Executive Summary:
This circular, effective January 1, 2021, outlines guidelines following amendments to the SEBI Issue and Listing of Debt Securities Regulations and SEBI Debenture Trustees Regulations. It details requirements for creating security for listed debt securities and mandates due diligence by debenture trustees. Issuers must provide specific information to debenture trustees, who must then conduct independent due diligence and issue certificates.
Key Points / Main Content:
Documents and Consents for Debenture Trustee Agreement:
* Issuers must provide details of assets for charge creation, including title deeds, agreements, and registration evidence.
* For unencumbered assets, an undertaking confirming the absence of encumbrances is required.
* For encumbered assets, consents and NOCs from existing charge holders and unsecured lenders are needed.
* Details of personal or corporate guarantees, including net worth statements, financial statements, and invocation conditions, must be provided.
* If securities are offered as security, a holding statement from the depository participant is required.
Due Diligence by Debenture Trustee:
* Debenture trustees must conduct independent due diligence to ensure asset sufficiency.
* This includes verifying asset encumbrances via Registrar of Companies, CERSAI, etc., and intimating existing charge holders about further charge creation.
* For guarantees, filings with the Ministry of Corporate Affairs, Stock Exchanges, CIBIL, etc., must be verified.
* Debenture trustees must prepare valuation reports, ROC search reports, and other relevant reports.
* A due diligence certificate, as per Annexure A, must be issued, confirming adequate disclosures and compliance.
Disclosures and Filing Requirements:
* Issuers must disclose if charged assets are registered and independently verifiable.
* Terms of the debenture trustee agreement and details of due diligence must be disclosed in the offer document or private placement memorandum.
* The due diligence certificate must be included in the offer document or private placement memorandum.
Charge Creation and Registration:
* Issuers must create a charge in favor of the debenture trustee and execute a debenture trust deed before listing.
* Stock Exchanges will only list debt securities upon receipt of a due diligence certificate (Annexure B) confirming charge creation and execution of the debenture trust deed.
* The created charge must be registered within 30 days; failure to do so is considered a breach.
Impact Analysis:
Issuers:
* Impact: Increased disclosure requirements and the need to provide detailed documentation for security creation.
* Action Required: Comply with the new disclosure norms in offer documents, private placement memorandums, and ensure timely registration of charges.
Debenture Trustees:
* Impact: Enhanced due diligence responsibilities and the need to independently verify asset sufficiency and compliance.
* Action Required: Establish processes for independent due diligence, maintain records for five years, and issue due diligence certificates as per the specified formats.
Stock Exchanges:
* Impact: Gatekeeping role in listing debt securities, ensuring compliance with charge creation and due diligence requirements.
* Action Required: Verify receipt of due diligence certificates from debenture trustees before listing debt securities.
Investors:
* Impact: Enhanced security and transparency in debt securities offerings due to stricter due diligence and disclosure requirements.
* Action Required: Review the offer documents, private placement memorandums, and the due diligence certificate to assess the security and risks associated with the debt securities.
Key Entities Referenced
SEBI: Securities and Exchange Board of India, the regulatory body.
SEBI Issue and Listing of Debt Securities Regulations, 2008: Regulations governing the issuance and listing of debt securities.
SEBI Debenture Trustees Regulations, 1993: Regulations governing the role and responsibilities of debenture trustees.
Debenture Trustee: An entity registered with SEBI responsible for protecting the interests of debenture holders.
Registrar of Companies: A government agency that maintains records of companies registered in India.
Central Registry of Securitization Asset Reconstruction and Security Interest (CERSAI): A central registry in India for security interests created on assets.
Insolvency and Bankruptcy Board of India (IBBI): The regulatory body for insolvency proceedings in India.
