Insolvency and Bankruptcy Code - FEBRUARY 2018 - ficci
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Financial Foresights Editorial Team Jyoti Vij Contents jyoti.vij@ficci.com 1. INDUSTRY INSIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Abha Seth n Insolvency and Bankruptcy: Will the Recovery Game Change in India?. . . . . . . . . . 5 Sankar Chakraborti abha.seth@ficci.com Chief Executive Officer & Executive Director SMERA Ratings Limited Anshuman Khanna n Evolution of I&BC - Initial Impressions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 anshuman.khanna@ficci.com Sanjeev Krishan Leader, Deals and Private Equity Financial Foresights PwC India Team n Role of ARCs in the post IBC era . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Birendra Kumar Supriya Bagrawat Managing Director & CEO supriya.bagrawat@ficci.com International Asset Reconstruction Company Private Limited (IARC) n Asset Reconstruction under IBC regime - Advantage ARCs . . . . . . . . . . . . . . . . . . . . 14 Amit Kumar Tripathi Jaisry Mani amit.tripathi@ficci.com Chief Manager - Law Edelweiss Asset Reconstruction Company Limited Chikku Bose n Insolvency & Bankruptcy Code - A Brief Analysis on Recent Market Trends . . . . 17 chikku.bose@ficci.com Abhishek Pandey Managing Director Duff & Phelps About FICCI n Insolvency and Bankruptcy Code – Resolution Applicant's Perspective . . . . . . . . . 23 FICCI is the voice of India's Babu Sivaprakasam business and industry. Partner & Head - Banking & Finance Practice Established in 1927, it is India's Economic Law Practice (ELP) oldest and largest apex n Impact of Insolvency and Bankruptcy Code, 2016. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 business organization. FICCI is Madhukar R.Umarji Former Executive Director in the forefront in articulating Reserve Bank of India the views and concerns of n Challenges to the Insolvency and Bankruptcy Code, 2016 . . . . . . . . . . . . . . . . . . . 31 industry. It services its Bahram Vakil members from the Indian Partner private and public corporate AZB & Partners sectors and multinational n Bankruptcy Code: Not a Panacea but Start of a New Era . . . . . . . . . . . . . . . . . . . . . . . 34 Rakesh Valecha companies, drawing its Senior Director & Head - Core Analytical Group strength from diverse regional India Ratings & Research Pvt. Limited chambers of commerce and 2. FICCI'S DATA CENTRE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 industry across states, reaching n Equity Capital Markets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 out to over 2,50,0000 n Mergers & Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 companies. n Debt Capital Markets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Disclaimer n Loan Markets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 n Project Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 All rights reserved. The content of this publication may not be n Investment Banking Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50 reproduced in whole or in part without the consent of the 3. FINANCIAL SECTOR ENGAGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 publisher. The publication does not verify any claim or other information in any advertisement and is not responsible for product claim & representation. Articles in the publication represent personal views of the distinguished authors. FICCI does not accept any claim for any view mentioned in the articles. Financial Foresights 1
Industry Insights Insolvency and Bankruptcy: Will the Recovery Game Change in India? Sankar Chakraborti Chief Executive Officer & Executive Director SMERA Ratings Limited Introduction short term. It may be argued that Rehabilitation of these so called such bad loans are a side effect of Non Performing Assets (NPAs) has The process of corporate bad loan rapid expansion, which the Indian been tedious as debtors continued recoveries in India has been very economy underwent during its to hold the controlling power and long and often extending up to 15 growth phase of 2004-09. As were unable to make progress on years, as historical data suggests. profitability and revenues were on the resolution process. The According to World Bank, India the rise in almost every sector, Government of India and the RBI takes over 4 years to declare a corporates anticipated future introduced several initiatives to promoter or a company insolvent demand and rapid capacity expedite the resolution and which is more than twice the time augmentations became a norm. The restructuring of bad debt, however taken in China and USA. story however didn't end well - this too was not successful with Consequently, Indian banks have post the 2009 financial crisis, the recoveries averaging less than 20%. been observed to recover only 25 return on investments were Initiatives such as Joint Lender cents to a dollar compared to 36 nowhere to be seen. With slowing Forums (JLF) on the other hand cents in China and as much as up to exports and subdued domestic were formed to get all lenders on 80 cents in USA. demand, corporates sat on one platform but it was plagued by The Insolvency and Bankruptcy excessive capacities and utilization regulatory complications. Also, Board of India (IBBI) is the levels languished at near 65% multiple lenders to one account country's attempt to safeguard levels. Further, regulatory changes made matters complex as resolution in certain sectors such as power, creditor interests and builds a of every NPA account with coal and telecom had also led to framework that will introduce multiple lender parties required an stress in several loans. The most hit specialist recovery agents as soon as approval constituted by at least were large borrowers (corporates), an event is triggered. Now 60% by number and 75% by with larger exposures. Since most widespread in most prominent quantum. Lending banks therefore slippages were in exposures of the economies, the 'in -place' system continued to accumulate non- Rs. 200 million category and over, will aid speedy resolutions of bad performing assets without any lenders comprising mainly of debt as India evolves into a full- resolutions, over heating their commercial banks and bond fledged market economy. balance sheets. The provisioning holders found themselves at risk. Public sector banks were the most made for such accounts mounted The rise of insolvency vulnerable and were holders of additional pressure on bank Net and bad debt nearly 75% of these loans and Interest Margins and caused Bad loans are estimated to be nearly therefore potentially $60-$100 lending resources to diminish. In 8.4% of Indian GDP and are billions of loans are in systemic lock the scenario, without NPA estimated to rise moderately in the out. resolutions, banks have become Financial Foresights 5
