Privately placed debt is undoubtedly the lifeline for majority of NBFCs. The stringent condition requiring sufficient security cover for privately placed debentures, including NCDs, will surely affect the NBFCs who primarily raise money by issue of debentures
The primary market for corporate debt in India is mainly dominated by private placements of debts (93% of total issuance in 2011-12) as corporates prefer this route to public issues because of operational ease, i.e. minimum disclosures, low cost, tailor made structures and speed of raising funds. Banks/financial institutions (42.3% of total issuances) followed by finance companies (26.4%) were the major issuers of debentures in 2011-12.
As per the Reserve Bank of India’s (RBI) report on “Trend and Progress of Banking in India”, 2011-12, NBFCs-D (loan and asset finance companies) borrowed Rs238 billion by issue of debentures during the year 2011-12 constituting 29.42% of total borrowings of these NBFCs. During the same period, Rs2,950 billion has been raised by NBFC-ND-SI constituting 46.11% of total borrowings. Such debentures consisted of both—secured and unsecured issues. As apparent from these figures, NBFCs-NDs are the companies having largest source of borrowings through issue of debentures. Thus, privately placed debt is undoubtedly the lifeline for majority of NBFCs.
However, with the intent to regulate such privately placed issues of debentures by NBFCs and to ensure minimum compliances, RBI vide notification dated 27 June, 2013 has inter-alia issued guidelines on private placement of securities by NBFCs. The guidelines have come into existence with immediate effect from the date of the notification.
The guidelines seem to have startled the NBFCs. This is evident from the quantum of queries and clarifications raised by the industry resulting in issue of another notification clarifying some of the provisions of the guidelines by the RBI within five days of the issue of the guidelines.
Definition of “Private Placement”
Ideally clarifications are issued solely for the purpose of clarifying things already stated or issued. Imagine the irony, as RBI in its so called ‘clarification’ has completely changed the meaning and applicability of the guidelines! Initially, the guidelines defined “private placement” as to include issue of capital by an NBFC pursuant to Section 81 (1A) of the Companies Act, 1956. It is pertinent to note that Section 81 (1A) requires approval of shareholders in case of convertible debentures only issued on preferential basis and does not cover any issue of non-convertible debentures (NCDs). However, RBI’s intent was to regulate the private placements of NCDs because for convertible debentures, there already exists appropriate regulations [for listed NBFCs—SEBI ICDR Regulations and for unlisted public NBFCs—Companies (Preferential Allotment of Shares) Rules, 2003 as amended from time to time]. Thus the very basis of issue of guidelines could have been lost.
However, realizing the same, in guise of clarification the RBI immediately replaced the definition of “private placements” to include “non-public offering of NCDs by NBFCs to such number of select subscribers and such subscription amounts, as may be specified by the Reserve Bank from time to time” and the excluded instrument of the guideline became the main crux of the clarification. What was the only thing excluded in the guidelines became the sole substance of the clarifications!
Time gap between two successive issues of debentures
Borrowing by issue of debentures is the backbone of an NBFC. Some NBFCs issue debentures almost every month, every week to fulfill their funding needs. However, previously, in the guidelines, RBI seemed to adopt a stricter norm and provided a minimum time gap of at least six months in between the two private placements. However, after receiving several comments from the non-banking industry regarding this condition, the RBI has withdrawn the minimum time gap condition for the time being.
Taking away the current facility of issuing NCDs and implementing the minimum time gap requirements between two issues will surely lead to Asset Liability Mismatch (ALM)
Restriction on number of subscribers in a private placement
Overriding the provisions relating to “deemed public offer” as prescribed by Section 67(3) of the Companies Act, 1956, which exempted NBFCs, the guidelines have put a limit of maximum number of subscribers as 49 under a private placement issue or issue on preferential basis of debentures. Thus, though the Companies Act exempts NBFCs, the RBI guidelines have now introduced the “deemed public offer” provision for NBFCs for issue of debentures at least.
Other highlights of the guidelines
The other highlights of the guidelines, as amended/clarified by the clarification are as under:
The requirement of maintenance of security cover at all points of time was initially applicable to all debentures issued, including short term NCDs. However, realizing that subordinated debt are primarily unsecured, later excluded the same in the clarifications.RBI by this notification has also suitably amended Non-Banking Financial Companies Acceptance of Public Deposits (Reserve Bank) Directions, 1998, thereby clarifying that only debentures that are compulsorily convertible into equity or fully secured would be exempted from the definition of public deposits. Further, it has been clarified that hybrid debt or subordinated debt would be excluded if such instruments have been issued with no recall option within the tenure of the instrument.
As the directions now have been amended to exclude debentures “compulsorily convertible into equity”, the route of raising funds by way of issue of Optionally Convertible Debentures (OCDs) has been put an end by the RBI. Generally, companies followed a practice of issuing OCDs with an option to issuer to convert them into shares of the company and no need to mention that such an option is never intended to exercise. Thus in guise of OCDs, companies were taking advantage of the existing clause in the directions and were getting exemption from the applicability of directions by issuing OCDs on tailor-made terms and conditions. However, NBFCs-NDs will now require to mandatorily issue Compulsorily Convertible Debentures, as issuance of OCDs will qualify as public deposits.
The guidelines seem to have been issued against the backdrop of recent ruling of the Supreme Court in the Sahara Real Estate Corporation case pertaining to raising of money by issue of OCDs which were issued on “private placement basis”, wherein nearly Rs20,000 crore of money had been raised, from 22.1 million investors, using services of nearly a million agents, at 2,900 branches. And all this were regarded to be a private placement. In view of such adverse features brought to the notice of the RBI, wherein NBFCs have been raising resources from the retail public on a large scale, through private placement, especially by issue of debentures, RBI has issued the guidelines overriding other instructions in this regard for NBFCs, wherever contradictory and has introduced the concept of “deemed public offer” for NBFCs also.
