Presentation on theme: "External Commercial Borrowings (ECB) and Trade Credits"— Presentation transcript:
0 External Commercial Borrowings Hedging of Foreign Exchange ADR/ GDRFCCBHedging of Foreign ExchangeManish TyagiErnst & Young
1 External Commercial Borrowings (ECB) and Trade Credits
2 Agenda External Commercial Borrowings Structured obligations Take out FinanceTrade creditsADR/ GDRs/ FCCBsForex Hedging
3 Concept ECB refer to cross border commercial loans (bank loans, buyers’ credit, suppliers’ credit, securitized instruments)availed by permitted eligible borrowers from permitted non- resident lenders with minimum average maturity of 3 years.
4 Route for availing ECBAutomatic Route i.e. no Reserve Bank of India (RBI) approval is required (however registration is required)Approval Route i.e. RBI approval is required.ECB for investment in industrial sector, infrastructure sector and specified service sectors such as Hotel, Hospital and Software sector is included under Automatic Route.
6 Eligible BorrowersCorporates including those in hotel, hospital, sofware, Infrastructure Finance Companies registered under the Companies Act.SEZ units – for their own requirement. Cannot transfer or onlend ECB funds to sister concerns or DTA unitsNGO’s engaged in microfinance activity – subject to satisfying the requirements specified by RBI
7 Eligible Borrowers Entities that are excluded: financial intermediaries such as banks, financial institutions (FIs), housing finance companies and NBFCs.Individual, Trusts and Non Profit making organizations
8 Eligible Lenders International Recognized Sources: International Banks International Capital MarketsMultilateral Financial Institutions(such as IFC, ADB, CDC etc.)Export Credit AgenciesSuppliers of EquipmentForeign CollaboratorForeign Equity Holder (other than OCB)
9 Eligible LendersForeign Equity Holder require minimum paid up equity in the borrower company:ECB upto 5 Million – 25% held directly by the LenderECB more than 5 Million – 25% held directly by the lender and debt equity ration not exceeding 4:1
10 Maximum amount of ECB per financial year EntityMaximum amount of ECB per financial yearCorporatesUSD 500 MillionCorporates in hotel, hospital and software service sectorUSD 100 MillionNGO’s in Microfinance activityUSD 5 MillionInfrastructure Finance Companies50% of their Owned funds
11 Minimum Average Maturity AmountMinimum Average MaturityUSD 20 Million3 year> USD 20 Million up to USD 500 Million5 yearsECB upto USD 20 million can have call/put option provided minimum average maturity is complied with
13 All in Cost ceiling over 6 months LIBOR* All-in-cost CeilingsAverage Maturity PeriodAll in Cost ceiling over 6 months LIBOR*3 years upto 5 years300 basis pointsMore than 5 years500 basis points* For the respective currency of borrowing or applicable benchmark
14 All-in-cost Ceilings Included Excluded Rate of Interest, other fee and expenses in foreign currencyCommitment fee, pre-payment fee, fee payable in Indian currency, withholding taxes
15 Permitted End-useFor investment such as import of capital goods, new projects, modernization/ expansion of existing production units) in real sector - industrial sector including small and medium enterprises (SME) and infrastructure sector and specific service sector in India.Infrastructure sector is defined as (i) power, (ii) telecommunications, (iii) railways, (iv) road including bridges, (v) sea port and airports, (vi) industrial parks and (vii) urban infrastructure (water supply, sanitation and sewage projects).ODI in JV/WOS abroad
16 Permitted End-useFirst stage acquisition of shares in the disinvestment process and also in the mandatory second stage offer under GOIs disinvestment programPayment for spectrum Allocation.For lending to self help groups or for micro credit by NGO’sIFC’s can avail ECBs equivalent to 50 per cent of their owned funds for on-lending to the infrastructure sector as defined under the ECB policy,.