Companies Act, 2013: An Act of the Parliament of India that regulates incorporation, operation and winding up of companies
SEBI/HO/MIRSD/CRADT/CIR/P/2020/218 November 03, 2020
To,
All issuers who propose to list their debt securities
All Recognized Stock Exchanges
All Debenture Trustees registered with SEBI
Dear Sir/ Madam,
Sub: Creation of Security in issuance of listed debt securities and ‘due diligence’ by
debenture trustee(s)
1. In order to secure the interest of investors in listed debt securities and to enable debenture
trustee(s) to perform their duties effectively, amendments to the SEBI (Issue and Listing of
Debt Securities) Regulations, 2008 (“ILDS Regulations) and SEBI (Debenture Trustees)
Regulations, 1993 (“DT Regulations”) were approved by SEBI Board and notified vide Gazette
Notifications no. 34 and 35 dated October 08, 2020. Following guidelines are issued to give
effect to above amendments:
A. Documents/ Consents required at the time of entering into debenture trustee
agreement
2. Regulations 17, 21 and 21B of ILDS Regulations require an Issuer to disclose a proposal to
create security in offer document (“OD”) or private placement memorandum (“PPM”)/
information memorandum (“IM”). Schedule I of ILDS Regulations specifies that the type of
security (movable, immovable, tangible, intangible etc.) and type of charge (pledge,
hypothecation, mortgage etc.) shall be disclosed by the Issuer.
3. Regulation 13 of the DT Regulations stipulates that the debenture trustee shall enter into a
written agreement (“debenture trustee agreement”) with the Issuer before the debenture
trustee agrees to act as debenture trustee in respect of the said issue of debt securities.
Page 1 of 84. In order to enable the debenture trustee to exercise due diligence with respect to creation of
security, the Issuer at the time of entering into debenture trustee agreement shall provide the
following information/ documents to the debenture trustee(s):
4.1. Details of assets, movable property and immovable property on which charge is proposed
to be created including title deeds (original/ certified true copy by issuers/ certified true
copy by existing charge holders, as available) or title reports issued by a legal counsel/
advocates, copies of the relevant agreements/ Memorandum of Understanding, copy of
evidence of registration with Sub-registrar, Registrar of Companies, Central Registry of
Securitization Asset Reconstruction and Security Interest (CERSAI) etc.
4.2. For unencumbered assets, an undertaking that the assets on which charge is proposed
to be created are free from any encumbrances.
4.3. For encumbered assets, on which charge is proposed to be created, the following
consents along-with their validity as on date of their submission:
(a) Details of existing charge over the assets along with details of charge holders, value/
amount, copy of evidence of registration with Sub-registrar, Registrar of Companies,
CERSAI, Information Utility (IU) registered with Insolvency and Bankruptcy Board of
India (IBBI) etc. as applicable;
(b) Consent/ No-objection certificate (NOC) from existing charge holders for further
creation of charge on the assets or relevant transaction documents wherein existing
charge holders have given conditional consent/ permission to the Issuer to create
further charge on the assets, along-with terms of such conditional consent/
permission, if any;
(c) Consent/ NOC from existing unsecured lenders, in case, negative lien is created by
Issuer in favour of unsecured lenders.
4.4. In case of personal guarantee or any other document/ letter with similar intent is offered
as security or a part of security:
(a) Details of guarantor viz. relationship with the Issuer;
(b) Net worth statement (not older than 6 months from the date of debenture trustee
agreement) certified by a chartered accountant of the guarantor;
Page 2 of 8(c) List of assets of the guarantor including undertakings/ consent/ NOC as per para 4.2
and 4.3 above;
(d) Conditions of invocation of guarantee including details of put options or any other
terms and conditions which may impact the security created;
(e) Executed copies of previously entered agreements for providing guarantee to any
other person, if any.
4.5. In case of corporate guarantee or any other document/ letter with similar intent is offered
as security or a part of security:
(a) Details of guarantor viz. holding/ subsidiary/ associate company etc.;
(b) Audited financial statements (not older than 6 months from the date of debenture
trustee agreement) of guarantor including details of all contingent liabilities;
(c) List of assets of the guarantor along-with undertakings/ consent/ NOC as per para 4.2
and 4.3 above;
(d) Conditions of invocation of guarantee including details of put options or any other
terms and conditions which may impact the security created;
(e) Impact on the security in case of restructuring activity of the guarantor;
(f) Undertaking by the guarantor that the guarantee shall be disclosed as “contingent
liability” in the “notes to accounts” of financial statement of the guarantor;
(g) Copy of Board resolution of the guarantor for the guarantee provided in respect of the
debt securities of the Issuer;
(h) Executed copies of previously entered agreements for providing guarantee to any
other person, if any.
4.6. In case securities (equity shares etc.) are being offered as security then a holding
statement from the depository participant along-with an undertaking that these securities
shall be pledged in favour of debenture trustee(s) in the depository system.
4.7. Details of any other form of security being offered viz. Debt Service Reserve Account etc.;
4.8. Any other information, documents or records required by debenture trustee with regard
to creation of security and perfection of security.