Industry Insights increasingly conservative in their the National Company Law committee will receive an extension lending operations adversely Tribunal (NCLT) then authorizes of 90 days beyond which impacting offtake. the process and gives a go ahead to liquidation will be initiated. The the IRP. This is followed by the entire process will be under the The initiation of creation of a Creditor Committee supervision of a registered Insolvency Resolution (CC) that decides upon the fate of Insolvency Professional (IP), who Process (IRP) the failing company. Notably, the will be appointed by the IBBI. The Creditor Committee composes not IP will also oversee the liquidation The introduction of the Insolvency only of the large secured creditors of the company in an event when and Bankruptcy laws is expected to (namely commercial banks) but also the CC has been unable to reach a restore the control to the creditors workmen (employees) whose dues decision within the stipulated 270 and hence is an attempt to are outstanding along with bond days of the proceedings. safeguard their interests. The holders. Also, worth mentioning is Furthermore, dedicated Government's vision is to build a the fact that Government's share in Information Utilities (IU) will be framework that will introduce the debt outstanding is considered appointed to assist the IRP. These specialist actors as soon as an event junior to all other obligations. IUs will be specialist information is triggered. Now widespread in Within the new waterfall archivers, which will facilitate the most prominent economies, the in - mechanism, the former's share is proceedings through supply of place system will aid speedy classified as subordinated and credible financial information resolutions of bad debt as India follows private parties and pertaining to the company in evolves into a full-fledged market workmen. This is done to question. It must be noted that the economy. Under these laws, an encourage unsecured parties and period for which the IRP is in place, Insolvency Resolution Process (IRP) deepen India's bond markets. there will be a moratorium, within is triggered by a creditor as soon as Once the IRP is initiated, the CC is which no claims will be settled. a default event occurs. The process given 180 days for the debt Proceedings will culminate into a starts with an intimation sent by resolution, if no decision is reached dispute resolution encompassing all any creditor to the defaulted entity, within the timeframe, the parties involved. The IRP Process Diagram Secured Creditors, Insolvency Workmen, Bond Creditor Committee (CC) Professional (IP) Holders, Government Information Utility (IU) Company in Default Financial Foresights 6
Industry Insights Benefits also reduce the time involved and help reform defaulter apathy offer an alternate path. Importantly, towards creditors. With a dedicated l Transfer of control to creditors for individuals with annual income standardized process in place that l No disparity between secured of less than Rs. 60,000, the IBBI involves specialized actors and unsecured creditors provisions a 'Fresh Start' that committed to resolve a default l Introduction of a specialized basically allow entrepreneurial scenario in a time bound fashion - framework and actors spirits to continue. we expect significant impact on the l Speedy resolution (provision of very perception of default. As Conclusion 180 days and maximum of 270 things stand today, even though it We believe that the IBBI will is still too early to assess the real days) eventually subsume most changes that will be brought about l Government dues treated as bankruptcy and insolvency by the IBBI, it is clear that debt junior debt within the water fall instruments such as SARFAESI Act, restructuring or eventual mechanism RDDBFI Act, S4A and SDR and liquidation will be a speedier Systematic insolvency and allow more transparency and exercise and hopefully less bankruptcy proceedings for accountability. The impact of the frustrating for the stakeholders. n individuals on the other hand will IBBI will be far reaching and will Sankar Chakraborti is Independent Director on the Board of Indian Oil Corporation Limited, India's largest and a Fortune 500 company and l Member of the Working Group constituted by the Insolvency and Bankruptcy Board of India for recommending the strategy and approach for implementation of the provisions of the Insolvency and Bankruptcy Code, 2016. l Member of FICCI's Capital Markets Committee l Member of IBA's Standing Committee on MSMEs l Member of the Board of Studies (Finance) of SIES College of Management Studies (SIESCOMS) At SMERA, Sankar is leading SMERA's transformation from being world's first SME focused credit rating agency to a technology and innovation driven global knowledge company. SMERA has completed rating of over 47,000 entities. To know more about SMERA click here. Prior to SMERA, Sankar has worked for CRISIL, Centre for Monitoring Indian Economy (CMIE) and Capital Market Magazine. He was part of the founding team of CRISIL Research and CRISIL's Bank Loan Rating businesses. He was also deputed to S&P's Tokyo office in 2006. Sankar is a sought after speaker at universities, seminars and thought leadership forums. Sankar aims to assist businesses make informed and better decisions to achieve profitable growth, and to help bring in transparency to financial transactions, through independent & unbiased opinion. He firmly believes that trust, innovation, excellence and service are the four values of a rating agency which is going to keep it relevant and meaningful in the coming decades. Financial Foresights 7
Industry Insights Evolution of I&BC - Initial Impressions Sanjeev Krishan Leader, Deals and Private Equity PwC India In one year, Insolvency & where cases have to be resolved usage of IBC can be estimated by Bankruptcy Code (IBC) has come a within 180/270 days, failing which simply looking at the data provided long way with 2,434 fresh cases the corporate debtor will have to by Lok Sabha. Since the being referred to NCLT. The undergo liquidation. Prior to the introduction of IBC, 2,434 new cases Economic Survey 2017-18 tabled in code, it used to take multiple years have been filed before NCLT and the last week of January 2018, for creditors to resolve NPA. IBC 2,304 winding up cases have been described IBC as a mechanism has also been instrumental in transferred from High Courts which is being used actively to consolidating multiple debt across India as of 30th November, resolve NPA problem of the resolution/ recovery platforms such 2017. These numbers clearly show banking sector. IBC has been cited as DRT, SICA, SARFAESI and High that IBC has become the preferred as one of the most significant Court. Now creditors have a clear route to resolution for the creditors. reforms introduced by the current guideline to follow that clarifies Also, the rate at which NCLT is government. Government has also details till last mile including the either accepting or rejecting been proactive in introducing manner of distribution of recovery applications is commendable as it various amendments strengthening proceeds. encourages more and more the bankruptcy framework. The IBC brings about a paradigm shift creditors to take this route for real impact of the code will be seen in recovery/ resolution process by efficient NPA resolution. upon completion of the resolution introducing the concept of creditor process of the first twelve cases Key amendments and in control from debtor in where insolvency proceedings were possession. This encourages value their likely impact filed by banks mid - last year. enhancement of the corporate After the