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Federal Reserve Bank
of Dallas

June 13, 2002

DALLAS, TEXAS
75265-5906

Notice 02-29

TO: The Chief Executive Officer of each state
member bank, bank holding company and foreign
entity in the Eleventh Federal Reserve District

SUBJECT
Implicit Recourse Provided to Asset Securitizations
DETAILS
Over the last several months, the Federal Reserve, Office of the Comptroller of the
Currency, Federal Deposit Insurance Corporation, and Office of Thrift Supervision have become aware of a number of instances in which a banking organization provided credit support
beyond its contractual obligation to one or more of its securitizations. This type of support is
commonly referred to as “implicit recourse” (and sometimes as “moral recourse”). Implicit
recourse is of supervisory concern because it demonstrates that the securitizing institution is reassuming risk associated with the securitized assets that the institution initially transferred to the
marketplace.
Supervisors should be alert for instances where a banking organization provides
implicit recourse to a securitization. Providing implicit recourse can pose a high degree of risk
to a banking organization’s financial condition and to the integrity of its regulatory and public
financial reports.
Heightened attention must be paid to situations in which an institution is more likely
to provide implicit recourse, for example, when securitizations are nearing performance triggers
that would result in an early amortization event. Supervisors should review securitization documents (for example, pooling and servicing agreements) to ensure that the selling institution
limits any support to the securitization to the terms and conditions specified in the securitization
documents. Supervisors also should review a sample of loans or receivables transferred between
the seller and the trust to ensure that these transfers were conducted in accordance with the

For additional copies, bankers and others are encouraged to use one of the following toll-free numbers in contacting the Federal
Reserve Bank of Dallas: Dallas Office (800) 333-4460; El Paso Branch Intrastate (800) 592-1631, Interstate (800) 351-1012;
Houston Branch Intrastate (800) 392-4162, Interstate (800) 221-0363; San Antonio Branch Intrastate (800) 292-5810.

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contractual terms of the securitization, particularly in cases where the overall credit quality of the
securitized loans or receivables has deteriorated.
The banking agencies prepared the attached Interagency Guidance on Implicit Recourse in Asset Securitizations to assist bankers and supervisors in assessing the types of actions
that may or may not constitute implicit recourse. The guidance also outlines possible supervisory
actions a banking organization’s primary regulator may take upon determining that the banking
organization has provided implicit recourse. The actions may result in increased regulatory
capital requirements for the selling institution, including requiring regulatory capital to be held
against the entire amount of assets sold, as well as the possible deduction of residual interests
from regulatory capital.
The Federal Reserve has long been concerned with the safety and soundness implications of banking organizations extending implicit recourse to their securitizations. The possible
remedies outlined in the attached guidance are consistent with well-established Federal Reserve
policy.
ATTACHMENT
A copy of the interagency guidance dated May 23, 2002, is attached.
MORE INFORMATION
For more information, please contact Gayle Teague, Banking Supervision Department, at (214) 922-6151. For additional copies of this Bank’s notice, contact the Public Affairs
Department at (214) 922-5254 or access District Notices on our web site at
http://www.dallasfed.org/banking/notices/index.html.

Office of the Comptroller of the Currency
Federal Deposit Insurance Corporation
Board of Governors of the Federal Reserve System
Office of Thrift Supervision

