RBI No. 2005-06/294
DBOD.NO.BP.BC.60 / 21.04.048/2005-06
February 1, 2006
All Commercial Banks (excluding
RRBs)
All India Term Lending and Refinancing Institutions (FIs)
All Non Banking Financial Companies (including RNBCs)
Dear Sir,
Guidelines on Securitisation of
Standard Assets
As you are aware, Reserve Bank
had issued draft guidelines on securitisation of standard assets vide letter
DBOD.No.BP.1502/ 21.04.048/
2004-05 dated April 4, 2005. On the basis of the feedback received from
all stakeholders, the draft guidelines have been suitably modified. The guidelines
on securitisation of standard assets as applicable to banks, financial institutions
and non-banking financial companies are furnished in the Annex.
2. These guidelines come
into force with immediate effect. The Reserve Bank would take a view on the
treatment for the securitization transactions undertaken in the prior period
on a case-by-case basis with the objective of ensuring adherence to basic principles
of prudence.
Yours faithfully,
( Prashant Saran)
Chief General Manager-in-Charge
Annex
Guidelines on Securitisation of
Standard Assets
SCOPE
1. The regulatory framework provided
in the guidelines covers securitisation of standard assets by banks, All India
Term Lending and Refinancing Institutions, and Non Banking Financial Companies
(including RNBCs). The reference to ‘bank’ in the guidelines would include
all the above institutions.
2. Securitisation is a process
by which assets are sold to a bankruptcy remote special purpose vehicle (SPV)
in return for an immediate cash payment. The cash flow from the underlying pool
of assets is used to service the securities issued by the SPV. Securitisation
thus follows a two-stage process. In the first stage there is sale of single
asset or pooling and sale of pool of assets to a 'bankruptcy remote' special
purpose vehicle (SPV) in return for an immediate cash payment and in the second
stage repackaging and selling the security interests representing claims on
incoming cash flows from the asset or pool of assets to third party investors
by issuance of tradable debt securities.
3. Banks’ exposures to a securitisation
transaction are referred to as "securitisation exposures". Securitisation
exposures include, but are not restricted to the following: exposures to securities
issued by the SPV, credit enhancement facility, liquidity facility, underwriting
facility, interest rate or currency swaps and cash collateral accounts.
STRUCTURE
4. The guidelines have been grouped
under the following headings:
i. Definitions
ii. True sale
iii. Criteria to be met by SPV
iv. Special features
v. Policy on provision of credit
enhancement facilities
vi. Policy on provision of liquidity
facilities
vii. Policy on provision of underwriting
facilities
viii. Policy on provision of services
ix. Prudential norms for investment
in securities issued by SPV
x. Accounting treatment of the
securitisation transactions
xi. Disclosures
DEFINITIONS
5. The broad definitions of various
terms used in these guidelines are furnished below. These terms have been supplemented
as appropriate at various relevant portions of these guidelines.
i. 'Bankruptcy remote' means the
unlikelihood of an entity being subjected to voluntary or involuntary bankruptcy
proceedings, including by the originator or its creditors;
ii. 'credit enhancement' is provided
to an SPV to cover the losses associated with the pool of assets. The rating
given to the securities issued by the SPV (PTCs) by a rating agency will reflect
the level of enhancement;
iii. A 'first loss facility' represents
the first level of financial support to a SPV as part of the process in bringing
the securities issued by the SPV to investment grade. The provider of the facility
bears the bulk (or all) of the risks associated with the assets held by the
SPV;
iv. A "second loss facility"
represents a credit enhancement providing a second (or subsequent) tier of protection
to an SPV against potential losses;
v. 'Liquidity facilities' enable
SPVs to assure investors of timely payments. These include smoothening of timing
differences between payment of interest and principal on pooled assets and payments
due to investors;
vi. 'Originator' refers to a bank
that transfers from its balance sheet a single asset or a pool of assets to
an SPV as a part of a securitisation transaction and would include other entities
of the consolidated group to which the bank belongs.
