly Monetary Policy of RBI: Likely to spur long-term growth

-Kanakprabha Jethani | Executive

(kanak@vinodkothari.com)

The Reserve Bank of India (RBI) released its Sixth Bi-monthly Monetary Policy Statement, 2019-20[1] along with the Statement on Developmental and Regulatory Policies[2] (‘Statement’) on February 06, 2020. The said Statement proposed various measures primarily to spur the growth impulses and push credit offtake. Some of the major proposals are discussed below.

In particular, as our analysis shows, there will be increased opportunities for co-lending between banks and NBFCs.

Enhancing credit to specific sectors

  1. Allowing Scheduled Commercial Banks (SCBs) to deduct from their net demand and time liabilities (NDTL), the equivalent of incremental credit disbursed by them as retail loans for automobiles, residential housing and loans to micro, small and medium enterprises (MSMEs), over and above the outstanding level of credit to these segments as at the end of the fortnight ended January 31, 2020 for maintenance of cash reserve ratio (CRR).

The Reserve maintenance requirement for a bank= CRR*Bank Deposits/NDTL. Due to such reduction from NDTL, the reserve maintenance requirement will be reduced. This will act as a motivating factor for banks to lend more to the aforementioned sectors.  Therefore, banks save the opportunity loss on account of CRR on such incremental lending. Notably, the CRR currently is 4%, and does not fetch any return to the banks. Assuming that a bank may earn 10% interest on the lending to the specific sector, this means a direct improvement in the return to the bank to the extent of 40 bps.

It is important to note that this relaxation is only for loans directly disbursed by the banks. Therefore, acquisition of loan pools by way of direct assignment or purchase of PTCs will not qualify for this.

However, lot of banks have entered into co-lending arrangements with NBFCs. Such arrangements result into a credit originated directly in the books of the bank, and therefore, ought to qualify for the relaxation of the CRR requirement.  Loans for automobiles (which may apparently include both passenger and commercial vehicles) is one segment where NBFC-bank co-lending arrangements may work very well. The same goes for loans to MSMEs.

  1. Pricing of loans to medium enterprises by SCBs to be linked to an external benchmark.

Linking the pricing of loans to an external benchmark, say repo rate, will ensure that interest rates reflect the current market conditions.  The external benchmark rates are currently administered by Financial Benchmark India Pvt. Ltd. (FBIL)

  1. Extension of time limit for one-time restructuring scheme for loans granted to MSMEs to December 31, 2020.

Under this scheme, loans in which there is a default in repayment, but the same is being classified as standard asset in the books of the lender as on January 01, 2020.

Usually, when an account is restructured, the asset classification of such asset is downgraded. However, the accounts restructured under this scheme shall continue to be classified as standard. The restructuring is to be implemented by December 31, 2020 instead of the earlier limit of March 31, 2020. This scheme will enable the defaulted accounts to be restructured without impacting the Balance Sheet of the lender since the provisioning requirements would remain the same.

Regulating the HFCs

  1. Draft revised regulations with respect to HFCs on RBI website by the end of the month, for public comments. Till the new regulations are issued, HFCs shall continue to be regulated by the existing regulations of the National Housing Bank (NHB).

Upon introduction of the new framework, HFCs will come under regulatory control of the RBI and the efforts of NHB may then be focused towards development of housing finance market.

VKC Comment: We will be keeping a watch on these draft guidelines and will come back with analysis as and when these draft regulations are placed on the RBI website.

Relaxing the norms for Asset Classification

  1. Extension of date of commencement of commercial operations (DCCO) of project loans for commercial real estate, delayed for reasons beyond the control of promoters, by another one year, shall not result in downgrading the asset classification.

Due to introduction of this provision, project loans given for commercial real estate will continue to be classified as standard even if there is a default in repayment, in case the DCCO is extended.

Aids to Digital Payment Systems

  1. A Digital Payments Index to be issued to capture the extent of digitisation of payments. The same shall be made available w.e.f July 2020.

This index will reflect the penetration of digital payments in the financial markets.

  1. Framework to establish Self-Regulatory Organisation (SRO) for digital payment systems which will serve as a two-way communication channel between the players and the regulator/supervisor. The framework will be put in place by April 2020.

Establishment of SRO will result into enhanced control and regulation of the digital payments space while simultaneously ensuring reduced bureaucracy and faster resolution of issues.

We will be coming up with detailed analysis of the developments as and when they are introduced.