17 Prohibited End-use Working capital General corporate purpose Repayment of existing Rupee loansOn lendingInvestment in capital market or acquiring a company in India( including investment in SPV or Money Market Mutual Funds)Real Estate
18 Guarantees / Security Guarantee Issuance of guarantee, standby letter of credit, letter of undertaking or letter of comfort by banks, Financial Institutions and Non-Banking Financial Companies (NBFCs) from India relating to ECB is not permitted.SecurityThe choice of security to be provided to the lender is left to the borrower. However, creation of charge over immoveable assets and financial securities - can be done only after obtaining ‘no objection’ from Authorized Dealer bank. Incase of enforcement – property will be transferred only to person resident in India.
19 Guarantees / SecurityPledge of shares by promoters, domestic associate companies of the borrowerCorporate GuaranteePersonal Guaranteepossible only after obtaining no objection from AD bank.
20 Prepayment & Refinancing Up to USD 500 million - subject to compliance with the minimum average maturity as applicable to the Loan.RefinancingPossible with the fresh ECB subject to the condition that the fresh ECB is raised at a lower all-in-cost ceiling and outstanding maturity of the original ECB is maintained.
21 Parking of ECB Proceeds Overseas Borrowers are permitted to either keep ECB proceeds either overseas or to remit these funds to India, pending utilization for permissible end-uses.ECB proceeds parked overseas can be invested in the following liquid assets(a) Deposits or Certificate of Deposit;(b) Treasury bills and other monetary instruments of one year maturity ;(c) Deposits with overseas branches / subsidiaries of Indian banks abroad.
22 Parking of ECB Proceeds Overseas The funds should be invested in such a manner that the investments can be liquidated as and when funds are required in India.
23 Conversion of ECB into Equity Conversion of ECB into equity is permitted subject to the following conditions:The activity of the company is covered under the Automatic Route for FDI or FIPB approval for foreign equity participation has been obtained by the company, whichever applicable,The foreign equity holding after such conversion of debt into equity is within the sectoral cap, if any,Pricing of shares is as per the SEBI and RBI guidelines as may be applicable for listed / unlisted companies.
24 Conversion of ECB into Equity Full conversionForm FC-GPR with the Regional Office concerned of the RBI along and form ECB-2 submitted to DSIR 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.
25 Conversion of ECB into Equity Partial ConversionConverted portion of ECB should be reported in form FC-GPR to the Regional Office concerned and 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.
27 Eligible BorrowersFinancial institutions dealing exclusively with infrastructure or export finance such as IDFC, IL&FS, Power Finance Corporation, Power Trading Corporation, IRCON and EXIM Bank on case to case basis.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
28 Eligible BorrowersNBFCs with minimum average maturity of 5 years from multilateral financial institutions, reputable regional financial institutions, official export credit agencies and international banks to finance import of infrastructure equipment for leasing to infrastructure projects.IFC’s beyond 50% of their owned funds.FCCBs by housing finance companies satisfying the criteria prescribed – minimum net worth of Rs. 500 Crore, listing on BSE / NSE, Minimum size of FCCB – 100 Million.
29 Eligible BorrowersSPV – set up to finance infrastructure companies / projects exclusively.Multi-State Co-operative Societies engaged in manufacturing activitySEZ developers can avail of ECBs for providing infrastructure facilities within SEZ.Corporates which have violated the extant ECB policy and are under investigation by Reserve Bank and / or Directorate of Enforcement.Cases falling outside the purview of the automatic route limits and maturity period
30 Amount and MaturityCorporates can avail 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.Prepayment and call/put options, however, would not be permissible for such ECB up to a period of 10 years.
31 Eligible Lenders International Recognized Sources: International Banks International Capital MarketsMultilateral Financial Institutions(such as IFC, ADB, CDC etc.)Export Credit AgenciesSuppliers of EquipmentForeign CollaboratorForeign Equity Holder (other than OCB)
32 Guarantees Applications considered: Applications for providing guarantee/standby letter of credit or letter of comfort by banks, financial institutions relating to ECB in the case of SME.ECB by textile companies for modernization or expansion of textile units.
34 ProcedureExecute a Loan Agreement with the overseas lender. However, Loan agreement is not required to be filedPrepare and file form 83 for obtaining Loan Registration Number (LRN) in duplicate, certified by the Company Secretary or Chartered Accountant to the Authorized Dealer.AD will process the application and forward the one copy to Department of statistics and information system, RBI for generating LRN.First draw down should be only after obtaining LRN.
