External Commercial Borrowing
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Transcript of External Commercial Borrowing
External
Commercial
Borrowing
Introduction
External Commercial Borrowings (ECBs) play a significant role in any developing
economy since its domestic funds are usually unable to meet growing demand, more so
when the cost of domestic borrowing is higher than that of international funding.
Raising ECBs by Indian residents directly adds to India’s external debt and foreign
exchange exposure and therefore, the same is highly regulated by the RBI. Mismatch of
tenure and usage of ECBs can be disastrous for the economy as was evident from the
South East Currency Crisis. Therefore, many restrictions are placed by RBI to ensure that
short-term borrowings are not used for long-term use and vice versa. Policy guidelines
pertaining to ECBs have been revised from time to time. Recently, on August 1, 2005
new guidelines for ECBs have been announced. In this part, we shall discuss the
provisions related to raising of External Commercial Borrowings under the automatic
route of Reserve Bank of India.
External Commercial Borrowings (ECBs) are a key component of India’s overall external
debt which includes, inter alia, external assistance, buyer’s credit, supplier’s credit, NRI
deposits, short-term credit and Rupee debt. ECB guidelines, need to be assessed in the
backdrop of various external debt sustainability indicators relevant to emerging
economic needs.
Meaning
External Commercial Borrowings (ECBs) are defined to include commercial bank loans,
buyers’ credit, suppliers’ credit, securitised instruments such as floating rate notes and
fixed rate bonds etc., credit from official export, credit agencies and commercial
borrowing from the private sector window of Multilateral Financial Institutions such as
International Finance Corporation (Washington), ADB, IFC, CDC etc.
Even loans from Foreign Equity Holders are considered as ECBs.
Thus ECBs mean foreign currency loan raised by residents from recognised lenders.
Financial leases and Foreign Currency Convertible Bonds are also covered by ECB
guidelines.
ECB Guidelines — Historical prospective
ECBs, were governed by the Ministry of Finance. Government had issued consolidated
guidelines on policies and procedures for ECBs in July, 1999. The said guidelines were
amended from time to time. The Central Government had last revised these guidelines
on 19th January, 2004. However, subsequently RBI had issued comprehensive Circular
No. 60 dated 31st January, 2004, contents of which later on were incorporated by way
of amendments to the original Notification No. 3/2002-RB vide Notification No.
126/2004-RB, dated 13th December, 2004.
From 1st February, 2004 major restrictions were imposed on raising ECBs, by Indian
borrowers, such as ban on end use of ECB for working capital, general corporate
purpose, cap of US$ 500 million per financial year under the Automatic Route etc.
Submission of ECB-2 return to RBI on a monthly basis duly certified by the designated
Authorised Dealer as well as a Chartered Accountant was made mandatory with effect
from 1st February, 2004. On April, 2005, RBI permitted NGOs engaged in micro-finance
activities to raise ECB under automatic route vide its Circular No. 40. The revised
guidelines issued by the Government of India on 19th January, 2004 and the original
comprehensive guidelines of 1999-2000 have practically become redundant in the light
of these developments.
RBI has further amended its earlier ECB guidelines vide Circular No. 5, dated August 1,
2005. Notification making amendments based on these guidelines is still awaited.
ECB guidelines can be divided in three broad periods. Prior to 1st February, 2004, when
there were less restrictions on raising ECB and the same was allowed for general
corporate purpose including working capital requirements of companies. From 1st
February, 2004 to 31st July, 2005, ECBs were governed by RBI guidelines covered by the
A.P. (DIR Series) Circular No. 60, dated 31st January, 2004, which prohibited raising of
ECB for general corporate purposes/working capital and imposed several other
restrictions and reporting requirements. New ECB guidelines are announced by RBI
effective from August 1, 2005 which imposes further restrictions in terms of percentage
of shareholding by the leaders, permissible debt equity ratio and so on.
