External Commercial Borrowings (Ecb) : Presented by
External Commercial Borrowings (Ecb) : Presented by
BORROWINGS (ECB)
Presented by –
Dheeraj Seth (21)
Dinshah Anklesvaria (22)
Divya Sanjiva (23)
Fazalabbas Muni (24)
Gaurav Advani (25)
Geeta Naik (26)
Girish Patel (27)
Goldy Ambwani (28)
Hanoze Malesra (29)
Heman Doshi (30)
PG – A
Contents
General
Automatic Route
Approval route
Structured obligations
Crystallisation of ecb
Acknowledgements
RELEASE OF FOREIGN EXCHANGE BY AUTHORISED
DEALERS
General
(a) External Commercial Borrowings (ECB) refer to commercial loans [in the form
of bank loans, buyers’ credit, suppliers’ credit, securitised instruments (e.g.
floating rate notes and fixed rate bonds)] availed from non-resident lenders with
minimum average maturity of 3 years.
(b) Foreign Currency Convertible bonds (FCCBs) mean a bond issued by an Indian
company expressed in foreign currency, and the principal and interest in respect of
which is payable in foreign currency. Further the bonds are required to be issued in
accordance with the scheme viz., “Issue of Foreign Currency convertible bonds
and Ordinary Shares (Through Depositary Receipt Mechanism) Scheme, 1993”,
and subscribed by a non-resident in foreign currency and convertible into ordinary
shares of the issuing company in any manner, either in whole, or in part, on the
basis of any equity related warrants attached to debt instruments. The policy for
ECB is also applicable to FCCBs. The issue of FCCBs are also required to adhere
to the provisions of Notification FEMA No. 120/RB-2004 dated July 7, 2004 as
amended from time to time.
(c) ECB can be accessed under two routes, viz., (i) Automatic Route outlined in
Paragraph I (A) and (ii) Approval Route outlined in paragraph I (B).
(d) ECB for investment in real sector –industrial sector, especially infrastructure
sector-in India, are under Automatic Route, i.e. do not require RBI/Government
approval. In case of doubt as regards eligibility to access Automatic Route,
applicants may take recourse to the Approval Route.
I. (A) AUTOMATIC ROUTE
(i) Eligible borrowers
(a) Corporates (registered under the companies Act except financial intermediaries
(such as banks, financial institutions (FIs), housing fnance companies and NBFCs)
are eligible to raise ECB. Individuals, Trusts and Non-
Profit making Organisations are not eligible to raise ECB.
(b) Units in Special Economic Zones (SEZ) are allowed to raise ECB for their own
requirement. However, they cannot transfer or on-lend ECB funds to sister
concerns or any unit in the Domestic Tariff Area.
Borrowers can raise ECB from internationally recognised sources such as (i)
international banks, (ii) international capital markets, (iii) multilateral financial
institutions (such as IFC, ADB, CDC, etc.,), (iv) export credit agencies, (v)
suppliers of equipment,(vi) foreign collaborators and (vii) foreign equity holders
(other than erstwhile OCBs). A “foreign equity holder’ to be eligible as
“recognized lender’ under the automatic route would require minimum holding of
equity in the borrower company as set out below:
(i) For ECB up to USD 5 million – minimum equity of 25 per cent held directly by
the lender.
(ii) For ECB more than USD 5 million – minimum equity of 25 per cent held
directly by the lender and debt-equity ratio not exceeding 4:1 (i.e. the proposed
ECB not exceeding four times the direct foreign equity holding).
(c) ECB above USD 20 million and upto USD 500 million or equivalent with a
minimum average maturity average
maturity of five years.
(d) ECB upto USD 20 million can have call / put option provided the minimum
average maturity of three years is
complied with before exercising call / put option.
All-in-cost includes rate of interest, other fees and expenses in foreign currency
except commitment fee, pre-payment fee, and fees payable in Indian Rupees.
Moreover, the payment of withholding tax in Indian Rupees is excluded for
calculating the all-in-cost. The all-in-cost ceilings for ECB are reviewed from time
to time. The following ceilings are valid till reviewed:
(v) End-use
(a) Investment e.g. import of capital goods (as classified by DGFT in the Foreign
Trade Policy), by new or existing production units, in real sector- industrial sector
including small and medium enterprises (SME) and infrastructure sector – in India.