vii. 'Securitisation' means a process
by which a single performing asset or a pool of performing assets are sold to
a bankruptcy remote SPV and transferred from the balance sheet of the originator
to the SPV in return for an immediate cash payment;
viii. 'Service provider' means
a bank that carries out on behalf of the SPV (a) administrative functions relating
to the cash flows of the underlying exposure or pool of exposures of a securitization;
(b) funds management; and (c) servicing the investors;
ix. 'SPV' means any company, trust,
or other entity constituted or established for a specific purpose - (a) activities
of which are limited to those for accomplishing the purpose of the company,
trust or other entity as the case may be; and (b) which is structured in a manner
intended to isolate the corporation, trust or entity as the case may be, from
the credit risk of an originator to make it bankruptcy remote;
x. 'Underwriting' means the arrangement
under which a bank agrees, before issue, to buy a specified quantity of securities
in a new issue on a given date and at a given price if no other purchaser has
come forward.
TRUE SALE
6. For enabling the transferred
assets to be removed from the balance sheet of the originator in a securitisation
structure, the isolation of assets or ‘true sale’ from the originator to the
SPV is an essential prerequisite. In case the assets are transferred to the
SPV by the originator in full compliance with all the conditions of true sale
given below, the transfer would be treated as a 'true sale' and originator will
not be required to maintain any capital against the value of assets so transferred
from the date of such transfer. The effective date of such transfer should be
expressly indicated in the subsisting agreement. In the event of the transferred
assets not meeting the "true-sale" criteria the assets would be deemed
to be on the balance sheet of the originator and accordingly the originator
would be required to maintain capital for those assets. The criteria of true-sale
that have been prescribed below are illustrative but not exhaustive.
7. The criteria for 'True Sale'
of assets
7.1 The sale should result in immediate
legal separation of the originator from the assets which are sold to the new
owner viz. the SPV. The assets should stand completely isolated from the originator,
after its transfer to the SPV, i.e., put beyond the originator’s as well as
their creditors' reach, even in the event of bankruptcy of the originator.
7.2 The originator should effectively
transfer all risks/ rewards and rights/ obligations pertaining to the asset
and shall not hold any beneficial interest in the asset after its sale to the
SPV. An agreement entitling the originator to any surplus income on the securitised
assets at the end of the life of the securities issued by the SPV would not
be deemed as a violation of the true sale criteria. The SPV should obtain the
unfettered right to pledge, sell, transfer or exchange or otherwise dispose
of the assets free of any restraining condition.
7.3 The originator shall not have
any economic interest in the assets after its sale and the SPV shall have no
recourse to the originator for any expenses or losses except those specifically
permitted under these guidelines.
7.4 There shall be no obligation
on the originator to re-purchase or fund the re-payment of the asset or any
part of it or substitute assets held by SPV or provide additional assets to
the SPV at any time except those arising out of breach of warranties or representations
made at the time of sale. The originator should be able to demonstrate that
a notice to this effect has been given to the SPV and that the SPV has acknowledged
the absence of such obligation.
7.5 An option to repurchase fully
performing assets at the end of the securitisation scheme where residual value
of such assets has, in aggregate, fallen to less than 10% of the original amount
sold to the SPV ('clean up calls') as allowed vide paragraph 10 can be retained
by the originator.
7.6 The originator should be able
to demonstrate that it has taken all reasonable precautions to ensure that it
is not obliged, nor will feel impelled, to support any losses suffered by the
scheme or investors.
7.7 The sale shall be only on cash
basis and the consideration shall be received not later than at the time of
transfer of assets to the SPV. The sale consideration should be market-based
and arrived at in a transparent manner on an arm's length basis.
7.8 Provision of certain services
(such as credit enhancement, liquidity facility, underwriting, asset-servicing,
etc.) and assumption of consequent risks/ obligations by the originators as
specifically allowed in these guidelines would not detract from the 'true sale'
nature of the transaction, provided such service obligations do not entail any
residual credit risk on the assets securitized or any additional liability for
them beyond the contractual performance obligations in respect of such services.