INTERAGENCY ADVISORY ON THE UNSAFE AND UNSOUND USE OF
COVENANTS TIED TO SUPERVISORY ACTIONS IN SECURITIZATION
DOCUMENTS
PURPOSE
This advisory, issued jointly by the Office of the Comptroller of the Currency (OCC), the Board
of Governors of the Federal Reserve System (Board), the Federal Deposit Insurance Corporation
(FDIC), and the Office of Thrift Supervision (OTS) (collectively, the agencies) alerts banking
organization management and boards of directors to the safety and soundness implications of
certain covenants included in securitization documents. Reviews during recent examinations of
documentation governing securitization transactions have uncovered the use of covenants that
cite supervisory thresholds or adverse supervisory actions as triggers for early amortization
events or the transfer of servicing. The inclusion of such covenants in securitization documents
will be considered by the agencies as an unsafe and unsound banking practice1 that undermines
the objective of supervisory actions. An early amortization triggered by a supervisory action can
create or exacerbate liquidity and earnings problems that can lead to further deterioration in the
financial condition of the banking organization. In addition, in the event such covenants relate to
the appointment of a conservator or receiver, they may impede the ability of the conservator or
receiver to take action in the best interest of the conservatorship or receivership.
BACKGROUND
Recent securitization examinations at banking organizations have revealed structures with early
amortization or servicing transfer covenants tied to supervisory actions or thresholds. Examples
of supervisory actions and thresholds the agencies identified in securitization documents as
trigger events for early amortization or the transfer of servicing include:
- The banking organization’s composite CAMELS or BOPEC rating is downgraded to a
specific target, e.g., 3 or 4.
- The banking organization is notified by its primary federal regulator that it is no longer
deemed to be “well-capitalized” as defined by the agencies’ regulations implementing the
1

While the banking agencies are concerned about the use of covenants linked to supervisory actions or thresholds in
general, this guidance pertains specifically to covenants that use supervisory actions as triggers for early
amortization or the transfer of servicing.

Date:

May 23, 2002

Page 1

prompt corrective action provisions of the Federal Deposit Insurance Corporation
Improvement Act.
- The banking organization is placed under any type of written enforcement action by a
supervisory authority, including a prompt corrective action directive, capital directive, cease
and desist order, formal agreement, or memorandum of understanding.
The above list is not all-inclusive. Any contractual provisions that could result in the early
amortization of the transaction or the transfer of servicing due, directly or indirectly, to the
occurrence of a supervisory action or event are subject to this advisory.2
Revolving securitizations such as securitizations of credit cards, commercial loans (CLOs), and
home equity lines of credit often use early amortization as a way of protecting investors from
deterioration in asset quality. Early amortization events and servicer default triggers are
typically defined in the prospectus, pooling and servicing agreement, or insurance agreement if a
third-party insurance company guarantees the transaction. Early amortization triggers accelerate
the repayment of the principal of the securities issued by the trust ahead of their scheduled
maturity. The purpose of early amortization is to protect investors from prolonged exposure to a
pool of receivables whose performance has deteriorated.
Typically, early amortization events are tied to quantitative economic triggers such as a
minimum level of excess spread,3 a level of delinquencies on the underlying receivables, or the
minimum amount of seller’s interest in the pooled receivables. If an early amortization event
occurs, investors may lose confidence in the stability of the banking organization’s asset-backed
securities, limiting the ability of the organization to raise new funds through securitization. At
the same time, the organization is continuing to book on balance sheet new receivables that need
to be funded. A banking organization heavily reliant upon securitization and lacking alternative
sources of funding that is faced with these circumstances will experience liquidity challenges.
Covenants that require the transfer of servicing to a third party can result in the loss of earnings,
inefficiencies associated with unused servicer capacity, and loss of customer confidence.
DISCUSSION
The agencies are concerned about the negative safety and soundness implications of covenants
that link supervisory actions or thresholds to the trigger of early amortization or the transfer of
2

Securitization documents commonly include triggers related to the insolvency of the bank or the appointment of
the FDIC as conservator or receiver. Provisions that trigger an early amortization due to the appointment of the
FDIC as receiver or conservator impede the FDIC’s ability to enforce contracts that would be beneficial to the
institution or the receivership. These clauses, while not necessarily subject to criticism as being unsafe or unsound
for open institutions, may be void or voidable as being in violation of section 11(e)(12) of the Federal Deposit
Insurance Act. This section provides that the conservator or receiver of an insured depository institution may
enforce a contract entered into by the institution notwithstanding a provision that the contract is terminable upon the
insolvency of the institution or the appointment of a conservator or receiver.

