A Profile of the Leasing Business in India - Free Essay Example

Sample details Pages: 16 Words: 4923 Downloads: 10 Date added: 2017/06/26 Category Business Essay Type Narrative essay Did you like this example? 25 years ago, Farouk Irani quit his high profile job in Citibank to launch his dream project: a leasing company in India. On 10th  Sept., 1973, Irani was able to convince Dr A C Muthia, Industrialist, to have the First Leasing Company of India incorporated. For several years, First Lesing Company remained the Only Leasing Company. Don’t waste time! Our writers will create an original "A Profile of the Leasing Business in India" essay for you Create order Ever since IFC, Washington decided to support Indian leasing with investment in companies in 4 metros, Indian leasing has never looked back. This was about 1980. Early eighties capital market boom found many young entrepreneurs riding the leasing wave. As it celebrates its 25th  Birthday, Indian leasing is today a central part of the financial system. On its way, it has passed through several twists and turns. Financial industry World-over has a very high beta factor: it is hyper-sensitive to changes in economic scenario. Periods of general prosperity are extremely good for the leasing industry; downturns in economic cycle cost is extremely high. That apart, financial system is invariably affected by the contagion effect: failures of a few players affect even the healthy ones. Evolution of Indian Leasing Industry Leasing activity was initiated in India in 1973. The first leasing company of India, named First Leasing Company of India Ltd. was set up in that year by Farouk Irani, with industrialist A C Muthia. For several years, this company remained the only company in the country until 20th  Century Finance Corporation was set up this was around 1980. By 1981, the trickle started and Shetty Investment and Finance, Jaybharat Credit and Investment, Motor and General Finance, and  Sundaram Finance  etc. joined the leasing game. The last three names, already involved with hire-purchase of commercial vehicles, were looking for a tax break and leasing seemed to be the ideal choice. The industry entered the third stage in the growth phase in late 1982, when numerous financial institutions and commercial banks either started leasing or announced plans to do so.  ICICI, prominent among financial institutions, entered the industry in 1983 giving a boost to the conce pt of leasing. Thereafter, the trickle soon developed into flood, and leasing became the new gold mine. This was also the time when the profit-performance of the two doyen companies, First Leasing and 20th Century had been made public, which contained all the fascination for many more companies to join the industry. In the meantime,  International Finance Corporation  announced its decision to open four leasing joint ventures in India. To add to the leasing boom, the Finance Ministry announced strict measures for enlistment of investment companies on stock-exchanges, which made many investment companies to turn overnight into leasing companies. As per RBIs records by 31st March, 1986, there were 339 equipment leasing companies in India whose assets leased totaled Rs. 2395.5 million. One can notice the surge in number from merely 2 in 1980 to 339 in 6 years. Subsequent swings in the leasing cycle have always been associated with the capital market whenever the c apital markets were more permissive, leasing companies have flocked the market. There has been appreciable entry of first generation entrepreneurs into leasing, and in retrospect it is possible to say that specialized leasing firms have done better than diversified industrial groups opening a leasing division. Another significant phase in the development of Indian leasing was the Dahotre Committees recommendations based on which the RBI formed guidelines on commercial bank funding to leasing companies. The growth of leasing in India has distinctively been assisted by funding from banks and financial institutions. Banks themselves were allowed to offer leasing facilities much later in 1994. However, even to date, commercial banking machinery has not been able to gear up to make any remarkable difference to the leasing scenario. The post-liberalization era has been witnessing the slow but sure increase in foreign investment into Indian leasing. Starting with GE Capitals entr y, an increasing number of foreign-owned financial firms and banks are currently engaged or interested in leasing in India. Pre 1970 1970-1995 1995-2004 Only HP companies  Automobile financing mainly for commercial vehicles  Fixed Deposit: main source of funds Entry into equipment finance through: * Leasing * Hire Purchase  Commencement of car finance  Access to Capital Markets  Funds from FDs and Banks Exit of large no. of companies: * Small Large * Indian Foreign Regulation by RBI Few companies diversified into related financial services Major Constituents of Indian Leasing Industry Lessors Specialized leasing companies: There are about 400-odd large companies which have an organizational focus on leasing, and hence, are known as leasing companies. Till recently, most of them were diversified financial houses, offering several fund-based and non-fund based financial services. However, recent SEBI rules on bifurcation of fund-based and non-fund based activities has resulted