SECURITIES AND EXCHANGE BOARD OF INDIA Review of the

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SECURITIES AND EXCHANGE BOARD OF INDIA

Review of the Regulatory Framework for Corporate Bonds and Debenture

Trustees

1. Objective

1.1. This memorandum seeks the approval of the Board to make amendments

to the SEBI (Debenture Trustee) Regulations, 1993 (“DT Regulations”),

SEBI (Issue and Listing of Debt Securities) Regulations, 2008 (“ILDS

Regulations”) and SEBI (Listing Obligations and Disclosure

Requirements), 2015 (“LODR Regulations”) pursuant to public comments

received on the consultation paper issued for reviewing the Regulatory

Framework for Corporate Bonds and Debenture Trustees (DTs).

2. Background:

2.1. In order to enhance the role of the Debenture Trustees (DT(s)) and

empower them to effectively discharge their responsibilities and overcome

challenges regarding charge creation, enforcement of security of the

secured debentures, voting mechanism, Inter Creditor Agreement (ICA)

process and other related issues, a Consultation paper for strengthening

the regulatory framework for DT(s) for the above-mentioned issues and

putting in place provisions pertaining to enhanced disclosures by DT(s) and

issuer companies was placed for public comments. The following

proposals were put up for consultation:

2.1.1. Creation of identified charge by the Non-Banking Financial

Companies (NBFCs)

2.1.2. Enhanced due diligence of identified assets and granular “Asset

Cover” certificate

2.1.3. Calling of event of default at ISIN level

2.1.4. Mechanism/ conditions of joining ICA

2.1.5 Voting Mechanism

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2.1.6. Creation of recovery fund

2.1.7. Minimum disclosures on the website by DT(s)

2.1.8. Disclosures regarding performance of DT(s)

2.1.9. Public disclosure of all covenants by the issuer in Offer Document /

Information Memorandum

2.1.10. Standardization of Debenture Trust Deed (DTD)

2.1.11. Enhanced Disclosures in the Offer Document / Information

Memorandum and Debenture Trust Deed

2.1.12. Framework for imposing fines and Standard Operating Procedure

(SOP)

A copy of the Consultation Paper is placed at Annexure I.

3. Analysis of public comments

3.1. Comments (including suggestions) were received from 32 entities/

persons, which included issuer companies, DTs, Credit Rating Agencies

(CRAs), Mutual Funds (MFs), Insurance companies, other institutions and

individuals. Analysis of the same along with the rationale for acceptance/

non-acceptance and final recommendations are placed at Annexure II

(This has been excised for reasons of confidentiality).

3.2. The proposals warranting change in DT Regulations, ILDS Regulations

and LODR Regulations are discussed in the following paras:

4. Creation of a recovery expense fund:

4.1. Proposal in Consultation Paper:

4.1.1. A fund shall be created by the issuer at the time of issuance of debt

securities that may be utilised by DT in the event of default towards

expenses of recovery proceedings.

4.1.2. The value of such fund shall be 0.01% of size of the issue subject to

the cap of 25 lakhs per issuer.

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4.1.3. Disclosure to such effect shall also be made in the offer document /

Information Memorandum. Such fund shall be overseen by the DT.

4.1.4. The fund shall be returned to the issuer at the time of maturity of the

debt securities, in case there is no default by the issuer.

4.2. Rationale:

4.2.1. In the event of default, while DT(s) are obligated to work towards

enforcement of security, they are not able to recover their dues/ fees from

the defaulting issuer.

4.2.2. In case of default by an issuer, DT(s) are required to call for a meeting

of all the debenture holders to decide the further course of action

including cost incurred for initiation of recovery proceedings of their dues/

fees which is mostly borne by the debenture holders. However, delays

have been observed in the enforcement proceedings as the amount is

not always received from the debenture holders in time.

4.2.3. To prevent such delays in initiating enforcement proceedings, it is

necessary that DT(s) are adequately funded in advance.

4.3. Comments/ suggestions received and our views:

4.3.1. All public comments received, except one, are in favour of the proposal.

Suggestions have also been received that creation of such fund maybe

in the form of Fixed Deposit with lien marked to the DT.

4.3.2. In order to ensure that proposed fund is readily available at the

disposal of DT(s), it is necessary that such fund may be maintained in

the form of cash or cash equivalent.

4.4. Proposal for consideration of the Board:

4.4.1. Accordingly, to enable the creation of recovery expense fund as

proposed in paras 4.1 and 4.3.2, the following amendments to SEBI

(ILDS) Regulations and SEBI (DT) Regulations are proposed:

4.4.1.1. Following clause may be inserted in Regulation 26 of ILDS

Regulations:

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“26(7) The issuer shall create a recovery expense fund in the

manner as maybe specified by the Board from time to time

and inform the Debenture Trustee about the same.”

4.4.1.2. Following may be inserted in the summary term sheet provided

under Para 3(B)(a) of Schedule I of ILDS Regulations:

Creation of

recovery

expense

fund

a. Details and purpose of the recovery expense fund.

4.4.2. The Regulation 15(1)(h) of the DT Regulations maybe amended as

under:

“15(1)(h) ensure the implementation of the conditions regarding

creation of security for the debentures, if any, debenture redemption

reserve and recovery expense fund;”

5. Mechanism/ Conditions of joining ICA:


5.1.1. DTs may join ICA subject to approval of debenture holders and

following conditions:

5.1.1.1. Signing of ICA and agreeing to the Resolution Plan should be

in best interest of the debenture holders and investors.

