THEORETICAL AND REGULATORY FRAMEWORK OF LEASING M.F.S. CHAPTER – 2 M. Y. KHAN THEORETICAL AND REGULATORY FRAMEWORK OF LEASING

Leasing In India: Evolution Phases Pre 1970 1970 - 1995 Post 1995 - Only HP companies   - Automobile financing mainly for commercial vehicles - Entry into equipment finance through: * Leasing * Hire Purchase - Commencement of car finance - Access to Capital Markets - Exit of large no. of companies: * Small & Large * Indian & Foreign - Regulation by RBI - Few companies diversified into related financial services Leasing In India: Evolution Phases

Leasing Industry: Major Players Shriram Finance Tata Finance Countrywide Finance Citicorp SREI International Finance Sundaram Finance Cholamandalam Finance Mahindra & Mahindra GE Capital

Lease Finance: The Concept “Conceptually, a lease may be defined as a contractual agreement between two parties namely Lessor (owner of the asset) and Lessee (User of the asset) in which the lessor provides an asset/equipment to the lessee for use over a period of time and in return the lessee provides periodical lease rentals to the lessor and at the end of lease period, the asset reverts to the lessor” A lease is a contractual arrangement where the lessor grants the lessee the right to use an asset in return for periodical payments. Leasing essentially involves the divorce of ownership from the economic use of an asset/equipment.

Essential Elements of Lease: Parties to the contract Asset Ownership separated from user Term of lease Lease Rentals Modes of terminating lease: The lease is renewed on a perpetual basis or for a definite period. The asset reverts to the lessor. The assets reverts to the lessor and the lessor sells it to a third party. The lessor sells the asset to the lessee.

STEPS IN LEASING:

Classification of Lease: 1. Finance Lease and Operating Lease 2. Sales and Lease Back and Direct lease Bipartite Lease Tripartite Lease 3. Single Investor Lease and Leveraged Lease 4. Domestic Lease and International Lease Import Lease Cross Border Lease

1. Finance Lease and Operating Lease: “According to the International Accounting Standard (IAS - 17), the finance lease is the one in which the lessor transfers to the lessee, substantially all the risks and rewards incidental to the ownership of the asset whether or not the title is eventually transferred”. Key Features: FL is suitable for ships, aircrafts, railway wagons, lands, buildings and heavy machines. FL is long term, non cancellable lease agreements. In FL the cost of an assets is fully amortized during primary lease period. In FL, the lessee has an option to purchase the asset at the end of lease period. FL is also called as “Full Pay Out Lease”. Maintenance of asset is done by lessee.

Operating Lease: “According to the IAS - 17, an operating lease is one which is not a finance lease. In an operating lease, the lessor does not transfer all the risks and rewards incidental to the ownership of the asset and the cost of the assets is not fully amortized during the primary lease period”. Key Features: OL is useful in case of computers, office equipments, automobiles etc. OL refers to short term lease agreement or the term of lease is always lesser than the economic life of an asset. The primary lease period does not cover the cost of an asset. Maintenance of asset is done by lessor. OL is also called as “service lease”

2. Sale and lease back and Direct lease “In this, the owner of an asset sales it to the a leasing company (lessor) which leases it back to the owner (lessee)”. For exp. Safe Deposite Vaults by Banks. Direct Lease: A. Bipartite Lease: “In such lease, there are two parties in the lease transaction namely equipment supplier cum lessor and lessee”. B. Tripartite Lease: “In such lease, there are three parties in the lease agreement namely equipment supplier, lessor and lessee.

3. Single Investor Lease and Leveraged Lease: In such lease, two parties namely lessor and lessee are included in lease transaction. The leasing co’ (lessor) funds/finance the entire investment by an appropriate mix of debt and equity funds. Leveraged Lease: Three parties are involved in lease transaction namely Lessor (equity investor), Lender and Lessee.

4. Domestic Lease and International Lease: “A lease transaction is classified as domestic if all the parties to the agreement, namely equipment supplier, lessor and lessee are domiciled in the same country”. International Lease: “If the parties to the lease transaction are domiciled in different countries, its known as Int. Lease”. A. Import Lease: “In an import lease, the lessor and lessee are domiciled in the same country but the equipment supplier is located in a different country. B. Cross Border Lease: “it means the lessor and lessee are domiciled in different countries. The domicile of the supplier is immaterial in this case.

Profile of leasing in India Independent leasing companies Other Finance Companies Manufacturer – lessors In house lessors Commercial banks

Advantages of Leasing – To the Lessee Financing of capital goods 100% financing of capital goods w/o capital investments. Lessee is able to commence business w/o making any investment. Additional source of financing Less costly (compared to Bank Finance) Ownership preserved Avoids conditionalities viz. conditionalities associated with EQ/DEBT Issue and Bank Loan Flexibility in structuring of lease rentals Obsolescence Risk is averted Simplicity

Advantages to Lessor: Full security Tax benefit High profitability Only becoz of “Ownership Preserved” Tax benefit Mainly Depreciation High profitability Since return from business is more than CoC Trading on equity High growth potential

Limitations of Leasing: Restrictions on use of Equipment Addition/alteration of asset is not permissible Loss of residual value Since Ownership remains with Lessor Limitations of financial lease Higher payout obligation in case of premature termination of lease. Consequences of default Violation of clauses of Lease Contract may result in to termination of Lease. Understatement of Lessee assets Sales tax : Double Taxation

Contract Act GENERAL PROVISION: CONTRACT LEGAL OBLIGATION LAWFUL CONSIDERATION COMPETENT PARTIES FREE CONSENT DISCHARGE OF CONTRACTS REMEDIES FOR BREACH OF CONTRACT INDEMNITY AND GUARANTEE

Special Provision Leasing as bailment Agreement Liabilities of lessee Pay the lease rentals periodically Take reasonable care of the asset Return the leased asset Liabilities of lessor Deliver the asset to the lessee Authorize the lessee to use the asset Leave the asset in peaceful possession

Acts/Laws RBI NBFC Directions Other Laws Motor Vehicles Act Indian Stamp Act

Lease Documentation and Agreement Lease Approval Process Guarantee Agreement Collateral Security/Hypothecation Agreement Master Lease and Supplemental Lease Agreements

Clauses in Lease Agreements Nature of the lease Description Delivery and redelivery Period Lease rentals Use (Purpose) Repairs and maintenance (Lessor or Lessee) Alteration