Securitisation of performing assets: meaning of “homogenous pools”

Timothy Lopes, Executive, Vinod Kothari Consultants

finserv@vinodkothari.com

Standard asset securitisation in India is governed by the RBI securitisation guidelines of 2006[1] and 2012[2]. As one of the essential pre-requisites of a securitisation transaction, the underlying assets should represent the debt obligations of a ‘homogeneous pool’ of obligors. Subject to this condition of homogeneity, all on-balance sheet standard assets (except certain assets prescribed under the guidelines) are eligible for securitisation.

The question, then, arises as to what is the criteria for determining whether a pool of assets is homogeneous? In this write up we analyse the homogeneity criteria in the context of a securitisation transaction based on global understanding.

How is homogeneity assessed?

Basel III norms on Simple Transparent and Comparable (‘STC’) Securitisation transactions[3] lays down factors to be kept in mind while determining homogeneity as follows –

  • In simple, transparent and comparable securitisations, the assets underlying the securitisation should be credit claims or receivables that are homogeneous.
  • In assessing homogeneity, consideration should be given to –
    • Asset type,
    • Jurisdiction,
    • Legal system; and
    • Currency.
  • 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.
  • Homogeneity should be assessed on the basis of common risk drivers, including similar risk factors and risk profiles.
  • 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.
  • Repayment of note-holders should mainly rely on the principal and interest proceeds from the securitised assets. 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.

The basic intent behind a securitisation transaction is the tranching of risk. In order to tranche the risk, there must be similarity in terms of the risk attributes of the pool. If the risk is not homogeneous across different attributes of the pool the tranching of risk becomes difficult and defeats the intent of the transaction.

Further, the nature of assets in the pool must be homogenous. This means that the assets in the pool should be covered by similar legal risks or credit risks so that the investors need not analyse and assess materially different assets in a pool.

The EU Simple, Transparent and Standardised (‘STS’) securitisation Regulations[4] states the following–

“To ensure that investors perform robust due diligence and to facilitate the assessment of underlying risks, it is important that securitisation transactions are backed by pools of exposures that are homogenous in asset type, such as pools of residential loans, or pools of corporate loans, business property loans, leases and credit facilities to undertakings of the same category, or pools of auto loans and leases, or pools of credit facilities to individuals for personal, family or household consumption purposes.”

“The securitisation shall be backed by a pool of underlying exposures that are homogeneous in terms of asset type, taking into account the specific characteristics relating to the cash flows of the asset type including their contractual, credit-risk and prepayment characteristics. A pool of underlying exposures shall comprise only one asset type. The underlying exposures shall contain obligations that are contractually binding and enforceable, with full recourse to debtors and, where applicable, guarantors.”

Illustrations of a homogeneous pool

Whether a pool of comprising of commercial vehicles, trucks and tractors can be called homogeneous?

Prima facie the pool might appear to be homogeneous, however it is not so. The assets in this pool are different in terms of legal and credit risks. For instance, the credit risk arising out of a commercial vehicle loan and a tractor loan is far from similar, given the nature of the asset, value of assets and repayment power of the borrower of the asset, type of usage to which the asset.

Whether a pool of personal loans, business loans and loans against property can be called homogeneous?

The pool of loans would have to each be analysed individually given the material differences in their nature. Further the nature of collateral in each of these loans may be different leading to different risk attributes. Further it would have to be seen whether these loans have well defined stream of payments as well. Ultimately it is unlikely that this pool can be called homogeneous.

Conclusion

Homogeneity should be assessed from the viewpoint of risk attributes. There must be similarity in the nature of assets as well as collateral to ascertain homogeneity in terms of credit risks. Legal risks must also be analysed and should be homogeneous. These factors ultimately help investors in the due diligence process (while also making the transaction simple, transparent and comparable compliant) as well as make tranching of risks easier.