5.1.1.2. DT(s) shall ensure that the following conditions are part of the

ICA before signing the ICA:

a. If Resolution Plan imposes condition(s) on the DT(s) which are

not in accordance with the provisions of SEBI Regulations and

circulars issued, then DT(s) shall exit ICA altogether with the

same rights as it if never signed ICA. In such a circumstance,

resolution plan would not be binding on the DT(s).

b. Resolution Plan shall be finalized within 180 days from the end

of review period. If not, the DT(s) shall exit the ICA altogether

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with the same rights as it if never signed the ICA. In such a

circumstance, resolution plan would not be binding on the

DT(s). However, If ICA extends beyond 180 days, DT(s) can

take extension beyond 180 days’ subject to approval of

debenture holders with total timeline not exceeding 1 year

from commencement period of ICA.

c. If any of the terms of the approved Resolution Plan are

contravened by any party to the ICA, DT(s) shall exit the ICA

and take legal recourse or take any other action as deemed fit

in the interest of the debenture holders.

5.1.2. Further, a debenture holders representative committee consisting of

debenture holders having majority investment may be formed after

default by the issuer, to fast track the ICA process and consent

seeking by DTs during the course of ICA.

5.2. Rationale:

5.2.1. Reserve Bank of India vide June 07, 2019 circular has issued ICA

framework to banks for resolution of stressed assets. For resolution

under this framework bank lenders have been inviting DT(s) to

become a member of ICA as the assets are charged on a pari-passu

basis.

5.2.2. However, due to majority of debenture holders being MFs, DT(s) face

multiple challenges (detailed as under) in joining the ICA framework:

i. Under the ICA, period of 180 days is provided for finalization of

resolution plan. However, it may be extended by additional 6

months, if no plan is finalized by the lenders within the given

timeframe. In the event of the lenders not reaching any resolution

plan, enforcement of security by the DTs would be delayed.

ii. The resolution plan finalized may involve infusion of additional

money, conversion of debt into equity etc. which may not be

acceptable to DT(s) as it goes against the mandate of regulations

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governing mutual fund schemes which may be major debenture

holders by value.

iii. Under the ICA, the resolution plan approved by the majority

lenders is final and binding on all the lenders. The dissenting

lenders are provided payment of “not less than liquidation value”

of assets. Since, debt holders have less probability of getting

favorable resolution plan, the above scenario might be the

favourable path for DT(s) in every case, which could be achieved

through Debt Recovery Tribunal without the delay of 6 months.

iv. As part of the ICA, the lenders agree not to initiate any legal

action or proceedings (including proceedings under Insolvency

and Bankruptcy Code, 2016) against the borrower for realization

of security during the period of ICA.


5.3.1. All public comments received except one are in favour of the

proposal.

5.3.2. The proposed conditions for joining ICA are in line with the

instructions issued to Association of Mutual Funds in India vide letter

dated August 29, 2019 which is already being followed by MFs while

giving their consent to DT(s).


5.4.1. Accordingly, Regulation 15 of DT Regulations maybe amended and

a clause maybe inserted as under:

“15(7) Subject to the approval of the debenture holders and the

conditions as may be specified by the Board from time to time, the

debenture trustee, on behalf of the debenture holders, may enter into

inter-creditor agreements provided under the framework specified by

the Reserve Bank of India.”

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5.4.2. Accordingly, ‘Event of default’ section in the summary term sheet

provided under Para 3(B)(a) of Schedule I of ILDS Regulations

maybe amended as under:

6. Voting mechanism:


6.1.1. Time period sought for seeking consent shall be reduced to 15 days

from 21 days.

6.1.2. DTs shall enforce the security by taking negative consent in the event

of default.

6.1.3. The consent of debenture holders for enforcement of security and for

joining ICA shall be taken simultaneously in the same letter.

6.1.4. Negative consent for enforcement of security and positive consent

for joining ICA shall be taken in the same letter.

6.1.5. Proof of dispatch and delivery shall be maintained by the DTs.

6.1.6. Providing e-Mail IDs shall be compulsory for debenture holders in

case of private placement.

6.2. Rationale:

6.2.1. The DT(s) are required to take consent of debenture holders for

future course of action in cases of default. While DT(s) may go for

direct enforcement of security in case of public issue, DT(s) face

various problems in seeking such consent, in other issues, as under:

i. Often the debenture holders do not respond to the DT(s) when

consent is sought by the DT(s) despite repeated reminders, thus

slowing down the enforcement proceedings.

ii. In case of DT(s) joining ICA, taking consent twice - first for joining

ICA and then later for enforcement of security, in case no

Event of Default (including

conditions of joining Inter-

Creditor Agreement)

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resolution plan is finalized, causes further delay in enforcement

of security.

iii. The contact details including email of debenture holders with the

DT(s) are not updated most of the times, which makes it difficult

for DT(s) to communicate with debenture holders.

6.2.2. The above mentioned challenges could be addressed by mandating

providing of email ids (in case of issues other than public issue) and

through seeking negative consent of debenture holders, for

enforcement of security. This would facilitate prompt filing of recovery

by DT(s). It is also stated that taking negative consent is an

established practice in mutual fund Industry.

6.2.3. Maintenance of proof of dispatch and delivery by the DT(s) may be

necessary, so that the negative consent sustains, if legally

challenged.


6.3.1. Majority of the comments received are against the proposal and have

suggested to continue the practise of positive consent citing that

debenture holders should have an active role rather than DT(s)

taking decision on their behalf.

6.3.2. However due to muted response of investors to the consent sought

by DT(s), there is delay in enforcement proceedings. Therefore, in

order to prevent delays due to inaction on the part of debenture

holders, negative consent maybe implemented for voting conducted

by DT(s).


6.4.1. While the manner of voting shall be issued by way of circular, its

disclosure in offer document/ Information Memorandum is

necessary. Accordingly, ‘Event of default’ section in the summary

term sheet provided under Para 3(B)(a) of Schedule I of ILDS

Regulations maybe amended as under:

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7. Public disclosure of all Covenants by the issuer in Offer Document/

Information Memorandum:


7.1.1. All covenants including the accelerated payment covenants whether

given by way of side letter or otherwise shall be incorporated in the

offer document/ Information Memorandum by the issuer at the time

of issuance of debentures.

