Reserve Bank of India (RBI) vide circular no. RBI/2018-2019/109 A.P. (DIR Series) Circular No. 17 dated 16th January, 2019 has issued External Commercial Borrowings (ECB) Policy – New ECB Framework.
Under the said policy, AD Category-I banks are permitted to allow Startups to raise ECB under the automatic route as per the following framework:-
1. Eligibility Criteria: An entity recognized as a Startup by the Central Government as on date of raising ECB.
(Check startup status : https://www.startupindia.gov.in/content/sih/en/startup-scheme.html)
2. Maturity: Minimum average maturity period will be 3 years .
3. Recognized lender: Lender / investor shall be a resident of a FATF compliant country. However, foreign branches/subsidiaries of Indian banks and overseas entity in which Indian entity has made overseas direct investment as per the extant Overseas Direct Investment Policy will not be considered as recognized lenders under this framework.
4. Forms: The borrowing can be in form of loans or non-convertible, optionally convertible or partially convertible preference shares.
5. Currency: The borrowing should be denominated in any freely convertible currency or in Indian Rupees (INR) or a combination thereof. In case of borrowing in INR, the non-resident lender, should mobilise INR through swaps/outright sale undertaken through an AD Category-I bank in India.
6. Amount:The borrowing per Startup will be limited to USD 3 million or equivalent per financial year either in INR or any convertible foreign currency or a combination of both.
7. All-in-cost:Shall be mutually agreed between the borrower and the lender.
8. End uses:For any expenditure in connection with the business of the borrower.
9. Conversion into equity:Conversion into equity is freely permitted subject to Regulations applicable for foreign investment in Startups.
10. Security:The choice of security to be provided to the lender is left to the borrowing entity. Security can be in the nature of movable, immovable, intangible assets (including patents, intellectual property rights), financial securities, etc. and shall comply with foreign direct investment / foreign portfolio investment / or any other norms applicable for foreign lenders / entities holding such securities. Further, issuance of corporate or personal guarantee is allowed. Guarantee issued by a non-resident(s) is allowed only if such parties qualify as lender under ECB for Startups. However, issuance of guarantee, standby letter of credit, letter of undertaking or letter of comfort by Indian banks, all India Financial Institutions and NBFCs is not permitted.
11. Hedging:The overseas lender, in case of INR denominated ECB, will be eligible to hedge its INR exposure through permitted derivative products with AD Category – I banks in India. The lender can also access the domestic market through branches/ subsidiaries of Indian banks abroad or branches of foreign bank with Indian presence on a back to back basis.
Note: Startups raising ECB in foreign currency, whether having natural hedge or not, are exposed to currency risk due to exchange rate movements and hence are advised to ensure that they have an appropriate risk management policy to manage potential risk arising out of ECBs.
12. Conversion rate:In case of borrowing in INR, the foreign currency – INR conversion will be at the market rate as on the date of agreement.
13. Other Provisions:Other provisions like parking of ECB proceeds, reporting arrangements, powers delegated to AD banks, borrowing by entities under investigation, conversion of ECB into equity will be as included in the ECB framework.
However, provisions on leverage ratio and ECB liability: Equity ratio will not be applicable.
The Start-ups as defined above [Point 1. as well as other start-ups which do not comply with the aforesaid definition but are eligible to receive FDI, can also raise ECBs under the general ECB route/framework.