[1] https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=49342

[2] https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=49343

Relaxations to FPIs ahead of Budget, 2020

Timothy Lopes, Executive, Vinod Kothari Consultants Pvt. Ltd.

timothy@vinodkothari.com

As investors wait eagerly in anticipation of what changes Budget, 2020 could bring, the RBI has on 23rd January, 2020[1], provided a boost by revising the norms for investment in debt by Foreign Portfolio Investors (FPIs). This comes as a boost to FPIs as the revised norms allow more flexibility for investment in the Indian Bond Market.

Further the RBI has also amended the Voluntary Retention Route for FPIs extending its scope by increasing the investment cap limit to almost twice the previously stated amount. The amendments widen the benefits to FPIs who invest under the scheme.

This write up intends to cover the revised limits in brief.

Review of limits for investment in debt by FPIs

  1. Investment by FPIs in Government securities

As per Directions issued by RBI[2] with respect to investment in debt by FPIs, FPIs were allowed to make short term investments in either Central Government Securities or State Development Loans. However, the said short term investment was capped at 20% of the total investment of that FPI, i.e., the short term investment by an FPI in Government Securities earlier could not exceed 20% of their total investment.

The above limit of 20% has now been increased to 30% of the total investment of the FPI.

  1. Investment by FPIs in Corporate Bonds

Similar to the above restriction, FPIs were also restricted from making short term investments of more than 20% of their total investment in Corporate Bonds.

The above cap is also increased from 20% to 30% of the total investment of the FPI.

The above increase in investment limits provides more flexibility for making investment decisions by FPIs.

Exemptions from short term investment limit

As per the RBI directions, certain types of securities such as Security Receipts (SRs) were exempted from the above limit. Thus, the above short term investment limit were not applicable in case of investment by an FPI in SRs.

Now the above exemption is extended to the following securities as well –

  • Debt instruments issued by Asset Reconstruction Companies; and
  • Debt instruments issued by an entity under the Corporate Insolvency Resolution Process as per the resolution plan approved by the National Company Law Tribunal under the Insolvency and Bankruptcy Code, 2016

This widens the scope of investment by FPIs who wish to make short term investments in debt.

Further the requirements of single/group investor-wise limits in corporate bonds are not applicable to investments by Multilateral Financial Institutions and investments by FPIs in ‘Exempted Securities’.

Thus this amendment brings in more options for FPIs to invest without having to consider the single/group investor-wise limits.

Relaxations in “Voluntary Retention Route” for FPIs

The Voluntary Retention Route for FPIs was first introduced on March 01, 2019[3] with a view to enable FPIs to invest in debt markets in India. FPI investments through this route are free from the macro-prudential regulations and other regulatory norms applicable to FPI investment in debt markets subject to the condition that the FPIs voluntarily commit to retain a required minimum percentage of their investments in India for a specified period.

Subsequently the scheme was amended on 24th May, 2019[4].

On 23rd January, 2020[5] the RBI has brought in certain relaxations to the above VRR scheme. The changes made are most certainly welcome since it increases the scope of the scheme and provides relaxations to FPIs. The highlights are as under –

Increase in investment cap –

Investment through the VRR for FPIs was earlier subject to a cap of Rs. 75,000 crores. As on date around Rs. 54,300 crores has already been invested in the scheme. Thus based on feedback from the market and in consultation with the Government it was decided to increase the said investment limit to Rs. 1,50,000 crores.

Transfer of investments made under General Investment Limit to VRR –

‘General Investment Limit’, for any one of the three categories, viz., Central Government Securities, State Development Loans or Corporate Debt Instruments, means the FPI investment limits announced for these categories under the Medium Term Framework, in terms of RBI Circular dated April 6, 2018, as modified from time to time.

Now the RBI has allowed FPIs to transfer their investments made under the above mentioned limit to the VRR scheme.

Investment in ETFs that trade invest only in debt

Earlier under the VRR scheme, investments were allowed in the following –

  • Any Government Securities i.e., Central Government dated Securities (G-Secs), Treasury Bills (T-bills) as well as State Development Loans (SDLs);
  • Any instrument listed under Schedule 1 to Foreign Exchange Management (Debt Instruments) Regulations, 2019 notified, vide, Notification dated October 17, 2019, other than those specified at 1A(a) and 1A(d) of that schedule;
  • Repo transactions, and reverse repo transactions.

Pursuant to the amendment, the RBI has allowed FPIs to invest in Exchange Traded Funds (ETFs) investing only in debt instruments.

Further the following features are introduced for the fresh allotment opened by RBI under this route –

  1. The minimum retention period shall be three years.
  2. Investment limits shall be available ‘on tap’ and allotted on ‘first come, first served’ basis.
  3. The ‘tap’ shall be kept open till the limit is fully allotted.
  4. FPIs may apply for investment limits online to Clearing Corporation of India Ltd. (CCIL) through their respective custodians.
  5. CCIL will separately notify the operational details of application process and allotment.