35 ComplianceECB-2 Return certified by the designated AD bank needs to be submitted on monthly basis so that it can reach RBI within seven working days from the close of month to which it relatesPrimary responsibility to ensure that ECB raised / utilized is in conformity with the ECB guidelines is of the borrower concerned and any contravention of the ECB guidelines invite penal action under FEMA 1999
40 Structured Obligation RBI approval ??????FCo1Counter Guarantee to repay the amount on behalf of ICOOutside IndiaIndian BankIndiaAdvisory ServicesAdvisory FeesGuarantee to pay the amount on behalf of ICOSupply of goodsIndian CompanyIndian SupplierPayment
41 Other Instruments that require Compliance with ECB norms
42 Preference Shares / Debentures Non convertible, optionally convertible or partially convertible preference shares.Foreign Currency Convertible Bonds (FCCB) issued in accordance with the “Issue of FCCB and ordinary shares (through Depositary mechanism scheme, 1993”.Foreign Currency Exchangeable Bond (FCEB) issued in accordance with “Issue of FCEB Scheme 2008”
44 ???????Maturity period – Does it really mean the formula that you are providing where it is written under ECB guidelines.RBI has not granted the LRN even after 2 months – Can I drawdown the first tranche.Can I convert ECB into equity including Interest – what about interest on Interest.What do you mean by swap equivalent of LIBOR?
45 Take out FinancePermitted for refinancing of existing Rupee loans availed from the domestic banks by eligible borrowers in the sea port and airport, roads including bridges and power sectors for the development of new projects under approval route, subject to the following conditions:Execution of tripartite agreement with domestic banks and overseas recognized lendersMinimum average maturity period of seven years.Fee payable to the overseas lender should not exceed 100 bps per annum.
46 Take out FinanceFee payable to the overseas lender should not exceed 100 bps per annum.On take-out, the residual loan would be considered as ECB and would be designated in a convertible foreign currency.Domestic banks / Financial Institutions are not permitted to guarantee the take-out finance.Domestic bank not permitted to carry any obligation on its balance sheet after the occurrence of the take-out event.Compliance with the ECB Policy.
47 Trade Credits Definition Credits extended for imports directly by the overseas supplier, bank and financial institution for maturity of less than three years. Trade credits include suppliers’ credit or buyers’ credit.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.
48 Amount permitted per import transaction Amount and MaturityTransactionAmount permitted per import transactionMaturity PeriodImport transaction for imports permissible under the current Foreign Trade Policy of the DGFTUSD 20 MillionOne year or lessImport of capital goods as classified by DGFTMore than one year and less than three years
49 All in Cost ceiling over 6 months LIBOR* All-in-cost CeilingsAverage Maturity PeriodAll in Cost ceiling over 6 months LIBOR*Upto One year200 basis pointsMore than one year but less than three yearsThe all-in-cost ceilings include arranger fee, upfront fee, management fee, handling/ processing charges, out of pocket and legal expenses, if any
50 GuaranteesAD banks permitted to issue Letters of Credit/guarantees/Letter of Undertaking (LoU) /Letter of Comfort (LoC) in favour of overseas supplier, bank and financial institution up to USD 20 million forUp to one year for import of all non-capital goods permissible under FTP (except gold, palladium, platinum, Rodium, silver etc.) andUp to three years for import of capital goods.The period of guarantees has to be co-terminus with the period of credit, reckoned from the date of shipment.
52 Regulatory frameworkIndian companies can raise foreign currency resources abroad through the issue of FCCB/DR (ADRs/GDRs), in accordance with the :Scheme for issue of Foreign Currency Convertible Bonds and Ordinary Shares (Through Depository Receipt Mechanism) Scheme, 1993 and guidelines issued by the Government of India there under from time to time.
53 ADR / GDR A company can issue ADRs / GDRs if it is eligible to issue shares to persons resident outside India under the FDI Policy.However, an Indian listed company, which is not eligible to raise funds from the Indian Capital Market including a company which has been restrained from accessing the securities market by the Securities and Exchange Board of India (SEBI) will not be eligible to issue ADRs/GDRs.