7.1.2. The issuer shall also be obligated to inform the DT(s) of such

covenants for monitoring of the same by DT(s) on behalf of the

investors.

7.2. Rationale:

7.2.1. As per ILDS Regulations, offer document/ Information Memorandum

shall contain all material disclosures necessary for the subscribers of

the debt securities to take an informed investment decision.

However, it has been observed that issuers and investors at the time

of issuance of debt securities sign specific documents which contain

certain covenants. These are generally called “side letters.”

7.2.2. One of such covenants is an “accelerated payment clause” which

states that if the borrower violates the terms of the covenant(s),

including default or downgrade of debt, such lender is entitled to

demand immediate repayment. This accelerated repayment

exercised by one lender may have a bearing on other lenders and

may have a cascading effect on the liquidity and operations of the

borrower, leading to insolvency.

Event of Default (including

manner of voting /conditions of

joining Inter Creditor

Agreement)

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7.2.3. The disclosure of such side letters in offer document/ Information

Memorandum will therefore abridge the information asymmetry

between investors.


7.3.1. All comments received are in favour of proposal.


7.4.1. To facilitate disclosure in Offer Document/ Information Memorandum,

following may be inserted in the summary term sheet provided under

Para 3(B)(a) of Schedule I of ILDS Regulations:

All covenants of the issue

7.4.2. Regulation 56(1) of LODR Regulations maybe amended and a sub

clause maybe inserted as under:

“56(1)(c)(iv) All covenants of the issue”

8. Standardization of Debenture Trust Deed:


8.1.1. Debenture Trust Deed shall be bifurcated into two parts:

i. Part A of Debenture Trust Deed shall contain

generic/standard clauses common to all Debenture Trust

Deeds.

ii. Part B of Debenture Trust Deed shall contain specific and

customized clauses/covenants relevant to the particular

issue for which the Debenture Trust Deed is executed.

8.2. Rationale:

8.2.1. Currently, Debenture Trust Deed signed between the issuer and the

DT(s) includes standard covenants given in the DT Regulations and

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Form SH12 of the Companies (Share Capital and Debentures)

Rules, 2014.

8.2.2. However, Debenture Trust Deed also includes customized clauses

specific to the issue, which makes it a lengthy, legal documents

running into hundreds of pages sometimes.

8.2.3. There is a need to standardize Debenture Trust Deed and split it into

two parts on the lines of MF offer documents for providing better

readability and understanding of the document by investors.


8.3.1. All public comments received are in favour of having standardized

Debenture Trust Deed.

8.3.2. The standardization of Debenture Trust Deed would make it more

comprehendible for the debenture holders.


8.4.1. Accordingly, the following amendments to the DT Regulations and

ILDS Regulations may be made:

8.4.1.1. The following shall be added to Regulation 14 of the DT

Regulations:

“Such trust deed shall consist of two parts:

a. Part A containing statutory/ standard information pertaining

to the debt issue.

b. Part B containing details specific to the particular debt issue.”

8.4.1.2. Regulation 15(2) of ILDS Regulations maybe substituted as

under:

“Every debenture trustee shall amongst other matters,

accept the trust deeds which shall contain the matters as

prescribed under section 71 of Companies Act, 2013 and

Form No. SH.12 of the Companies (Share Capital and

Debentures) Rules, 2014.

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Such trust deed shall consist of two parts:

a. Part A containing statutory/ standard information

pertaining to the debt issue.

b. Part B containing details specific to the particular debt

issue.”

9. Due diligence and monitoring of asset cover by DT

9.1. Proposal:

9.1.1. The DT(s) while creating a charge on the security, shall exercise

independent due diligence (by itself or through its appointed agency) to

ensure that the charged security is free from any encumbrance or the

DT(s) has obtained consent from other existing charge-holders before

opening of the issue.

9.1.2. The DT(s) shall exercise due diligence while monitoring the asset

cover of the issuer periodically, as specified by SEBI from time to time.

9.1.3. The submission of asset cover certification by the statutory auditor shall

be on a half-yearly basis instead of annual basis.

9.2. Rationale:

9.2.1. It was observed that currently as part of initial due-diligence all the

documents like verification of title of the asset, valuation, maintenance of

asset cover etc., is provided by the issuer to the DT(s) instead of the

DT(s) doing such verification on its own. DT(s) also completely rely on

the documents provided by the issuer/ issuer appointed agency with

respect to the periodic monitoring of the asset cover which is used for the

purpose of monitoring the adequacy of assets charged against the debt

obligations of the issuer.

9.2.2. The current practice of DT(s) relying on the issuer or issuer appointed

auditor for monitoring may not be appropriate as it possesses the risk of

auditor working under the undue influence of issuer company

compromising the quality of assets charged.

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9.2.3. Accordingly, it is felt that DT(s) need to have their own independent

mechanism/ framework for initial due diligence and periodical monitoring

including verification on the presence of adequate security cover before

creating further charge on assets, as done by the lender banks while

lending money.

9.2.4. It is observed that while the submission of No Objection Certificate

(NOC)/ necessary consent for creating security and security creation

takes place before opening of issue in public issuances (due to the

requirements in ILDS Regulations), in private placements, as a practice,

NOC submission mostly happens before the issuance and charge

creation takes place after the issuance but within the 3-month regulatory

timeline of executing the trust deed.

9.2.5. Presence of NOC before the opening of the issue, from the existing

charge holders, is important to enable timely creation of charge. Further,

it is important that initial due diligence including independent verification

of title of the asset, valuation, maintenance of asset cover etc., is done

by the DT(s), instead of the issuer providing the same.