Conclusion

The changes made by RBI certainly attract more FPIs to the Indian Bond Market and extends its scope. The relaxations come ahead of the Budget, 2020 wherein foreign investors have more expectations for new reforms to boost growth and investment in the Indian economy.

Links to our earlier write ups on the subject –

Recommendations to further liberalise FPI Regulations –

http://vinodkothari.com/2019/06/recommendations-to-further-liberalise-fpi-regulations/

RBI removes cap on investment in corporate bonds by FPIs –

http://vinodkothari.com/2019/02/rbi-removes-cap-on-investments-in-corporate-bonds-by-fpis/

RBI widens FPI’s avenue in corporate bonds –

http://vinodkothari.com/2018/05/rbi-widens-fpis-avenue-in-corporate-bonds/

Investment by FPIs in securitised debt instruments

http://vinodkothari.com/2018/06/investment-by-fpis-in-securitised-debt-instruments/

SEBI brings in liberalised framework for Foreign Portfolio Investors –

http://vinodkothari.com/2019/09/sebi-brings-in-liberalised-framework-for-foreign-portfolio-investors/

 

[1] https://rbidocs.rbi.org.in/rdocs/notification/PDFs/APDIR18184461ABA6F14E2EA51DF0243B610CE6.PDF

[2] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11303&Mode=0

[3] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11492&Mode=0

[4] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11561&Mode=0

[5] https://rbidocs.rbi.org.in/rdocs/notification/PDFs/APDIR19FABE1903188142B9B669952C85D3DCEE.PDF

Basel III requirements for Simple Transparent and Comparable (STC) Securitisation

Vinod Kothari Consultants P Ltd

finserv@vinodkothari.com

Having a simple, transparent and comparable (STC) label for a securitisation transaction is a very important factor, particularly for investors’ acceptability of the transaction. Securitisation transactions are structured finance transactions –the structure may be fairly complicated. The transaction may be bespoke – created with a particular investor in mind; hence, the transaction may not be standard. Also, the transaction terms may not have requisite transparency.

Absence of simplicity, transparency and comparability limit the ability of investors to understand and interpret the transaction structure and evaluate the underlying risks.

Basel III Securitisation Standard has a complete annexure [Annex 2] dedicated to the STC requirements. We are itemising these requirements below in the form of a checklist, such that one may verify the adherence of a transaction to the STC norms.

