RBI takes steps to prepare for the aftermath of the pandemic

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-Kanakprabha Jethani (kanak@vinodkothari.com)

Background

On October 9, 2020, the RBI released its Statement of Developmental and Regulatory Policies[1] which lays down the next steps of the RBI in the direction of coping up with the impact of the pandemic. The intended moves of the RBI seem to ensure preparing the financial sector to support the economy get in track with the new normal. Below are a few highlights proposed by the RBI with respect to the financial sector.

With respect to capital adequacy of banks

Banks and NBFCs are required to maintain certain capital ratios prescribed by the RBI. As for banks, they are required to maintain a Capital to Risk-weighted Assets Ratio (CRAR) of 9%. For the calculation of risk-weighted assets, the RBI prescribes the weights to be assigned to each on and off the balance sheet assets of the banks.

Increase in the size- limit for regulatory retail portfolio

The RBI has prescribed 75% risk weight for the ‘regulatory retail portfolio’ of banks. For an exposure to qualify into the regulatory retail portfolio[2], the following conditions are required to be met:

  • The exposure shall towards an individual person or persons or small business;
  • The exposure shall be in the form of revolving credits, line of credit, term loans and leases, student and educational loans and small business facilities and commitments;
  • No aggregate exposure to one counterparty should exceed 0.2% of the overall regulatory retail portfolio;
  • The maximum aggregated retail exposure to one counterparty should not exceed Rs. 5 crores.

The above limit of Rs. 5 crores has now been increased to Rs. 7.5 crores for fresh facilities and incremental qualifying exposures. This has been done with an intent to reduce the cost of credit and to harmonisation the regulations with the Basel guidelines[3]. This measure is expected to increase the much-needed credit flow to the small business segment.

Revision in risk weights

The risk weights for housing loans to individuals have also been changed. The table below shows the change in risk weighting requirements:

Earlier Risk weighting requirements[4]

Outstanding Loan LTV ratio (%) Risk Weight (%)
Upto Rs. 30 lakhs <=80 35
>80 and <=90 50
Above Rs. 30 lakhs and upto Rs. 75 lakhs <=80 35
Above Rs. 75 lakhs <=75 50

Revised requirement:

LTV ratio (%) Risk Weight (%)
<=80 35
>80 and <=90 50

Under the existing regulations, differential risk weights are assigned to individual housing loans, based on the size of the loan as well as the loan-to-value ratio (LTV). In order to rationalise the risk weights, the regulator has linked them to LTV ratios only for all new housing loans sanctioned up to March 31, 2022. This measure is expected to give a fillip to the real estate sector. However, the determination of LTV is still linked to the size of the loan[5]. Hence, there is only a minimal change with this revision of limits, which is not likely to have much impact on housing loans extended by banks.

Wider inclusion with respect to priority sector lending

Loans co-originated by banks and NBFC-SIs were allowed to qualify for priority sector lending targets[6]. The RBI has now allowed loans co-originated by banks with NBFC-NSIs and HFCs as well for qualifying as priority sector loans. The detailed guidelines in this regard are awaited.

There already exist co-lending arrangements between banks and smaller NBFC and HFCs, however, they are not regulated by any specific guidelines. Though in spirit most of these arrangements are structured in accordance with the existing guidelines for NBFC-SI, however, some of the norms may be a challenge to implement- one of them being the minimum risk sharing of 20% by way of direct exposure by the NBFC.

Conclusion

These steps introduced by the RBI are not exactly a major move taken by the regulator, however, several such changes may have an impact in the long run. Further, the inclusion of NBFC-NSIs and HFCs in the scope of co-origination guidelines is a welcome move and is expected to work in the benefit of smaller NBFCs and HFCs.

 

 

[1] https://www.rbi.org.in/Scripts/BS_PressReleaseDisplay.aspx?prid=50480

[2] Refer: https://www.rbi.org.in/scripts/BS_ViewMasCirculardetails.aspx?id=4353

[3] Refer: https://www.bis.org/publ/bcbs128b.pdf

[4] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=10995&Mode=0

[5] Refer: https://www.rbi.org.in/Scripts/BS_ViewMasCirculardetails.aspx?id=9851

[6] Refer: https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=11376&Mode=0

 

SEBI completely restricts Retail Investors from AT1 instruments

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Qasim Saif | Executive

finserv@vinodkothari.com

Perpetual Non-Cumulative Preference Shares (PNCPS’) and Innovative Perpetual Debt Instruments (IPDIs) / Perpetual Debt Instruments (PDIs) (commonly referred to as AT1 instruments) are a kind of perpetual bonds without any redemption date that banks issue to meet their long term capital as well as their Additional Tier-I capital requirements. These instruments are treated as quasi-equity instruments, providing a unique blend of characteristics, that is, coupling the perpetual availability of funds with fixed periodic payments.