9.2.6. To ensure the sanctity of assets, it is imperative that a debt shall be

considered as secured only if the charged asset is registered with any

independent agency or verifiable through an independent source (for eg.

Hypothecation/ mortgage being registered with Registrar of Companies;

pledge being registered in the depository system etc.). However, certain

types of undertakings in support of creation of charge such as personal

guarantee, negative lien are not registered with any independent

agencies and hence there exists the issue of verification of such

undertakings. Therefore, disclosures with respect of these undertaking

need to be made in the offer document/ Information Memorandum.

9.2.7. Monitoring of asset cover is of utmost importance. The periodicity of the

monitoring of the asset cover by DT(s), is currently done quarterly by way

of certification from independent auditor provided by the issuer and

annually by way of such certification from the statutory auditor of the

issuer. However, it has been observed that once the issuer comes under

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stress, it stops cooperating with the DT and does not submit the quarterly

asset cover endangering the interests of the debenture holder.

9.2.8. While the reliability of the periodical assessment may be enhanced by

ensuring that the same is conducted by the DT(s) or through the DT

appointed agency, it is necessary that the statutory auditor certification

is obtained on a half yearly basis rather than on an annual basis. While

the implementation of this proposal may increase the cost of compliance

for the issuers, it would also enhance the monitoring of the quality of

underlying assets by the DT(s).


Accordingly, to enable seeking of NOC from existing charge-holders

before opening of the issue and to mandate the periodic monitoring of

asset cover and initial due-diligence (at the time of creation of charge) by

the DT (itself or through its appointed agency), the following amendments

to the Regulations, are proposed:

9.3.1. A new Regulation as under may be inserted in Chapter III of ILDS

Regulations:

“Creation of Security

21B. The issuer shall give an undertaking in the offer document/

Information Memorandum that the assets on which charge is

created are free from any encumbrance and in cases where the

assets are already charged to secure a debt, the permission or

consent to create a second or pari-passu charge on the assets

of the issuer has been obtained from the earlier creditor.”

9.3.2. ‘Security’ section in the summary term sheet provided under Para

3(B)(a) of Schedule I of ILDS Regulations maybe amended as

under:

Description regarding Security (where

applicable) including type of security

(movable/immovable/tangible etc.),

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type of charge (pledge/ hypothecation/

mortgage etc.), date of creation of

security/ likely date of creation of

security, minimum security cover,

revaluation, replacement of security,

interest to the debenture holder over

and above the coupon rate as

specified in the Trust Deed and

disclosed in the Offer Document/

Information Memorandum.

9.3.3. In the LODR Regulations, Regulation 56(1)(d) along with the proviso

may be substituted as under:

“56(1)(d) a half-yearly certificate regarding maintenance of hundred

percent asset cover or as per the terms of offer document/

Information Memorandum including compliance with all the

covenants, in respect of listed non-convertible debt securities, by the

statutory auditor, along with the half-yearly financial results.

Provided that the submission of half yearly certificate is not

applicable where bonds are secured by a Government guarantee.”

9.3.4. A new clause in Regulation 15 of DT Regulations may be inserted

as under:

“15(6) Before creating a charge on the security for the debentures,

the debenture trustee shall exercise independent due diligence to

ensure that such security is free from any encumbrance or that it has

obtained the necessary consent from other charge-holders if the

security has an existing charge, in the manner as may be specified

by the Board from time to time.”

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9.3.5. Regulation 15(1)(t) of DT Regulations may be replaced as under:

“15(1)(t) In case where listed debt securities are secured by way of

receivables/ book debts it shall, -

(i) On a Quarterly basis-

a. carry out the necessary due diligence and monitor the

asset cover in the manner as may be specified by the

Board from time to time.

(ii) On a Half-Yearly basis-

a. Obtain a certificate from the statutory auditor giving the

value of receivables/ book debts including compliance

with the covenants of the offer document/ Information

Memorandum in the manner as may be specified by the

Board from time to time.”

10. Guidelines to be issued by way of Circular

Detailed guidelines on the following proposals shall be issued by way of

circular:

10.1. Pursuant to approval of the Board:

10.1.1. Manner of creation of recovery expense fund.

10.1.2. Conditions for joining the ICA framework specified by RBI.

10.1.3. Voting mechanism

10.1.4. Initial due diligence framework by DT(s), format of Asset Cover

certificate and timelines in the event of default.

10.2. Other proposals:

10.2.1. Calling of event of default at ISIN level

10.2.2. Additional disclosures in the Offer Document / Information

Memorandum by the issuer.

10.2.3. Disclosures by the DT(s) on its website.

11. Proposal

11.1. The Board is requested to consider and approve the proposed amendments

as mentioned in paras 4 to 9 and authorize the Chairman to make

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necessary consequential or incidental changes to the SEBI (Issue and

Listing of Debt Securities) Regulations, 2008 and SEBI (Debenture

Trustees) Regulations, 1993 and SEBI (Listing Obligations and Disclosure

Requirements), 2015 and take consequent steps, as may be deemed

appropriate, to give effect to the decision.

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Annexure I

Consultation paper on Review of the Regulatory Framework for Corporate bonds

and Debenture Trustees

1. Objective

The objective of the consultation paper is to seek comments/ views from the public on the

proposals that are expected to strengthen the regulatory framework for Corporate bonds, secure

the interest of the debenture holders, enhance the role of the Debenture Trustees (DTs) and

empower them to effectively discharge their responsibilities towards the debenture holders of

listed debt issues / proposed to be listed debt issues.

2. Background

SEBI recently, increased the minimum net worth of DTs to raise the bar for financial entities

entering the trusteeship business, put in place the provisions of penalizing issuers for non-

creation of charge on security, e-voting mechanism for consent taking etc. in its on-going efforts

to enhance the role debenture trustees play in the market ecosystem. However, it has been

observed that still there have been cases of delay in enforcing the security in the event of default,

which is detrimental to the interests of the investors. The increased events of default by a few

financial institutions and the lapses/ complications on the part of debenture trustees in the

expeditious enforcement of the security has brought to the fore the need for a review of the

present regulatory framework for Debenture Trustees.