Basel III Norms Notes
A.     Asset Risk –
A1. Nature of Asset –
1)      Assets underlying securitisation should be –  
·         Credit claims or receivables; AND In a standard transaction, the receivables typically arise from credit contracts.
·         These credit claims or receivables must be homogenous.  
2)      In assessing homogeneity, consideration should be given to – Homogeneity is assessed from the viewpoint of risk attributes. Each of the following indicate risk attributes. Therefore, it appears that these conditions are cumulative
·         Asset type;  
·         Jurisdiction;  
·         Legal system;  
·         Currency.  
3)      Homogeneity should be assessed taking into account the following principles –  
·         The nature of assets should be such that investors would not need to analyse and assess materially different legal and/or credit risk factors and risk profiles when carrying out risk analysis and due diligence checks. This means that the assets in the pool questions are covered by similar legal risks and credit risks, and the analysis can be done portfolio-wide.
·         Homogeneity should be assessed on the basis of common risk drivers, including similar risk factors and risk profiles. The major credit risk drivers – for example, the purpose of the loan, nature of the collateral, should be similar, so that the pool can be subjected to a pool-wide credit risk assessment
·         Credit claims or receivables included in the securitisation should have standard obligations, in terms of rights to payments and/or income from assets and that result in a periodic and well- defined stream of payments to investors. Credit card facilities should be deemed to result in a periodic and well-defined stream of payments to investors for the purposes of this criterion. The receivables should be consisting of periodic and well-defined contractual stream. That is, expected cashflows or future flows may not qualify this condition.
·         Repayment of noteholders should mainly rely on the principal and interest proceeds from the securitised assets. In standard transactions, the receivables should generally consist of rentals, principal, interest or principal plus interest.
·         Partial reliance on refinancing or re-sale of the asset securing the exposure may occur provided that re-financing is sufficiently distributed within the pool and the residual values on which the transaction relies are sufficiently low and that the reliance on refinancing is thus not substantial. Transaction structures sometimes rely on refinancing of the collateral to make the final repayment. This is mostly so in case of CMBS transactions. Managed CDOs also depend on liquidation of the underlying loans/bonds for repaying investors. In such cases, STC rules require that the refinancing risk is minimal. No specific percentage is laid down.
4)      As more exotic asset classes require more complex and deeper analysis, credit claims or receivables should have contractually identified periodic payment streams relating to –  
·         Rental; This includes both financial and operating leases.
·         Principal; For example, in a PO strip, the cashflows will consist of principal only
·         Interest, or; For example, in an IO strip, the cashflows consist of interest only
·         Principal and Interest payments.  
5)      Any referenced interest payments or discount rates should be based on -commonly encountered market interest rates but should not reference complex or complicated formulae or exotic derivatives. The meaning of referenced interest payments is – where interest is not an absolute rate, but a floating rate linked with a reference rate. LIBOR, Treasuries, etc are examples. Similarly, discounting rates may be linked with reference rates.
“Commonly encountered market interest rates” may include –  
·         Rates reflective of a lender’s cost of funds, to the extent that sufficient data are provided to investors to allow them to assess their relation to other market rates. In many cases, interest rates on loans are linked with lender’s cost of funds. For example, a commonplace practice in India is MCLR – marginal cost of fund-based lending rate. However, the question will be – is this rate, in turn, based on market rates? Typically, MCLR is itself based on the policy rates of the RBI. Therefore, if the interrelationship between the external rates the banks’ own cost of funds is visible, the same will qualify as “market interest rate”.
·         Sectoral rates reflective of a lender’s cost of funds, such as internal interest rates that directly reflect the market costs of a bank’s funding or that of a subset of institutions. See discussion above on MCLR, for example
·         Interest rate caps and/or floors would not automatically be considered exotic derivatives. While cashflows which are based on exotic derivatives do not qualify under the STC condition, the fact that there are interest rate floors or caps by itself does not imply a breach of the STC condition.
A2. Asset Performance History  
1)      In order to provide investors with sufficient information on an asset class –  
·         To conduct appropriate due diligence, and;  
·         Access to a sufficiently rich data set to enable a more accurate calculation of expected loss in different stress scenarios, This clause is intended to provide data dump for similar assets as those in the final pool, with such parameters as to enable the investor to carry out stress testing and compute expected losses
verifiable loss performance data, such as delinquency and default data Delinquency data as well as default data matter- the former for the risk of missing payments, and the latter for bad assets
should be available for credit claims and receivables, with substantially similar risk characteristics to those being securitised, This is referring to the statistical pool, which has risk attributes similar to the assets to go into the final pool. Since the statistical pool will have past history for a sufficiently long period, this may actually be the assets that may have either been securitised, or stayed on the books in the past.
for a time period long enough to permit meaningful evaluation by investors. The data should be for a reasonably long time period. Once again, what is the time period in question is subjective, but it is with this data that the investor will be able to compute standard deviation and volatility of the parameters. Hence, the time period should be long enough to eliminate the impact of periodic spikes.
2)      Sources of and access to data and the basis for claiming similarity to credit claims or receivables being securitised should be clearly disclosed to all market participants.  
3)      Additional consideration (not forming part of STC criteria but may form part of investors’ due diligence):  
(i)                 In addition to the history of the asset class within a jurisdiction, investors should consider whether the – This criteria gets into the track record of the originator, original lender and other counterparties to the transaction. As the Basel document seeks to explain, the idea is not to discourage/restrict new entrants. However, investors should be able to track not only the performance of the asset, but also that of the parties.
–          Originator  
–          Sponsor Sponsor, being distinct from the originator, may be there in conduits, or CLOs/CDOs. Also, in many cases, the originator may not be the original lender but may be aggregator.
–          Servicer and  
–          Other parties with a fiduciary responsibility to the securitisation  
have an established performance history for substantially similar credit claims or receivables to those being securitised, and for an appropriately long period of time. As to what is this “long period of time”, the guidance given in the Basel document is (a) 7 years in case of non-retail exposures; (b) 5 years in case of retail exposures
A3. Payment Status  
1)      Non-performing credit claims and receivables are likely to require more complex and heightened analysis. In order to ensure that only performing credit claims and receivables are assigned to a securitisation, credit claims or receivables being transferred to the securitisation may not, at the time of inclusion in the pool, include obligations that are –  
–          in default;  
–          or delinquent;  
–          or obligations for which the transferor (e.g. Originator or sponsor); This and the next requirement is possibly a declaration from the originator and the servicer that the declarant is not aware of any material increase in expected losses or of enforcement actions.
2)      Additional requirement for capital purposes  
To prevent credit claims or receivables arising from credit-impaired borrowers from being transferred to the securitisation, the originator or sponsor should verify that the credit claims or receivables meet the following conditions : These conditions below are to be assessed as of a date not longer than 45 days before the closing date
(a)   the obligor has not been the subject of an insolvency or debt restructuring process due to financial difficulties within three years prior to the date of origination[1]; and,  
(b)   the obligor is not recorded on a public credit registry of persons with an adverse credit history; and,  
(c)    the obligor does not have a credit assessment by an ECAI or a credit score indicating a significant risk of default; and  
(d)   the credit claim or receivable is not subject to a dispute between the obligor and the original lender.  
3)      Additionally, at the time of this assessment, there should to the best knowledge of the originator or sponsor be no evidence indicating likely deterioration in the performance status of the credit claim or receivable.  
4)      Additionally, at the time of their inclusion in the pool, at least one payment should have been made on the underlying exposures, except in the case of revolving asset trust structures such as those for credit card receivables, trade receivables, and other exposures payable in a single instalment, at maturity.  
A4. Consistency of Underwriting
1)      Investor analysis is simple and straightforward where the securitisation is of credit claims or receivables that satisfy materially non-deteriorating origination standards. To ensure that the quality of the securitised credit claims and receivables is not affected by changes in underwriting standards, the originator should demonstrate to investors that any credit claims or receivables being transferred to the securitisation have been originated in the ordinary course of the originator’s business to materially non-deteriorating underwriting standards.  
2)      Where underwriting standards change, the originator should disclose the timing and purpose of such changes.  
   