7.9 An opinion from the originating
bank's Legal Counsel should be kept on record signifying that: (i) all rights,
titles, interests and benefits in the assets have been transferred to SPV; (ii)
originator is not liable to investors in any way with regard to these assets
other than liability for certain permitted contractual obligations for example,
credit enhancement/ liquidity facility; and (iii) creditors of the originator
do not have any right in any way with regard to these assets even in case of
bankruptcy of the originator.
7.10. Any re-schedulement, restructuring
or re-negotiation of the terms of the underlying agreement/s effected after
the transfer of assets to the SPV, shall be binding on the SPV and not on the
originator and shall be done only with the express consent of the investors,
providers of credit enhancement and other service providers. This should be
expressly provided in the sale transaction documents.
7.11 The transfer of assets from
originator must not contravene the terms and conditions of any underlying agreement
governing the assets and all necessary consents from obligors (including from
third parties, where necessary) should have been obtained.
7.12 In case the originator also
provides servicing of assets after securitisation, under an agreement with the
SPV, and the payments/repayments from the borrowers are routed through it, it
shall be under no obligation to remit funds to the SPV/investors unless and
until these are received from the borrowers.
7.13 The originator should not
be under any obligation to purchase the securities issued by the SPV and should
not subscribe to their primary issue. The originator may, however, purchase
at market price only senior securities issued by the SPV if these are at least
‘investment grade’, for investment purposes. Such purchase, along with the securities
that may devolve on account of underwriting commitments, should not exceed 10%
of the original amount of the issue.
7.14 The originator shall not indulge
in market-making or dealing in the securities issued by the SPV.
7.15 The securities issued by the
SPV shall not have any put options. The securities may have a call option to
address the pre-payment risk on the underlying assets.
CRITERIA TO BE MET BY SPV
8. SPV is a special purpose vehicle
set up during the process of securitisation to which the beneficial interest
in the securitised assets are sold / transferred on a without recourse basis.
The SPV may be a partnership firm, a trust or a company. Any reference to SPV
in these guidelines would also refer to the trust settled or declared by the
SPV as a part of the process of securitisation. The SPV should meet the following
criteria to enable the originator to treat the assets transferred by it to the
SPV as a true sale and apply the prudential guidelines on capital adequacy and
other aspects with regard to the securitisation exposures assumed by it.
8.1 Any transaction between the
originator and the SPV should be strictly on arm’s length basis. Further, it
should be ensured that any transaction with the SPV should not intentionally
provide for absorbing any future losses.
8.2 The SPV and the trustee should
not resemble in name or imply any connection or relationship with the originator
of the assets in its title or name.
8.3 The SPV should be entirely
independent of the originator. The originator should not have any ownership,
proprietary or beneficial interest in the SPV. The originator should not hold
any share capital in the SPV.
8.4 The originator shall have only
one representative, without veto power, on the board of the SPV provided the
board has at least four members and independent directors are in majority.
8.5 The originator shall not exercise
control, directly or indirectly, over the SPV and the trustees, and shall not
settle the trust deed.
8.6 The SPV should be bankruptcy
remote and non-discretionary.
8.7 The trust deed should lay down,
in detail, the functions to be performed by the trustee, their rights and obligations
as well as the rights and obligations of the investors in relation to the securitised
assets. The Trust Deed should not provide for any discretion to the trustee
as to the manner of disposal and management or application of the trust property.
In order to protect their interests, investors should be empowered in the trust
deed to change the trustee at any point of time.
8.8 The trustee should only perform
trusteeship functions in relation to the SPV and should not undertake any other
business with the SPV.
8.9 The originator shall not support
the losses of the SPV except under the facilities explicitly permitted under
these guidelines and shall also not be liable to meet the recurring expenses
of the SPV.