into hiving-off of merchant banking divisions of these entities. Banks and bank-subsidiaries: Till 1991, there were some ten bank subsidiaries active in leasing, and over-active in stock-investing. The latter variety was ravaged in the aftermath of the 1992 securities scam. In Feb., 1994, the RBI allowed banks to directly enter leasing. So long, only bank subsidiaries were allowed to engage in leasing operations, which was regarded by the RBI as a non-banking activity. However, the 1994 Notification saw an essential thread of similarity between financial leasing and traditional lending. Though St ate Bank of India, Canara Bank etc have set up leasing activity, it is not currently at a scale to make any difference on the leasing scenario. This is different from the rest of the World, where banks are front-runners in leasing markets. Specialized Financial institutions: There is a wide variety of financial institutions at the Central as well as the State level in India. Apart from the apex financial institutions, viz., the Industrial Development Bank of India, the Industrial Finance Corporation of India, and the ICICI, there are several financing agencies devoted to specific causes, such as sick-industries, tourism, agriculture, small industries, housing, shipping, railways, roads, power, etc. In most States too, there are multiple financing agencies for generic or focussed cause.Most of these institutions are using the lease instrument along with traditional financing instruments. Significantly, the ICICI was one of the pioneers in Indian leasing. At State level also, finan cial institutions are active in leasing business. One-off lessors : Some of the companies engaged in some other business which gives them huge taxable profits, have resorted to one-off leasing on a casual basis to defer their taxes. These people are interested only in leasing of high-depreciation items, preferably those entitled to 100% depreciation. Manufacturer-lessors: This part of the lessor-industry is in highly under-grown form in India, for simple reasons. Vendor leasing is a product of competition in the product market. As competition forces the manufacturer to add value to his sales, he finds the best way to sell the product is to sell it without the buyer having to pay for it instantly. Product markets so far for most durables were oligopolistic, and good products used to sell even otherwise at a premium. With the economy decisively moving towards market orientation, competition has become inevitable, and competition brings in its wake sales-aid tools. Hence, the pot ential for vendor leasing is truly great. The Lessees Corporate customers with very high credit ratings:  These essentially look at leasing to leverage against assets which are otherwise not bankable, or for pure junk financing. Public sector undertakings:  This market has witnessed a very rate of growth in the past. With budgetary grants to the PSUs coming to a virtual halt, there is an increasing number of both centrally as well as State-owned entities which have resorted to lease financing. Mid-market companies: The mid-market companies, that is, companies with reasonably good creditworthiness but with lower public profile have resorted to lease financing basically as an alternative to bank/institutional financing, which to them is time-consuming and tedious. Consumers:  Retail funding for consumer durables was frowned-upon at one point of time, but recent bad experience with corporate financing has focused attention towards consumer durables which incidentally, is all the all-time favorite of financie rs World-over. Most of the larger companies have expressed interest in consumer funding, with ticket size going as low as Rs. 5000. Car customers:  Car leasing World-over is a very big market, and the same is true for India. So long, most car leases were plain-vanilla financial leases but one now finds few instances of value-added car lease services also being offered. Commercial vehicles:  Commercial vehicles customers have always relied upon funding by hire-purchase companies. The customer profile ranges from large fleet owners to individual truckers. Earth-moving machinery customers:  These customers have also traditionally relied upon lease financing. Their requirements are generally large each excavator costs more than Rs. 25 lacks. The income-stream is based on contracts they have at times, the income generation may be sporadic, or the need might itself be temporary. In fact, operating leases would have been ideal in this market, but they are ye t to be launched to any serious degree. Govt. depts. and authorities: One of the latest entrants in leasing markets is the Govt. itself. The Dept. of Telecommunications of the Central Govt. took the lead by floating tenders for lease finance worth about Rs. 1000 crores. In its reforms, India has limits to the extent to which it can resort to deficit financing, and leasing is easily going to appeal to the Govt. , if not for cost reasons, at least for the fact that it will not feature in national accounts as a commercial financing. As a spin-off, it might even help reducing the reported deficit, as the Govt. resorts to what is loved World-over as a tool of off-balance-sheet financing. Factors that contributed to the growth of Indian Leasing Industry With the exception of 1996-97 and 1997-98, the 1990s have generally