introduction of this Code, However, early positives have been debtor as once this process start, the it was felt that promoters may be seen in World Bank's ranking board cedes control of the company able to bid for their businesses / where India's position in ability to and insolvency professional along assets and possibly get back at a handle insolvency cases improved with the help of professional heavy discount through by 33 places to 103rd position. This advisors start managing the participation in resolution process jump contributed significantly in company. and start afresh with clean balance India's ease of doing business sheet. As this was something Post admission of 12 largest NPA ranking by 30 places to join top 100 undesirable, government came up cases, banks have been gearing up countries club. with a major amendment to the to refer majority of cases from RBI's One of the main attractive features second list of 28 accounts, which is Code which has made it extremely of the IBC is its time bound nature under progress. Magnitude of difficult for defaulting promoters to Financial Foresights 8
Industry Insights participate in the resolution process ensure that all legitimate result in an approval from of the corporate debtor. In case such creditors are considered in the mentioned regulatory bodies. promoters want to participate in the resolution plan. Additionally, Accordingly, it is suggested resolution process, they must repay clarification with respect to that Code clarifies highlighting their dues in a month time. Post this handling past liabilities, that such grants and requests amendment, many people have contingent liabilities and made by the successful debated if such a restriction will ongoing material litigations resolution applicant are heard reduce competition among will also be a big positive for and closed in a time-bound bidders. Similarly, MSME that are interested applicants. manner. relatively smaller in size, might not Corporate debtor might have l The Code does not provide for l attract any bidders. Such a scenario third party agreements that the management of the would increase the haircut for the might be detrimental to the corporate debtor during the creditors or worse, a large number period between NCLT company. It is felt that Code of cases would end up in approval and transfer of should empower successful liquidation causing loss of jobs and ownership. Post NCLT resolution applicant to modify destruction of enterprise value. The approval, the successful bidder such agreement in best jury is still out on the impact of this has to perform various interests of the company amendment on resolutions under transaction related activities in without facing any penalties the code. addition to obtaining approvals that might be applicable as per On the other hand, in order to from multiple regulatory previous agreements. ensure large pool of investors, bodies and other authorities. l NCLT's objective of completing amendment brought relief by During this significantly long resolution and keeping allowing asset reconstruction period, the Code should detail liquidation as a last resort companies, alternative investment out the environment in which should also reflect in the voting funds (AIFs) including private the company will operate. An requirement. Currently, equity funds to participate in the example in this regard is the requirement of 75% votes for bidding process. moratorium period that ceases approval of plan (i.e. While NCLT will keep on working to have any effect once NCLT resolution) means that a small towards improving the Code, it is approval is obtained. However, percentage (25%) of votes can important that industry change of control in the take the company to participants who are involved in company happens much later. liquidation.It is felt that a the process also provide their Also, what is the role of the requirement like this results in feedback and suggestions which Insolvency professional and high probability of liquidation they are doing through IBBI. IBBI under what terms do they get which is not ideally desirable. has been proactively engaging with engaged during this period, if In order to derive maximum Insolvency Professionals to collect at all. value from the corporate reports of and feedback on ongoing l There is a major challenge debtor, it will be in best cases. We feel that there are certain currently present in completing interests of all stakeholders if areas in the Code that can be the ownership change due to voting criteria is revisited. modified for more clarity and various approval conditions. Reducing the percentage based smooth transaction process. In most cases successful on value and also introducing a resolution applicant has to take concept of percentage by l There might be cases where approvals from bodies such as number could be more creditors do not submit claims SEBI, RBI, NSE, BSE, CCI and equitable. or claims which have been submitted are under dispute. others. However, these bodies l With the framework evolving, Code should explore clarifying are not bound by NCLT and an role of Insolvency Professional treatment of such cases to approval from NCLT might not (IP) is also becoming more Financial Foresights 9
Industry Insights challenging. One major issue control of the company or visit cases come to a close and set faced by IP is that the claims the premises. precedents for future. While IBC are to be collected within a has provided creditors with a new l It is unclear how transactions fixed specified period. As per tool to manage their relationship will unfold what terms our experience, this is a with debtors, its impact on identified during lookback improving future credit scenario in difficult task as claims keep on period review. Also, given the India and on avoiding bad debts coming during the entire life of short time frame for corporate going forward is yet untested. process that makes list of insolvency resolution process, However IBC has the potential to creditors dynamic in nature. So level of detailing in 2 year be a game changer for the Indian far, we have seen slow lookback review is debatable. economy. Not only would it help developments in the formation The public sector banks who banks release capital which is of information utilities. In a are under the scepter of locked-in in NPAs, it will also instill year's time, only one CVC/CBI are also reluctant to credit discipline among bank information utility has come initiate/progress such audits. officials. Promoters also will have a into existence. We can expect a One suggestion could be that higher sense of responsibility and few more of such entities companies are expected to be transactions above a certain coming up which would be a identified as stressed at an early threshold (for example, big plus for claim verification stage. This framework also presents transaction amount as a % of and will be of significant a huge opportunity for Indian debt turnover) should only be assistance to the IP. market where majority of looked. l NCLT should also identify investments are private in nature. IBC can present itself as a friendlier With debt resolution picking pace, bodies that can provide environment for all the Indian debt market has