Despite having unique characteristics, the AT1 bonds are seen with distrust by investors because such instruments are more likely to default and in some circumstances carry more risk of non-repayment than equity. The return on such bonds is higher than tier 2 bonds however is significantly lower than the return on equity.

Recently, the AT1 bonds were all over the news when the Reserve Bank of India wrote down the liability towards the AT1 bonds issued by Yes Bank, without affecting the equity shareholders, resulting in a large number of people, including senior citizens, losing their savings who were lured to invest in AT1 bonds instead of fixed deposits, with a promise to pay higher returns. Our detailed write-up on this topic can be viewed here.

This write-up, however, deals with the recent changes brought in by SEBI for the listing of AT1 bonds.

Amendments proposed by SEBI

Though the AT1 Bonds are regulated by RBI guidelines issued in consonance with Basel III norms, however public issues and listing of these bonds are regulated by SEBI (Issue and Listing of Non-Convertible Redeemable Preference Shares) Regulations, 2013.

SEBI on October 6, 2020,[1] issued a circular containing additional guidelines in regards to the issuance, listing and trading of AT1 Instruments. The additional guidelines are based on recommendations of the Corporate Bonds and Securitization Advisory Committee set up by SEBI. The Circular shall come into force with effect from October 12, 2020.

The additional guidelines prescribed and its analysis is as follows-

  1. Mandatory issuance through electronic book building platform

SEBI vide circular dated January 05, 2020,[2] mandated issuance of debt securities exceeding rupees two hundred crores to be undertaken through the electronic book building platform (“EBPF”). Now, SEBI has mandated that the issuance of AT1 instruments shall be compulsorily done through EBPF irrespective of the issue size.

Further, the January 2020 Circular did not include AT1 bonds, however, the October Circular has specifically included AT1 bonds within its ambit.

EBPF is deployed in large size issue because of the novelty of the system and higher cost as compared to other alternatives. However, the latest amendment on the use of EBPF irrespective of the issue size will increase smaller issuances costly, therefore, making them unviable.

  1. Only QIBs shall be allowed to participate in an issue

The most important change is that now only QIBs shall be allowed to participate in the issuance of AT1 bond; retail and other non-QIB investors have been excluded from the list of eligible investors to AT1 bonds.  The amendement is made with an intent to safeguard the retail investors from the risk possed by such instruments, as these complex instruments carry certain risk that are not generally not understood by the common people

The QIBs are better equipped for analyzing potential risk and whether or not such issuance is worth investing compared to other classes of the investor, this would hence form the first line of defense to protect the other investors, who would be benefited with skills and resources of QIBs.

This change however directly conflicts with the RBI Guidelines on this issue, which allows banks to issue AT1 bonds to retail investors with permission of its board via amendments to implementation of Basel III Capital Regulations in Indian on date September 1, 2014[3]

In any event, if the AT1 bonds are taken for listing, the conditions under SEBI Circular will have to be fulfilled and therefore, the issuances shall have to be restricted to QIBs only.

It shall be noted that the restriction is only on the issuance of securities and non-QIB investors can still purchase the securities from the open market.

However, there might be still concerns that such QIBs might engage in selling securities by misleading investors as it was alleged in the case of Yes Bank.

  1. Allotment and trading lot fixed

SEBI has further specified the minimum allotment of AT1 instruments shall not be less than rupees one crore and further the minimum trading lot is also fixed at rupees one crore.

As mentioned above that though retail investors may not be able to participate in issuances, they might purchase the bonds from stock markets, to further deter retail investment in such instruments the trading lot has also been fixed at rupee one crore.

The fixing of minimum allotment size may not be of major importance as the issuance would only be to QIBs who, usually invest larger sums of money, however, minimum allotment size is generally kept in parity with trading lot size to create a uniform lot of securities and avoid forming of odd lots, hence fixing of minimum allotment size is mainly to bring it with parity with trading lot size.

  1. Increased disclosure requirements

Issuers of AT1 bonds are required to make disclosures as prescribed under Schedule I of SEBI (NCPRS) Regulations, in addition to that the issuer shall now have to make disclosures that are prescribed under Annex I and provisions of circulars mentioned in Annex II of the October Circular.

