FEMA 项下外债（“ECB”）指南——第二部分

ECB 是国际市场融资的重要资金来源。由于 ECB 涉及外币，此类交易受印度储备银行（RBI）监管。本文的第一部分已对 ECB 进行了详细讨论。第一部分。

Remaining RBI Regulations related to external commercial borrowings are as follows:

1. ECB 筹集资金的存放：

• Funds borrowed through ECB, pending utilization, can’t be kept in the form. RBI has specified the following manner of parking of ECB proceeds.

1. ECB 筹集资金在境外的存放：
   1. 尚未动用且仅用于外币支出的 ECB 资金可存放于境外。
   2. 在动用之前，这些资金可投资于以下流动资产：
      1. 由标准普尔/惠誉国际评级不低于 AA (-) 或穆迪评级不低于 Aa3 的银行所提供的存款、大额存单或其他产品；
      2. 具有上述最低评级且期限为一年以内的国库券及其他货币工具；以及
      3. 存放在印度银行海外分行/子公司的存款。

2. Parking of ECB proceeds domestically:
   1. ECB proceeds meant for Rupee expenditure should be repatriated immediately to their Rupee accounts with AD Category I banks in India.
   2. Amount pending utilization can be parked in term deposits with AD Category I banks in India. Maximum period of such term deposit shall be 12 months cumulatively.
   3. These term deposits should be kept in an unencumbered position, i.e, no debt should be raised against such term deposit.

2. 筹集 ECB 的程序：

• Under automatic route:
  • Funds through ECB can be borrowed without obtaining any prior approval from RBI. However, parameters prescribed by RBI should be fulfilled.
  • Entities that want to raise ECB under the automatic route may approach an AD Category I bank with their proposal along with duly filled in Form external commercial borrowings.

• 审批路径下：
  • 借款人可通过其 AD 第一类银行向印度储备银行提交 ECB 表格申请进行审核。
  • 印度储备银行将综合考虑总体指导方针、宏观经济形势及具体提案的优劣来审议此类案件。
  • 对于超过特定限额（不时调整）的 ECB 提案，印度储备银行将提交给其设立的授权委员会。授权委员会由外部和内部成员组成，印度储备银行将参考该委员会的建议做出最终决定。

3. Reporting Requirement:

ECB 借款须遵守以下报告要求：

1. Loan Registration Number (LRN):
   1. Any borrower can draw-down in respect of an external commercial borrowings only after obtaining the LRN from the Reserve Bank.
   2. To obtain the LRN, borrowers should file a certified application in Form ECB mentioning therein all information about terms and conditions of the ECB.
   3. Form should be filed in duplicate to the designated AD Category-I bank.
   4. Further, AD Category-I bank will forward one copy to the RBI.
   5. Please note that copies of lthe oan agreement for raising ECB are not required to be submitted to the Reserve Bank.

2. ECB 条款和条件的变更：
   1. 任何符合外债规范的 ECB 参数修订（包括经借贷双方协商一致减少还款额），均应通过修订后的 ECB 表格向印度储备银行报告。
   2. 相关信息应在变更生效后 7 天内提交。
   3. 在提交修订后的 ECB 表格时，应在通讯中明确说明变更内容。

3. Monthly Reporting of actual transactions:
   1. The borrower should provide information about all ECB transactions to AD Category-I Bank through form ECB-2 every month.
   2. Form ECB-2 should be filed within 7 days from the close of month.
   3. Any changes in ECB parameters should also be incorporated in Form ECB 2 Return.

4. 逾期报告的滞纳金：

1. Any borrower, who is otherwise in compliance with ECB guidelines, can regularise the delay in reporting of drawdown of external commercial borrowings proceeds before obtaining LRN or delay in submission of Form ECB 2 returns, by payment of late submission fees as detailed in the following matrix:

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2. 滞纳金可通过汇票或印度储备银行指定的其他方式支付。此类付款应随附必要的申报表。
3. 外债表格和 ECB 2 表格的违规报告将分别处理。
4. 未支付滞纳金（LSF）将被视为违反报告规定，并根据《1999 年外汇管理法》（FEMA）或其制定的法规/规则进行复合或裁决。

4. Standard Operating Procedure (SOP) for untraceable Entities:

针对逾期提交外债申报表的情况，规定了相应的滞纳金。然而，对于通过 ECB 筹集资金却未提交任何 ECB 申报表的实体该如何处理？印度储备银行将此类实体称为“无法追踪的实体”，并在主指令中为其提供了单独的标准作业程序（“SOP”）。

As per Para 6.5 of ECB Master Directions, AD Category-1 bank is required to follow the following SOP in case of untraceable entities which have not filed ECB returns prescribed under the ECB framework, either physically or electronically, for the past 8 quarters or more:

4.1 Meaning of Untraceable Entities:

Any entity which has raised funds through external commercial borrowings and entity itself or its auditor(s), director(s) or  promoter(s) are not reachable or responsive over email/letters/phone for 2 quarters or more with documented communication/ reminders sent 6 or more and it fulfills both of the following conditions:

1. Entity is not operative at the registered office address available with the AD Bank or not found to be operative during the visit by the officials of the AD Bank;
2. Entities have not submitted Statutory Auditor’s Certificate for the last two years or more;

4.2 Action against untraceable Entities:

Following actions shall be taken under untraceable entities:

1. File Revised Form external commercial borrowings, if required, and last Form ECB 2 Return without certification from the company with ‘UNTRACEABLE ENTITY’ written in bold on top. The outstanding amount will be treated as written-off from external debt liability of the country but may be retained by the lender in its books for recovery through judicial/ non-judicial means;
2. No fresh ECB application by the entity should be examined/processed by the AD bank;
3. Directorate of Enforcement should be informed whenever any entity is designated ‘UNTRACEABLE ENTITY’; and
4. No inward remittance or debt servicing will be permitted under the automatic route.