been a good decade for Indian leasing. The average rate of growth   on compounding basis works out to 24% from 1991-92 to 1996-97. Broadly, the following factors have been responsible for the growth of Indian leasing, in no particular order: No entry barriers   any one could float a leasing entity, and even an existing company not in leasing business can write a lease purely for tax shelters. Buoyant growth in capital expenditure by companies   The post -liberalization era saw a spate of new ventures and fresh investments by existing venturers. Though primarily funded by the capital markets, these ventures relied upon leasing as a source of additional or stand-by funding. Most leasing companies, who were also merchant bankers, would have funded their clients who hired them for issue management services. Fast growth in car market:  Needless to state with facts, the growth in car leasing volume has been the highest over these years the spurt in car sales with the entry of several new models was funded largely by leasing plans. Tax motivations:  India continues to have unclear distinction between a lease that will qualify for tax purposes, and one which would not. In retrospect, this is being realized as an unfortunate legislative mistake, but the absence of any clear rules to distinguish between true leases and financing transactions, and no bars placed on deduction of lease tax breaks against non-leasing income, propelled tax-motivated lease transactions. There was a growing market in sale and leaseback transactions, which, if tested on principles of technical perfection or financial prudence, would appear to be a shame on everyones face. Optimistic capital markets:  Data would establish a clear connection between bullish stock markets and the growth in both number of leasing entities and lease volumes. Year 1994-1995 saw the peak of pr imary market activity where a company, even if a new entrant in business, could price itself on unexplainable premium and walk out with pride. Access to public deposits:  Most leasing companies in India have relied, some heavily, on retail public funds in the form of deposits. Most of these deposits were raised for a 1 year tenure, and on promise of high rates of interest, at times even more than the regulated rate (which was lifted in 1996 to be reintroduced in 1998). A generally go-go business environment: At the backdrop of all this was a general euphoria created by liberalisation and the economic policies of Dr. Manmohan Singh. Present industry order Only few major players exist SREI International Finance Sundaram Finance Cholamandalam Finance Mahindra Mahindra GE Capital Shriram Finance Tata Finance Countrywide Finance Citicorp NBFCs on strong turf NBFCs are today an Integral Part of Indian Financial System showing improving health: Increase in resource profile Significant decline in NPA Substantial improvement in brand image Improvement in profitability margins Maturing industry in which financially managerially weak companies already weeded out . Surviving companies are large corporate with good brand image. NBFCs enjoys a Niche position in the financial sector due to: Better Customer service Innovative flexible financing options Continuously reducing NPAs Healthy Capitalisation Innovative resource mobilisation Focused Operation Products/Customers/Geography Formation of Finance Industry Development Council a Self Regulatory Organisation for NBFCs. Challenges before the Industry The current problems of Indian leasing could be listed as follows, again without any order of listing: Asset-liability mismatch:  Most non-banking finance companies in India had relied extensively on public deposits -this was not a new development, as the RBI itself was constantly encouraging and supporting the deposit-raising activities of NBFCs. If the resulting asset-liability mismatch, to everybodys agreement, is the surest culprit of all NBFC woes today, it must have been a sudden realization, because over all these years, each Governor of the RBI has passed laudatory remarks on the deposit-mobilization by NBFCs knowing fully well that most of these deposits were 1-year deposits while the deployment of funds was mostly for longer tenures. It is only the contagion created by the CRB-effect that most NBFCs have realized that they were sitting on gun-powder all these years. The sudden brakes put by the RBI have only worsened the mismatch. Generally-bad economic envir onment:  Over past couple of years, the economy itself has done pretty badly. The demand for capital equipment has been at one of the lowest ebbs. Automobile sales have come down, corporates have found themselves in a general cash crunch resulting into sticky loans. Poor and premature credit decisions in the past:  Most NBFCs have learnt a very hard way to distinguish between a good credit prospect and a bad credit prospect. When a credit decision goes wrong, it is trite that in retrospect, it invariably seems to be the silliest mistake that ever could have been made, but what Indian leasing companies have suffered are certainly problems of infancy. Credit decisions were based on a pure financial view, with asset quality taking a back-seat. Tax-based credits:  In most of the cases of frauds or hopelessly-wrong credit decisions, there has been a tax motive responsible for the transaction. India has something which many other