8.10 The securities issued by the
SPV shall compulsorily be rated by a rating agency registered with SEBI and
such rating at any time shall not be more than 6 months old. The credit rating
should be publicly available. For the purpose of rating and subsequent updation,
the SPV should supply the necessary information to the rating agency in a timely
manner. Commonality and conflict of interest, if any, between the SPV and the
rating agency should also be disclosed.
8.11 The SPV should inform the
investors in the securities issued by it that these securities are not insured
and that they do not represent deposit liabilities of the originator, servicer
or trustees.
8.12 A copy of the trust deed and
the accounts and statement of affairs of the SPV should be made available to
the RBI, if required to do so.
SPECIAL FEATURES
9. Representations and Warranties
An originator that sells assets
to SPV may make representations and warranties concerning those assets. Where
the following conditions are met the originator will not be required to hold
capital against such representations and warranties.
a. Any representation or warranty
is provided only by way of a formal written agreement.
b. The originator undertakes appropriate
due diligence before providing or accepting any representation or warranty.
c. The representation or warranty
refers to an existing state of facts that is capable of being verified by the
originator at the time the assets are sold.
d. The representation or warranty
is not open-ended and, in particular, does not relate to the future creditworthiness
of the assets, the performance of the SPV and/or the securities the SPV issues.
e. The exercise of a representation
or warranty, requiring an originator to replace assets (or any parts of them)
sold to a SPV, must be:
- undertaken within 120 days of the transfer of
assets to the SPV; and
- conducted on the same terms and conditions as
the original sale.
f. An originator that is required
to pay damages for breach of representation or warranty can do so provided the
agreement to pay damages meets the following conditions:
- the onus of proof for breach of representation
or warranty remains at all times with the party so alleging;
- the party alleging the breach serves a written
Notice of Claim on the originator , specifying the basis for the claim; and
- damages are limited to losses directly incurred
as a result of the breach.
g. An originator should notify
RBI (Department of Banking Supervision) of all instance where it has agreed
to replace assets sold to SPV or pay damages arising out of any representation
or warranty.
10 Re-purchase of Assets from SPVs
An option to repurchase fully performing
assets at the end of the securitisation scheme where residual value of such
assets has, in aggregate, fallen to less than 10% of the original amount sold
to the SPV ('clean up calls') could be retained by the originator and would
not be construed to constitute 'effective control', provided:
i. the purchase is conducted at
arm's length, on market terms and conditions (including price/fee) and is subject
to the originator's normal credit approval and review processes; and
ii. the exercise of the clean-up
call is at its discretion.
POLICY ON PROVISION OF CREDIT
ENHANCEMENT FACILITIES
11. Detailed Policy
Credit enhancement facilities include
all arrangements provided to the SPV that could result in a bank absorbing losses
of the SPV or its investors. Such facilities may be provided by both originators
and third parties. A bank should hold capital against the credit risk assumed
when it provides credit enhancement, either explicitly or implicitly, to a special
purpose vehicle or its investors. The entity providing credit enhancement facilities
should ensure that the following conditions are fulfilled. Where any of the
conditions is not satisfied, the bank providing credit enhancement facility
will be required to hold capital against the full value of the securitised assets
as if they were held on its balance sheet.
11.1 Provision of the facility
should be structured in a manner to keep it distinct from other facilities and
documented separately from any other facility provided by the bank. The nature,
purpose, extent of the facility and all required standards of performance should
be clearly specified in a written agreement to be executed at the time of originating
the transaction and disclosed in the offer document.
11.2 The facility is provided on
an 'arm's length basis' on market terms and conditions, and subjected to the
facility provider’s normal credit approval and review process.
11.3 Payment of any fee or other
income for the facility is not subordinated or subject to deferral or waiver.
11.4 The facility is limited to
a specified amount and duration.
11.5 The duration of the facility
is limited to the earlier of the dates on which:
i. the underlying assets are redeemed;
ii. all claims connected with the
securities issued by the SPV are paid out; or
iii. the bank's obligations are
otherwise terminated.