Infrastructure sector is defined as (i) power, (ii) telecommunication, (iii) railways,
(iv) road including bridges, (v) sea port and airport, (vi) industrial parks, and (vii)
urban infrastructure (water supply, sanitation and sewage projects);
(b) Overseas direct investment in Joint Ventures (JV) / Wholly Owned Subsidiaries
(WOS) subject to the existing
guidelines on Indian Direct Investment in JV/WOS abroad.
(c) Utilisation of ECB proceeds is not permitted for working capital, general
corporate purpose and repayment of existing Rupee loans.
vii) Guarantees
viii) Security
ECB raised for foreign currency expenditure for permissible end-uses shall be
parked overseas and not to be remitted to India. ECB proceeds parked overseas can
be invested in the following liquid assets (a) deposits or Certifcate of Deposit or
other products offered by banks rated not less than AA (-) by Standard and Poor /
Fitch IBCA or Aa3 by Moody’s; (b) deposits with overseas branch of an
Authorised Dealer in India; and (c) Treasury bills and other monetary instruments
of one year maturity having minimum rating as indicated above. The funds should
be invested in such a way that the investments can be liquidated as and when funds
are required by the borrower in India.
x) Prepayment
Prepayment of ECB upto USD 500 million may be allowed by AD banks without
prior approval of RBI subject to compliance with the stipulated minimum average
maturity period as applicable to the loan.
The existing ECB may be refinanced by raising a fresh ECB subject to the
condition that the fresh ECB is raised at a lower all-in-cost and the outstanding
maturity of the original ECB is maintained.
The designated Authorised Dealer (AD bank) has the general permission to make
remittances of installments of principal, interest and other charges in conformity
with ECB guidelines issued by Government / Reserve Bank of India from time to
time.
xiii) Procedure
Borrowers may enter into loan agreement complying with ECB guidelines with
recognised lender for raising ECB under Automatic Route without prior approval
of RBI. The borrower must obtain a Loan Registration Number (LRN) from the
Reserve Bank of India before drawing down the ECB. The procedure for obtaining
LRN is detailed in para II (i) (b).
I. (B) APPROVAL ROUTE
i). Eligible Borrowers
The following types of proposals for ECB are covered under the Approval Route
b). Banks and financial institutions which had participated in the textile or steel
sector restructuring package as approved by the Government are also permitted to
the extent of their investment in the package and assessment by Reserve Bank
based on prudential norms. Any ECB availed for this purpose so far will be
deducted from their entitlement.
e). Special Purpose Vehicles, or any other entity notified by the Reserve Bank, set
upto fnance infrastructure companies / projects exclusively, will be treated as
Financial Institutions and ECB by such entities will be considered under the
Approval Route.
f). Multi-State Co-operate Societies engaged in manufacturing activity satisfying
the following criteria (i) the Co-operative Society is fnancially solvent and (ii) the
Co-operative Society submits its up-to-date audited balance sheet.
g). Corporates engaged in industrial sector and infrastructure sector in India can
avail ECB for Rupee expenditure for permissible end-uses.
i). Corporate in services sector viz. hotels, hospitals and software companies can
avail ECB for import of capitalgoods.
j). Cases falling outside the purview of the automatic route limits and maturity
period indicated at paragraph I A (iii).
(a) Borrowers can raise ECB from internationally recognised sources such as (i)
international banks, (ii) international capital markets, (iii) multilateral financial
institutions (such as IFC, ADB, CDC, etc.), (iv) export credit agencies, (v)
suppliers’ of equipment, (vi) foreign collaborators and (vii) foreign equity holders
(other than erstwhile OCBs)
(b) From ‘foreign equity holder’ where the minimum equity held directly by the
foreign equity lender is 25 per cent but debt-equity ratio exceeds 4:1 (i.e. the
proposed ECB exceeds four times the direct foreign equity holding).