countries do not- a 100% first y ear depreciation on several assets. Apparently, the list of such assets is limited and the underlying fiscal rationale quite holy and sound certain energy saving devices, pollution control devices etc qualify for such allowance. But that being the law, it is left to the ingenuity of our extremely competent tax consultants to widen the range with innovative ideas of exploiting these entries in the depreciation schedule. Thus, there have been cases where domestic electric meters have been claimed as energy saving devices, and the captive water softenizer in a hotel has been claimed as water pollution control device ! As leasing companies were trying to exploit these entries, a series of fraudsters was successful in exploiting, to the hilt, the propensity of leasing companies to surpass all caution and all lending prudence to do one such transaction to manage its taxes, and thus, false papers for non-existing wind mills and never-existing bio-gas plants were fabricated to lure leasing companies into losing the whole of their money, to save the part that would have gone as government taxes ! Extraneous problems frauds, closures and regulation:  As they say, it does not rain, it pours. Several problems joined together for leasing companies the public antipathy created by the CRB episode and subsequent failures of some good and several bad NBFCs, regulation by the RBI requiring massive amount of provisions to be created for assets that were non-performing, etc. It certainly was not a good year to face all these problems together. Opportunities for the Industry Huge leasing opportunity Large Potential Outstanding lease hire purchase assets around Rs 20,000 crores Large variety of user segment High growth potential in Vehicle Finance Commercial Transportation Govt. support, Diverse products Personal Transportation Wide Variety, Low finance costs, Increasing Propensity for credit purchase, Huge used car finance market New Products Dealer Finance, Working Capital Finance, Personal Loans Low lease penetration ratio Around 1.5% as a % of Gross Domestic Capital Formation Very low in sectors like equipment infrastructure Substantial upside possible Expansion Opportunity Huge infrastructure spending in next 5yrs (apprx Rs 3,60,000 crores) Steadily rising disposable income Generating huge demand for consumer goods With growth ingredients in place Global opportunities Cross-Border Leases allowed Substantially reduced dependence on public deposits as a source of fund Out of a total asset base of Rs 40,050 crores, public deposits account for Rs 5,850 crores as against NOF Rs 4,500 crores . Comparatively Low Default Rate Particularly in consumer loans and vehicles financing as compared to many other markets Future Strategy Segmentation and positioning: Firms try to attain growth in numbers by unfocused diversification, but soon realise that diversified presence creates organisational pressures which are difficult to cope with. This leads to a trend towards consolidation and focused growth. Leasing firms of yesteryears were everything: money market players, merchant bankers and discount houses. Gradually, both regulators and industry participants have realised that clearer roles are necessary for stability. Cross-border competition: Cross-border competition will come in two forms: direct cross-border transactions, and cross-border investments in lease transactions. It is estimated that the second variety of transactions will gain momentum before the first. A number of global leasing giants have already occupied their positions in India. Capital account convertibility measures will precipitate the process. The impact of foreign investments will be greater consolidation activity at home. Emergence of vendor leasing: There are so many merits in vendor-based leasing that it is surprising that it has not made its debut in India still. For the asset vendor, a leasing plan is a sales-aid, and for the lessor, it is easy access to a vast market, with equipment support from the vendor. In 1997-98 and after, many lessors will be forced to leave general equipment leasing market and line up with suppliers of equipment. Vendor leasing in time to come will be a very significant part of the leasing market. Asset-based funding: True asset-based funding is an extension of the vendor lease market. The two generally go together to develop into operating leasing. Full scale operating leasing, that is, leases will in-built cancellation options, will take quite some time to develop in India, but features of operating leases will be introduced once vendor tie-ups take place End of tax-based leasing: This author has consistently opined against tax-based leasing, and that advice has so far fa llen flat because most of the leasing in the past was triggered by tax motives, sometimes greedy tax motives. Spate of income-tax problems in the past has made some leasing companies wiser, but there will be more of such problems when the disputed questions reach appellate levels. In the opinion of the author,  the leasing industry must take the matter across to the Central Board of Direct Taxes and get a set of guidelines on true leases.  