11.6 There should not be any recourse
to the facility provider beyond the fixed contractual obligations. In particular,
the facility provider should not bear any recurring expenses of the securitisation.
11.7 The facility provider has
written opinions from its legal advisors that the terms of agreement protect
it from any liability to the investors in the securitisation or to the SPV/
trustee, except in relation to its contractual obligations pursuant to the agreement
governing provision of the facility.
11.8 The SPV and/or investors in
the securities issued by the SPV have the clear right to select an alternative
party to provide the facility.
11.9 Credit enhancement facility
should be provided only at the initiation of the securitisation transaction.
11.10 The amount of credit enhancement
extended at the initiation of the securitisation transaction should be available
to the SPV during the entire life of the securities issued by the SPV. The amount
of credit enhancement shall be reduced only to the extent of draw downs to meet
the contingencies arising out of losses accruing to the SPV or its investors.
No portion of the credit enhancement shall be released to the provider during
the life of the securities issued by the SPV.
11.11 Any utilization / draw down
of the credit enhancement should be immediately written-off by debit to the
profit and loss account.
11.12 When a first loss facility
does not provide substantial cover a second loss facility might carry a disproportionate
share of risk. In order to limit this possibility, a credit enhancement facility
will be deemed to be a second loss facility only where:
- it enjoys protection given by a substantial
first loss facility;
- it can be drawn on only after the first loss
facility has been completely exhausted;
- it covers only losses beyond those covered by
the first loss facility; and
- the provider of the first loss facility continues
to meet its obligations.
If the second loss facility does
not meet the above criteria, it will be treated as a first loss facility.
11.13 The first-loss facility would
be considered substantial where it covers some multiple of historic losses or
worst case losses estimated by simulation or other techniques. The second loss
facility provider shall assess adequacy of first loss facility on an arm’s length
basis and shall review it periodically at least once in six months. The following
factors may be reckoned while conducting the assessment as well as review:
i. the class and quality of assets
held by the SPV;
ii. the history of default rates
on the assets;
iii. the output of any statistical
models used by banks to assess expected default rates on the assets;
iv. the types of activity in which
the SPV is engaging in or is permitted to engage in;
v. the quality of the parties providing
the first loss facility; and
vi. the opinions or rating letters
provided by reputable rating agencies regarding the adequacy of first loss protection.
12. Treatment of credit
enhancements provided by an originator
12.1 Treatment of First Loss Facility:
The first loss credit enhancement provided by the originator shall be reduced
from capital funds and the deduction shall be capped at the amount of capital
that the bank would have been required to hold for the full value of the assets,
had they not been securitised. The deduction shall be made 50% from Tier 1 and
50% from Tier 2 capital.
12.2 Treatment of Second Loss Facility:
The second loss credit enhancement provided by the originator shall be reduced
from capital funds to the full extent. The deduction shall be made 50% from
Tier 1 and 50% from Tier 2 capital.
13. Treatment of credit
enhancements provided by third party
13.1 Treatment of First Loss Facility:
The first loss credit enhancement provided by third party service providers
shall be reduced from capital to the full extent as mentioned in paragraph 12.1
above.
13.2 Treatment of Second Loss Facility:
The second loss credit enhancement shall be treated as a direct credit substitute
with a 100 per cent credit conversion factor and a 100 % risk weight covering
the amount of the facility.
POLICY ON PROVISION OF LIQUIDITY
FACILITIES
14 Detailed Policy on provision
of liquidity support
A liquidity facility is provided
to help smoothen the timing differences faced by the SPV between the receipt
of cash flows from the underlying assets and the payments to be made to investors.
A liquidity facility should meet the following conditions to guard against the
possibility of the facility functioning as a form of credit enhancement and/
or credit support. In case the facility fails to meet any of these conditions,
it will be regarded as serving the economic purpose of credit enhancement and
the liquidity facility provided by a third party shall be treated as a first
loss facility and the liquidity facility provided by the originator shall be
treated as a second loss facility.