(ii) Individual Lender has to obtain a certificate of due diligence from an overseas
bank indicating that the lender maintains an account with the bank for at least a
period of two years. Other evidence / documents such as audited statement of
account and income tax return which the overseas lender may furnish need to be
certifed and forwarded by the overseas bank. Individual lenders from countries
wherein banks are not required to adhere to Know Your Customer (KYC)
guidelines are not eligible to extend ECB.
(a) Corporates can avail of ECB of an additional amount of USD 250 million with
average maturity of more than 10 years under the approval route, over and above
the existing limit of USD 500 million under the automatic route, during a financial
year. Other ECB criteria such as end-use, all-in-cost ceiling, recognised lender,
etc., need to be complied with. Prepayment and call / put options, however, would
not be permissible for such ECB upto a period of 10 years.
(b) Corporates in infrastructure sector {as defined in paragraph 1(A) (v) (a)} can
avail ECB up to USD 100 million and Corporates in industrial sector can avail
ECB up to USD 50 million for Rupee capital expenditure for permissible end- uses
within the overall limit of USD 500 million per borrower, per financial year, under
Automatic Route.
(c) NGOs engaged in micro fnance activities can raise ECB up to USD 5 million
during a financial year. Designated AD bank has to ensure that at the time of
drawdown the forex exposure of the borrower is hedged.
(d) Corporates in the services sector viz. hotels, hospitals and software companies
can avail ECB up to USD 100 million, per borrower, per financial year, for import
of capital goods.
The current all-in-cost ceilings are as under: The following ceilings are valid till
reviewed:
v). End-Use
(a) Investment [such as import of capital goods (as classified by DGFT in the
Foreign Trade Policy), implementation of new projects, modernization / expansion
of existing production units] in real sector – industrial sector including small and
medium enterprises (SME) and infrastructure sector – in India. Infrastructure
sector is defined as (i) power, (ii) telecommunication, (iii) railways, (iv) road
including bridges, (v) sea port and airport, (vi) industrial parks and (vii) urban
infrastructure (water supply, sanitation and sewage projects);
(b) Overseas direct investment in Joint Ventures (JV) / Wholly Owned Subsidiaries
(WOS) subject to the existing
guidelines on Indian Direct investment in JV/WOS abroad.
(c) The first stage acquisition of shares in the disinvestment process and also in the
mandatory second stage offer to the public under the Government’s disinvestment
programme of PSU shares.
(d) Import of capital goods by Corporates in the service sector, viz., hotels,
hospitals and software companies.
(c) Utilisation of ECB proceeds is not permitted for working capital, general
corporate purpose and repayment of
existing Rupee loans
vii). Guarantee
viii). Security
ECB raised for foreign currency expenditure for permissible end- uses shall be
parked overseas and not remitted to India and ECB raised for Rupee expenditure
for permissible end- uses shall be parked overseas until actual requirement in India.
ECB proceeds parked overseas can be invested in the following liquid assets (a)
deposits or certificate of deposits or other products offered by banks rated not less
than AA(-) by Standard and Poor / Fitch IBCA or Aa3 by Moody’s; (b) deposits
with overseas branch of an AD bank in India; and (c) Treasury bills and other
monetary instruments of one year maturity having minimum rating as indicated
above. The funds should be invested in such a way that the investments can be
liquidated as and when funds are required by the borrower in India.
x). Prepayment
(a) Prepayment of ECB upto USD 500 million may be allowed by AD bank
without prior approval of Reserve Bank
subject to compliance with the stipulated minimum average maturity period as
applicable to the loan.
(b) Pre-payment of ECB for amounts exceeding USD 500 million would be
considered by the Reserve Bank under
the Approval Route.
Existing ECB may be refinanced by raising a fresh ECB subject to the condition
that the fresh ECB is raised at a lower all-in- cost and the outstanding maturity of
the original ECB is maintained.
xiii). Procedure
a). With a view to simplify the procedure, submission of copy of loan agreement is
dispensed with.
b). For allotment of loan registration number, borrowers are required to submit
Form 83, in duplicate, certifed by the Company Secretary (CS) or Chartered
Accountant (CA) to the designated AD bank. One copy is to be forwarded by the
designated AD bank to the Director, Balance of Payments Statistics Division,
Department of Statistics and Information System (DSIM), Reserve Bank of India,
Bandra-Kurla Complex, Mumbai – 400 051 [Note: copies of loan agreement, offer
documents for FCCB are not required to be submitted with Form 83].
c). The borrower can draw-down the loan only after obtaining the loan registration
number from DSIM, Reserve Bank of India.
d). Borrowers are required to submit ECB-2 Return certifed by the designated AD
bank on monthly basis so as to reach DSIM, RBI within seven working days from
the close of month to which it relates.