Read our related write ups on the subject of securitisation –

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

http://vinodkothari.com/2020/01/basel-iii-requirements-for-simple-transparent-and-comparable-stc-securitisation/

 

[1] https://www.rbi.org.in/scripts/NotificationUser.aspx?Id=2723

[2] https://rbidocs.rbi.org.in/rdocs/notification/PDFs/C170RG21082012.pdf

[3] https://www.bis.org/bcbs/publ/d374.pdf

[4] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32017R2402&from=en

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

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”.

Securitisation- Should India be moving to the next stage of development?

Sale assailed: NBFC crisis may put Indian securitisation transactions to trial

-By Vinod Kothari (vinod@vinodkothari.com)

Securitisation is all about bankruptcy remoteness, and the common saying about bankruptcy remoteness is that it works as long as the entities are not in bankruptcy! The fact that any major bankruptcy has put bankruptcy remoteness to challenge is known world-over. In fact, the Global Financial Crisis itself put several never-before questions to legality of securitisation, some of them going into the very basics of insolvency law[1]. There have been spate of rulings in the USA pertaining to transfer of mortgages, disclosures in offer documents, law suits against trustee, etc.

The Indian securitisation market has faced taxation challenges, regulatory changes, etc. However, it has so far been immune from any questions at the very basics of either securitisability of assets, or the structure of securitisation transactions, or issues such as commingling of cashflows, servicer transition, etc. However, sitting at the very doorstep of defaults by some major originators, and facing the spectrum of serious servicer downgrades, the Indian securitisation market clearly faces the risk of being shaken at its basics, in not too distant future.

Before we get into these challenges, it may be useful to note that the Indian securitisation market saw an over-100% growth in FY 2019 with volumes catapulting to INR 1000 billion. In terms of global market statistics, Indian market may now be regarded as 2nd largest in ex-Japan Asia, only after China.

Since the blowing up of the ILFS crisis in the month of September 2018, securitisation has been almost the only way of liquidity for NBFCs. Based on the Budget proposal, the Govt of India launched, in Partial Credit Guarantee Scheme, a scheme for partial sovereign guarantee for AA-rated NBFC pools. That scheme seems to be going very well as a liquidity breather for NBFCs. Excluding the volumes under the partial credit enhancement scheme, securitisation volumes in first half of the year have already crossed INR 1000 billion.

In the midst of these fast rising volumes, the challenges on the horizon seem multiple, and some of them really very very hard. This write up looks at some of these emerging developments.

Sale of assets to securitisation trusts questioned

In an interim order of the Bombay High court in Edelweiss AMC vs Dewan Housing Finance Corporation Limited[2], the Bombay High court has made certain observations that may hit at the very securitisability of receivables.  Based on an issue being raised by the plaintiff, the High Court has directed the company DHFL to provide under affidavit details of all those securitisation transactions where receivables subject to pari passu charge of the debentureholders have been assigned, whether with or without the sanction of the trustee for the debentureholders.

The practice of pari passu floating charge on receivables is quite commonly used for securing issuance of debentures. Usually, the charge of the trustees is on a blanket, unspecific common pool, based on which multiple issuances of debentures are covered. The charge is usually all pervasive, covering all the receivables of the company. In that sense, the charge is what is classically called a “floating charge”.

These are the very receivables that are sold or assigned when a securitisation transaction is done. The issue is, given the floating nature of the charge, a receivable originated automatically becomes subject to the floating charge, and a receivable realised or sold automatically goes out of the purview of the charge. The charge document typically requires a no-objection confirmation of the chargeholder for transactions which are not in ordinary course of business. But for an NBFC or an HFC, a securitisation transaction is a mode of take-out and very much a part of ordinary course of business, as realisation of receivables is.

If the chargeholder’s asset cover is still sufficient, is it open for the chargeholder to refuse to give the no-objection confirmation to another mode of financing? If that was the case, any chargeholder may just bring the business of an NBFC to a grinding halt by refusing to give a no-objection.

The whole concept of a floating charge and its priority in the event of bankruptcy has been subject matter of intensive discussion in several UK rulings[3]. There have been discussions on whether the floating charge concept, a judge-made product of UK courts, can be eliminated altogether from the insolvency law[4].