the security to IP in case company stakeholders by focusing on above potential to become vibrant with officials do not cooperate due mentioned areas. Clarifications are increasing share of public to which IP is unable to take likely to keep coming as current investments. n Sanjeev Krishan is a partner in Financial Advisory Services with over 20 years of professional experience in carrying out due diligence reviews, share and business valuations, business plan and working capital reviews for multi-national clients as well as domestic clients, both in the private and public sectors. Sanjeev worked with PwC Stockholm for a period of 20 months between 1998 and 2000 where he gained exposure in working with financial investors and also worked with numerous strategic investors. Apart from India and the Scandinavian countries, he has worked on deals in United States, United Kingdom, Continental Europe, Indonesia, Bangladesh, Japan, Thailand and Middle East. He is the Private Equity leader of PwC India and does a lot of work for private equity clients in India, and also co-ordinates and leads efforts regarding outbound transactions. Some of his private equity clients include Apollo, AION, Apax, JP Morgan, Carlyle, Sequoia, Advent, AMP, CVC, GIC, Providence, Macquarie, TA Associates, amongst others. Sanjeev works with clients from a cross-section of industry segments. On a functional basis, Sanjeev works across the deal continuum, with a focus on due diligence / valuation and post deal services, specifically including review of sale and purchase agreements, negotiation support, transaction structuring and post closing and integration advisory. The article has been co-authored by Ankur Kedia. Ankur is Associate Director of Business Recovery Services and specializes in the field of distressed debt and business turnaround solutions. He has more than 10 years of professional experience spanning across corporate banking, asset reconstruction and advisory. He has experience across the entire spectrum of debt financing. As a advisory professional he has helped companies syndicate, refinance, restructure and settle their balance sheet debt. As part of the investment team of an asset reconstruction company he has made successful investments in companies facing financial stress. Financial Foresights 10
Industry Insights Role of ARCs in the post IBC era Birendra Kumar Managing Director & CEO International Asset Reconstruction Company Private Limited (IARC) Introduction clean the NPAs off the bank's books uniqueness of the IBC, the biggest but also to turnaround the sick change that the IBC seeks to bring The trigger for the enactment of the units to the path of profitability. to the table is to instill a sense of SARFAESI Act in 2002 and for the While the principle of the discipline amongst trade and Insolvency and Bankruptcy Code in enactment was laudable, and ARCs industry regarding the need of 2016, is the same - the need to have indeed emerged as a viable timely payments by providing the resolve the problem of the ever option for banks to clean their unpaid vendor with an effective mounting non-performing and books, the results have been well remedial tool. It also aims to bring stressed assets in the banking short of expectations and the the essence of 'time'amongst system. In the fourteen years that volume of stressed assets in the lenders, judicial fora and have passed between the two books of banks has only increased professionals - a quintessential enactments, much has been done to over time. The stories of factor for preserving the value of an improvise the remedies available to turnaround post restructuring by enterprise which is on the verge of banks and financial institutions. ARCs have been few and far in bankruptcy. The swiftness with While the legislature has amended between. While the purpose of this which the Government, the the existing laws like the Recovery article is not to discuss the reasons Regulators (IBBI, RBI and SEBI) and of Debts due to Banks and Financial for the above, factors such as the the judiciary are acting, is Institutions Act, (RDDB) and the capital crunch with ARCs, the issue unprecedented and sets the tone for SARFAESI Act, the Regulator has of price expectations between ARCs all else to emulate. Whether they introduced new schemes like the and seller banks, the lack of a like it or not, decision making in the Strategic Debt Restructuring (SDR) favorable legal environment to banking system right from the and S4A to fight the menace. Much support recovery efforts have been branches to the head offices, will recovery has happened owing to some of the contributing factors. need to be quick, as delays can be the above initiatives, but certainly fatal. Consensus and solution not enough to give the bankers, the Why is the IBC a game oriented approach amongst the government and the regulator a changer? creditors sitting on the committee is sound sleep. Just like when the RDDB Act and yet another factor which banks will Asset Reconstruction Companies have to deal with - as deadlocks the SARFEASI Act were introduced (ARCs), at the time of their birth in will lead to liquidation. in 1993 and in 2002 respectively, 2002 were seen as a panacea for the many have raised doubts as to how Why the IBC is also a game changer resolution of the NPA problem. the IBC will be successful in doing is because, while it builds upon the ARCs were conceptualized as what those Acts have not been able laudable aim of rehabilitation just specialized companies with the to do. While much has been like the Sick Industrial Companies onerous responsibility to not only written and discussed on the Act, this new law is circumspect of Financial Foresights 11
Industry Insights the pitfalls that SICA faced and is ticket accounts that have been there is enough value still thus decisive on the outcome of a taken to the NCLT fall in the existing in the asset. failed attempt of restructuring and second or third category - lack Second, the ARC, having that too within a time limit. of or no bidders. Given that bought the account at a banks have to provide 50% discount from the original ARCs in the IBC era? provisioning in their profit and lender bank, is in a better Over the past fifteen years, the loss account once an account is position than that bank to number of ARCs has increased to referred to the NCLT, the pinch negotiate a competitive deal 24 and there are more awaiting is painful especially where the with a prospective bidder. regulatory clearances. Many of resolution plan is dependent ARCs' ability to aggregate the these are backed by strong domestic upon the sale to bidders. It is debt also favorably assists it to and international financial even more painful given the gain a majority voting share on institutions and have developed fact that provisioning increases the Committee of Creditors and capability to turn around ailing to 100% in case the resolution drive the resolution plan. industrial undertakings. As banks plan fails for want of bidders or l Interim financing look at IBC favorably as an otherwise and the debtor goes effective means to recover their into liquidation. A bank is, The IBC defines 'interim dues, thus pops the question therefore, in a catch 22 situation