[ECB] rupee expenditure, rupee accounts, 3G spectrum & revised all-in-cost

Dear All,

Amendment of ECB Guidelines vide AP DIR Circular No.26 dated 22^nd Oct 2008 by RBI:

Change in end use restriction:

Prior to this amendment, borrowers in the infrastructure sector are allowed to avail ECB up to USD 100 million per financial year for Rupee expenditure for permissible end-uses under the Approval Route. Considering the huge funding requirements of the sector, particularly for meeting Rupee expenditure, the existing limit of USD 100 million has been raised to USD 500 million per financial year for the borrowers in the infrastructure sector for Rupee expenditure under the Approval Route. Provided ECBs in excess of USD 100 million for Rupee expenditure should have a minimum average maturity period of 7 years:

To ease liquidity pressure in the system henceforth, ECB up to USD 500 million per borrower per financial year would be permitted for Rupee expenditure and / or foreign currency expenditure for permissible end - uses under the Automatic Route. Accordingly, the requirement of minimum average maturity period of seven years for ECB more than USD 100 million for Rupee capital expenditure by the borrowers in the infrastructure sector has been dispensed with.

In order to further develops the telecom sector in the country, payment for obtaining license/permit for 3G Spectrum will be considered an eligible end - use for the purpose of ECB.

Change in parking of ECB proceeds in overseas:

At present, ECB proceeds are required to be parked overseas until actual requirement in India and such proceeds can be invested in the following liquid assets (a) deposits or certificate of deposit 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.

It has now been decided that henceforth the borrowers will be extended the flexibility to either keep these funds off-shore as above or keep it with the overseas branches / subsidiaries of Indian banks abroad or to remit these funds to India for credit to their Rupee accounts with AD Category I banks in India, pending utilisation for permissible end-uses. However, as hitherto, the rupee funds will not be permitted to be used for investment in capital markets, real estate or for inter-corporate lending.

Change in All in Cost:

In view of the tight liquidity conditions in the International financial markets, it has been decided to rationalize and enhance the all-in-cost ceilings as under:

Average Maturity Period	All-in-Cost ceiling over 6 months LIBOR*
	Exisitng	Revised
Three years and up to five years	200 bps	300 bps
More than five years and up to seven years	350 bps	500 bps
More than seven years	450 bps	500 bps

* for the respective currency of borrowing or applicable benchmark.

The all-in-cost ceilings will be reviewed from time to time depending on the conditions in the international financial markets.

Keeping in view the risks associated with unhedged foreign exchange exposures of SMEs, a system of monitoring such unhedged exposures by the banks on a regular basis is being put in place.

The said amendments to the ECB guidelines will come into force with immediate effect.

All other aspects of ECB policy such as USD 500 million limit per company per financial year under the Automatic Route, eligible borrower, recognised lender, end-use, average maturity period, prepayment, refinancing of existing ECB and reporting arrangements remain unchanged.

Thanks & Regards
Alagar
CSchennai
Karvy - Merchant Banking
Contact: 919790906827

[FEMA-ECB] Infrastructure sector upto USD 500 million & 7 years for USD > 100 million

RBI/2008-09/ 190 A. P. (DIR Series) Circular No. 16 dated September 22, 2008

Erstwhile ECB Limits

The all-in-cost ceilings for ECBs are modified as follows:

Average Maturity Period	All-in-Cost ceilings over 6 Months LIBOR*
	Existing	Revised
Three years and up to five years	200 bps	200 bps
More than five years and up to seven years	350 bps	350 bps
More than seven years [mandatory for USD in EXCESS of 100 million] Borrowers in the infrastructure sector can avail ECB UPTO 500 million per financial year under Approval Route	350 bps	450 bps
* for the respective currency of borrowing or applicable benchmark

The amendments to the ECB guidelines will come into force with immediate effect.