3)      Underwriting standards should not be less stringent than those applied to credit claims and receivables retained on the balance sheet.  
4)      These should be credit claims or receivables which have satisfied the following: In case where the originator has acquired the assets from third parties, the assessment of non-deterioration of underwriting standards and whether assessment of volition and ability of obligors has been done by the third party, must be done by the originator.
(i)                 materially non-deteriorating underwriting criteria  
(ii)               for which the obligors have been assessed as having the ability and volition to make timely payments on obligations or  
(iii)             on granular pools of obligors  
(iv)              originated in the ordinary course of the originator’s business  
(v)                where expected cash flows have been modelled to meet stated obligations of the securitisation under prudently stressed loan loss scenarios.  
A5. Asset selection and transfer  
1)      Whilst recognising that credit claims or receivables transferred to a securitisation will be subject to defined criteria, e.g. the size of the obligation, the age of the borrower or the LTV (loan-to-value) of the property, DTI (debt-to-income) and/or DSC (debt service coverage) ratios, the performance of the securitisation should not rely upon the ongoing selection of assets through active management on a discretionary basis of the securitisation’s underlying portfolio. The condition lays down the rule against cherry picking. Assets may be selected by laying down criteria and not by active selection. Addition of assets in case of revolving transactions, and substitution of assets on account of some of the loans not meeting the representations and warranties is not regarded as a breach of this condition.
2)      Credit claims or receivables transferred to a securitisation should satisfy clearly defined eligibility criteria.  
3)      Credit claims or receivables transferred to a securitisation after the closing date may not be –  
–          Actively selected  
–          Actively managed  
–          Or otherwise cherry-picked  
4)      Investors should be able to assess the credit risk of the asset pool prior to their investment decisions.  
5)      In order to meet the principle of true sale, the securitisation should effect true sale such that the underlying credit claims or receivables:  
(a)   are enforceable against the obligor and their enforceability is included in the representations and warranties of the securitisation;  
(b)   are beyond the reach of the seller, its creditors or liquidators and are not subject to material re-characterisation or clawback risks;  
(c)    are not effected through credit default swaps, derivatives or guarantees, but by a transfer of the credit claims or the receivables to the securitisation; and  
(d)   demonstrate effective recourse to the ultimate obligation for the underlying credit claims or receivables and are not a securitisation of other securitisations.  
Additional requirement for capital purposes – An independent third-party legal opinion must support the claim that the true sale and the transfer of assets under the applicable laws comply with points (a) through (d).  
To avoid conflicts of interest, the legal opinion should be provided by an independent third party. That is say, the transaction counsel should not generally be the counsel giving the true sale opinion.
6)      In applicable jurisdictions, securitisations employing transfers of credit claims or receivables by other means should demonstrate the existence of material obstacles preventing true sale at issuance (E.g. the immediate realisation of transfer tax or the requirement to notify all obligors of the transfer.) and; That is, if clear true sale structure is not used, but say a loan or similar structures are used, it should be possible to see that a true sale would have been impractical
should clearly demonstrate the method of recourse to ultimate obligors (E.g. equitable assignment, perfected contingent transfer.) In that case, the ability of being able to enforce the collection from the obligors, independent of the originator, should be demonstrated.
7)      In such jurisdictions, any conditions where the transfer of the credit claims or receivable is –  
–          Delayed, or;  
–          Contingent upon specific events  
And any factors affecting timely perfection of claims by the securitisation should be clearly disclosed.  
8)      The originator should provide representations and warranties that the credit claims or receivables being transferred to the securitisation are not subject to any condition or encumbrance that can be foreseen to adversely affect enforceability in respect of collections due.  
A6. Initial and ongoing Data
1)      To assist investors in conducting appropriate due diligence prior to investing in a new offering,  
sufficient loan-level data in accordance with applicable laws, or  
in the case of granular pools, summary stratification data on the relevant risk characteristics of the underlying pool  
should be available to potential investors before pricing of a securitisation.  
2)      To assist investors in conducting appropriate and ongoing monitoring of their investments’ performance and so that investors that wish to purchase a securitisation in the secondary market have sufficient information to conduct appropriate due diligence,  
–          timely loan-level data in accordance with applicable laws, or  
–          or granular pool stratification data on the risk characteristics of the underlying pool and standardised investor reports  
should be readily available to  
–          current and potential investors  
at least quarterly throughout the life of the securitisation.  
3)      Cut-off dates of the loan-level or granular pool stratification data should be aligned with those used for investor reporting.  
4)      To provide a level of assurance that the reporting of the underlying credit claims or receivables is accurate and that the underlying credit claims or receivables meet the eligibility requirements, the initial portfolio should be reviewed for conformity with the eligibility requirements by an appropriate legally accountable and independent third party The examples of such independent third party given in the Basel framework are independent accounting practitioners, calculation agent, or management company for securitisation
–          The review should confirm that the credit claims or receivables transferred to the securitisation meet the portfolio eligibility requirements.  