In India, the so-called security interest on receivables is not really intended to be a security device – it is merely a regulatory compliance with company law rules under which unsecured debentures are treated as “deposits”[5]. The real intent of the so-called debenture trust document is maintenance of an asset cover, which may be expressed as a covenant, even otherwise, in case of an unsecured debenture issuance. The fact is that over the years, the Indian bond issuance market has not been able to come out of the clutches of this practice of secured debenture issuance.

While bond issuance practices surely need re-examination, the burning issue for securitisation transactions is – if the DHFL interim ruling results into some final observations of the court about need for the bond trustee’s NOC for every securitisation transaction, all existing securitisation transactions may also face similar challenges.

Servicer-related downgrades

Rating agencies have recently downgraded two notches from AAA ratings several pass-through certificate transactions of a leading NBFC. The rationale given in the downgrade action, among other things, cites servicer risks, on the ground that the originator has not been able to obtain continuous funding support from banks. While absence of continuing funding support may affect new business by an NBFC, how does it affect servicing capabilities of existing transactions, is a curious question. However, it seems that in addition to the liquidity issue, which is all pervasive, the rating action in the present case may have been inspired by some internal scheme of arrangement proposed by the NBFC in question.

This particular downgrades may, therefore, not have a sectoral relevance. However, what is important is that the downgrades are muddying the transition history of securitisation ratings. From the classic notion that securitisation ratings are not susceptible to originator-ratings, the dependence of securitisation transactions to pure originator entity risks such as internal funding strengths or scheme of arrangement puts a risk which is usually not considered by securitisation investors. In fact, the flight to securitisation and direct assignments after ILFS crisis was based on the general notion that entity risks are escaped by securitisation transactions.

Servicer transitions

The biggest jolt may be a forced servicer transition. In something like RMBS transactions, outsourcing of collection function is still easy, and, in many cases, several activities are indeed outsourced. However, if it comes to more complicated assets requiring country-wide presence, borrower franchise and regular interaction, if servicer transition has to be forced, the transaction will be worse than originator bankruptcy.

Questions on true sale

The market has been leaning substantially on the “direct assignment” route. Most of the direct assignments are seen by the investors are look-alikes and feel-alikes of a loan to the originator, save and except for the true-sale opinion. Investors have been linking their rates of return to their MCLR. Investors have been viewing the excess spread as a virtual credit support, which is actually not allowed as per RBI regulations. Pari-passu sharing of principal and interest is rarely followed by the market transactions.

If the truth of the sale in most of the direct assignment transactions is questioned in cases such as those before the Bombay High court, it will not be surprising to see the court recharacterise the so-called direct assignments as nothing but disguised loans. If that was to happen in one case of a failed NBFC, not only will the investors lose the very bankruptcy-remoteness they were hoping for, the RBI will be chasing the originators for flouting the norms of direct assignment which may have hitherto been ignored by the supervisor. The irony is – supervisors become super stringent in stressful times, which is exactly where supervisor’s understanding is required more than reprimand.

Conclusion

NBFCs are passing through a very strenuous time. Delicate handling of the situation with deep understanding and sense of support is required from all stakeholders. Any abrupt strong action may exacerbate the problem beyond proportion and make it completely out of control. As for securitisation practitioners, it is high time to strengthen practices and realise that the truth of the sale is not in merely getting a true sale opinion.

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[1] For example, in a Lehman-related UK litigation called Perpetual Trustees vs BNY Corporate Trustee Services, the typical clause in a synthetic securitisation diverting the benefit of funding from the protection buyer (originator – who is now in bankruptcy) to the investors, was challenged under the anti-deprivation rule of insolvency law. Ultimately, UK Supreme Court ruled in favour of securitisation transactions.

[2] https://www.livelaw.in/pdf_upload/pdf_upload-365465.pdf. Similar observations have been made by the same court in Reliance Nippon Life AMC vs  DHFL.