Not having any guidelines leaves too many things to the discretion of the tax officer which does not provide a safe harbor to the transactions. A Profile of Factoring Services: A Concept Note Introduction Factoring service in India is of recent origin. It owes its genesis to the recommendations of the Kalyanasundaram Study Group appointed by the RBI in 1989. Pursuant to the acceptance of these recommendations, the RBI issued guidelines for factoring services in 1990. The first factoring company SBI Factors and Commercial Ltd (SBI FACS) started operation in April 1991. How old is the concept of factor? Factoring has been in existence long before ago during the reign   of Mesopotamian King Hammurabi . Then it gets extended to 14th  century during British Rule specially in textiles industries ,but it gained its importance in 1905 from Canada ,especially in American colonies .Now it is no more concentrated in America but have widespread to other countries also .  At that time factoring was used as a mode of advancing funds to the seller, before they  received the payment from the buyer for the raw materials they sold.   But with industrial revolution factoring concept have changed as a  mode of giving credit .The concept got revolutionized during 80s with the growth of banking sector .And now the concept is gaining importance day by day because of the added advantages the corporate gained from factoring. It is generally a well defined arrangement where financial institution engaged in factoring business provides an array of services like rec ording, collecting, controlling and protecting the book debts for its clients including the purchase of his bills receivable. Why account receivable is an important part to handle with? Company  generally give credit to customers for payment in order to increase sales .If customers pays in time then the company tries to provide more and more services to that customers .But if any customers dont make payment even after the end of credit period then this is a matter of concern for the company .More and more delay causes account receivable to increase further and so the debtors list also increases. This becomes a very hard situation to handle with. Especially if the corporate is a huge one, then to maintain accounts receivable becomes a headache for the company .So to avoid this, factoring is an ideal solution. Seller sell all its accounts receivable to factor and obtain cash in turn which it would have received after . So firm dont have to experience unnecessarily cash crunch situation. So in brief in process of factoring 3 parties are involved viz Seller Factor Buyer .But in return seller has to pay factor charges to factor for the services rende red to seller by factor. Types of Factoring 1. Recourse Factoring Client bear all the risk, factor is not liable for any debts .Factor is not responsible for collecting debts from customers. So, recourse factoring is cheaper than non recourse. 2.  Ãƒâ€šÃ‚  Ãƒâ€šÃ‚  Non Recourse Factoring Factor bear all the risk besides providing services of collection of bad debts. 3.  Ãƒâ€šÃ‚  Ãƒâ€šÃ‚  Advance Factoring Factor advances to the client for the amount of receivable purchased. 4.  Ãƒâ€šÃ‚  Ãƒâ€šÃ‚  Maturity Factoring Factor provides dual services collection as well as insurance against debts. 5.  Ãƒâ€šÃ‚  Ãƒâ€šÃ‚  Bank Participation Factoring Bank provides advances not against the full receivables purchased but against a part of the receivable. 6.  Ãƒâ€šÃ‚  Ãƒâ€šÃ‚  Disclosed Factoring Name of the factor is disclosed in the invoices raised by the supplier. 7.  Ãƒâ€šÃ‚  Ãƒâ€šÃ‚  International Factoring -  Factoring services against export sales. Factoring Mechanism  Steps involved in Domestic factoring: There are 3 parties involved viz seller (client), buyer (customers) and the intermediary -factor . 1.  The customers buys goods from client and in return client gives invoice to customers. 2.  The client now assigns/send invoice to factor. 3.  Checking the invoice, the factor make prepayment advance of 80 %/90 % to client. 4.  Factor sends statement of payment to customers. 5.  Customers make full payment to factor. 6.  Finally upon receipt of full payment from customers, factors make the balance payment to client.  In International factoring 4 parties are involved -client ,customers, overseas correspondent and factor Steps: Customers places orders to client. Client fixes prepayment limit with factor. Client delivers goods to customers . Client sends a copy of invoices to factor . Factors sends another copy of invoice to the overseas correspondent Based on the invoice, factor makes prepayment advances upto 80 %/90 % to client. Customer make payment to overseas correspondent.   Ãƒâ€šÃ‚  Ãƒâ€šÃ‚   8.Overseas Correspondant make this payment to factor.   Ãƒâ€šÃ‚  Ãƒâ€šÃ‚   9 Finally after receiving the full amount factor make the balance 20 % payment to client . FORFAITING Under this mode of export finance, then exporter forfaits his rights to the future receivables and the forfaiter loses recourse to the exporter in the event of non-payment by the importer. Difference between Factoring and Forfaiting Factoring Forfaiting Suitable for ongoing open account sales, not backed by LC or accepted bills or exchange. Oriented towards single transactions backed by LC or bank guarantee. Usually provides financing for short-term credit period of upto 180 days. 2. Financing is usually for medium to long-term credit periods from 180 days upto 7 years though shorterm credit of 30-180 days is also available for large transactions. Requires a continuous arrangements between factor and client, whereby all sales are routed through the factor. 