Page 3 of 8B. Due diligence by debenture trustee for creation of security
5. Regulation 15(6) of SEBI (Debenture Trustees) Regulations, 1993 (DT Regulations) inter-alia
requires debenture trustee, to exercise independent due diligence and Regulation 15(1)(i) of
DT Regulations places obligations on the debenture trustee to ensure that the assets of the
Issuers are sufficient to discharge the interest and principal amount with respect to debt
securities of the Issuers at all times.
6. Debenture trustee(s) by itself or through its advisers or experts shall independently carry out
due diligence. The terms and conditions with respect to exercising due diligence shall also be
included in the debenture trustee agreement. The due diligence to be exercised by debenture
trustee(s) with respect to creation of security shall inter-alia include the following:
6.1. Debenture trustee shall verify that the assets provided by Issuer for creation of security
are free from any encumbrances or necessary permissions or consents has been
obtained from existing charge holders by carrying out the following checks:
(a) Verify from Registrar of Companies, Sub-registrar, CERSAI, IU or other sources
where charge is registered/ disclosed as per terms.
(b) In case of conditional consent/ permission received as per para 4.3(b) above:
i. Verify whether such conditional consent/ permission given to Issuer by existing
charge holders is valid as per terms of transaction documents;
ii. Intimate to existing charge holders via e-mail about the proposal to create
further charge on assets by Issuer seeking their comments/ objections, if any,
to be communicated to debenture trustee within next 5 working days.
6.2. In case of personal guarantee, corporate guarantee and any other guarantees/ form of
security, the debenture trustee shall verify the relevant filings made on websites of
Ministry of Corporate Affairs, Stock Exchange(s), CIBIL, IU etc. and obtain appraisal
report, necessary financial certificates viz. from statutory auditor in case of corporate
guarantee, certificate from Chartered Accountant in case of personal guarantee, as
applicable, of the guarantor/ Issuer.
7. Debenture trustee, by itself or through its appointed agencies viz. chartered accountant firm,
registered valuer, legal counsel etc., shall prepare one or more reports viz. valuation report,
Page 4 of 8ROC search report, title search report/ appraisal report, asset cover certificate, any other
report/ certificate as applicable etc. and shall independently assess that the assets for creation
of security are adequate for the proposed issue of debt securities.
8. Debenture trustee shall issue ‘due-diligence certificate’ as per format specified in Annexure A
to the Issuer subject to the following:
8.1. Information on consents/ permissions required for creation of further charge on assets
are adequately disclosed in OD or PPM/ IM.
8.2. All disclosures made in the OD or PPM/ IM with respect to creation of security are in
confirmation with the clauses of debenture trustee agreement.
8.3. All covenants proposed to be included in debenture trust deed (including any side letter,
accelerated payment clause etc.) are disclosed in OD or PPM/ IM.
9. Debenture trustee(s) shall maintain records and documents pertaining to due diligence
exercised for a minimum period of five years from redemption of the debt securities.
C. Disclosures in the offer document or private placement memorandum/ information
memorandum and filing of OD or PPM/ IM by the Issuer
10. The Issuer, in addition to disclosures made under Schedule I of ILDS Regulations and
circulars issued thereunder, shall also disclose the following in the OD or PPM/ IM:
10.1. “Debt securities shall be considered as secured only if the charged asset is registered
with Sub-registrar and Registrar of Companies or CERSAI or Depository etc., as
applicable, or is independently verifiable by the debenture trustee.”;
10.2. Terms and conditions of debenture trustee agreement including fees charged by
debenture trustees(s), details of security to be created and process of due diligence
carried out by the debenture trustee;
10.3. Due diligence certificate as per the format specified in Annexure A.
11. An Issuer proposing to file draft OD or PPM/ IM for offering securities through electronic book
mechanism or serially printing PPM/ IM as per Section 42 of Companies Act, 2013 and rules
made thereunder shall submit the due diligence certificate from debenture trustee to stock
exchange as per format specified in Annexure A.
Page 5 of 8D. Creation and registration of charge of security by Issuer
12. Before making the application for listing of debt securities, the Issuer shall create charge as
specified in the OD or PPM/ IM, in favour of the debenture trustee and also execute debenture
trust deed (DTD) with the debenture trustee.
13. The Stock Exchange(s) shall list the debt securities only upon receipt of a due diligence
certificate as per format specified in Annexure B from debenture trustee confirming creation
of charge and execution of the DTD.
