1. Is it necessary or advisable for any lender, arranger, facility agent or security agent to be licensed, qualified or otherwise entitled to carry on business in this jurisdiction: (a) by reason only of its execution, delivery or performance of the finance documents; or (b) to enable it to enforce its rights under the finance documents?
No. However, depending on the nature of the security created to secure the ECB, an offshore security agent would need to have a digital signature to file certain forms with the Registrar of Companies (ROC) or have a dematerialized account with a depository in India. If it does not have either of these, it may be necessary to appoint a security trustee in India.
2. Will any lender, arranger, facility agent or security agent be deemed to be resident, domiciled, carrying on business or subject to tax by reason only of the execution, delivery, performance or enforcement of the finance documents?
No.
3. Are there any regulatory reporting requirements that lenders must observe in connection with those transactions?
Depending on the nature of the security created in relation to the ECB, the lender or the security agent may be required to sign certain forms with the ROC, make certain filings with the Central Registry of Securitization Asset Reconstruction and Security Interest (CERSAI) or assist with the registration of the security documents with the relevant land registry. Further, if a pledge or any other encumbrance is created over shares of a listed company, it may need to be disclosed by the lender or the security agent to the relevant stock exchange in accordance with the regulations issued by the Securities and Exchange Board of India (SEBI).