3. Seller need not route or commit other business to the forfaiter. Deals are concluded transaction-wise. Factor assumes responsibility for collection, helps client to reduce his own overheads. 4. Forfaiters responsibility extends to collection of forfeited debt only. Existing financing lines remains unaffected. 5. Separate charges are applied for financing collection administration credit protection and provision of information. Single discount charges is applied which depend on guaranteeing bank and country risk, credit period involved and currency of debt. Only additional charges is commitment fee, if firm commitment is required prior to draw down during delivery period. Service is available for domestic and export receivables. 6. Usually available for export receivables only denominated in any freely convertible currency. Financing can be with or without recourse; the credit protection collection and administration services may also be provided without financing. 7. It is always without recourse and essentially a financing product. Changing Scenario of Factoring Business in India SBI Factors purchases the 91 % stake in   Global Trade Finance to gain a market share of around 75 % in factoring business by April 2008. HSBC is going to provide factoring business for SMEs Specially in Mumbai, New Delhi, Kolkata, Pune, Bangalore and Chennai.SME with turnover of more than 5 crore can avail the facility of factoring from HSBC.   HSBC ties up with New India Assurance for credit risk insurance.   With  the increasing demand for factoring services, foreign players such as Development Bank of Singapore (DBS) and GE Capital have shown their keen interst to   getting into the factoring business in India. Both DBS and GE Capital have global exposure in the factoring business.   Many global players in the field of banking(Standard Chartered Bank, Citi Bank ,etc ) are coming forward to India to carry on factoring business in SME segment since the scope for financing large corporates is reaching saturation point.Âà ‚  SME sector plays a major role in Indias present export performance, contributing to 45-50% of the Indian exports. Global Trade Finance has dedicated most of its facilities to the SME sector.   With the growth of factoring business ,credit insurance is also getting edge day by day today specially for the global factors who are operating in India .   According to Factors Chain International, the observer of all factoring companies, India with just eight companies clocked a total turnover of  Rs.  19,860.5 crore in 2006 way below Japans  Rs.  4,15,789.1 crore Taiwans  Rs.  2,23,152. 6 crore and Chinas  Rs.  7,97,77.1 crore in Asia. The Indian factoring market has grown by 176 per cent from  Rs.7,196.7 crore to  Rs.  19,860.5 crore between 2002 and 2006. Global leaders are the UK, France and Italy Challenges faced by global   factors operating in India Indian Market is attractive ,but to get into it is not so easy for foreign markets There are various reasons for this: Factoring is a new concept which is not widely known among Indian business community .  Because of the banks failure to educate potential customers on its benefits. Debt recovery is very slow in India as compared to other developed countries .Comparision of duration of debt recovery case resolution in (calendar days).India 1420 days where as on Average OECD 351 days.   Huge competition from Indian banks in this field . Increased interest rates  impact sales either through increased financing costs or through reduced sales. Foreign  factors faces lot of risk through a higher cost of capital and increased business risk as the credit risk of customers increases. And   the ideal solution is credit insurance .(  Because of credit insurance with Atradius   ,Global Trade Finances turnover grew 121% in its 2007 fiscal year and its total market share grew to 25% from 20% including a 70.4% share of export factoring and a 62.7% share of import factoring.) But   credit insurance is a newer concept in India .Where as ECGC started only   export credit insurance in 1957 . In India assignment of debt is a very complicated process and involves stamp duty .Stamp duty varies from state to state  in India . As a result the process becomes expensive by nature. No clear laws exist in India regarding transfer/assignment of debt,bankruptcy ,debt recovery etc  as in other countries ,so foreign operators have to face lots of problems . Also proper information access is very slow in India. NBFC operating as factors is a difficult proposition in India as compared to banking sector as there is no protection under Debt Recovery Tribunal or securitization act . Conclusion  At the end it is to be concluded that factoring is now gaining its importance in India slowly with the increase in customers access to benefits of factoring. Indias future in factoring business seems to be luring on the facts obtained regarding the fast growth of 174 % in only 4 years .So for factoring to be successful in India government regulation/ policies need to be modified further   so that more and more private players can come forward to start up their factoring business in India .Customer awareness about benefits of factoring is to be increased further to fight back the global leaders in factoring business .