Provisions of ECB discussed in this Article are based on the latest RBI guidelines on ECB
covered by Circular No. 5, dated 1st August, 2005.
Different schemes of ECB
There are three broad schemes — or more appropriately, following facilities under ECB
schemes:
i. Trade Credit
ii. Automatic Route
iii. Approval Route
In this part, we will cover the first two schemes; i.e., Trade Credit and Automatic route
only.
Trade credit for imports into India
Trade Credits’ (TC) refer to credits extended for imports directly by the overseas
supplier, bank and financial institution for original maturity of less than three years.
Depending on the source of finance, such trade credits include suppliers’ credit or
buyers’ credit. Suppliers’ credit relates to credit for imports in to India extended by the
overseas supplier, while buyers’ credit refers to loans for payment of imports in to India
arranged by the importer from a bank or financial institution outside India for maturity
of less than three years. It may be noted that buyers’ credit and suppliers’ credit for
three years and above come under the category of External Commercial Borrowings
(ECB) which are governed by ECB guidelines.
Amount and maturity
ADs are permitted to approve trade credits for imports into India up to US$ 20 million
per import transaction for import of all items (permissible under the Exim Policy) with a
maturity period (from the date of shipment) up to one year. For import of capital goods,
ADs may approve trade credits up to US$ 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 by the AD beyond the permissible period.
As hitherto, ADs shall not approve trade credit exceeding US$ 20 million per import
transaction.
4.1.2 All-in-cost Ceilings
The all-in-cost ceilings are as under:
Maturity period All-in-cost ceilings
over 6 months LIBOR*
Up to one year 50 basis points
More than one year
but less than three
years
125 basis points
* for the respective currency of credit or applicable benchmark.
The all-in-cost ceilings include arranger fee, upfront fee, management fee,
handling/processing charges, out of pocket and legal expenses, if any. The all-in-cost
ceilings will be reviewed from time to time.
Guarantee
ADs are permitted to issue guarantee/Letter of Undertaking (LoU)/Letter of Comfort
(LoC) in favour of overseas supplier, bank and financial institution, up to US$ 20 million
per transaction for a period up to one year for import of all non-capital goods
permissible under Foreign Trade Policy (except gold) and up to three years for import of
capital goods, subject to prudential guidelines issued by Reserve Bank from time to
time. The period of such guarantees/LoU/LoC has to be
co-terminus with the period of credit, reckoned from the date of shipment.
Reporting arrangements
ADs are required to furnish details of approvals, drawal, utilisation, and repayment of
trade credit granted by all its branches, in a consolidated statement, on a monthly basis.
ADs are also required to furnish data on issuance of guarantees/LoU/LoC by all its
branches, in a consolidated statement on quarterly basis.
Automatic Route for External Commercial Borrowings up to US $ 500 million or its
equivalent during a financial year
Permissible entities
Indian companies registered under the Companies Act, 1956 are permitted to raise ECBs
up to US $ 500 million from reputed lenders in any one financial year (April to March).
Financial intermediaries like banks, financial institutions, housing finance companies,
NBFCs, Trusts, Non-Profit making Organisations (NPOs), Proprietorship/Partnership
Concerns and Individuals are not eligible to raise ECBs under automatic route.
Non-Government Organisations (NGOs) engaged in micro finance activities are eligible
to avail ECB.
Recognised lenders
The eligible entities can borrow in foreign currency by way of issue of bonds,
floating rate notes or other debt instruments from following lenders:
International bank or international capital market, or
Multilateral financial institutions, namely, IFC, ADB, CDC etc., or
Export Credit Agencies,
Foreign collaborator or foreign equity holder as specified by RBI, or
Supplier of equipments provided the amount of loan raised does not exceed the
total cost of the equipment being supplied by lender, or
Any other eligible entity as may be prescribed by RBI in consultation with
Government.
