RBI revamps Directions for issuance of Commercial Paper

By Richa Saraf, legal@vinodkothari.com

The Reserve Bank of India (RBI) vide Notification No. MRD.DIRD.01/CGM (TRS) – 2017 dated August 10, 2017 has issued Reserve Bank Commercial Paper Directions, 2017 (“New Directions”). The new guidelines are in supersession of the existing directions on Commercial Paper in the Master Directions on Money Market (Section II) RBI/FMRD/2016-17/32 dated July 7, 2016 (“Old Directions”). The following table captures the difference between the old and new directions:-

Particulars New Directions[1] Draft Directions[2] Old Directions[3] Our comments
Eligible issuers Companies- including NBFCs

are eligible to issue CPs subject to the condition that any fund-based facility availed of from bank(s) and/or financial institutions is classified as a standard asset by all financing banks/institutions at the time of issue.

Companies

  1. with sanctioned working capital limit and
  2. standard asset classification

by banks/ FIs

Companies

  1. with tangible net worth of not less than 4 crores;
  2. with working capital; and
  3. standard asset classification by banks
One of the major changes in the Directions is the removal of minimum net-worth requirement. Therefore, now even small and medium sized companies will be able to raise funds through CPs, provided the other requirements under the Directions are complied with.
All India Financial Institutions-

are eligible to issue CPs subject to the condition that any fund-based facility availed of from bank(s) and/or financial institutions is classified as a standard asset by all financing banks/institutions at the time of issue.

All India Financial Institutions

  1. with sanctioned working capital limit and
  2.  standard asset classification

by banks/ Fis

Financial Institutions – No eligibility conditions for issuance Same as above.
Primary dealers – No eligibility conditions for issuance Primary dealers – No eligibility conditions for issuance
Other entities- like co-operative societies/unions, government entities, trusts, limited liability partnerships and any other body corporate-

a.       having presence in India;

b.      with a net worth of Rs. 100 crore or higher; and

c.       subject to the condition that any fund-based facility availed of from bank(s) and/or financial institutions is classified as a standard asset by all financing banks/institutions at the time of issue.

Other entities

  1. with working capital and
  2.  standard asset classification by banks
  3. Minimum net-worth of Rs. 100 crores
No such category Earlier only companies were allowed to raise funds through CP, but now other form of entities can also raise funding through issuance of CPs. However, looking at the minimum net-worth requirement in this category, we feel only foreign entities can explore this route for fund raising.
  Such other entity as permitted by RBI Such other entity as permitted by RBI No such provisions
Tenor 7 days to 1 year 7 days to 1 year 7 days to 1 year
Eligible Investors
  1. All residents, and non-residents permitted to invest in CPs under Foreign Exchange Management Act, 1999 are eligible to invest in CPs;
  2. No person can invest in CPs issued by related parties either in the primary or secondary market.
  3. Regulated financial sector entities subject to regulatory restrictions as applicable to them.
  1. Residents
  2. Non-residents
  3. Regulated financial sector entities subject to regulatory restrictions as applicable to them

Related parties cannot invest

  1. Individuals
  2. Banks
  3. Other body corporates/ unincorporated entities
  4. Non-residents Indians
  5. Foreign institutional investors subject to regulatory restrictions as applicable to them
The regulators tread very cautious when it comes to related party transactions. The same has also found some caveats in the consultation paper where related parties are barred from investing in commercial paper issuances.
Form of issuance Demat Demat Physical or demat
Denomination 5 lakh and multiples thereof 5 lakh and multiples of 1 lakh 5 lakh and multiples thereof The provisions under the Old Directions have been retained in the New Directions, despite the proposal to change in the same in the Draft Directions.
Mode of issuance Silent on it. Silent on it. Private placement
Rating requirement Eligible issuers, whose total CP issuance during a calendar year is Rs. 1000 crore or more, shall obtain:

a.    credit rating for issuance of CPs from 2 (Two) rating agencies and lower rating to be quoted

b.   Where both ratings are the same, the issuance shall be for the lower of the two amounts for which ratings are obtained.

c.    Minimum rating is A3

 

a.    2 (Two) rating and lower rating to be quoted

b.    Minimum rating is A3

a.    2 (Two) rating and lower rating to be quoted

b.    Minimum rating is A3

The New Directions state that rating has to be obtained from at least two rating agencies and the lower of the two shall apply.