14.1 All conditions specified in
paragraphs 11.1 to 11.8 above.
14.2 The securitised assets are
covered by a substantial first loss credit enhancement.
14.3 The documentation for the
facility must clearly define the circumstances under which the facility may
or may not be drawn on.
14.4 The facility should be capable
of being drawn only where there is a sufficient level of non-defaulted assets
to cover drawings, or the full amount of assets that may turn non-performing
are covered by a substantial credit enhancement.
14.5 The facility shall not be
drawn for the purpose of
a. providing credit enhancement;
b. covering losses of the SPV;
c. serving as a permanent revolving
funding; and
d. covering any losses incurred
in the underlying pool of exposures prior to a draw down.
14.6 The liquidity facility should
not be available for (a) meeting recurring expenses of securitisation; (b) funding
acquisition of additional assets by the SPV; (c) funding the final scheduled
repayment of investors and (d) funding breach of warranties.
14.7 Funding should be provided
to SPV and not directly to the investors.
14.8 When the liquidity facility
has been drawn the facility provider shall have a priority of claim over the
future cash flows from the underlying assets, which will be senior to the claims
of the seniormost investor.
14.9 When the originator is providing
the liquidity facility, an independent third party, other than the originator's
group entities, should co-provide at least 25% of the liquidity facility that
shall be drawn and repaid on a pro-rata basis. The originator must not be liable
to meet any shortfall in liquidity support provided by the independent party.
During the initial phase, a bank may provide the full amount of a liquidity
facility on the basis that it will find an independent party to participate
in the facility as provided above. The originator will have three months to
locate such independent third party.
15. Treatment of liquidity facility
15.1 The commitment to provide
liquidity facility, to the extent not drawn would be an off- balance sheet item
and attract 100% credit conversion factor as well as 100 % risk weight. The
extent to which the commitment becomes a funded facility, it would attract 100
% risk weight.
15.2 Since the liquidity facility
is meant to smoothen temporary cash flow mismatches, the facility will remain
drawn only for short periods. If the drawings under the facility are outstanding
for more than 90 days it should be classified as NPA and fully provided for.
POLICY ON PROVISION OF UNDERWRITING
FACILITIES
16. General Policy
An originator or a third-party
service provider may act as an underwriter for the issue of securities by SPV
and treat the facility as an underwriting facility for capital adequacy purposes
subject to the following conditions. In case any of the conditions is not satisfied,
the facility will be considered as a credit enhancement and treated as a first
loss facility when provided by a third party and a second loss facility when
provided by an originator.
16.1 All conditions specified in
paragraphs 11.1 to 11.8 above.
16.2 The underwriting is exercisable
only when the SPV cannot issue securities into the market at a price equal to
or above the benchmark predetermined in the underwriting agreement.
16.3 The bank has the ability to
withhold payment and to terminate the facility, if necessary, upon the occurrence
of specified events(e.g. material adverse changes or defaults on assets above
a specified level); and
16.4 There is a market for the
type of securities underwritten.
17.1 Underwriting by an originator
An originator may underwrite only
investment grade senior securities issued by the SPV. The holdings of securities
devolved through underwriting should be sold to third parties within three-month
period following the acquisition. During the stipulated time limit, the total
outstanding amount of devolved securities will be subjected to a risk weight
of 100 per cent. In case of failure to off-load within the stipulated time limit,
any holding in excess of 10 per cent of the original amount of issue, including
secondary market purchases, shall be deducted 50% from Tier 1 capital and 50%
from Tier 2 capital.
17.2 Underwriting by third party
service providers
A third party service provider
may underwrite the securities issued by the SPV. The holdings of securities
devolved through underwriting should be sold to third parties within three-month
period following the acquisition. During the stipulated time limit, the total
outstanding amount of devolved securities will be subjected to a risk weight
of 100 per cent. In case of failure to off-load within the stipulated time limit,
the total outstanding amount of devolved securities which are at least investment
grade will attract a 100% risk weight and those which are below investment grade
will be deducted from capital at 50% from Tier 1 and 50% from Tier 2.