–          The review could, for example, be undertaken on a representative sample of the initial portfolio, with the application of a minimum confidence level.  
–          The verification report need not be provided but its results, including any material exceptions, should be disclosed in the initial offering documentation.  
B.      Structural Risk  
B7. Redemption cash flows  
1)      Liabilities subject to the refinancing risk of the underlying credit claims or receivables are likely to require more complex and heightened analysis. To help ensure that the underlying credit claims or receivables do not need to be refinanced over a short period of time, there should not be a reliance on the sale or refinancing of the underlying credit claims or receivables in order to repay the liabilities, unless the underlying pool of credit claims or receivables is sufficiently granular and has sufficiently distributed repayment profiles. Except in case of granular pools (say RMBS pools), the reliance on refinancing should not be substantial.
2)      Rights to receive income from the assets specified to support redemption payments should be considered as eligible credit claims or receivables in this regard. Sometimes, temporary reinvestment of cashflows may be done. The Basel document gives an example of associated savings plans designed to repay principal at maturity. This does not breach the preceding condition.
B8. Currency and interest  
1)      To reduce the payment risk arising from the interest rate or currency mismatches, and to improve investors’ ability to model cash flows, interest rate and foreign currency risks should be appropriately mitigated at all times, “Appropriate mitigation” of the interest rate and currency risk has been explained further. This is not requiring a perfect hedge. The appropriateness of the mitigation of interest rate and foreign currency through the life of the transaction must be demonstrated by making available to potential investors, in a timely and regular manner, quantitative information including the fraction of notional amounts that are hedged, as well as sensitivity analysis that illustrates the effectiveness of the hedge under extreme but plausible scenarios.
and if any hedging transaction is executed the transaction should be documented according to industry-standard master agreements.  
2)      Only derivatives used for genuine hedging of asset and liability mismatches of interest rate and / or currency should be allowed.  
If hedges are not performed through derivatives, then those risk-mitigating measures are only permitted if they are specifically created and used for the purpose of hedging an individual and specific risk, and not multiple risks at the same time (such as credit and interest rate risks).  
Non-derivative risk mitigation measures must be fully funded and available at all times.  
B9. Payment Priorities and observability  
1)      To prevent investors being subjected to unexpected repayment profiles during the life of a securitisation, the priorities of payments for all liabilities in all circumstances should be clearly defined at the time of securitisation  
and appropriate legal comfort regarding their enforceability should be provided.  
2)      To ensure that junior noteholders do not have inappropriate payment preference over senior noteholders that are due and payable, throughout the life of a securitisation, or,  
–          where there are multiple securitisations backed by the same pool of credit claims or receivables, throughout the life of the securitisation programme,  
junior liabilities should not have payment preference over senior liabilities which are due and payable.  
3)      The securitisation should not be structured as a “reverse” cash flow waterfall such that junior liabilities are paid where due and payable senior liabilities have not been paid.  
4)      To help provide investors with full transparency over any changes to the cash flow waterfall, payment profile or priority of payments that might affect a securitisation,  
all triggers affecting the cash flow waterfall, payment profile or priority of payments of the securitisation should be clearly and fully disclosed both in  
–          offering documents  
–          and in investor reports,  
with information in the investor report that clearly identifies the breach status,  
the ability for the breach to be reversed and  
the consequences of the breach.  
5)      Investor reports should contain information that allows investors to monitor the evolution over time of the indicators that are subject to triggers.  
6)      Any triggers breached between payment dates should be  disclosed to investors on a timely basis in accordance with the terms and conditions of all underlying transaction documents.  
7)      Securitisations featuring a revolving period should include provisions for  
–          appropriate early amortisation events and/or  
–          triggers of termination of the revolving period, This requires proper disclosure of all early amortisation triggers
–          including notably:  
(i)   deterioration in the credit quality of the underlying exposures;  
(ii) a failure to acquire sufficient new underlying exposures of similar credit quality; and  
(iii)    the occurrence of an insolvency-related event with regard to the originator or the servicer.  
8)      Following the occurrence of  
–          a performance-related trigger,  
–          an event of default or  
–          an acceleration event,  
the securitisation positions should be repaid in accordance with a sequential amortisation priority of payments, in order of tranche seniority, and  
there should not be provisions requiring immediate liquidation of the underlying assets at market value.  
9)      To assist investors in their ability to appropriately model the cash flow waterfall of the securitisation, the originator or the sponsor should make available to investors, both  
–          Before pricing of the securitisation and  
–          On an ongoing basis,  
o   a liability cash flow model, or  
o   information on the cash flow provisions allowing appropriate modelling of the securitisation cash flow waterfall.  
10)  To ensure that the following can be clearly identified: The objective of the following is to enable investors to identify debt forgiveness, forbearance, payment holidays, restructuring and other asset performance remedies on an ongoing basis.
–          debt forgiveness,  
–          forbearance  
–          payment holidays and  
–          other asset performance remedies  