3

“Excess spread is generally defined as finance charge collections minus certificate interest, servicing fees, and
charge-offs allocated to the series.” Standard & Poor’s Structured Finance Credit Card Criteria, p. 20.

Date:

May 23, 2002

Page 2

servicing. Triggers related to supervisory actions can result in a banking organization
experiencing an early amortization event at a time when its ability to access other funding
sources is limited, thereby resulting in liquidity problems. Such triggers also could potentially
inhibit supervisors from taking actions intended to cure problems at a troubled organization
because those actions activate a trigger that could cause a worsening of the condition or failure of
the organization. Moreover, triggers premised upon the action of banking supervisors could
result in an early amortization event when the supervisory action is linked to events that have
limited or no relevance to the performance of the securitized assets. Such events may include an
adverse change in the issuing organization’s supervisory composite rating or regulatory capital
status, or a supervisory concern related to compliance with consumer lending laws and the
Community Reinvestment Act.
The banking agencies are also concerned that covenants related to supervisory actions may
obligate banking organization management to disclose confidential examination information.
Management and board members are reminded that information contained within examination
reports is confidential. Disclosure of such information by a banking organization’s directors,
officers, employees, attorneys, auditors, or independent auditors, without explicit authorization
by the institution’s primary regulator, is a violation of the agencies’ regulations.
CONCLUSION
Banking organization management and boards of directors should ensure that covenants
related to supervisory actions or thresholds are not included in securitization documents.
Effective immediately, the use of covenants that provide for the early termination of the
transaction or compel the transfer of servicing due, directly or indirectly, to the occurrence of a
supervisory action or event will, under appropriate circumstances, be criticized as an unsafe and
unsound banking practice. The agencies may also take other supervisory or enforcement actions
such as requiring additional capital, denying capital relief under low-level recourse exposure
provisions for risk-based capital (regardless of GAAP treatment), or other supervisory response
at the discretion of the primary supervisor.
In existing transactions, examiners will consider the potential impact of such covenants when
evaluating the overall condition of the banking organization, as well as specific component
ratings of capital, liquidity, and management. Early amortization triggers will specifically be
considered in the context of the banking organization’s overall liquidity position and contingency
funding plan. For organizations with limited access to other funding sources or a significant
reliance upon securitization, the existence of these triggers presents a greater degree of
supervisory concern. Any banking organization that uses securitization as a funding source
should have a viable contingency funding plan in the event it can no longer access the
securitization market. Banking organization management is encouraged to amend, modify,
or remove these covenants in existing transactions. Any impediments an institution may
have to taking such action should be documented and discussed with its primary
supervisor.

Date:

May 23, 2002

Page 3

ADDITIONAL INFORMATION
For further guidance on asset securitization issues contact:
Office of the Comptroller of the Currency - Greg Coleman, Treasury and Market Risk at (202)
874-2777, or Kelly Ballard, Treasury and Market Risk at (202) 874-4917.
Federal Deposit Insurance Corporation - Keith Ligon, manager, Training and Examination
Support - Securities, Capital Markets, and Trust Branch at (202) 898-3618, or Michael Phillips,
Counsel at (202) 898-3581.
Board of Governors of the Federal Reserve System - Tom Boemio, senior supervisory financial
analyst, Supervisory and Risk Policy at (202) 452-2982, or Anna Lee Hewko, senior financial
analyst, Supervisory and Risk Policy at (202) 530-6260.
Office of Thrift Supervision - Michael D. Solomon, senior program manager for Capital Policy
at (202) 906-5654, or David W. Riley, project manager for Capital Policy at (202) 906-6669.

Date:

May 23, 2002

Page 4


Federal Reserve Bank of St. Louis, One Federal Reserve Bank Plaza, St. Louis, MO 63102