finance' as any financial debt whether ARC - the child of where if it accepts to sell to the raised by the resolution SARFAESI - would continue to bidder it has to suffer a huge professional during the remain relevant? The answer is a haircut and if it doesn't and insolvency resolution process. clear yes, and is based on three allows the account to go into From where the resolution fundamental principles - The IBC is liquidation, then it stands to professional shall raise this primarily intended to be a means of lose a larger portion of the finance is not specified and reviving and rehabilitating units at money lent. hence is open to all who may be the verge of failure and not a willing to provide. It is This paradox throws open two recovery tool. The business of unlikely that a bank, with its opportunities for ARCs. One, banks is banking and not recovery; loan unrecovered on the one not all lenders to the debtor ARCs are meant to be strategic hand and the burden of would have felt the need to restructuring specialists and not provisioning on the other, initiate the insolvency process. extended hands of banks for would want to risk additional Initiation of IBC proceedings recovery. funds by way of interim by some other financial or even financing to a borrower Given the above principles, ARCs operational creditor would undergoing corporate have a very unique and important mean forced 50% provisioning insolvency process. ARCs can role to play in the IBC regime. by each lender bank. fill this vacuum and provide the l Provisioning woes of banks Commercially, it may make much-needed finance required and debt aggregation ability sense for the bank to assign the to fund the operations. of ARC loan to an ARC than to commit However, in the event of 50% provisioning and then A good sale is when you can liquidation of the debtor, wait for its money to be negotiate amongst competing interest payable on such interim recovered upon success of a multiple bidders. Lack of financing should not be resolution plan. This is multiple bidders means you are restricted to the liquidation especially true for SMA forced to put up with a limited commencement date. Clarity category of accounts (which are few and sell in a buyers' from the RBI would perhaps not yet declared as NPAs), market. No bidders mean you help whether interim financing where little cushion exists in write off a loss. Unfortunately, by ARCs, especially when they the form of provisions and most of the small and medium Financial Foresights 12
Industry Insights are not a financial creditor to financial sponsors, as are undertaking changes within to the debtor under insolvency, mentioned earlier, are suitably meet the aims of this new law, would be in consonance with placed to tie the lose ends and ARCs too will have to change and their permitted activities under submit a viable resolution plan. evolve. The IBC is a golden the SARFAESI Act. opportunity for the ARCs to assert Conclusion l Match making their unique position and leverage The IBC is a game changing law. from their experience gained over a The recent Ordinance followed The new game demands to be decade and a half. They will have to by the amendment to the IBC played according to new rules and rise to the occasion as the real has restricted the eligibility as hence each player will have to turnaround experts - a laudable aim to who can be a resolution either transform or perish. As that SARFAESI intended but applicant. As such, ARCs - given the specialized expertise, various stakeholders - trade, somehow got lost in practical industry knowledge and with industry, banks, insolvency difficulties -because opportunity the backing of their strong professionals, courts and regulators seldom knocks the door twice.n Birendra Kumar is Managing Director & CEO of International Asset Reconstruction Company Private Limited (IARC). Mr. Kumar has been a career banker with over 5 decades of rich and diverse experience in commercial, investment & international banking in India and abroad. He was the Deputy Managing Director & Chief Credit Officer of State Bank of India, the largest public sector Bank in India. Prior to that, he was the MD & CEO of SBI Capital Markets Limited for a period of over three years. Mr. Kumar has wide experience in the stressed asset sector, having been Advisor, Financial Advisory Services, PwC, Mumbai from 2002 to 2007 wherein he was instrumental in initiating and leading Business Recovery Services (Distressed Debt Advisory) practice of PwC in Mumbai. He was actively involved in advising ARCs on positioning strategy, formulation of business plan and operationalization strategy and in developing policies and procedures. Mr. Kumar has served on several Expert Groups set up by the Reserve Bank of India and Government of India. He was a Special Invitee nominated by RBI on the in-house working group set up to examine issues pertaining to development of market for asset securitization and for high level meeting convened by Government of India in January 2002 on setting up the first Asset Reconstruction Company. He was the member of the PwC team for undertaking a study on behalf of Asian Development Bank and Government of India to suggest regulatory changes for creating an enabling environment for successful functioning of Asset Reconstruction Companies in India. Mr. Kumar was the member of Key Advisory Group set up by the Government of India to study and recommend measures to improve the functioning of ARCs. He was also Member of Ministry of Corporate Affairs Working Group on operationalization of the Insolvency & Bankruptcy Code. He is currently Member of FICCI's Core Group on Insolvency Laws & Chairman, Association of ARCs in India. Financial Foresights 13
Industry Insights Asset Reconstruction under IBC regime - Advantage ARCs Jaisry Mani Chief Manager - Law Edelweiss Asset Reconstruction Company Limited The idea of Asset Reconstruction reforms in the insolvency and Insolvency professionals and the Companies (ARCs) was conceived bankruptcy regime are critical for transactions under Corporate during the previous banking crisis improving the business Insolvency Resolution Process. It under the SARFAESI Act, 2002. The environment, the Government has has the power to frame and enforce powers conferred on the ARCs taken concrete measures to prove rules relating to corporate under the legislation to repossess that with the successful insolvency resolution, corporate secured assets and sell without the implementation of the Code, there liquidation, information utilities, intervention of courts worked well will be a greater impact on the individual insolvency and in the initial phase. However, over economy and the financial sector of bankruptcy. the past 15 years, its effectiveness the country which will promote and efficiency seem to be restricted entrepreneurship & revival of sick Post- IBC- shift in to small mortgage loans and SMEs units. This law along with all the approach where asset stripping is the primary underlying rules, regulations and resolution strategy. Asset various amendments have paved Time bound resolution is the key reconstruction or any meaningful the way for setting up of 11 objective of the Code. IBC seeks to resolution in medium and large