POLICY ON PROVISION OF SERVICES
18. A servicing bank administers
or services the securitised assets. Hence, it should not have any reputational
obligation to support any losses incurred by the SPV and should be able to demonstrate
this to the investors. A bank performing the role of a service provider for
a proprietary or a third-party securitisation transaction should ensure that
the following conditions are fulfilled. Where the following conditions are not
met, the service provider may be deemed as providing liquidity facility to the
SPV or investors and treated accordingly for capital adequacy purpose.
18.1 All conditions specified in
paragraphs 11.1 to 11.8 above.
18.2 The service provider should
be under no obligation to remit funds to the SPV or investors until it has received
funds generated from the underlying assets except where it is the provider of
an eligible liquidity facility.
18.3 The service provider shall
hold in trust, on behalf of the investors, the cash flows arising from the underlying
and should avoid co-mingling of these cash flows with their own cash flows.
19. PRUDENTIAL NORMS FOR INVESTMENT
IN THE SECURITIES ISSUED BY SPV
19.1 As the securities issued by
SPVs would be in the nature of non-SLR securities, banks' investment in these
securities would attract all prudential norms applicable to non-SLR investments
prescribed by RBI from time to time
19.2 Limits on investment in securities
by the originator
The aggregate investment by the
originator in securities issued by SPV would be as given in para 7.13.
19.3 Exposure norms for investment
in the PTCs
The counterparty for the investor
in the securities would not be the SPV but the underlying assets in respect
of which the cash flows are expected from the obligors / borrowers. These should
be taken into consideration when reckoning overall exposures to any particular
borrower/borrower Group, industry or geographic area for the purpose of managing
concentration risks and compliance with extant prudential exposure norms, wherever
the obligors in the pool constitute 5% or more of the receivables in the pool
or Rs.5 crore, whichever is lower.
19.4 Income recognition and provisioning
norms for investors in the PTCs
As the securities are expected
to be limited-tenor, interest bearing debt instruments, the income on the securities
may normally be recognised on accrual basis. However, if the income (or even
the redemption amount) on securities remains in arrears for more than 90 days,
any future income should be recognised only on realisation and any unrealised
income recognised on accrual basis should be reversed. In case of pendency of
dues on the securities appropriate provisions for the diminution in value of
the securities on account of such overdues should also be made, as already envisaged
in the extant RBI norms for classification and valuation of investment by the
banks.
20. ACCOUNTING TREATMENT OF THE
SECURITISATION TRANSACTIONS
20.1 Accounting in the books of
the originator
In terms of these guidelines banks
can sell assets to SPV only on cash basis and the sale consideration should
be received not later than the transfer of the asset to the SPV. Hence, any
loss arising on account of the sale should be accounted accordingly and reflected
in the Profit & Loss account for the period during which the sale is effected
and any profit/premium arising on account of sale should be amortised over the
life of the securities issued or to be issued by the SPV.
i. In case the securitised assets
qualify for derecognition from the books of the originator, the entire expenses
incurred on the transaction, say, legal fees, etc., should be expensed at the
time of the transaction and should not be deferred.
ii. Where the securitised assets
do not qualify for derecognition the sale consideration received shall be treated
as a borrowing.
20.2 The accounting treatment of
the securitisation transactions in the books of originators, SPV and investors
in securities will be as per the guidance note issued by the ICAI with reference
to those aspects not specifically covered in these guidelines.