B. The key operative part in the credential of the overseas lender is that ECB should
be availed from an internationally recognised source and one of the recognised
categories is "foreign equity holder" as indicated above. It is clarified that for a
"foreign equity holder" to be eligible as "recognised lender" under the automatic
route would require minimum holding of equity in the borrower’s company as
under:
i. ECB up to US$ 5 million — minimum equity of 25 per cent
held directly by the lender.
ii. ECB more than US$ 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).
Restrictions on use of funds
Borrower shall not utilise the funds borrowed under any of these Schemes for
a. Investment in stock market
However, ECB can be used for first stage acquisition of shares in the
disinvestment process, and also in the mandatory second stage offer to
the public under Government’s disinvestment programme of PSU shares.
b. Investment in real estate business
However, investment in "Integrated Townships" as defined by Ministry of
Commerce and Industry, Department of Industrial Policy and Promotion,
SIA (FC Division), Press Note 3 (2002 Series, dated 4-1-2002) is permitted.
It should be noted that the meaning of "Integrated township
development" is different from "real estate development". Construction
by a builder of a residential building or a commercial building is also real
estate development. NRI investment is allowed in this sector. But ECB
cannot be raised for such purpose. But if there is a project of township
development (which means large projects over 100 acres of land with
equity investment of at least US $ 5 million) then ECB can be raised.
c. On lending
One cannot borrow to lend, except in case of investment in JV/WOS
where loans also can be given. Foreign entity cannot lend in India to an
Indian entity to enable the borrowing entity to invest abroad. ECB can be
directly used by the borrower to invest abroad.
Refinancing of ECB (i.e., raising new ECB at lower interest rate and
repaying old ECB at higher interest rate) is permitted. However,
outstanding maturity of the old loan should be maintained.
d. General corporate purpose
ECB cannot be raised for general corporate purposes.
e. Repayment of existing rupee loans
ECBs cannot be raised for repayment of existing rupee loans.
Amount and maturity
Reserve Bank of India has prescribed limits for minimum average maturity for ECB
loans raised under the automatic route which are as under:
Amount of maturity ECB Minimum Average
(i) Up to US$ 20 million or its equivalent
Not less than three
Years
(ii) Above US$ 20 million and upto US$ 500 million
or its
equivalent
Not less than five Years
Borrowing up to US$ 20 million can have call/put option provided the minimum average
maturity of 3 years as prescribed above is complied with before exercising put/call
option.
The maximum amount of ECB which can be raised by a corporate is US$ 500 million
during a financial year.
Average maturity is defined as "weighted average of all disbursements taking each
disbursement individually and its period of retention by the borrower for the purpose of
ECBs."
All-in-cost ceiling
The amended Schedule I to Regulation 6(1) to the Notification No. FEMA.3/2000-RB
dated 3rd May, 2002 prescribes that "All-in-cost ceilings" for borrowing in foreign
exchange shall be specified by RBI from time to time.
The ceilings prescribed by RBI before the replacement of schedule is valid presently in
absence of any amendment thereto. The same are as follows :—
"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. All fees paid to
professionals, merchant bankers, expenses paid in foreign currency are covered in the
limit specified. Thus, it is annual cost limit rather than interest rate limit.
Moreover, the payment of withholding tax in Indian rupees is excluded for calculating the
all-in-cost.
Minimum average
Maturity Period
All-in-cost ceilings
over six month
LIBOR*
Three years and up to
five years
200 basis points
More than five years 350 basis points
* for respective currency of borrowing or applicable benchmark.
Thus, if LIBOR for US $ is 1%, then the rate for ECB for average maturity exceeding 5
years cannot exceed 4.5%.
RBI has clarified that all-in-cost ceiling must be calculated over a period of loan. Thus, in
a first year the cost may increase the prescribed limit but as long as the average cost
over the period of loan remains within the ceiling there is no problem.
Guarantees
Banks, financial institutions and Non-Banking Finance Companies shall not provide issue
guarantee or Letter of Comfort or Standby Letter of Credit in favour of overseas lender
on behalf of their constituents for their borrowings in foreign exchange.