Along with that specific disclosures about the following shall have to be made in the offer document:

  1. Details of all the conditions upon which the call option will be exercised by them for AT1 instruments
  2. Risk factors, to include all the inherent features of these AT1 instruments such as discretion of issuer in terms  of  writing down the principal  / interest, to skip interest payments, to make an early recall etc. without commensurate right for investors to legal recourse,even if suchactions of the issuer mightresult in potential loss to investors.
  3. Point of Non-Viability clause: The absolute right, given to the RBI, to direct a bank to write down the entire value of the outstanding  AT1 instruments/bonds,  if it thinks the bank has passed the Point of Non-Viability or requires a public sector capital infusion to remain a going concern.

These additional disclosures will give the investors a better understanding of the instrument and what they are signing up for.

Impact on currently listed AT1 Bonds

The majority of additional guidelines are in respect of securities that would be now be issued hence would have no impact on bonds already issued/listed on securities market. However, the conditions with respect the trading lot could impact the holders of AT1 bonds as they might have investments, not in multiple of one crore, which might result in the creation of odd lots.

Generally, special windows are provided by stock exchanges where investors can sell their odd lots to the market maker, intermediaries, or other concerns hence a special window, in this case, might be provided to deal with odd lots that might be created due to additional guidelines.

Conclusion

Given the tone of the changes made by the SEBI, it is very clear that the changes are highly inspired by the events that led to retail investors burning their hands in the case of Yes Bank. Most of the changes seem to carry the intent of deterring the retail investors from investing in these securities. The following paragraph from the circular makes the situation clear:

“Given the nature and contingency impact of these AT1 instruments and the fact that full import of the discretion is available to an issuer, may not be understood in the truest form by retail individual investors.”

Additional guidelines would without doubt restrict retail investment in AT1 bonds however, the added conditions in likelihood would jeopardize whatever little interest investors had on this product. Though the protection of investors is a goal of SEBI, so is the promotion of capital markets in India; hence, the regulation might be welcomed on the investor protection front but there are serious doubts on how good it will do for the development of the AT1 bonds market in India.

Links to related articles –

http://vinodkothari.com/2020/03/at1-bonds-blessed-with-perpetuity-or-cursed-with-mortality/

http://vinodkothari.com/2019/03/should-oci-be-included-as-a-part-of-tier-i-capital-for-financial-institutions/

[1] https://www.sebi.gov.in/legal/circulars/oct-2020/issuance-listing-and-trading-of-perpetual-non-cumulative-preference-shares-pncps-and-innovative-perpetual-debt-instruments-ipdis-perpetual-debt-instruments-pdis-commonly-referred-to-as-additi-_47805.html

[2] https://www.bseindia.com/downloads1/SEBI_EBP_Circular_Jan_5_2018.pdf

[3] https://www.rbi.org.in/Scripts/NotificationUser.aspx?Id=9202&Mode=0

SEBI rationalizes eligibility and disclosure requirements for rights Issue in ICDR Regulations

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Snapshot of SEBI Board Meeting dated 29th September, 2020

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(corplaw@vinodkothari.com)

SEBI in its Board Meeting held on 29th September, 2020 has approved amendments in various Regulations which shall come into effect by way of amendment in the respective Regulations. The brief highlights of the same are as below:

Strengthening role of Debenture Trustees

SEBI, in the recent past, has brought in certain amendments in order to strengthen the role of DTs so as to protect interest of debenture holders. The latest amendment in the existing DT Regulations was made by SEBI (Debenture Trustees) (Amendment) Regulations, 2017 which aimed to streamline provisions of DT Regulations with the CA, 2013 and other SEBI Regulation and also to enable DTs to secure the interest of investors.

The Board Meeting approved that DTs shall convene meeting of debenture holders for enforcement of security, joining of inter-creditor agreement (ICA) etc. The requirement of forming a ICA comes from the RBI Prudential Framework for Resolution of Stressed Assets and the Resolution Framework for COVID-19 related stress. By virtue of these notifications, there is a mandatory requirement of Inter-Creditor Agreements (ICA) by the lending institution governed by the RBI, for the purpose of invocation of a resolution plan of any defaulting borrower. The aforesaid frameworks recognize that even other lenders to the borrower which are other than the lending institutions, such as debenture trustee, may sign the ICA, if they so desire. In line with the same, SEBI is proposing the DTs to convene meeting for joining ICA to safeguard the interests of the debenture holders.