In case the rating issued by both the CRAs are same, then the issuer shall be able to issue CPs to the extent of the lower of the two amounts for which ratings have been obtained.

Let us take an example –

Company A obtains the following ratings –

·         Rating Agency A – A1 for Rs.1000 crores

·         Rating Agency B – A1 for Rs. 1500 crores

Here the Company will be able to issue CPs to the extent of Rs. 1000 crores only.

Now, what if the Company wants to raise another Rs. 500 crores? – It will have to seek a fresh rating from Rating Agency A for Rs. 1500 crores.

 

Obligations of Issuer a.    Appoint an Issuing and Paying Agent (IPA) for issuance of a CP.

b.    Comply with all relevant requirements under these directions and furnish a declaration in this regard to the IPA.

c.    Furnish the board resolution authorizing the company to borrow through issuance of a CP to the IPA.

d.   Keep the bank(s) from whom it has outstanding fund or non-fund based credit facility(ies) informed of its market borrowings, including through CPs, latest by the end of the month in which a CP was issued.

e.    Arrange for crediting the CP to the demat account of the investor with the depository through the IPA within 7 (Seven) days of issue.

f.     Route all subscriptions/ redemptions/ buybacks/ payments and default details through the IPA.

g.    Submit a certificate from the CEO/ CFO to the concerned IPAs on quarterly basis that CP proceeds are used for disclosed purposes, and certifying adherence to other conditions of the offer document and the CP directions. The certificate may be provided within 15 (Fifteen) days from the close of the quarter.

h.   Inform the CRA and IPA on the same day about any default/ delay in CP related payments.

i.      The issuer who has defaulted on a CP shall not be allowed to access the CP market for 6 (Six) months from the date of repayment of the defaulted obligation.

Ensure that the guidelines and procedures laid down for the issuance of CP are strictly adhered to. a.     Comply with all relevant requirements under these Directions.

b.     Appoint an IPA for issuance of CP.

c.     Furnish the Board Resolution authorizing the company to borrow through issuance of CP to the IPA.

d.    Keep the bank (s) from whom it has outstanding credit facility (ies) informed of its market borrowings, including through CPs, latest by the date of borrowing.

e.     Arrange for crediting the CP to the Demat account of the investor with the depository through the IPA.

f.      Route all subscriptions/redemptions/payments through the IPA.

g.     Submit a certificate from the CEO/CFO to the concerned IPAs on quarterly basis that CP proceeds are used for disclosed purposes, and certifying adherence to other conditions of the offer document.

 

This provides for additional compliance requirements on  the issuer.
CRA obligations No such approval criteria provided Take approval for rating No such approval criteria provided The Draft Directions proposed the CRAs to obtain specific approval from RBI for rating CPs, however, the same has been dropped in the New Notification.
Reporting requirement for IPA a.       Report the details of issuance of CP, or its buyback and instances of default on the F-TRAC platform (after these functionalities are made operational), by the same day before the close of business hours.

b.      Until CCIL advises full operationalisation of F-TRAC, the current reporting arrangements shall continue.

a.         Reduced reporting requirement

b.      Report the details of issuance of CP and instances of default on the F-TRAC platform by same day before close of the business hours.

  1. Report the details of issuance of CP on the Online Returns Filing System (ORFS) module of the RBI within 2 (Two) days from the date of issuance of the CP.
  2. On occurrence of default in repayment of CP report to CGM, Financial Markets Department, RBI, Mumbai.
  3. On buyback report CGM, Financial Markets Department, RBI, Mumbai.
Offer document a.       Details of outstanding CPs and other debt instruments as on date of new issuance including date of issuance, amount issued, maturity date, amount outstanding, credit rating, name of credit rating agency and name of IPA

b.      3 (Three) years audited financials or if the issuer has not been in existence for three years, available audited financials, material litigation and regulatory strictures

c.       Default of CPs or any other borrowings for past three years.

d.      Details of current tranche including amount, current credit rating, name of credit rating agency, its validity period and details of IPA

e.       End-use

a.       3 (Three) years audited financial standing

b.      CPs outstanding and new issuance information

c.       Ratings received

d.      Defaults in CPs in the past, including technical defaults.

e.       End use

1 (One) year financial standing to be provided This provides for additional disclosure requirements in the offer document
End use restriction No end use restrictions

The exact end use shall be disclosed in the offer document at the time of issue of a CP.