At present, borrowers in the infrastructure sector are allowed to avail ECB up to USD 100 million per financial year for Rupee expenditure for permissible end-uses under the Approval Route. Considering the huge funding requirements of the sector, particularly for meeting Rupee expenditure, the existing limit of USD 100 million has been raised to USD 500 million per financial year for the borrowers in the infrastructure sector for Rupee expenditure under the Approval Route. ECBs in excess of USD 100 million for Rupee expenditure should have a minimum average maturity period of 7 years.

All other aspects of the ECB policy such as USD 500 million limit per borrower per financial year under the Automatic Route, eligible borrower, recognised lender, end-use of foreign currency expenditure for import of capital goods and overseas investments, average maturity period, prepayment, refinancing of existing ECB and reporting arrangements remain unchanged. The existing limit of USD 50 million for Rupee expenditure under the Approval Route for borrowers other than those in the infrastructure sector also remains unchanged.

[FEMA-ECB] No Objection (NoC) from Category I Authorised Dealer for Creation of Charge or Issue of Guarantee, though Borrower has the Choice of Security to be issued

Amendments to the ECB guidelines VIDE RBI/2008-09/92 A. P. (DIR Series) Circular No. 01 dated 11^th July 2008, which shall come into force with immediate effect, subject to review from time to time.

Under the extant ECB guidelines, the choice of security to be provided to the overseas lender / supplier for securing ECB is left to the borrower. However, creation of charge over immoveable assets and financial securities, such as shares, in favour of the 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, as amended from time to time.

Now, it is resolved to get "No Objection Certificate" [NoC] from Category - I Authorised Dealer for

(a)                 (a) Creation of Charge on Immovable Assets

(b) Creation of Charge over Financial Securities

(c) Issue of Corporate or Personal Guarantee

AD Category – I banks may invariably specify that the 'no objection' is issued from the foreign exchange angle under the provisions of FEMA, 1999 and should not be construed as an approval by any other statutory authority or Government under any other laws / regulations. If further approval or permission is required from any other regulatory / statutory authority or Government under the relevant laws / regulations, the applicant should take the approval of the authority concerned before undertaking the transaction. Further, the 'no objection' should not be construed as regularizing or validating any irregularities, contravention or other lapses, if any, under the provisions of FEMA or any other laws or regulations.

Hence, following steps to be considered:

Step 1: AD Category - I banks may ensure and satisfy themselves that

(i)             the underlying ECB is strictly in COMPLIANCE with the extant ECB guidelines;

(ii)            there exists a security clause in the Loan Agreement REQUIRING the borrower to create charge on immovable assets / financial securities / furnish corporate or personal guarantee;

(iii)           the loan agreement has been SIGNED by both the lender and the borrower, and

(iv)          the borrower has obtained Loan Registration Number (LRN) from the Reserve Bank.

Step 2: In case of, Creation of Charge on Immovable Assets

(i)             'No objection' shall be granted only to a RESIDENT ECB borrower.

(ii)            The period of such charge on immovable assets has to be CO-TERMINUS with the maturity of the underlying ECB. [Period of Charge = Maturity of such ECB]

(iii)           Such 'no objection' should NOT be construed as a PERMISSION to acquire immovable asset (property) in India, by the overseas lender / security trustee.

(iv)          In the event of enforcement / invocation of the charge, the immovable asset (property) will have to be SOLD only to a person resident in India [PRII] and the sale proceeds shall be REPATRIATED to liquidate the outstanding ECB.

Step 3: In case of, Creation of Charge over Financial Securities [Pledge of Shares, etc…]

(i)             The period of such pledge shall be CO-TERMINUS with the maturity of the underlying ECB. [Period of Charge = Maturity of such ECB]

(ii)            In case of INVOCATION of pledge, transfer shall be in accordance with the extant FDI policy. 

(iii)           A CERTIFICATE from the Statutory Auditor of the company that the ECB proceeds have been / will be utilized for the permitted end-use/s.