4.2.8 Security
The choice of security to be provided to lender/supplier is left to borrower. However,
creation of charge over immovable assets and financial securities, such as shares, in
favour of overseas lender is subject to Regulation 8 of Notification No. FEMA 21/RB-
2000 dated May 3, 2000 and Regulation 3 of Notification No. FEMA 20/RB-2000, dated
May 3, 2000, respectively. In case of immovable property, a non-resident is not
permitted to acquire immovable property except in limited circumstances. Therefore,
for offering immovable property as a security, prior approval is necessary. Similarly for
shares being offered as security, while it is possible for a non-resident to acquire shares
under automatic route, under the normal circumstances, in case of security being
enforced, the acquisition of shares cannot be under automatic route. Therefore it may
be better to obtain prior approval from RBI.
Parking of ECB proceeds overseas
ECB proceeds should be parked overseas until actual requirement in India. It is clarified
that ECB proceeds parked overseas can be invested in the following liquid assets
(a) deposits or Certificate 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.
Prepayment
Prepayment of ECB up to US$ 200 million may be allowed by ADs without prior approval
of RBI subject to compliance with the stipulated minimum average maturity period as
applicable to the loan.
Refinance of existing ECB
Refinancing of existing ECB by raising fresh ECB at lower cost is permitted subject to the
condition that the outstanding maturity of the original loan is maintained.
Debt servicing
The designated Authorised Dealer (AD) has the general permission to make remittances
of instalments of principal, interest and other charges in conformity with ECB guidelines
issued by Government/RBI from time to time.
Procedure
Borrower may enter into loan agreement complying with ECB guidelines with
recognised lender for raising ECB under Automatic Route without prior approval of RBI.
The primary responsibility to ensure that ECB raised/utilised are in conformity with the
ECB guidelines and the Reserve Bank regulations/directions/circulars is that of the
concerned borrower and any contravention of the ECB guidelines will be viewed
seriously and may invite penal action. The designated AD is also required to ensure that
raising/utilisation of ECB is in compliance with ECB guidelines at the time of certification.
Hedging
In cases where ECBs have been raised for meeting rupee expenditure under Automatic
Route, the Authorised Dealer has to ensure at the time of draw down that the forex
exposure of the borrower is hedged unless there is a natural hedge in the form of
uncovered foreign exchange receivables. [A.P.(DIR Series) Circular No. 23 dated 17th
September, 2002]
Drawal of loan
The borrower can draw-down the loan only after obtaining loan registration number
from DESACS, RBI.
Reporting requirements
a. In order to simplify the procedure, submission of copy of loan agreement
is dispensed with.
b. Borrowers are required to submit Form 83, in duplicate, certified by the
Company Secretary (CS) or Chartered Accountant (CA) to the designated
AD. One copy is to be forwarded by the designated AD to the Director,
Balance of Payments Statistics Division, Department of Statistical Analysis
and Computer Services (DESACS), Reserve Bank of India, Bandra-Kurla
Complex, Mumbai – 400 051 for allotment of loan registration number.
c. Borrowers are required to submit ECB-2 Return on monthly basis certified
by the designated AD so as to reach DESACS, RBI within seven working
days from the close of month to which it relates.
d. The loan agreement entered into by the borrower with the overseas
lender shall strictly conform to these Regulations.
In the subsequent part we shall discuss provisions relating to raising ECBs under the
Approval Route of RBI.
Conclusion
RBI liberalized ECB guidelines by permitting hotels,hospitals and software companies to avail ECB up to certainprescribed limits, although theretail sector has been left out.
ECBs have emerged as a forerunner in the credit market andhave steadily gained huge prominence in the Indian market.
Indian government should tread cautiously and keep a checkon capricious borrowings from foreign lenders while at thesame time providing flexibility and keeping the health of theIndian economy in mind.