Keeping the same intent, DTs are also bestowed with the responsibility of monitoring the asset cover for debentures and obtain half yearly certificate from statutory auditor. The Board approved following additions to the responsibility of DTs:

  • DTs to exercise independent due diligence of the assets of the company on which charge is being created
  • DTs shall convene meeting of debenture holders for taking required action for enforcement of security, joining the inter-creditor agreement etc.
  • Carry out continuous monitoring of asset cover including obtaining mandatory certificate from statutory auditor on half yearly basis
  • Creation of recovery expense fund at the time issuance of debt securities for utilisation in the event of default or to take legal action to enforce the security.

Pursuant to the text of the Board Meeting, it seems that SEBI is going to introduce a new concept of ‘recovery expense fund’ for creating fund for expenses that might be required to recover debts due to debenture holders in case of default.

Apart from the aforesaid, the existing provisions of the Companies Act, 2013 does have a requirement of transferring funds by specified class of companies to Debenture Redemption Reserve (‘DRR’) and also transfer certain amount of funds for debentures maturing during the next year to specified account/securities (‘hereinafter referred to as DRF’). However, these funds/reserves are for recovery of debts, whereas, recovery expense fund is a pool of fund for incurring expenses for recovering debts by DTs. Nevertheless, introduction of a separate fund requirement for any event of default seems to be a new compliance burden on companies. Further, whether such fund has to be created as an internal book entry transfer within the company like in case of DRR or transfer it outside the company in trust of the DT, is something we have to look for. Definitely, companies like NBFCs and HFCs which are frequently involved in raising funds through debentures shall have a new compliance to be ensured, if such amendment is made effective.

Amendments in SEBI (Delisting of Equity Shares) Regulations, 2009

SEBI (Delisting of Equity Shares) Regulations 2009 provides for voluntary delisting of equity shares from stock exchanges which provide the overall framework for voluntary delisting by a promoter or acquirer through a process referred to as Reverse Book Building. The Board Meeting has approved of exempting listed subsidiary from complying with the book building process if following conditions are met:

  1. The listed subsidiary is a wholly owned subsidiary of the company by virtue of scheme of arrangement
  2. The listed subsidiary is a subsidiary of the company for a minimum of 3 years
  3. The listed subsidiary and the holding company should be in the same line of business
  4. The shares of listed subsidiary and the holding company should be listed on recognised stock exchange for a minimum of 3 years
  5. Votes casted by public shareholders of listed subsidiary for delisting of securities should be 2 times in favour of the number of votes cast against it.
  6. The company should be compliance of provisions relating to scheme of arrangement under SEBI (LODR) Regulations, 2015

The process of Reverse Book Building is a price discovery mechanism in order to provide a price on which the public shareholders can exit from the company. Accordingly, the intent of exempting a wholly-owned listed subsidiary from undergoing the said mechanism seems logical by virtue of the fact that such a company will have a sole shareholder.

Disclosure by Informants under PIT Regulations

SEBI vide SEBI (PIT) (Third Amendment) Regulations, 2019 had introduced Chapter III under the existing PIT Regulations providing for a mechanism to submit by a person, a voluntary information with SEBI about alleged violation of insider trading laws. The procedural requirements to be followed by an informant while submitting the information with SEBI have been provided in the said chapter along with the format of the disclosure prescribed under Schedule D of the Regulations.

The aforesaid provisions however do not provide for any limitation period for submitting such an information with SEBI. Accordingly, SEBI has decided to provide for a time period of 3 years. The manner of calculating the said period shall come clear only once the amended text is released.  Further, the Meeting approved to make changes in Schedule D of the Regulations so as to require informants to specifically disclose details such as:

  1. Details of securities;
  2. Trades by suspect;
  3. UPSI based on which insider trading is alleged;

Disclosure of forensic audit by listed entities

SEBI has in the past ordered forensic audit for various companies, however, there was no requirement of disclosing the same by the company to the investors at large, except if considered material by the company under Part B of Schedule III of SEBI (LODR) Regulations, 2015. Accordingly, SEBI at its Board Meeting has decided to direct companies to disclose initiation and submit report of forensic audit along with comments of management to the stock exchange without applying any test of materiality.

Though it is not clear as of now, however, it seems that SEBI will introduce this disclosure requirement as an amendment to Schedule III Part A Para A of SEBI (LODR) Regulations, 2015 as it is to be disclosed by the company without applying any test of materiality i.e. deemed to be material.

SEBI intends to bring transparency for investors especially public investor holding larger interest in listed entities to have information about lapses in the company, which otherwise was not being disclosed by the company. SEBI requires every listed entity to disclose following w.r.t. forensic audit:

  1. Initiation of forensic audit along with name of entity initiating forensic audit along with reasons, if any
  2. Final forensic audit report on receipt by the listed entity along with comments of the management.