14. The charge created by Issuer shall be registered with Sub-registrar, Registrar of Companies,
CERSAI, Depository etc., as applicable, within 30 days of creation of such charge. In case the
charge is not registered anywhere or is not independently verifiable, then the same shall be
considered a breach of covenants/ terms of the issue by the Issuer.
15. This circular is issued in exercise of the powers conferred upon SEBI under Section 11 (1) of
the Securities and Exchange Board of India Act, 1992 read with the provisions of Regulation
2A of the Securities and Exchange Board of India (Debenture Trustees) Regulations, 1993
and Regulation 31(1) of the Securities and Exchange Board of India (Issue and Listing of Debt
Securities) Regulations, 2008 to protect the interest of investors in securities and to promote
the development of, and to regulate, the securities market.
16. Applicability: The provisions of this circular shall come into force w.e.f. January 01, 2021 i.e.
for new issues proposed to be listed on or after January 01, 2021.
Yours faithfully,
Richa G. Agarwal
Deputy General Manager
Market intermediaries Regulation & Supervision Department
Email id: richag@sebi.gov.in
Phone: +91-22-26449596
Page 6 of 8Annexure A
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY THE DEBENTURE
TRUSTEE AT THE TIME OF FILING THE DRAFT OFFER DOCUMENT OR PRIVATE
PLACEMENT MEMORANDUM/ INFORMATION MEMORANDUM
To,
Stock Exchange
Dear Sir / Madam,
SUB.: ISSUE OF ____________________ BY _______________LTD.
We, the debenture trustee(s) to the above mentioned forthcoming issue state as follows:
1) We have examined documents pertaining to the said issue and other such relevant
documents, reports and certifications.
2) On the basis of such examination and of the discussions with the Issuer, its directors and
other officers, other agencies and on independent verification of the various relevant
documents, reports and certifications, WE CONFIRM that:
a) The Issuer has made adequate provisions for and/or has taken steps to provide for
adequate security for the debt securities to be issued.
b) The Issuer has obtained the permissions / consents necessary for creating security on
the said property(ies).
c) The Issuer has made all the relevant disclosures about the security and also its
continued obligations towards the holders of debt securities.
d) Issuer has adequately disclosed all consents/ permissions required for creation of
further charge on assets in offer document or private placement memorandum/
information memorandum and all disclosures made in the offer document or private
placement memorandum/ information memorandum with respect to creation of security
are in confirmation with the clauses of debenture trustee agreement.
e) Issuer has disclosed all covenants proposed to be included in debenture trust deed
(including any side letter, accelerated payment clause etc.), offer document or private
placement memorandum/ information memorandum.
f) Issuer has given an undertaking that charge shall be created in favour of debenture
trustee as per terms of issue before filing of listing application.
We have satisfied ourselves about the ability of the Issuer to service the debt securities.
PLACE:
DATE:
DEBENTURE TRUSTEE TO THE ISSUE WITH HIS STAMP
Page 7 of 8Annexure B
FORMAT OF DUE DILIGENCE CERTIFICATE TO BE GIVEN BY THE DEBENTURE
TRUSTEE AT THE TIME OF FILING OF LISTING APPLICATION BY ISSUER
To,
Stock Exchange
Dear Sir / Madam,
SUB.: ISSUE OF ____________________ BY _______________LTD.
We, the debenture trustee(s) to the above mentioned forthcoming issue state as follows:
1) We have examined documents pertaining to the creation of charge over assets of Issuer.
2) On the basis of such examination and of the discussions with the Issuer, its directors and
other officers, other agencies and of independent verification of the various relevant
documents, WE CONFIRM that:
a) The Issuer has created charge over its assets in favour of debenture trustee as per
terms of offer document or private placement memorandum/ information memorandum
and debenture trustee agreement.
b) Issuer has executed the debenture trust deed as per terms of offer document or private
placement memorandum/ information memorandum and debenture trustee agreement.
c) The Issuer has given an undertaking that charge shall be registered with Sub-registrar,
Registrar of Companies, Central Registry of Securitization Asset Reconstruction and
Security Interest (CERSAI), Depository etc., as applicable, within 30 days of creation
of charge.
We have satisfied ourselves about the ability of the Issuer to service the debt securities.
PLACE:
DATE:
DEBENTURE TRUSTEE TO THE ISSUE WITH HIS STAMP
Page 8 of 8