National Company Law Tribunals promote entrepreneurship and assets, particularly manufacturing (NCLTs) across the country before availability of credit for revival. assets relatively has not been whom cases for Corporate The Code also seeks to promote re- possible due to multiplicity of laws Insolvency Resolution Process organisation of the company in a and judicial forums under the could be filed by a Financial systematic manner, failing which prevailing legal framework which Creditor/ Operational Creditor/ the liquidation of the concerned hindered effective recovery, revival Corporate Debtor itself. The Code entity is invited. The Code or liquidation. also laid the path for envisages a "Creditor in Control individual/partnership Regime" with the Committee of In the above backdrop, Insolvency Creditors (CoC) playing a vital role insolvencies provisions of which and Bankruptcy Code, 2016 in the whole process. The Code are yet to be notified. The (IBC/Code) has emerged as a envisages that any action with Insolvency and Bankruptcy Board pragmatic law conceived with the respect to the corporate debtor of India (IBBI) being the sole primary objective of facilitating under the Code needs the regulator was set up on 1st October, time bound resolution failing which consent/vote of at least 75% of the 2016 under the Code which liquidation. Recognizing that voting share of the financial regulates the profession of Financial Foresights 14
Industry Insights creditors/ CoC. The CoC Preponderance of liquidation cases statutory approvals; which in a comprising of financial creditors are in the initial phase of IBC Code is given case may be difficult and in a position to identify early probably on account of large time consuming thereby insolvency symptoms of a number of erstwhile BIFR cases resulting in the delay of borrower. which got filed under the Code and implementation of the hence may not be a true pointer of Resolution Plan. Enhanced role and the trend of things to unfold in l Multiple Resolution Plans: It relevance of ARCs post future. Legal and administrative is possible that the Resolution issues continue to be ironed out by the IBC Code Plan voted by the CoC may not the capable jurisprudence of the go through and if the second ARCs as assignees of secured debt NCLTs including the Hon'ble plan is not kept alive, then the of banks/financial institutions Supreme Court and the Hon'ble CoC will not have a fall back including NBFCs are at an High Courts. The receptiveness of mechanism and the company advantageous position due to their all the stakeholders including the will go into liquidation, ability to aggregate debt from all or Government, regulators, the therefore multiple Resolution majority lenders with necessary judicial system, and secured plans should be allowed. expertise as well as focus to turn creditors augur well for a smooth around stressed and distressed implementation of the Code. l Recourse against the assets or companies. With such guarantors: Normally a expertise along with majority debt Key challenges faced Resolution Plan would holding and the willingness / under the Code envisage haircuts and would appetite to take additional exposure entail release of guarantees by by way of priority loans in select l Related party under Section demand or by implication. 5(24) of Code: Inclusion of However if the Resolution Plan cases, ARCs would be able to chalk Banks, FIs, ARCs who have fails, the recourse to the out an appropriate resolution plan converted part of Debt into guarantors would be lost, for revival of stressed/distressed Equity in the definition of therefore the Creditors must be industries where by interest of 'Related party' disentitles them allowed recourse against the every stakeholder is considered on to be a part of the CoC if the Guarantors in case the equitable grounds and adequately equity held by these Banks, FIs Resolution Plan fails. protected. and ARCs is more than 20%. l Group restructuring: Presently Journey so far under the l Amendment Bill & Ordinance: no provision under the Code Code Prohibition of all promoters and/or regulations from Bidding and not allowing contemplates a common As on date more than 500 cases genuine and bona-fide resolution plan being have been admitted under promoters to bid may result in implemented in respect of Corporate Insolvency Resolution reduction in the number of multiple entities within the Process (CRIP); 115 cases are competitive bids and may also same group. admitted under Voluntary lead to liquidation if no Liquidation Process and about 38 l Cross border insolvency: These Resolution Applicant comes cases under Liquidation. Out of sections though notified, these forward. these cases, resolution plan for by itself may not be enough for insolvency resolution of the l Statutory approvals: A the actual implementation of an corporate debtors have been Resolution Plan may provide efficient and feasible cross- approved by NCLT in many cases. for application for fresh border insolvency regime. Financial Foresights 15
Industry Insights l Liquidation value due to the corporate debtor and may the CoC in control, the turnaround dissenting financial creditors: fail to attract good or viable of the Company if found viable will As per Regulation 38 of the resolution plans. be the foremost step taken by the CIRP Regulations, Liquidation CoC for maximization of value of l Funding of the resolution value due to dissenting the assets. Early identification and plans: A Resolution Applicant creditors needs to be paid prior corrective actions on the part of may have a suitable plan to to any recoveries by consenting various authorities will help make help the Corporate Debtor creditors. The Corporate the Code a robust law to tackle the come out of the CIRP process, Debtor/ Resolution Applicant malaise of NPA early. After the but it may be possible that such may not have funds to pay amendment of the ordinance, many a Resolution Applicant requires these dissenting financial borrowers/companies are funding for such Resolution creditors immediately. desperate to make at least some Plans. payments to the banks to be l Challenges in obtaining stopped from being classified as interim finance: Presently Journey ahead NPAs. Exciting times lie ahead for there are many challenges in The positivity around the all lenders, ARCs, borrowers, obtaining Interim finance from implementation of the Code shown potential resolution applicants, existing banks due to by the regulators and the professionals and experts to provisioning and asset Government is not only reassuring experience and work together to classification norms. Also it is but is also sending a clear message make the most practical and not clear whether the interim that resolving the NPA problem consolidated law a success for finance provider can charge faced by the country is certainly the many years to come. This is interest on the interim finance top most priority and Insolvency expected to place India in the race after the commencement of and Bankruptcy Code is the law by of countries for 'ease of doing liquidation. which this problem can be businesses. Although the law is still l Markets for interim finance: addressed in a systemic and in a in its nascent stage, the overall The Corporate Debtor usually time bound manner. With the feeling of the stakeholders is that do not have adequate liquid option of providing Interim Finance the Insolvency and Bankruptcy assets to continue its to such Corporate Debtors, the Code, 2016 is a game changer and a operations, in that case, it may Companies can immediately start to paradigm shift in the laws relating reduce the enterprise value of function as a going concern. With to Insolvency.n Jaisry Mani is Chief Manager, Law at Edelweiss Asset Reconstruction Company Limited. Prior to joining Edelweiss Asset Reconstruction Company Limited, she was a practicing lawyer associated with law firms with over 6 years experience in Arbitration (International and Domestic), litigation and non-litigation matters. Having joined Edelweiss in 2016, she is currently managing the Insolvency and Bankruptcy matters along with other recovery matters of the Company Financial Foresights 16