54 ADR / GDRUnlisted companies, which have not yet accessed the ADR/GDR route for raising capital in the international market require prior or simultaneous listing in the domestic market.The proceeds raised through ADR / GDRs have to be kept abroad till actually required in India.Pending repatriation or utilization of the proceeds, the Indian company can invest the funds in:- Deposits, Certificate of Deposits or other instruments offered by banksDeposits with branch/es of Indian Authorized Dealers outside India; and
55 ADR / GDRTreasury bills and other monetary instruments with a maturity or unexpired maturity of one year or less. There are no end-use restrictions except for a ban on deployment / investment of such funds in real estate or the stock market.There is no monetary limit up to which an Indian company can raise ADRs / GDRs. The proceeds can be utilized for first stage acquisition of shares in the disinvestment process of Public Sector Undertakings / Enterprises and also in the mandatory second stage offer to the public in view of their strategic importance.
56 ADR / GDR Two-way Fungibility Scheme: The SEBI registered stock broker in India can purchase shares of an Indian company from the market for conversion into ADRs/GDRs based on instructions received from overseas investors.Reissuance of ADRs / GDRs would be permitted to the extent of ADRs / GDRs which have been redeemed into underlying shares and sold in the Indian market.
57 ADR / GDR Sponsored ADR/GDR issue An Indian company can also sponsor an issue of ADR / GDR.The company offers its resident shareholders a choice to submit their shares back to the company so that on the basis of such shares, ADRs / GDRs can be issued abroad.The proceeds of the ADR / GDR issue are remitted back to India and distributed among the resident investors who had offered their Rupee denominated shares for conversion. These proceeds can be kept in Resident Foreign Currency (Domestic) accounts in India by the resident shareholders who have tendered such shares for conversion into ADRs / GDRs.
58 FCCB - Meaning External Commercial Borrowing (ECB) Guidelines: FCCB means 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.
59 FCCB - MeaningIssue of Foreign Currency Convertible Bonds and Ordinary Shares(Through Depository Receipt Mechanism) Scheme, 1993:FCCB means a bond issued in accordance with this scheme & subscribed by a non-resident in foreign currency & 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 the debt instrument.
60 FCCB - Salient features Quasi debt instrumentIssued by an Indian CompanyDenominated in Foreign currencyGenerally unsecured & carry a fixed rate of interestOption for either conversion into equity shares at a predetermined price or redemptionCarry call & put options
61 Why FCCBs?DateSafety of guaranteed interest payments (if involved) for Bond holderBondholder can take advantage of the price appreciation of company’s stockSavings to issuer in terms of lesser debt financing costs since interests costs are lower than other debtsEnable issuer to defer equity and voting rights dilution
63 Regulatory Framework Specific inclusions under the Approval route: DateSpecific inclusions under the Approval route:Housing finance companiesmin. net worth not less than Rs 500 crore during previous three yearslisting on BSE and NSEmin. size of FCCBs USD 100 millionBanks and Financial intermediariesparticipating in Textile or Steel sector restructuring package of the Govt. or RBI (to the extent of their investment)Eligible Borrowers
64 Regulatory FrameworkDateEligible LendersForeign equity holder ( holding minimum 5% equity of borrower)All-in-cost ceilingsIssue related expenses not to exceed 2% of issue sizeAmount and MaturityNo exception
65 Regulatory Framework Conversion Pricing (at the time of issue) DateListed companiesPrice not less than higher of the two averages:average of weekly high and low of preceding two weeksaverage of the weekly high and low of preceding 6 monthsRelevant date – date thirty days prior to the date on which the meeting of the body of shareholders is held to consider the proposed issueUnlisted companiesCCI valuation guidelines applicableConversion Pricing(at the time of issue)
66 Regulatory Framework End uses No exception RBI approval DateEnd usesNo exceptionRBI approvalFilings (LRN, Form 83)ECB GuidelinesCompliance with FDI policyApprovals
67 Refinance / Restructuring Very recently RBI has permitted Indian companies to refinance the outstanding FCCBs subject to compliance with the following conditions:Fresh ECBs/ FCCBs shall be raised with the stipulated average maturity period and applicable all-in-cost being as per the extant ECB guidelines.The amount of fresh ECB/FCCB shall not exceed the outstanding redemption value at maturity of the outstanding FCCBs;
68 Refinance / Restructuring The fresh ECB/FCCB shall not be raised six months prior to the maturity date of the outstanding FCCBs.The purpose of ECB/FCCB shall be clearly mentioned as ‘Redemption of outstanding FCCBs’ in Form 83 at the time of obtaining Loan Registration Number from the Reserve Bank.ECB / FCCB beyond USD 500 million for the purpose of redemption of the existing FCCB will be considered under the approval route; andECB / FCCB availed of for the purpose of refinancing the existing outstanding FCCB will be reckoned as part of the limit of USD 500 million available under the automatic route as per the extant norms.