Current assets and operating expenses. No end use restrictions The exact end use shall be disclosed in the offer document and the proceeds from issue shall be utilised only for the purposes of such end use.

In most cases, CPs are issued for general corporate purposes.

Buy-back CPs a.      Buyback, in full or part, shall be at the prevailing market price.

b.      Buy-back to be extended to all investors and the terms of the buyback should be identical for all investors in the issue.

c.       Cannot buy back before 30 (Thirty) days of issuance

d.       Needs to extinguish once bought back

a.         Cannot buy back before 60 (Sixty) days of issuance

b.      Needs to extinguish once bought back

c.       Buy-back to be extended to all investors

a.    Cannot buy back before 7 (Seven) days of issuance

b.    Buy-back is to be effected through secondary market

 

The waiting period for buy back of CPs have been increased from 7 days to 30 days.

Further, earlier, the Directions did not specify anything regarding the buy-back price, but as per the New Directions, the buy-back has to be done at the prevailing market price.

Settlement of CPs reported on F-TRAC T+0 or T+1 days T+1 days Same day settlement or T+1 days This is same as before.
Credit enhancement a.    A CP shall be issued as a ‘stand-alone’ product.

b.   Banks and FIs may, based on their commercial judgement, choose to provide stand-by assistance/credit, back-stop facility etc. by way of credit enhancement for a CP issue.

c.    Non-bank entities (including corporates) may provide unconditional and irrevocable guarantee for credit enhancement for CP issue provided the offer document for CP properly discloses the net worth of the guarantor company, the names of the companies to which the guarantor has issued similar guarantees, the extent of the guarantees offered by the guarantor company, and the conditions under which the guarantee will be invoked.

CP is unsecured with no credit enhancements feature. Unsecured CP with credit enhancements The credit enhancement provisions providing stand-by support to issuance has also been featured in the new directions.
Reporting Requirement of CRA a.    Continuously monitor the rating assigned to an issue and disseminate rating revisions, if any, to public through its publications and on its website.

b.   Publicly disseminate the ratings of the CP and any subsequent change in the ratings, on the date of rating or change in rating, as the case may be.

No such requirement now CRAs were at discretion to determine the validity period of rating and shall indicate the date when the rating is due for review. The additional disclosure requirements on the CRAs will only increase transparency.

[1] https://rbidocs.rbi.org.in/rdocs/content/pdfs/43CPD10082017.pdf

[2] https://www.rbi.org.in/scripts/bs_viewcontent.aspx?Id=3309

[3] https://www.rbi.org.in/scripts/BS_ViewMasDirections.aspx?id=10495#2

 

 

[1] https://rbidocs.rbi.org.in/rdocs/content/pdfs/43CPD10082017.pdf

[2] https://www.rbi.org.in/scripts/bs_viewcontent.aspx?Id=3309

[3] https://www.rbi.org.in/scripts/BS_ViewMasDirections.aspx?id=10495#2

Action Plan for NPA Ordinance -Sequel 2, by Vallari Dubey, 24th May, 2017

Complementing the Ordinance on Non-Performing Assets (NPA)[1] which originally brought a whole new breeze in the resolution space in India, RBI has come up with a press release as a further to the first step in crystallizing the concept as laid down in the Ordinance.  RBI has brought a lot of changes for the purpose of implementation of the NPA Ordinance. The Sequel two in the Ordinance story has been released in form of a press release by RBI dated 22nd May 2017, laying down the Action Plan to implement the NPA Ordinance[2].

Points of Action as Tendered

The Action Plan brings forth the relevant steps needed to be taken to arrange for resolution of stressed assets in the Banking Industry. Accordingly, the RBI proposes to set in the following important issues:

Modifications in and re-emphasizing the JLF Mechanism[3]

(i) It has been clarified that a corrective action plan could include flexible restructuring, Strategic Debt Restructuring (SDR) and Scheme for Sustainable Structuring of Stressed Assets (S4A).

(ii) Amongst the changes being made for the aforementioned proposal, a quantum of changes has been in the JLF Mechanism. In line with the same, a latest notification by RBI has modified the existing quantitative criteria required under JLF mechanism to approve a resolution plan. By virtue of which, following changes have been effected:

Consent required for approval of proposal under JLF
Particulars Before RBI Notification w.e.f RBI Notification
By value 75% 60%
By number 50% 50%

(iii) Such banks who did not give their consent on the proposal approved by the JLF have to either exit by complying with the substitution rules within the stipulated time or adhere to the decision of the JLF.