[Note: All previous returns relating to ECB viz. ECB 3 –ECB 6 have been
discontinued with effect from January 31, 2004].
For providing greater transparency, information with regard to the name of the
borrower, amount, purpose and maturity of ECB under both Automatic Route and
Approval Route are put on the Reserve Bank website on a monthly basis with a lag
of one month to which it relates.
III. STRUCTURED OBLIGATIONS
In order to enable Corporates to raise resources domestically and hedge exchange
rate risks, domestic rupee denominated structured obligations are permitted to be
credit enhanced by international banks / international financial institutions / joint
venture partners. Such applications will be considered under the Approval Route.
The primary responsibility to ensure that ECB raised / utilised are in conformity
with the ECB guidelines and the Reserve Bank regulations / directions is that of
the concerned borrower and any contravention of the ECB guidelines will be
viewed seriously and will invite penal action under FEMA 1999 ( cf. A.P. (DIR
Series) Circular No.31 dates February 1, 2005). The designated AD bank is also
required to ensure that raising / utilisation of ECB is in compliance with ECB
guidelines at the time of certification .
(a) The activity of the company is covered under the Automatic Route for Foreign
Direct investment or Government
approval for foreign equity participation has been obtained by the company,
(b) The foreign equity holding after such conversion of debt into equity is within
the sectoral cap, if any,
(c) Pricing of shares is as per SEBI and erstwhile CCI guidelines / regulations in
the case listed / unlisted companies as the case may be.
(a) Borrowers are required to report full conversion of outstanding ECB into equity
in the form FC-GPR to the concerned Regional Office of the Reserve Bank as well
as in form ECB-2 submitted to the DSIM, RBI within seven
working days from the close of month to which it relates. The words “ECB wholly
converted to equity” should be clearly indicated on top of the ECB-2 form. Once
reported, filing of ECB-2 in the subsequent months is not necessary.
(b) In case of partial conversion of outstanding ECB into equity, borrowers are
required to report the converted
portion in form FC-GPR to the concerned Regional Office as well as in form ECB-
2 clearly differentiating the converted portion from the unconverted portion. The
words “ECB partially converted to equity” should be indicated on top of the ECB-
2 form. In subsequent months, the outstanding portion of ECB should be reported
in ECB-2 form to DSIM.
AD banks are permitted to approve trade credits for imports into India up to USD
20 million per import transaction for imports permissible under the current Foreign
Trade Policy of the DGFT with a maturity period up to one year (from the date of
shipment). For import of capital goods as classified by DGFT, AD banks may
approve trade credits up to USD 20 million per import transaction with a maturity
period of more than one year and less than three years. No roll-over / extension
will be permitted beyond the permissible period.
AD banks shall not approve trade credit exceeding USD 20 million per import
transaction.
The all-in-cost ceilings include arranger fee, upfront fee, management fee,
handling / processing charges, out of pocket and legal expenses, if any.
c). Guarantee
AD banks are required to furnish data on issuance of LCs / guarantees / LoU / LoC
by all its branches, in a consolidated statement, at quarterly intervals to the Chief
General Manager-in-Charge, Foreign Exchange Department, ECB Division,
Reserve Bank of India, Central Office Building, Fort, Mumbai – 400 001 (and in
MS-Excel file through email to [email protected]) from December 2004
onwards so as to reach the department not later than 10th of the following month.
Acknowledgements
We would like to express our sincere gratitude towards all those who helped
us in completion of our project.
We would like to convey a vote of thanks and a token of gratitude to
Professor Tariq Sayed for his guidance for this project.
To conclude, we would like to say that this project was a valuable study and
consisted a lot to learn from.