To ensure that there are clear and consistent terms for the following:  
–          policies and procedures,  
–          definitions,  
–          remedies  
–          and actions relating to delinquency,  
–          default  
–          or restructuring of underlying debtors  
B10. Voting and Enforcement Rights  
1)      To help ensure clarity for securitisation note holders of their rights and ability to control and enforce on the underlying credit claims or receivables, upon insolvency of the originator or sponsor, all voting and enforcement rights related to the credit claims or receivables should be transferred to the securitisation.  
2)      Investors’ rights in the securitisation should be clearly defined in all circumstances, including the rights of senior versus junior note holders.  
B11. Documentation Disclosure and legal review  
1)      The documentation for initial offering (E.g. draft offering circular, draft offering memorandum, draft offering document or draft prospectus, such as a “red herring”.) should help investors to fully understand the  
–          Terms and conditions  
–          Legal and  
–          Commercial information  
Ensure that this information is set out in a clear and effective manner for all programmes and offerings,  
2)      Each of the following legal documentation (as may be relevant) should be provided to investors: If these are not available immediately, they should be made available within a reasonably sufficient period of time prior to pricing, or when legally permissible.
–          Asset sale agreement, assignment, novation or transfer agreement; servicing, backup servicing, administration and cash management agreements; trust/management deed, security deed, agency agreement, account bank agreement, guaranteed investment contract, incorporated terms or master trust framework or master definitions agreement as applicable; any relevant inter-creditor agreements, swap or derivative documentation, subordinated loan agreements, start-up loan agreements and liquidity facility agreements; and any other relevant underlying documentation, including legal opinions  
3)      Final offering documents should be available from the closing date and all final underlying transaction documents shortly thereafter. These should be composed such that readers can readily find, understand and use relevant information.
4)      To ensure that all the securitisation’s underlying documentation has been subject to appropriate review prior to publication, the terms and documentation of the securitisation should be reviewed by an appropriately experienced third party legal practice, such as a legal counsel already instructed by one of the transaction parties, eg by the arranger or the trustee.  
5)      Investors should be notified in a timely fashion of any changes in such documents that have an impact on the structural risks in the securitisation.  
B12. Alignment of Interest  
1)      In order to align the interests of those responsible for the underwriting of the credit claims or receivables with those of investors, the originator or sponsor of the credit claims or receivables  
should retain a material net economic exposure, and  
demonstrate a financial incentive in the performance of these assets following their securitisation.  
C.      Fiduciary and servicer risk  
C13. Fiduciary and Contractual Responsibilities  
1)      Servicer should be able to demonstrate expertise in the servicing of the underlying credit claims or receivables, by the following:  
extensive workout expertise,  
thorough legal and collateral knowledge, and  
a proven track record in loss mitigation,  
supported by a management team with extensive industry experience.  
2)      The servicer should at all times act in accordance with reasonable and prudent standards.  
3)      Policies, procedures and risk management controls should be well documented and adhere to good market practices and relevant regulatory regimes.  
4)      There should be strong systems and reporting capabilities in place.  
5)      The party or parties with fiduciary responsibility should act on a timely basis in the best interests of the securitisation note holders, and both the initial offering and all underlying documentation should contain provisions facilitating the timely resolution of conflicts between different classes of note holders by the trustees, to the extent permitted by applicable law.  
6)      The party or parties with fiduciary responsibility to the securitisation and to investors should be able to demonstrate –  
–          Sufficient skills and  
–          Resources to comply with their duties of care in the administration of the securitisation vehicle.  
7)      To increase the likelihood that those identified as having a fiduciary responsibility towards investors as well as the servicer execute their duties in full on a timely basis,  
remuneration should be such that these parties are incentivised and able to meet their responsibilities in full and on a timely basis. This is an important requirement about adequacy of the servicer remuneration. The same must be arms’ length.
8)      Additional Guidance for capital purposes  
In assessing whether “strong systems and reporting capabilities are in place”, well documented policies, procedures and risk management controls, as well as strong systems and reporting capabilities, may be substantiated by a third-party review for non-banking entities.  
C14. Transparency to investors  
1)      To help provide full transparency to investors, assist investors in the conduct of their due diligence and to prevent investors being subject to unexpected disruptions in cash flow collections and servicing,  
the contractual obligations, duties and responsibilities of all key parties to the securitisation, both those with  
–          a fiduciary responsibility  
–          and of the ancillary service providers,  
should be defined clearly both in the initial offering and all underlying documentation.  
2)      Provisions should be documented for the replacement of  
–          Servicers,  
–          Bank account providers,  
–          derivatives counterparties and  
–          liquidity providers  
in the event of  
–          Failure or  
–          non-performance or  
–          insolvency or  
–          other deterioration of creditworthiness of any such counterparty to the securitisation.  
3)      To enhance transparency and visibility over all receipts, payments and ledger entries at all times, the performance reports to investors should distinguish and report the securitisation’s income and disbursements, such as  
 