Industry Insights Insolvency & Bankruptcy Code A Brief Analysis on Recent Market Trends Abhishek Pandey Managing Director Duff & Phelps IBC: The much awaited cleanup exercise in India's history. Resolution Process (“CIRP”) in a The Corporate Insolvency nutshell is as follows: reform? The Insolvency and Bankruptcy Code has been in force for more than a year, and given its ambitious Default by company objectives and impact, it continues to make front page news. Following the footsteps of bankruptcy laws in Filing of Application before Adjudicating Authority developed economies like the UK and USA, IBC provides an excellent single framework to deal with Appointment of an Insolvency Professional (IRP/RP) insolvent and bankrupt firms. The most important function served by the Code is that it makes a clear Moratorium Period (180/270 days) distinction between insolvency and bankruptcy, the former being a short-term inability to meet the CoC Formation firm's liabilities, and the latter being a long-term view of the firm's ability to meet its liabilities. Since Resolution Plan Proposed insolvency is a short-term situation, it is extremely important to distinguish it from bankruptcy and provide a chance to the business to 75% of Goes into Implement the turn around. So far, more than 500 No Creditors to Yes Liquidation Resolution Plan Approve Plan companies have been brought to court by banks under IBC, leading to what is possibly the largest NPA Figure 1: Brief Description of CIRP under IBC, 2016 Financial Foresights 17
Industry Insights The Code was also hailed for days or 270 days as the case may However, it is interesting to note addressing the problem of delays in be, the corporate debtor is that as per a recent article by the system by prescribing a clear liquidated as per the orders of the Hindustan Times, a fifth of all IBC timeline for the process. NCLT. This aspect of the process cases have already crossed the 180- makes it look like an attractive If the corporate resolution plan is day deadline. The article mentioned route for recovery of bad debts. The not complied with within the official timeline of the process can that out of 525 cases admitted in moratorium period of either 180 be seen below: NCLT so far, resolution plans had only been approved for 10 companies and liquidation orders were passed only for only 30 No. of days companies. None of the big fish out Day –ve 14 of the first list of 12 companies Filing of application singled out by Reserve Bank of to NCLT India have reached a conclusive stage so far. It appears as if the Admission of initial heat around IBC is beginning Declare moratorium 0 application to wane and it might not end up providing the time- bound relief to creditors. However, it would NCLT to appoint interim 14 interesting to wait and watch the resolution professional 16 Public announcement progress over the next year and the banking sector cleanup continues. Appoint 2 registered 21 valuer to calculate liquidation value IBC: Standards of value IRP to constitute CoC and 30 to 44 submit 30 to 44 report As per section 35 (1) of the Insolvency and Bankruptcy Code, 37 Creditors to submit claims 2016 (“IBC”), “Liquidation Value is the estimated realizable value of the 1st CoC assets of the corporate debtor if the 51 meeting corporate debtor were to be liquidated on the insolvency 65 Preparation commencement date”. Further, of IM section 35 (2) of IBC requires the Submission of plan 150 valuer to determine liquidation value using internationally accepted valuation standards. CoC's approval of resolution plan According to the International Application for Valuation Standards (“IVS”) 104, 170 NCLT approval “Liquidation Value is the amount that would be realized when an 180 Initiation of liquidation asset or group of assets are sold on a piecemeal basis, that is without Figure 2A: Timeline of CIRP under IBC, 2016 consideration of benefits (or Financial Foresights 18
Industry Insights detriments) associated with a period of time to find a purchaser circumstances will depend upon a going-concern business”. (or purchasers), with the seller number of factors such as available being compelled to sell on an “as-is, time for disposal, market depth, etc. According to the Indian Banks' where-is basis”. It may also reflect the consequences Association (IBA), ”Liquidation The reasonable period of time to for the seller on failing to sell Value describes the situation where find a purchaser (or purchasers) within the period available. a group of assets employed depends upon asset type and As such, the premise of Liquidation together in a business are offered market conditions. Forced sale Value for the said purpose is for sale separately, usually describes a premise where a seller is Liquidation Value of the assets on a following a closure of the business”. under compulsion to sell and that, standalone basis (in most cases) or An orderly liquidation-based value as consequence, a proper marketing in some cases group of assets in an is the one that could be realized in a period is not possible. The price orderly sale. liquidation sale, given a reasonable that could be obtained in these + Typically, acquisition value by a Businesses Synergistic Value strategic buyer with no imminent Orderly Typically, acquisition value by a fear of Transaction in no nancial buyer liquidation Distress Situation Orderly Transaction Based on in Distress Situation Sale as a going concern Resolution (business sale) rather than individual assets Plan Businesses Orderly liquidation Liquidation Sale as individual assets facing (piecemeal basis) Value where sufcient time available liquidation Estimate for transaction Forced liquidation Sale as individual assets (piecemeal basis) where sufcient time not available for transaction - Figure 2B: Brief Description of Standards of Value under IBC, 2016 Breaking down the glut – points towards the cooling real defaulters (public companies only) estate market and its impact on the being approximately INR 95,600.0 who's going bankrupt? Cr as of December 31, 2017. associated industries. Delayed implementation of projects due to Downturn in the commodities Real estate, construction and land acquisition and environmental markets, coupled with low engineering segment made up international competitiveness of about 21.8 percent of all publicly clearances further adds to their Indian firms in the global market listed companies by asset value obstacles to generate revenue. has made it difficult for this with combined asset size of industry to revive. In cases like The Metals industry (17.3 percent) approximately INR 91,260 Crore Bhushan Steel, significant capacity has also been significantly affected (“Cr”) as of December 31, 2017. This with a total asset size of all expansion was undertaken at the Financial Foresights 19