The purpose behind issuing the guidelines is to curb the practice followed by NBFCs of raising resources from the retail public on a large scale, through private placement, especially by issue of debentures and to ensure proper resource planning to be undertaken by NBFCs. In view of the same, as per the clarifications, the RBI has directed NBFCs to formulate a board approved policy for resource planning, covering the planning perspective and periodicity of private placement, before close of business on 30 September 2013.
Despite being excluded from the limit of 49 investors under the Companies Act, NBFCs will not be able to privately place their debentures with more than 49 investors as per the guidelines. The stringent condition requiring sufficient security cover even for privately placed debentures, including NCDs, will surely affect the NBFCs who primarily raise money by issue of debentures. However, the RBI seems determined to correct the faulty resource planning of NBFCs and may come up with a circular specifying the minimum time gap between two private placements too in near future.
Experian has increased its bid to Rs27 from Rs25 per share to buy minimum 26% stake in High Mark, the debt-ridden and cash-strapped credit bureau from India. The question, however, is whether High Mark would exist post the deal or will it be merged with Experian
Experian Credit Information Company of India Pvt Ltd (Experian India), one of the four credit information companies (CICs) in India licensed by the Reserve Bank of India (RBI), is about to seal a deal with High Mark Credit Information Services Pvt Ltd (High Mark). The due diligence process initiated by Experian is likely to end by this week, say our sources.
According to the sources, Experian has increased its bid to Rs27 from Rs25 to buy minimum 26% stake in troubled and cash-strapped High Mark. While this deal would allow High Mark to survive, it would allow Experian to strengthen its position in the market. Especially, the microfinance business segment of High Mark would allow Experian access to a new market.
However, whether High Mark would exist as separate credit bureau or would merge its business with Experian cannot be confirmed. According to sources, High Mark may continue to exist to cater to its clients, majority of which are from the microfinance segment.
Talking about the need for CICs to cater to unbanked population, RBI deputy governor Dr KC Chakrabarty had said, “...the key deliverable for the CICs in the coming days would be to facilitate a smoother credit decision making process and, thereby, bring down the cost of financial transactions and credit intermediation in the banking and financial system for the benefit of the masses, especially for the retail and small and medium enterprise (SME) segments.”
“I believe that the next wave of financial innovation would be around providing financial services to a large section of the unbanked population. This would require presence of the necessary tools, techniques, processes, technology, infrastructure and enabling regulations. As most of the target population would be first time credit seekers, it would require an aggregation of information on credit proxies on these individuals. Scoring and evaluation techniques will follow. Banks, insurance and telecom companies will do well in making the best use of the presence of existing CICs in India, during their credit appraisal processes. CICs should, on their part, continuously remain engaged in innovation to support these entities at multiple levels through various value added services and products encompassing their customer's entire life cycle,” Dr Chakrabarty had said at a recent conference.
Coming back to High Mark, last year the credit bureau was negotiating with Italy-based CRIF credit bureau for a bailout. High Mark was offered Rs30 per share by CRIF, which is also an existing shareholder in the credit bureau. CRIF SpA owns 9.09% stake in High Mark. Officials from the Italian credit bureau also met senior executives of the RBI. However, the banking regulator rejected the proposal because of its reservations about CRIF's ownership pattern.
High Mark was negotiating with other credit bureaus to do an asset sale including 250 million records collected from member institutions, says a complaint filed by a former employee of the credit bureau to the finance minister, RBI governor D Subbarao, secretaries from the finance ministry and financial services.
Earlier, while declining to comment on the High Mark deal, Richard Fiddis, managing director for strategic markets at Experian Plc, had said, “Indeed, Experian India—our JV credit information company is going through the process of recapitalization as per our original funding plan for the business and Experian as the cornerstone investor has already contributed its share of the recapitalization funds.”
Experian India is a joint venture of UK-based Experian with Axis Bank, Federal Bank, Indian Bank, Magna Finance, Punjab National Bank, Sundaram Finance and Union Bank of India.
At present, foreign direct investment (FDI) in a credit bureau is capped at 49% and any transfer of more than 5% of shares requires approval from the RBI. Similarly, institutional investment in a credit bureau is capped at 10%.
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Without disclosing the details of the clarifications sought, SEBI has said that “clarifications (are) awaited from lead manager” for the proposed rights issue
Market regulator Securities and Exchange Board of India (SEBI) has sought clarification from the merchant banker of Godrej Properties, the real estate arm of Godrej Group, regarding the company's proposed Rs700 crore rights issue.
Without disclosing the details of the clarifications sought, SEBI has said that “clarifications (are) awaited from lead manager” for the proposed rights issue.
In a rights issue, shares are issued to existing investors as per their holding at pre-determined price and ratio.
As per the latest weekly update to the processing status of draft offer documents filed with SEBI, the regulator has said clarifications were awaited on the proposed rights issue of Godrej Properties as on 5 July 2013.
The status is updated on a weekly basis by the regulator and the next update of the status as on July 12 2013 would be uploaded on the SEBI website on the next working day.
SEBI said it might issue observations on Godrej Properties’ document within 30 days from the date of receipt of satisfactory reply from the lead merchant bankers to the clarification or additional information sought from them.
The regulator had received the draft offer documents of on 5 June 2013 through its lead manager Kotak Mahindra Capital Company. The company’s proposed rights issue is estimated to raise up to Rs700 crore.
The funds raised through the issue would be utilised for ongoing projects as well as new projects.