According to the data received from the Trustee Association of India (TAI), it is observed that in

past 5 years, around 2.3 % of the issues have defaulted (93% of which are secured debentures)

out of which DTs have been able to enforce the security successfully in around 10 % of the

secured issues, recovery proceedings are pending at different stages in around 60% of the

issues and in around 30% of the issues recovery is pending due to non-communication from

debenture holders. It is observed that Non-Banking Financial Companies (NBFCs) are the

frequent bond issuers. Based on the outstanding long term borrowings of NBFC (for top 100

based on long term outstanding borrowings) as on March 2019, it is noted that largely NBFCs

borrow through bonds (approximately 56%) in comparison to loans (approximately 44%). In last

5 Financial Years the bond issuances were largely secured (approximately 76%).

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DTs facilitate in holding the assets by creating lien on it without the transfer of title or possession

of those assets. This protects investors from the risk of non-payment, and allows possession

and sale of the assets if the borrower defaults or enters insolvency/ liquidation. In Indian bond

market, secured bonds are issued by way of creating fixed or floating charge on the assets of

borrower.

In the case of manufacturing companies, fixed charge is created in favour of trustees on Pari-

Passu basis on underlying tangible assets (namely plant and machinery) for borrowing through

debt and bank loan while in case of NBFCs floating charge is created on the existing and future

receivables which are dynamic and intangible in nature and includes the entire balance-sheet of

the company. Since, the charge is created on the entire balance sheet of the company, for any

future issuances, further charge is created on a Pari-Passu basis on the entire assets

(Receivables) of the company. Such a Pari-Passu charge does not specify a certain identified

portion of the assets to each specific lender, but treats all lenders to have the same claim (in the

respective proportion of the amounts borrowed from them) on the assets charged.

While the security is enforced by DT without any major complications in the case of

manufacturing companies at event of default (EoD), the same is not true in the case of NBFCs

due to floating charge and absence of identified security.

Vide June 07, 2019 circular, RBI introduced Inter Creditor Agreement (ICA) for resolution of

stressed assets in banking industry. While signing of ICA is applicable on lender banks, the

lender banks have in recent case of default by DHFL, invited DTs to be a part of ICA as majority

of the lending was done by debenture holders. Debenture Trustees sought consent from the

debenture holders for joining and acceding to the terms of the ICA. However, since the debenture

holders were unaware of the terms and the functioning of the ICA, there was a mixed response

from the debenture holders to the DTs regarding joining the ICA. Further, there was

apprehension by the debenture holders that ICA process being dominated by banks may

primarily focus on the interest of the banks. The debenture holders also feared that the

introduction of ICA could lead to increase in the instances of the process of enforcement of

security getting delayed, in case of creditors not being able to come out with a concrete resolution

plan within the given timeframe.

Meanwhile, it was also perceived that attractive loan portfolios were sold by the NBFCs in order

to pay existing dues post default and this probably led to DTs being left with lower quality assets

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for security enforcement. In spite of periodic confirmation being sought by the DT in regard to

maintenance of adequate security cover, lot of issues were faced by the DT in enforcement of

security as they were unaware of the specificity of the underlying security which were known

only to the issuer since a floating charge was created on the entire assets, i.e. present and future

receivables of the NBFC. The floating charge in case of NBFCs gets crystallized only at the time

of default.

The recovery proceedings in the said default of the NBFC was filed in Debt Recovery Tribunal

(DRT) after following the process of seeking consent for joining ICA and then for going with

recovery, in issues where no consent for joining the ICA was received. The delay faced by the

debenture holders in receiving their due and absence of any identified security, led to the concern

whether the debentures were truly secured.

With the given challenges observed in charge creation, enforcement of security of the secured

debentures, ICA process and other related issues in the recent cases of default, SEBI intends to

review the regulatory framework for DTs and put in place provisions that would further secure

the interests of the debenture holders of listed debt issues, enable the DTs to perform their duties

in the interest of the investors more effectively and promptly. It is therefore proposed to seek

public comments on the following issues:

3. Proposals

3.1. Creation of Identified Charge by the NBFCs:

NBFCs, for every issue shall create charge on the identified assets that may include

identified receivables, investment and cash instead of floating charge on the entire books

of the NBFC. A debenture issued by an NBFC shall be treated as secured only on creation

of identified charge. A transition period of 3-5 years shall be provided to shift from floating

Pari-Passu charge to identified charge.

Rationale:

While the NBFCs are always required to maintain the prescribed asset cover during the

tenure of secured debentures, what assets lie under the given asset cover is known only

to the issuer (NBFCs) due to the floating charge. It is known neither to the lenders nor to

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the DTs, as the charge gets created on the entire assets/ receivables and the asset cover

submitted to DT certified by the independent CAs just mentions the value of the entire

assets and a statement that 100% of cover on the balance-sheet is maintained.

At the time of default, there is a possibility that good assets of NBFCs are enforced as

security by the banks and the debenture holders may be left with sub-par assets due to the

uncertainty and opacity of the floating charge subjecting debenture holders to the risk of

non-realization of the full value of the security. This opacity makes it difficult for the DT to

monitor the quality of the asset cover as well.

Accordingly, it is proposed to continue having Pari-Passu charge in case of manufacturing

concerns/ companies having fixed charge on the assets and creation of identified charge

in case of NBFCs/ companies having receivables as assets.