(iv) Participating banks have been mandated to implement the decision of JLF without any additional conditionality to avoid any kind of red-tapism and fulfill the purpose of Corrective Action Plan under the said mechanism.

(v) The Boards of banks were advised to empower their executives to implement JLF decisions without further reference to them, which is again to avoid any unwanted delay in implementation of the proposal.

Oversight Committee

The Apex Bank proposes to revamp the existing Oversight Committee (OC) which currently comprises of two members only. Where the original committee was formed by the Indian Banks Association (IBA) in consultation with RBI, the reconstituted OC shall be under the direct guidance of RBI and is expected to consist of more members. A larger body shall be able to help dealing with the volume of cases referred to OC, which seems to be beyond those under S4A as required currently.

Resolution Framework under IBC

The most crucial part of the Action Plan is supposedly formulating a formal framework, which was the sole intent behind the original NPA Ordinance. The framework is expected to establish a seamless mechanism to deliberate and take actions to refer cases for resolution under IBC. A committee shall be formed to devise and advise requisite plan and strategy for the matter which shall consist of Independent Board Members.

Rating Assignments

Additionally, RBI through this release of action plan, schemes out the suggestion to include the option of rating assignments. RBI believes that credit rating agencies ought to play an important role in the scheme of things. Rating assignments may help preventing rating-shopping or any conflict of interest that may arise otherwise and also exploring for the possibility for the payment to be made for from a fund to be created out of contribution from the banks and the Reserve Bank.

Unconditional Coordination and Cooperation from Stakeholders

The Reserve Bank notes that the proper exercise of the enhanced empowerment would require coordination with and cooperation from several stakeholders including banks, ARCs, rating agencies, IBBI and PE firms, to which end the Reserve Bank would be holding meetings in the near future with these stakeholders.

Why taking prompt steps is important?

Both the original ordinance and the action plan focuses on the term “stressed assets”. It is very much settled that the problem of bad loans in the country is on its worst. If not now then there probably is no later in this scenario.

Making the law in form of an ordinance and taking prompt steps in its implementation are all evidence of how keen and active the Government has become in clearing the balance sheets of the banks and wiping off stressed assets in the nation.

What numbers say?

A latest report issued by McKinsey & Co. titled, “Mastering new realities – A blueprint to transform Indian banking”, May 2017[4], drills down the case and presents an appalling picture.

According to the numbers presented in the report (See Picture 1), the quantum of distressed loan in the country crossed INR 10 lakh Crores in December 2016.

It further highlights the problem for the public-sector banks (PSBs), where stressed assets have surpassed their net worth. Evidently, current provision levels in the bank are seem to be insufficient to beat the odds, with a gap of nearly INR 600,000 crores between the level of stressed assets and the provisions made. It is believed that as these stressed assets continue to turn bad, the entire equity base of the banks could be at risk.

Picture.1

Source: Mckinsey&Co. Report

Going by the statistics of the report and the comments made thereunder, it is being suggested that if the situation as discussed above, prevails over a period of time from now, the results shall absolutely be disastrous.

This raises fear and makes us realize that we surely have come a long way as far our economy is concerned, but issues as bad as stressed assets in the banking sector may eat up all the hard work along the way for no good reason.

It is indeed direly crucial for the Government to do whatever it takes to pull back the country out of bad loans’ pit fall.

[1] http://www.prsindia.org/uploads/media/Banking%20Ordinance%202017/The%20Banking%20Regulation%20Amendment%20Ordinance%202017.pdf

[2] https://rbidocs.rbi.org.in/rdocs/PressRelease/PDFs/PR31388E3F78A130A9405F9891AC490EB2834B.PDF

[3] https://rbidocs.rbi.org.in/rdocs/notification/PDFs/503ACF260214F.pdf

[4]http://www.mckinsey.com/~/media/McKinsey/Global%20Themes/Asia%20Pacific/Mastering%20new%20realities%20A%20blueprint%20to%20transform%20Indian%20banking/Mastering-new-realities-A-blueprint-to-transform-Indian-banking.ashx

The author can be contacted at: vallari@vinodkothari.com

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