21. DISCLOSURES
21.1 Disclosures to be made by
the SPV/Trustee
i. The SPV/ trustee should make
available/ provide to RBI or other regulators, as and when required, a copy
of the trust deed, the financial accounts and statement of affairs, its constitution,
ownership, capital structure, size of issue, terms of offer including interest
payments/yield on instruments, details of underlying asset pool and its performance
history, information about originator, transaction structure, service arrangement,
credit enhancement details, risk factors etc.
ii. Investor should be informed
in writing that :
a. their investments do not represent
deposits or other liabilities of the originator, servicer, SPV or the trustee,
and that they are not insured;
b. the trustee / originator / servicer
/ SPV does not guarantee the capital value of securities and/or performance
of the securities issued, or collectability of receivables pool; and
c. their investments can be subject
to investment risk, including prepayment risk, interest rate risk, credit risk,
possible delays in repayment and loss of income and principal invested.
iii) The SPV/trustee should provide
continuing disclosures by way of a Disclosure Memorandum, signed and certified
for correctness of information contained therein jointly by the servicer and
the trustee, and addressed to each securities holder individually through registered
post/email/courier/fax at periodic intervals (maximum 6 months or more frequent).
In case the securities holders are more than 100 in number then the memorandum
may also be published in a national financial daily newspaper. In addition to
the above, data may be made available on websites of the SPV/trustee. The contents
of the memorandum would be as under:
a. collection summary of previous
collection period;
b. asset pool behaviour - delinquencies,
losses, prepayment etc. with details;
c. drawals from credit enhancements;
d. distribution summary:
i. in respect of principal and
interest to each class of security holders;
ii. in respect of servicing and
administration fee, trusteeship fee etc;
e. payments in arrears;
f. current rating of the securities
and any migration of rating during the period; and
g. any other material / information
relevant to the performance of the pool.
iv) The SPV/trustee should publish
a periodical report on any re-schedulement, restructuring or re-negotiation
of the terms of the agreement, effected after the transfer of assets to the
SPV, as a part of disclosures to all the participants at Quarterly/Half yearly
intervals. The authorisation of investors to this effect may be obtained
at the time of issuance of securitised paper.
v) SPV should obtain signed acknowledgment
from investors indicating that they have read and understood the required disclosures.
21.2 Disclosures to be made by
the originator
The originator should make the
following disclosures, as notes to accounts, presenting a comparative position
for two years:
(i) total number and book value
of loan assets securitised;
(ii) sale consideration received
for the securitised assets and gain/loss on sale on account of securitisation;
and
(iii) form and quantum (outstanding
value) of services provided by way of credit enhancement, liquidity support,
post-securitisation asset servicing, etc.
In addition to the above balance
sheet disclosures, originating banks of the securitisation transactions should
provide disclosures to the Audit Sub-Committee of their Board, on quarterly
basis, as per the format prescribed in the Attachment.
Attachment
Format of Quarterly Reporting to
the Audit Sub Committee of the Board by originating banks of the Securitisation
Transactions
1. Name of the originator:
2. Name and nature of SPV &
details of relationship with originator and service providers (including constitution
and shareholding pattern of SPV):
3. Description and nature of
asset transferred:
4. Carrying cost of assets
transferred and percentage of such assets to total assets before transfer:
5. Method of transfer of assets:
6. Amount and nature of consideration
received:
7. Objects of the securitisation
offer:
8. Amount and nature of credit
enhancement and other facilities provided by the originator (give details each
facility provided viz., nature, amount, duration, terms and conditions,):
9. Information regarding third
party service providers (e.g. credit enhancement, liquidity support, servicing
of assets, etc.) giving the details, facility-wise, viz. name & address
of the provider, amount, duration and terms and conditions of the facility:
10. CRAR of transferor: Before
transfer After transfer
Tier I
Tier II
11. Type and classes of securities
issued by SPV with ratings, if any, of each class of security, assigned by a
rating agency:
12. Name and address of holders
of 5% or more of securities (if available):
13. Investment by the originator
in the securitised paper, issuer wise:
Name of the issuer
Class of security No. of securities held Total amount
14. Details of hedging arrangements
(IRS/ FRAs), if any, giving amount /maturity date, name of counter parties,
etc.:
15. Brief description (including
diagrammatic representation of the structure) of the scheme denoting cash and
process flows):
16. Date and method of termination
of the scheme including mopping up of remaining assets:
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