3.2. Enhanced due diligence of identified assets and Granular Asset cover certificate

3.2.1. The asset cover certificate duly certified by the statutory auditor shall be required to

be submitted on a half-yearly basis instead of annual basis. The asset cover

certificate format shall be more granular providing a list of identified

assets/receivables, identified investment or cash etc. as security. If the quality of one

or more of the identified receivables/ assets deteriorates or the receivable/ asset is

pre-paid, the issuer shall identify further receivables to replace the bad/ matured/ pre-

paid ones and maintain the asset cover in accordance with the terms of Trust Deed.

3.2.2. Further, for maintaining the quality of underlying assets, following parameters are

being proposed:

a) A delinquency rate benchmark shall be fixed by the DT at the time of signing of

Debenture Trust Deed (DTD). This delinquency rate in assets will be used by DT

as one of the factor for monitoring the asset quality.

b) If the delinquency rate in assets breaches the proposed threshold, issuer will be

asked to replace those assets with other standard assets within a given time

frame.

c) Issuer shall disclose the covenants of maintaining the quality of assets, conditions

of replacing the bad/ delinquent assets in Investment Memorandum (IM) and DTD

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to create transparency and reduce the information gap regarding the covenants

of the charge creation and the process thereafter.

d) The asset cover shall also certify the compliance with all the covenants mentioned

in the IM or DTD, as applicable.

Rationale:

Charge creation mechanism enables creditors to control credit risks and consequently

lowers the cost of credit to debtors. To ensure that the security interests of the lenders

remain more effective and enforceable in the insolvency/liquidation process, asset cover

certificates are currently provided by the issuer on a quarterly/ half-yearly basis.

Asset cover certificate is used for the purpose of monitoring the adequacy of assets

charged against the debt obligations of the issuer. Presently the asset cover certificate is

submitted to the Debenture Trustee duly certified by an independent auditor on a quarterly

basis by the issuer and duly certified by statutory auditor on a yearly basis.

It has been observed that the format of asset cover certificate varies from DT to DT. A few

debenture trustees ask for detailed list of assets on which charge is created along with CA

certificate whereas most of them receive only a statement that the 100% cover is

maintained along with the asset cover ratio, making it difficult for them to understand the

nature and quality of assets.

Accordingly, it is proposed to make the asset cover certificate more granular establishing

the above mentioned parameters to enhance the monitoring of the quality of the underlying

assets.

3.3. Calling of Event of Default (EoD) at ISIN level

DTs shall call EoD at ISIN level, which shall also include breach of any covenant mentioned

in the IM/ DTD.

Rationale:

It was observed that the practice of issuance of debenture in the market varies from issuer

to issuer. The debentures are sometimes issued in multiple tranches under an umbrella

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DTD. Often it is observed that there are multiple International Securities Identification

Numbers (ISINs) in an IM. With regard to the calling of EoD also, it was observed that the

current market practices are inconsistent and differ from DT to DT. Some DTs call EoD at

DTD level whereas some do it at ISIN level. Considering the fact that if a single investor is

invested in a debenture under an ISIN, he has full right to enforce the security under that

ISIN. Accordingly, it is proposed that EoD shall be called at ISIN level.

3.4. Mechanism/ Conditions of joining Inter-Creditor Agreement (ICA)

Debenture Trustees shall join ICA subject to approval of debenture holders and following

conditions:

i. Signing of ICA and agreeing to the Resolution Plan should be in best interest of the

investors.

ii. DTs shall ensure that the following conditions are part of ICA before signing the ICA:

a) If Resolution Plan imposes condition(s) on the DTs which are not in accordance

with the provisions of SEBI Regulations and circulars issued, then DTs shall be free

to exit ICA altogether with the same rights as it if never signed ICA. In such a

circumstance, Resolution Plan would not be binding on the DTs.

b) Resolution Plan shall be finalized within 180 days from the end of review period. If

not, the DTs shall be free to exit the ICA altogether with the same rights as it if never

signed the ICA. In such a circumstance, Resolution Plan would not be binding on

the DTs. However, If ICA extends beyond 180 days, DTs can take extension beyond

180 days’ subject to approval of debenture holders with total timeline not exceeding

1 year from commencement period of ICA.

c) If any of the terms of the approved Resolution Plan are contravened by any party

to the ICA, DTs shall be free to exit the ICA and take legal recourse or take any

other action as deemed fit in the interest of the debenture holders.

Further, a Debenture holder representative committee consisting of debenture holders

having majority investment may be formed after default by the issuer, to Fast Track the ICA

process and consent seeking by Debenture Trustee during the course of ICA.

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Rationale:

Corporates borrow by way of debentures and in many of the cases, the security offered on

that debenture is on pari-passu basis with the other lenders (banks). Recently, in the case

of default by DHFL, Debenture trustees have been approached by the consortium of banks

to sign the ICA to consider the resolution plan. However, there lie multiple challenges in

respect of the interest of the debenture holders in case of Debenture trustee joining the ICA

framework, which are as follows:

i. After the signing of the ICA during the review period, the resolution plan must be

finalized under the 180-day period provided under the RBI’s new rules. However,

there can be a further extension of 6 months for finalization of Resolution Plan,

resulting into delay for debenture holders in case no plan is finally agreed by

lenders.

ii. The notice period to receive the consent for further action in case of default has

been stipulated as 21 days, which makes it difficult to sign ICA within the review

period of 1 month.

iii. As part of the ICA, the lenders (including the dissenting lenders) are not allowed to

initiate any legal action or proceedings (including proceedings under Insolvency and

Bankruptcy Code, 2016) against the borrower or any other person that may

jeopardize the successful implementation of the Resolution Plan.

iv. The resolution plan in respect of the Facilities availed by the Borrower may involve,

amongst other, any action/plan/reorganization including without limitation the

following:

a) Infusion of additional money by all lenders.

b) Conversion of debt into equity.

c) Transfer of all or part of the assets of the Borrower to one or more persons.

d) Rollover of debt.