Step 4: In case of, Issue of Corporate or Personal Guarantee

i)              BOARD RESOLUTION for issue of corporate guarantee from the company issuing such guarantees, specifying names of the officials authorised to execute such guarantees on behalf of the company or in individual capacity.

ii)             Specific REQUESTS from individuals to issue personal guarantee indicating DETAILS of the ECB.

iii)            Ensuring that the period of such corporate or personal guarantee is CO-TERMINUS with the maturity of the underlying ECB. [Period of Guarantee = Maturity of such ECB]

Step 5: AD Category - I banks to give 'NoC', on completing the above formalities

AD Category - I banks to CONVEY 'no objection' under the Foreign Exchange Management Act (FEMA), 1999 for creation of charge on immovable assets, financial securities and issue of corporate or personal guarantees in favour of overseas lender / security trustee, to secure the ECB to be raised by the borrower.

[FEMA]ECB by Services Sector <= USD 100million - Approval Route

Dear All,

 

External Commercial Borrowings (ECB) by Services Sector -Liberalization

As per present ECB guidelines, borrowers in the services sector are not eligible to avail ECB under the Automatic Route.

Vide A P. (DIR Series) Circular No. 46 dated 2^nd June 2008, It has been decided, in consultation with the Government of India, to allow entities in the service sector viz. hotels, hospitals and software companies to avail ECB up to USD 100 million, per financial year, for the purpose of import of capital goods under the Approval Route. All other aspects of ECB policy shall remain unchanged.

It is also clarified that the existing guidelines on trade credit, allowing companies including those in the services sector, to avail trade credit up to USD 20 million per import transaction, for a period less than 3 years, for import of capital goods, shall continue.

This amendment to ECB guidelines will come into force with immediate effect.

Necessary amendments to the Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 dated May 3, 2000 are being issued separately.

Also you can refer earlier AP DIR Circulars (A. P. (DIR Series) Circular No. 87 dated April 17, 2004].  A. P. (DIR Series) Circular No. 5 dated August 1, 2005 for your better understanding.

Thanks & Regards
--
Alagar
Investment Banking
Karvy Investor Services Limited
Chennai
Tel: 044-28151034/3445/3658
Moble: 919884731993/ 919790906827
e-mail: alagar.muthu@karvy.com

[USD20million to USD50/100million] External Commercial Borrowing (ECB) policy liberalisation [amendment]

RBI/2007-08/339 A.P.(DIR Series) Circular No.43

To

All Category-I Authorised Dealer Banks

Madam/Sir,

External Commercial Borrowings Policy: Liberalisation

Attention of Authorised Dealer Category-I (AD Category-I) banks is invited to the A. P. (DIR Series) Circular No. 5 dated August 1, 2005, A. P. (DIR Series) Circular No. 60 dated May 21, 2007 and A. P. (DIR Series) Circular No. 4 dated August 7, 2007 relating to External Commercial Borrowings (ECB).

2. Based on a review, it has been decided to modify some aspects of the ECB policy as indicated below:

(a) At present, borrowers proposing to avail ECB up to USD 20 million for Rupee expenditure for permissible end-uses require prior approval of the Reserve Bank under the Approval Route. It has been decided that, henceforth,

(i) borrowers in infrastructure sector may avail ECB up to USD 100 million for Rupee expenditure for permissible end-uses under the Approval Route;

(ii) in the case of other borrowers, the existing limit of USD 20 million for Rupee expenditure for permissible end-uses under the Approval Route has been enhanced to USD 50 million.

(b) The all-in-cost ceilings in respect of ECB are modified as follows:

Average Maturity Period	All-in-Cost ceilings over 6 Months LIBOR*
	Existing	Revised
Three years and up to five years	150 bps	200 bps
More than five years	250 bps	350 bps

s* for the respective currency of credit or applicable benchmark

The above changes will apply to ECB both under the automatic route and the approval route.

3. This amendment to ECB guidelines will come into force with immediate effect. All other aspects of ECB policy such as USD 500 million limit per company per year under the Automatic Route, eligible borrower, recognised lender, end-use of foreign currency expenditure for import of capital goods and overseas investments, average maturity period, prepayment, refinancing of existing ECB and reporting arrangements remain unchanged.