o   scheduled principal,  
o   redemption principal,  
o   scheduled interest,  
o   prepaid principal,  
o   past due interest and fees and charges,  
o   delinquent,  
o   defaulted and restructured amounts under debt forgiveness and payment holidays,  
o   including accurate accounting for amounts attributable to principal and interest deficiency ledgers.  
D.     Additional Criteria for capital purposes  
D15. Credit risk of underlying exposures  
1)      At the portfolio cut-off date the underlying exposures have to meet the conditions under the Standardised Approach for credit risk, and after taking into account any eligible credit risk mitigation, for being assigned a risk weight equal to or smaller than: The Basel document provides that the criterion based on regulatory risk weights under the Standardised Approach has the merit of using globally consistent regulatory risk measures. Hence, if, after considering any credit risk mitigations, the risk weights are coming lower than tabulated below, the conditions under the Standardised Approach have to be satisfied. It also provides the benefit of applying a filter to ensure higher-risk underlying exposures are not granted an alternative capital treatment as STC-compliant transactions.
·         [40%] on a value-weighted average exposure basis for the portfolio where the exposures are loans secured by residential mortgages or fully guaranteed residential loans;  
·         [50%] on an individual exposure basis where the exposure is a loan secured by a commercial mortgage;  
·         [75%] on an individual exposure basis where the exposure is a retail exposure; or  
·         [100%] on an individual exposure basis for any other exposure.  
A  
D16. Granularity of the pool  
1)      At the portfolio cut-off date, the aggregated value of all exposures to a single obligor shall not exceed 1% of the aggregated outstanding exposure value of all exposures in the portfolio.  
In jurisdictions with structurally concentrated corporate loan markets available for securitisation subject to ex ante supervisory approval and only for corporate exposures, the applicable maximum concentration threshold could be increased to 2% if the originator or sponsor retains subordinated tranche(s) that form loss absorbing credit enhancement, as defined in paragraph 55 of the December 2014 framework, and which cover at least the first 10% of losses. These tranche(s) retained by the originator or sponsor shall not be eligible for the STC capital treatment.  

 

[1] This condition would not apply to borrowers that previously had credit incidents but were subsequently removed from credit registries as a result of the borrower cleaning their records. This is the case in jurisdictions in which borrowers have the “right to be forgotten”.