69 Refinance / Restructuring Restructuring of FCCBs involving change in the existing conversion price is not permissible. Proposals for restructuring of FCCBs not involving change in conversion price are considered by RBI under the approval route.
70 Heading of Foreign Exchange DateHeading of Foreign Exchange
71 Regulatory FrameworkForeign Exchange Management (Foreign Exchange Derivative (Contracts) Regulations, 2000Foreign exchange derivative contract defined as a financial transaction or an arrangement in whatever form and by whatever name called, whose value is derived from price movement in one or more underlying assets, and includes,a transaction which involves at least one foreign currency other than currency of Nepal or Bhutan, ora transaction which involves at least one interest rate applicable to a foreign currency not being a currency of Nepal or Bhutan, ora forward contract,but does not include foreign exchange transaction for Cash or Tom or Spot deliveries.es
72 Derivatives in India Derivatives in India Financial Commodity Futures Options- Call- PutFutures
73 Concepts Forward Futures Options Agreement to buy / sell at a future date at an agreed priceNot standardizedRisk ProneUn regulatedIlliquidConcept same as Forward contract, except:Standardized contractsExchange takes the risk of any defaultRegulatedReversal possibleCurrently, delivery not permittedIndex Futures and Stock FuturesExposure is unlimited for both partiesRight but not an obligation to buy/sell at a future date at an agreed priceCall Option / Put OptionInitial cost in form of premium to option writerExposure is limited for buyer / Exposure unlimited for Option writerComplex pricing methodology of Options
74 Evolution of productsTraditionally, long history of derivatives in OTC MarketOptions of various kinds (called Teji, Mandi, Fatak) in unorganized markets traded in early 1900’s in MumbaiSC(R)A banned all kinds of options in 1956Prohibition removed on options in 1995“Derivatives” treated as “securities” pursuant to SC(R)A amendment in 1999Powers delegated to SEBI for regulation of financial derivatives market
75 FeaturesInstrument which derives its value from one or more than one underlying assetsCommodities, currency, securities, index, interest rate, etc.Independent existenceRequires no / minimal initial investmentTool for transfer of risk at a costSettled at a future dateStandardised contractsTraded on Stock Exchange / OTCsDerivatives enable transfer of risk between two parties having different risk / future perceptions
76 Derivatives – A dynamic financial tool BenefitsMarket efficiencyRisk sharing and transferLow transaction costsCapital intermediationLiquidity enhancementPrice discoveryCash market developmentHedging toolsFCRA parallel to SCRA, FMC to SEBIPreamble of FCRA still prohibits options – Bill passed by the upper house for amendment in 2004Derivatives trading now allowed in 90 commodities.Derivatives – A dynamic financial tool
77 Facilities to residents Forward contractA person resident in India is permitted to enter into a forward contract with an AD Bank to hedge an exposure to exchange risk in respect of a transaction for which sale and/or purchase of foreign exchange is permitted subject to compliance with the following conditions:AD Bank is satisfied about the genuineness of the underlying exposure through verification of documentary evidence.The maturity of the hedge does not exceed the maturity of the underlying transaction.