4. Necessary amendments to the Foreign Exchange Management (Borrowing or Lending in Foreign Exchange) Regulations, 2000 dated May 3, 2000 are being issued separately.

5. AD Category-I banks may bring the contents of this circular to the notice of their constituents and customers concerned.

6. The directions contained in this circular have been issued under sections 10(4) and 11 (1) of the Foreign Exchange Management Act, 1999 (42 of 1999) and is without prejudice to permissions/approvals, if any, required under any other law.

FCEB made easy

FCEB made easy

What is FCEB?

Foreign Currency Exchangeable Bond is

• a Bond expressed in freely convertible Foreign Currency
• Interest and Principal of which is payable in foreign Currency
• Issued by an Indian company
• To overseas Investor who subscribes in foreign Currency
• Which on a later date can be converted into Equity shares of Offered Company

What are all the Eligibility conditions?

• Prior approval of RBI to be obtained

• Eligibility Conditions for the Offered Company
  • Offered company is a Listed company
  • Offered company is engaged in a sector eligible to receive FDI
  • Offered Company is eligible to issue FCCB or ECB
• Eligibility Conditions for the Issuer Company
  • The issuer shall form part of the Promoter Group of the offered Company
  • Issuer holding Equity Shares offered at the time of Issuance of FCEB
  • Issuer Company is not restrained by SEBI to access securities market
• Eligibility Conditions for the Subscriber
  • Entity not prohibited by SEBI from dealing in Securities
  • Subscriber comply with FDI Policy
  • Subscriber adhere to sector caps at the time of issuance of FCEB
  • Prior approval of FIPB obtained , wherever required

How the proceeds can be utilized?

• Can be invested in Promoter Group Companies
• Issuer company can invest in overseas by way of direct investment in Joint ventures or Wholly owned subsidiaries subject to FEMA Guidelines
• Promoter Group Company can utilize it according to the End Use Requirements applicable for ECBs
• Promoter Group Company shall not utilize the proceeds for investing in capital market or Real estate in India.
• Proceeds can be retained or deployed overseas in accordance with ECB policy

Conditions for Issuance?

v Rate of interest

• Rate of interest payable on FCEB and issue expenses incurred in foreign currency shall be within the ceiling prescribed by RBI for ECBs.

v Price

• The exchange price of the offered listed equity shares at the time of issuance of FCEB shall not be less than the higher of the -:

The average of the weekly high and low of the closing prices of the

related shares quoted on the stock exchange during the

(a) six months preceding the relevant date;

OR

(b) two weeks preceding the relevant date.

Relevant date-Date in which Board of Directors' passed the resolution authorizing the issuance of FCEB.

preceding the relevant date.

v Maturity

• Minimum maturity shall be 5 years for redemption

• Before that time holder can convert into shares of Offered company

• While exercising the option holder has to take delivery of shares and cash settlement is not allowed.

v Approvals Required

• Board Approval

• Shareholders approval, if applicable

• Offered company's Board approval

• Issuer company shall disclose the shareholding of the offered company to comply with respective provisions in SEBI Act, Rules, Regulations & Guidelines

v Other Conditions

• Issuer company shall not trade or mortgage or offer as collateral or trade offered securities till redemption or Exchange

• Issuer company keep the offered shares free from all encumbrances

Taxation Aspects?

• Interest till exercise subject to TDS

• Tax on dividend subject to Sec 115 AC of Income Tax Act

• Exchange of Bonds into Equity shares will not give raise to Capital Gains for computation of taxable income

• Transfer between Person Resident outside India to another Person Resident outside India will not give raise to Capital Gains tax in India.

Notified by Ministry of Finance, Dept. of Economic Affairs on Feb. 15, 2008 vide http://finmin.nic.in/the_ministry/dept_eco_affairs/capital_market_div/ExchangeableBonds.pdf