5. Conversion of ECB into Equity: 

In some cases, instead of repaying ECB, the borrower may propose to issue equity shares in its company to the lender to avoid repayment. Issuance of equity shares to ECB lender will result in Foreign Direct Investment (“FDI”) in the company. Therefore, all guidelines related to FDI such as approval, sectoral cap, etc. should be fulfilled.

As per ECB Master Directions, following guidelines should be fulfilled in case of conversion of ECB to equity:

1. ECB matured but not paid can also be converted into equity.
2. The activity of the borrowing company is covered under the automatic route for FDI or in other cases, Government approval is received, for foreign equity participation as per extant FDI policy.
3. The conversion should be made with the lender’s consent and without any additional cost.
4. Conversion should not result in contravention of eligibility and breach of applicable sector cap on the foreign equity holding under FDI policy;
5. Applicable pricing guidelines for shares are complied with;
6. In case of partial or full conversion of ECB into equity, the reporting to the Reserve Bank will be as under:
   1. Partial conversion: the converted portion is to be reported in Form FC-GPR prescribed for reporting of FDI flows, while monthly reporting to DSIM in Form ECB 2 Return will be with suitable remarks, viz., "external commercial borrowings partially converted to equity".
   2. Full conversion: the entire portion is to be reported in Form FC-GPR, while reporting to DSIM in Form ECB 2 Return should be done with remarks “ECB fully converted to equity”. Subsequent filing of Form ECB 2 Return is not required.
   3. If conversion is carried out in a phased manner, then reporting through Form FC-GPR and Form ECB 2 Return will also be in phases.
7. If such borrower has availed other credit facilities from the Indian banking system, including foreign branches/subsidiaries of Indian banks, the applicable prudential guidelines issued by the Department of Banking Regulation of Reserve Bank, including guidelines on restructuring are complied with;
8. Consent of other lenders, if any, to the same borrower is available or at least information regarding conversions is exchanged with other lenders of the borrower.
9. For conversion of ECB dues into equity, the exchange rate prevailing on the date of the agreement between the parties concerned for such conversion shall be considered. However, any lesser rate can be applied with a mutual agreement with the ECB lender. It may be noted that the fair value of the equity shares to be issued shall be worked out concerning the date of conversion only.

6. Security for raising ECB:

To ensure security to the lender, the AD Category-I banks are permitted to allow creation/cancellation of charge on immovable assets, movable assets, financial securities and issue of corporate and/or personal guarantees in favour of overseas lender/security trustee. However, the Bank should satisfy itself that:

1. the underlying ECB complies with the extant ECB guidelines,
2. security clause exists in the Loan Agreement requiring the ECB borrower to create/cancel a charge, in favour of the overseas lender, and
3. No objection certificate, as applicable, from the existing lenders in India has been obtained in case of creation of charge.

Once the aforesaid stipulations are met, the AD Category I bank may permit creation of charge subject to fulfillment of conditions specified by RBI based on the nature of security..

7. Special procedure for ECB for certain entities:

7.1 ECB facility for Oil Marketing Companies: 

1. Public Sector Oil Marketing Companies (OMCs) can raise ECB for working capital purposes with minimum average maturity period of 3 years from all recognised lenders under the automatic route without mandatory hedging and individual limit requirements.
2. The overall ceiling shall be USD 10 billion or equivalent.
3. Further, OMCs should have a Board approved forex mark to market procedure and prudent risk management policy, for such ECB.

All other provisions under the ECB framework will apply to such ECB.

7.2 ECB facility for Startups: 

AD Category-I banks are permitted to allow Startups, entities recognised by the Central Government, to raise ECB under the automatic route with various liberalization. Few liberalisations are as follows:

1. 最低平均到期期限为 3 年。
2. 贷款方/投资者须为金融行动特别工作组（FATF）合规国家的居民。但根据现行《境外直接投资政策》，印度银行的海外分支机构/子公司，以及印度实体已进行境外直接投资的海外实体，不被视为本框架下的认可贷款方。
3. 借款形式可为贷款，或不可转换、可选转换或部分可转换的优先股。
4. 每家初创企业的借款限额为每财年 300 万美元或等值金额，币种可为印度卢比、任何可自由兑换的外币，或两者的组合。
5. 综合成本由借款方与贷款方协商确定。
6. 借款所得资金可用于与借款方业务相关的任何支出。
7. 在符合初创企业外商投资相关法规的前提下，允许将外债（ECB）自由转换为股权。

Conclusion:

In the era of globalization, funds can be arranged through the international market at more economical rates. However, before opting for ECBs, every entity is advised to seek professional service to ensure that all guidelines issued by RBI are duly complied with.