Most of the possible Resolution Plan listed above may not be acceptable to DTs as

most of the debenture holders are debt MF schemes.

v. The Resolution Plan provides for payment of “not less than liquidation value” to

dissenting lenders. The liquidation value will be decided by an independent valuer.

The dissenting lender can also agree to sell or transfer their loan facilities to any

other lender as part of the resolution plan at a mutually agreed-upon price. Since,

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debt holders have less probability of getting favourable Resolution Plan, the above

scenario might be the treated path for them in every case, which can be achieved

through DRT itself and without the delay of 6 months.

vi. The Resolution Plan approved by the majority lenders is final and binding on all the

lenders and each lender (including the dissenting lender) agrees and undertakes to

be bound by the Resolution Plan. Since it is a bank-led process, debenture holders

might be at a disadvantage most of the times.

While it is important that investors have an option to recover their entire money albeit with

a delay, however, dissenting lenders should be free to decide and take action in their best

interest rather than be forced to take liquidation value. Accordingly, it is proposed to allow

the DTs to join the ICA subject to the approval of the debenture holders and the conditions

proposed as above.

3.5. Voting mechanism

i. Time period sought for seeking consent shall be reduced to 15 days from 21 days.

ii. For public and private placement, DT shall enforce the security by taking negative

consent in the event of default (EoD).

iii. The consent of debenture holders for enforcement of security and for joining ICA

shall be taken simultaneously in the same letter

iv. Negative consent for enforcement of security and positive consent for joining ICA

shall be taken in the same letter.

v. Proof of dispatch and delivery shall be maintained by the Debenture Trustee.

vi. Providing E-Mail IDs shall be compulsory for Debenture holders in case of Private

Placement.

Rationale:

It was observed that the Debenture Trustees face various procedural problems in seeking

consent for future course of action which leads to delay in enforcing the security. In case

of an ICA formed under RBI guidelines, taking consent twice - first for joining ICA and then

for Enforcement of security can cause further delay in enforcement of security. Further, the

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notice period to receive the consent for further action in case of default has been stipulated

as 21 days, which makes it difficult to sign ICA within the review period of 1 month.

It is also observed that the contact details received from Registrar and Transfer Agents

(RTAs) are not updated most of the times, making it difficult for DTs to communicate with

debenture holders when needed. Since providing E-mail IDs is not mandatory for

Debenture holders, DTs face problem in conducting E-Voting as well.

Accordingly, it is proposed to reduce the timeline for seeking consent to 15 days. The

proposal on taking negative consent for enforcement of security will ensure prompt filing

for recovery by DT. Also, simultaneous approval in the same letter for joining ICA and

enforcement of security shall prevent repetition of the same consent seeking process and

will reduce the time lag for enforcement of security.

3.6. Creation of a recovery fund

i. A fund shall be created by the issuer at the time of issuance of debt that shall be

used by DT in the event of default towards recovery proceedings expenses.

ii. The value of such fund shall be 0.01% percentage of the issue subject to the cap

of 25 lakhs per issuer.

iii. The above shall not be applicable on AAA rated bonds. However, in case of rating

downgrade of a AAA rated bond, the issuer shall be obligated to create such fund

within a fixed timeframe.

iv. Disclosure to such affect shall also be made in the IM. Such fund shall be overseen

by the DT.

v. The amount shall be returned to the issuer at the time of maturity in case there is

no default by the company.

Rationale:

In the event of default, while the DTs are not able to recover their dues/ fees from the issuer,

they are still obligated to act in the interest of the investors and work towards enforcement

of security. Currently Debenture Trustees call for meeting of Debenture holders in case of

default to discuss the further course of action along with an estimate of cost to be borne by

debenture holders for the recovery proceedings. In most of the cases debenture holders

bear this cost. However, delays have been observed in the enforcement proceedings as the

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money is not always received on time. If the DTs are adequately funded in advance, then

the filing of recovery proceedings can be expedited.

Accordingly, in order to have a prompt enforcement of security, it is proposed to create a

fund beforehand towards recovery proceeds, which shall be used by Debenture Trustee in

case of default only.

3.7. Minimum Disclosures on the website by DTs

DT shall mandatorily make the following minimum disclosures on their website:

i. Quarterly Compliance Reports received from the issuers.

ii. Compliance status on the receipt of asset cover from the issuers, maintenance of

various funds by the issuers.

iii. Defaults by the company.

iv. Status of the proceedings of the cases under default.

v. Compliance status of each covenant- issue wise on a half yearly basis.

vi. Repayment schedule calendar/ calendar of interest and redemptions issuer wise

(already mandated)

Rationale:

Regulation 15 of SEBI (Debenture Trustees) Regulations, 1993 has mandated certain set

of duties on DTs which they are required to discharge throughout the maturity of the bond.

Based on the complaints received from the investors in the recent default cases, it appears

that the investors are not aware of the monitoring by the DTs and the compliance status of

the issuers regarding various covenants disclosed in the IM.

Accordingly, in order to enhance the transparency, it is proposed to mandate minimum

disclosures as above.

3.8. Disclosures regarding Performance of DTs

Disclosure on the following parameters may be made by DTs which would be reflective of

their promptness in discharging their duties:

i. Timeliness on action taken (adhering to the time-lines specified by regulations/

transaction documents).

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ii. Monitoring of covenants / security cover

iii. Timely intimation of a breach in covenants (if any).

iv. Timely raising of red-flags if the issuer response is unsatisfactory.

v. Effectiveness in enforcing security/ remedial actions in case of default.

vi. Promptness in convening debenture holder’s meeting and aiding in decision

making as and when requested or required.

Rationale:

Currently, there are no performance indicators of DTs that can enable/ allow the investors

to ascertain the performance of the particular DT.

