Banking & Finance

There is no blanket legislation that governs the project financing transactions, in India. Different laws and regulations apply in different scenarios, based on the nature of the financing transaction. The primary legislations in this regard is as follows:

1. The Banking Regulation Act 1949.
2. The Reserve Bank of India Act 1934.
3. Reserve Bank of India (RBI) issued guidelines, master directions, notifications and circulars (as regulator for banking sector in India).

Whereas, when the loan availed for such projects is from a non-resident lender, the stipulations contained in the Foreign Exchange Management Act, 1999 and allied legislations, are attracted.

In India, project financing is used in both, Greenfield (fresh construction) as well as Brownfield (improvements and augmentation) Projects. These include:

1. Public Utilities and Infrastructure, such as roads, airports, railways, ports etc.
2. Energy generation and distribution
3. Healthcare
4. Telecommunication etc.

The main parties in a project finance transaction are the:

1. Lender(s).
2. Project developer.
3. Sponsor.
4. Governmental authority.
5. Material project participants.
6. Security trustee (on a case by case basis).
7. Facility agent (on a case by case basis).
8. Escrow or Trust and Retention Account Bank.

The typical documents in a project finance transaction are as follows:

1. Loan agreement.
2. Security documents, including:
   1. mortgage documents creating a charge over land (such as the indenture of mortgage/memorandum of entry and director's declaration), permanently fixed structure and project documents;
   2. deed of hypothecation creating a charge over movable assets, current assets including cash and bank accounts; and
   3. share pledge agreement or non-disposal undertaking.
3. Sponsor undertaking or guarantees (personal/corporate).
4. Trust and retention account agreement or an escrow account agreement.
5. Inter-creditor agreement (in cases of multiple lenders).
6. Direct agreements.
7. Security trustee agreement (on a case-by-case basis).

The following fee and charges applicable on the execution of project documents:

1. Stamp duty. This must be paid in accordance to the rate prescribed by the relevant revenue authorities. The value of the stamp duty payable varies from state to state.
2. Registration fees. These must be paid on registration of security documents involving immoveable property.
3. Notarization charges. Certain financing documents such as power of attorney, declaration and undertakings may be notarized by making a nominal payment of the notarization charges.

These costs associated with stamp duty are often exorbitant and the same can be reduced by appropriately structuring the financing documents.

Documents that create or purport to create any security interest in the immovable properties in India, are compulsorily required to be registered with the relevant revenue authority, within whose jurisdiction such immovable property is situated.

Additionally, any company that has created a security interest over its assets, is required to register such charge on its assets with Registrar of Companies/ Central Registry of Securitization Asset Reconstruction and Security Interest as the case may be.

In India, a multifold regulatory structure exists for the various infrastructure sectors. For instance, the power project (both renewable and non-renewable) sector is regulated by the appropriate central and state electricity regulatory commissions, set up under the Electricity Act, 2003. Whereas, for the road infrastructure sector, the National Highways Authority of India, set up under the National Highways Act of India, 1998, regulates the same. For the ports and shipping matters, the central and state government regulate the construction of the same, based on the fact that whether such port is notified as a major port or minor port. Thus, there is a sector wise division in the administration and regulation in the infrastructure matters.