[3] One of the leading UK rulings is Spectrum Plus Limited, https://www.bailii.org/uk/cases/UKHL/2005/41.html. This ruling reviews whole lot of UK rulings on floating charges and their priorities.

[4] See, for example, R M Goode, The Case for Abolition of the Floating Charge, in Fundamental Concepts of Commercial Law (50 years of Reflection, by Goode)

[5] Or partly, the device may involve creation of a mortgage on a queer inconsequential piece of land to qualify as “mortgage debentures” and therefore, avail of stamp duty relaxation.

Partial Credit Guarantee Scheme

A Business Conclave on  “Partial Credit Guarantee Scheme” was organised by Indian Securitisation Foundation jointly with Edelweiss on September 16,2019 in Mumbai.

On this occasion, the presentation used by Mr. Vinod Kothari is being given here:

http://vinodkothari.com/wp-content/uploads/2019/09/partial-credit-enhancement-scheme-.pdf

 

We have authored few articles on the topic that one might want to give a read. The links to such related articles are provided below:

Government credit enhancement for NBFC pools: A Guide to Rating agencies

Vinod Kothari Consultants P Ltd (finserv@vinodkothari.com)

 

The partial credit enhancement (PCE) Scheme of the Government[1], for purchase by public sector banks (PSBs) of NBFC/HFC pools, has been discussed in our earlier write-ups, which can be viewed here and here.

This document briefly puts the potential approach of the rating agencies for rating of the pools for the purpose of qualifying for the Scheme.

Brief nature of the transaction:

  • The transaction may be summarised as transfer of a pool to a PSB, wherein the NBFC retains a subordinated piece, such that the senior piece held by the PSB gets a AA rating. Thus, within the common pool of assets, there is a senior/junior structure, with the NBFC retaining the junior tranche.
  • The transaction is a structured finance transaction, by way of credit-enhanced, bilateral assignment. It is quite similar to a securitisation transaction, minus the presence of SPVs or issuance of any “securities”.
  • The NBFC will continue to be servicer, and will continue to charge servicing fees as agreed.
  • The objective to reach a AA rating of the pool/portion of the pool that is sold to the PSB.
  • Hence, the principles for sizing of credit enhancement, counterparty (servicer) risk, etc. should be the same as in case of securitisation.
  • The coupon rate for the senior tranche may be mutually negotiated. Given the fact that after 2 years, the GoI guarantee will be removed, the parties may agree for a stepped-up rate if the pool continues after 2 years. Obviously, the extent of subordinated share held by the NBFC will have to be increased substantially, to provide increased comfort to the PSB. Excess spread, that is, the excess of actual interest earned over the servicing fees and the coupon may be released to the seller.
  • The payout of the principal/interest to the two tranches (senior and junior), and utilisation of the excess spread, etc. may be worked out so as to meet the rating objective, provide for stepped-up level of enhancement, and yet maintain the economic viability of the transaction.
  • Bankruptcy remoteness is easier in the present case, as pool is sold from the NBFC to the PSB, by way of a non-recourse transfer. Of course, there should be no retention of buyback option, etc., or other factors that vitiate a true sale.
  • Technically, there is no need for a trustee. However, whether the parties need to keep a third party for ensuring surveillance over the transaction, in form of a monitoring agency, may be decided between the parties.

Brief characteristics of the Pool

  • For any meaningful statistical analysis, the pool should be a homogenous pool.
  • Surely, the pool is a static pool.
  • The pool has attained seasoning, as the loans must have been originated by 31st March, 2019.
  • In our view, pools having short maturities (say personal loans, short-term loans, etc.) will not be suitable for the transaction, since the guarantee and the guarantee fee are on annually declining basis.

Data requirement

The data required for the analysis will be same as data required for securitisation of a static pool.

Documentation

  • Between the NBFC and the PSB, there will be standard assignment documentation.
  • Between the Bank and the GoI:
    • Declaration that requirements of Chapter 11 of the GFR have been satisfied.
    • Guarantee documentation as per format given by GOI

[1] http://pib.gov.in/newsite/PrintRelease.aspx?relid=192618

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