While the disclosures are required for enhancing the transparency, few parameters are

also required to enable the investors to discern the performance of the DTs in expeditious

enforcement of the security and effective monitoring of the covenants. Accordingly, it is

proposed to have disclosures on certain parameters by DTs in order to enable the investors

to discern the performance of the DTs.

3.9. Public Disclosure of all covenants by the issuer in IM

All covenants including the accelerated payment covenants whether given by way of side

letter or otherwise shall be incorporated in the IM by the issuer at the time of issuance of

debentures and disclosed on the stock exchange. The issuer shall also be obligated to

inform the DT of such covenants for monitoring of the same by DT on behalf of the

investors.

Rationale:

SEBI (Issue and Listing of Debt Securities) Regulations, 2008 provide for disclosures to be

made in the offer document. The offer document shall contain all material disclosures which

are necessary for the subscribers of the debt securities to take an informed investment

decision.

However, it has been observed in the recent cases of defaults by Reliance Capital, Altico

and DHFL that issuers and investors at the time of issuance of debt securities sign specific

documents which contain certain covenants. These are generally called “side letters.” One

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of the common covenants that has been observed is an “accelerated payment clause”

which states that if the borrower violates the terms of the covenant(s), including default or

downgrade of debt, such lender is entitled to demand immediate repayment. This

accelerated repayment exercised by one lender may have a bearing on other lenders and

may have a cascading effect on the liquidity and operations of the borrower, leading to

insolvency. It was observed that in recent times, the use of such covenants by lenders has

become more frequent which may have pushed firms into financial difficulty increasing the

probability of default.

Accordingly, the use of such covenants affects the interest of all the other investors in that

issue. It is, therefore proposed that all such covenants shall be publicly disclosed in the IM

and on the stock exchanges.

3.10. Standardization of Debenture Trust Deed (DTD)

DTD shall be bifurcated into two parts:

i. Part A of DTD shall contain generic/standard clauses common to all DTDs.

ii. Part B of DTD shall contain specific and customized clauses/covenants relevant to

the particular issue for which the DTD is executed.

Rationale:

The DTD signed between the issuer and the DT includes standard covenants given in DT

Regulations and form SH12 of the Companies Act. Such DTDs also include customized

clauses specific to the issue. However, DTDs are lengthy, legal documents running into

hundreds of pages sometimes. Therefore, a need is felt to standardize the DTD to make it

more comprehensible and easy to read and understand by the debenture holders.

Accordingly, it is proposed to standardize the DTD and bifurcate it into two parts along the

lines of the offer document of the Mutual Funds.

3.11. Enhanced Disclosures

Following additional disclosures shall be made by the issuer in IM:

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i. A risk factor to state that while the debenture is secured against a charge to the tune

of 100% of the principal and interest amount in favour of DT, the possibility of recovery

of 100% of the amount shall depend on the market scenario prevalent at the time of

enforcement of the security.

ii. The issuer has no side letter with any bond holder except the one(s) disclosed in the

IM and on the stock exchange website where the debt is listed.

iii. About Pari-Passu charge and the entitlement of the investor in such cases.

iv. The rights and duties of the DT.

v. The detailed procedure to be followed at the time of default by the DT including

relevant procedures of ICA, DRT / National Company Law Tribunal (NCLT) and IBC.

vi. The procedure and manner of calling meeting of debenture holders.

Following additional disclosures shall be made by the issuer in DTD as well:

i. The rights and duties of the DT.

ii. The detailed procedure to be followed at the time of default by the DT including

relevant procedures of ICA, DRT / NCLT and IBC.

iii. The procedure and manner of calling of meeting of debenture holders, responsibility

of debenture holders in such situations etc.

iv. Bearing of recovery expenses in case of default.

Rationale:

The details about the terms of the debentures, duties of debenture trustees and redressal

mechanisms in case of default are not known to the investors. The investors, therefore, are

not fully aware of the risks undertaken while investing. In order to enhance transparency

about the roles of various players and the provisions of the market structure, it is proposed

to have the adequate disclosures in the IM and DTD.

3.12. A framework for imposing fines and Standard Operating Procedure (SOP) for the same

An SOP shall be prepared that shall list out the penalties for specific violations by the issuer

company for the listed debt.

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Rationale:

At the time of signing of DTD by the Debenture Trustee and issuer company, duties and

responsibilities of the issuer are laid out in detail in DTD which includes cooperation with

Debenture Trustee and dissemination of information to Debenture Trustee and Stock

exchanges on a timely basis. However, lot of cases of non-cooperation with the DT have

been noticed. SEBI (Listing Obligations and Disclosure Requirements) Regulations, 2015

(LODR Regulations) also impose certain obligations upon the issuer with regard to the

submissions made to the debenture trustee. Adjudication proceedings are initiated against

such issuers which are in violation of the provisions of the LODR Regulations. However,

such actions usually take time, during which, the non-compliance may continue.

Accordingly, in order to improve compliance and discourage the non-cooperation it is

proposed to develop an SOP in this regard. This SOP shall act as a deterrent and instill

better cooperation and compliance by the issuers.

4. Public Comments:

Public comments are invited on the proposals contained in the Consultation Paper in the following

format:

Name of entity/ person/ intermediary/ organization: __________________

Sr. No. Pertains to Point No. Comments/ suggestions Rationale

Comments/ suggestions may be forwarded by email to [email protected] or sent by post to

the following address latest by March 17, 2020:

General Manager

Division of Policy & Inspection (CRA/DT)

Market Intermediaries Regulation and Supervision Department

Securities and Exchange Board of India

SEBI Bhavan, Plot No. C7, "G" Block, Bandra Kurla Complex

Bandra (East), Mumbai - 400 051

Ph: 022 - 26441315

Issued on: February 25, 2020

Annexure II

Analysis of Public Comments received for Consultation Paper

This has been excised for the reasons of confidentiality

Documents

SECURITIES AND EXCHANGE BOARD OF INDIA Review of the