Industry Insights peak of the commodity price cycle, industry is going through Kalyanpur Cements Limited, Amit leading to investments which never significant downsizing. Spinning Industries Limited and generated enough return. Jenson & Nicholson (India) Limited. Key trends 5.4 percent of all publicly listed The Technology industry (1.8 percent) saw the least number of defaulters filed for insolvency/ 16.2 percent of all publicly listed defaults, primarily due to lower bankruptcy with NCLT fall in the defaulters filed for insolvency/ financial leverage requirements in range of INR 50,000.0 - 1,00,000.0 bankruptcy with NCLT fall in the the industry, resulting in lower Cr, including companies like range of less than INR 100.0 Cr., cases filed with NCLT. This, Bhushan Steel Limited and Lanco however, may change as the including companies like Infratech Limited. Total Assets (Size Segmentation) 5.4% 16.2% Less than INR 100.0 Cr 13.5% INR 100.0 - 1,000 Cr. INR 1000.0 - 10,000.0 Cr INR 10,000.0 - 50,000.0 Cr 29.7% 35.1% Greater than INR 50,000.0 Cr. Figure 3: Range of Total Asset values of public companies led with NCLT under IBC, 2016 Public defaulters led with NCLT under IBC, 2016 (Industry-wise Segmentation)* Automobile (3) 6.4% Consumer Servicers (2) 8.2% Electricals (5) 6.4% Energy (1) 6.4% Food and Beverages (5) 6.4% Healthcare (2) 4.5% Metals (9) 17.3% Real Estate, Construction & Engineering (11) 21.8% Technology (2) 1.8% Textiles (4) 4.5% Others (7) 16.4% 0.0% 5.0% 10.0% 15.0% 20.0% 25.0% Figure 4: Industry-wise Segmentation of public companies led with NCLT under IBC, 2016 *Number of public companies considered under each industry are indicated in brackets. Financial Foresights 20
Industry Insights Stock price analysis – Healthcare and Electricals Industry median discount of 1.6 percent accounted for the highest median despite comprising the highest How is the market discount of 54.1 percent and 43.0 proportion of defaulters. reacting? percent, respectively. Interestingly, We also tried to understand the this includes Inox Wind, which was We tried to analyze the impact of trend of discounts based on the dragged to court for claims worth bankruptcy proceedings on stock total asset size of the companies. INR 56 lakhs and the share price price of the defaulting companies. Although no clear trend emerged tanked despite the company issuing Ideally, the market should price in for the analysis, the highest median clarifications. Companies in the the probability of default and give metals industry recorded the least discount was recorded by an indication of liquidation value of the companies. To weed out the effect on infrequent trading prices, we excluded the thinly traded stocks as well as companies with Discounts on stock prices (Asset-wise Segmentation) less than INR 100 crores of market capitalization. Our final sample size consisted of 37 companies. Less than INR 100.0 Cr 10.2% Comparing the stock price of each stock as of the date of admission into NCLT with its price 6 months INR 100.0 - 1,000 Cr. 30.1% prior, we computed the discount for each stock. We observed an average and median discount for all defaulters to be 25.7 percent and INR 1000.0 - 10,000.0 Cr 26.7% 23.2 percent, respectively. Interestingly, some of the prominent defaulters like Bhushan Steel, Jaypee Infratech, Jyoti INR 10,000.0 - 50,000.0 Cr 11.8% Structures, Monnet Ispat & Energy and S.A.L. Steel, actually observed an increase of about 30.0 percent in Greater than INR 50,000.0 Cr 24.4% their stock price. Incidentally, these companies also attracted significant buyer interest at the resolution stage. It appears as if the market does not expect these companies to Figure 5: Stock Price discounts of public companies led with NCLT under IBC, go into liquidation despite the high 2016 (Asset-wise Segmentation) leverage. Financial Foresights 21
Industry Insights companies in the range of INR 100.0 not seen major decline in stock acquired by a market participant in - 1,000.0 Cr at about 30 percent. prices/ marginal increase in stock the near future. n prices reflect their potential to be We can infer that firms that have Discounts on stock prices (Industry-wise Segmentation)* Automobile (3) 28.2% Consumer Servicers (1) 23.2% Electricals (4) 43.0% Energy (1) 28.7% Food and Beverages (5) 26.3% Healthcare (2) 54.1% Metals (6) 1.6% Real Estate, Construction & Engineering (8) 29.1% Textiles (3) 16.0% Others (4) 14.7% 0.0% 10.0% 20.0% 30.0% 40.0% 50.0% 60.0% Figure 6: Stock Price discounts of public companies led with NCLT under IBC, 2016 (Industry-wise Segmentation) *Number of public companies considered under each industry are indicated in brackets, differs from previous page due to thinly trading analysis and consideration of public companies only above market capitalization of INR 100.0 Cr. Abhishek Pandey is the managing director at Duff & Phelps and is based in Mumbai Abhishek is part of the national management in India. He is responsible for overseeing key engagements, relationships and strategic initiatives for the Indian operations. He is also responsible for driving M&A advisory in India. He has more than a decade long experience in managing a range of financial advisory engagements across various industries. He has provided financial advisory to clients for purposes including, mergers and acquisitions. Negotiations, In the area of valuation settlement of disputes, accounting and tax reporting, and strategic assessment. He has also helped companies to develop business strategies for expansion and pricing, and in evaluating possible financial strategies. Abhishek has managed assignments such as swap ratio determination, portfolio valuation, equity valuation, valuation of financial instruments (such as complex convertible instruments, ESOPs and other hedging instruments), purchase price allocation and impairment assessment (per IFRS, US GAAP and Indian income tax). He has handled several complex cross border engagements where teams from multiple countries were working simultaneously. Abhishek has advised on transactions in Consumer, Technology and Industrials vertical. Abhishek has been speaker at conferences organised by forums such as ASSOCHAM and VC Circle on valuation and M&A related topics. Abhishek's prior work experience include stints with corporate finance and advisory division of Deloitte and Grant Thornton. At Deloitte he was part of Industrial M&A team.Abhishek holds a Master of Business Administration degree from INSEAD (France). This article has been written with valuable contributions from Aviral Jain, Director, Ayushi Sharma, Senior Consultant & Sarvang Sawalka, Trainee from Duff & Phelps team. Financial Foresights 22
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