78 Facilities to residents If the exact amount of the underlying transaction is not ascertainable, the contract is booked on the basis of a reasonable estimate.Foreign currency loans/bonds can be hedge only after final approval is accorded by the RBI, if required.In case of GDRs issue price must be finalized.Balances in the EEFC accounts sold forward by the account holders shall remain earmarked for delivery and such contracts shall not be cancelled. They may be, however, be rolled-over,
79 Facilities to residents Contracts involving the rupee as one of the currencies, once cancelled, shall not be rebooked except that they can be rolled over at on-going rates on or before maturity.Such contracts booked by residents to hedge current account transactions, regardless of tenor, not being those booked on past performance basis without documents or booked to hedge transactions denominated in foreign currency but settled in Indian Rupee, may be cancelled and rebooked freely at on-going rates.Contracts covering export transactions may also be cancelled, rebooked or rolled over at on-going rates without any restriction.
80 Facilities to residents Loan ContractsResident Indians who have borrowed ECB may enter into an Interest rate swap or Currency swap or Coupon Swap or Foreign Currency Option or Interest rate cap or collar (purchases) or Forward Rate Agreement (FRA) contract with an AD bank in India or with a branch outside India of an AD Bank for hedging his loan exposure and unwinding from such hedges subject to the following conditions:The contract does not involve rupee transactionsThe Reserve Bank has accorded final approval for borrowing in foreign currency.
81 Facilities to residents The notional principal amount of the hedge does not exceed the outstanding amount of the foreign currency loan, andThe maturity of the hedge does not exceed the unexpired maturity of the underlying loan.A person resident in India, who owes a foreign exchange or rupee liability can enter into a contract for foreign currency-rupee swap with an AD Bank in India to hedge long-term exposure. However, if such contract is cancelled it shall not be rebooked or re-entered, by whatever name called
82 Facilities to residents Foreign currency optionsForeign currency option contract not involving the rupee as one of the currencies can be hedged with an AD Bank for mitigating foreign exchange exposure arising out of trade subject to the condition that in respect of cost effective risk reduction strategies like range forwards, ratio-range forwards or any other variable by whatever name called there shall not be any net inflow of premium.The transactions are freely booked and/or cancelled.Foreign currency-rupee option contract can be hedged with an AD Bank to hedge an exposure to exchange risk in respect of a transaction for which sale and/or purchase of foreign currency is permitted on the same terms and conditions applicable to forward contracts.
83 Facilities to Non Residents Foreign Institutional Investor (FII)Registered FII can execute a forward contract with rupee as one of the currencies with an AD Bank to hedge its exposure in India: subject to the following conditions:the value of the hedge does not exceed the market value of the underlying debt or equity instruments, provided forward contracts once booked shall be allowed to continue to the original maturity even if the value of the underlying portfolio shrinks, for reasons other than sale of securities,Forward contracts may be cancelled and rebooked or may be rolled over on or before maturity.
84 Facilities to Non Residents The cost of hedging is met out of repatriable funds and/or inward remittance through normal banking channel,All outward remittances incidental to hedge are net of applicable Indian taxes.
85 Facilities to Non Residents Non Resident Indian (NRI)An NRI can enter into forward contract with rupee as one of the currencies, with an AD Bank to hedge :the amount of dividend due to him/it on shares held in an Indian company;the balances held in Foreign Currency Non-Resident (FCNR) account or Non-Resident External Rupee (NRE) account;the amount of investment made under PIS or under FDI.
86 Facilities to Non Residents Person Resident Outside IndiaA person resident outside India is permitted to enter into a forward sale contract with an authorized dealer in India to hedge the currency risk arising out of his proposed foreign direct investment in India.A person resident outside India having Foreign Direct Investments in India may, subject to the condition that forward cover shall be taken only after the rate has been approved by the Board, enter into forward contracts with rupee as one of the currencies to hedge the currency risk on dividend receivable by him from the Indian company.
87 Facilities to Non Residents FIIs, NRIs or a Person Resident outside India having FDI in India, may enter into a foreign currency-rupee option contract with the AD Bank in India, under the same terms and conditions applicable to forward contracts.