Deconstructing New Media ( The ) - 2409 Words

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Legal Writing and Research Communications Law

Question: 1. Hamlet Bank (Hamlet) is proposing to enter into a 5-year bilateral $500 million loan agreement with Lear Ltd (Lear) as Borrower. The loan agreement will be governed by English law and will be entered into on standard London Loan Markets Association (LMA) terms.The terms of the loan agreement include a two-year availability period (the Availability Period) permitting Lear to draw down the loan within a period of two years from the date of the loan agreement.Hamlet is concerned that circumstances may arise during the Availability Period which may make the loan much less attractive from its perspective and it seeks your advice on the terms typically included in such a loan agreement to protect the lender in the event it does not wish to satisfy a drawdown request delivered by Lear during the Availability Period. Advise Hamlet.In providing your advice to Hamlet you should consider the terms typically included in a loan agreement entered into on standard London Loan Markets Association terms. You should also advise Hamlet of the potential liabilities in the event that it fails to comply with a compliant drawdown request. 2. White Rose Bank (White Rose) is a syndicate lender in a $750 million loan (the Syndicated Loan) made available to Yorkie Ltd (Yorkie), a company incorporated in England. The Syndicated Loan was arranged by Red Rose Bank (Red Rose). Red Rose is Yorkies house bank and has made numerous loans to Yorkie over recent years. The Syndicated Loan was made available to Yorkie to finance its acquisition of Lancopia Inc (Lancopia), a company incorporated in Ruritania. That acquisition was completed shortly after execution of the Syndicated Loan. Prior to execution of the Syndicated Loan agreement, Red Rose was made aware of concerns regarding the audited financial statements of Lancopia, including a possible failure to identify material contingent liabilities in those statements. Red Rose did not pass that information to White Rose nor did it include it in the information memorandum relating to the syndicated loan.It now transpires that the quantum of the undisclosed contingent liabilities is likely to lead to the insolvency of Yorkie. Answer: Introduction The loan market of UK are controlled and regulated by the provisions provided by the London Loan Market Association. As per the loan market of UK, the borrowers are required to pay base rate of 4% on any mortgage and an interest rate of 6% on any mortgage. The assignments here highlight the facts of the two given cases considering the diverse situations, which the lenders may face within the UK loan market. The first assignment will critically analyze the situation within the term loan market where the lender may restrain from providing draw down facility to the borrower. The second part of the assignment exclusively focuses on the syndicate loan market. In this part the legal analysis of the major terms of the syndicate loan will be assessed and the final assessment will show the claiming aooprtunity in case of breach of information by the arranger in the syndicate loan. Assignment 1 Concepts and terms Common terms in loan agreement London Loan market Association that was formed in 1996 was developed in order to assist the secondary loan market in Europe and provide the necessary regulations for the loan agreements between the different banks and financial institutions. As per the terms of the London Loan market association, the following are the terms that should be present in the loan agreement. Contact addresses of the contracting parties (Lender and the borrower) Definitions and interpretation provisions Purpose of the loan Repayment provisions of the loan Prepayment and cancellation provisions of the loan Interest structure and interest payment periods Payment provisions Loan and interest calculations along with formulas Provisions on default of repayment of the loan The loan market provides the provisions for three types of loan majorly the bilateral loan, term loan and syndicate loan. The bilateral loan is the type of loan between an individual and a lender and the syndicate loan is the loan between an individual and multiple lenders. On the contrary, the term loan is the type of loan that has a specific amount and specific repayment schedule mentioned within the loan provisions. Following are the major common terms within the loan agreement LIBOR:The London Interbank Offered Rate (LIBOR) is a daily reference rate based on the interest rates at which banks can borrow unsecured funds from other banks. It is generally projected for the purposes of a loan agreement with reference to a screen rate (usually the British Bankers' Association Interest Settlement Rate for the relevant currency and period), or the Base Reference Bank Rate, which is the average rate at which the bank can borrow funds in the London Interbank Market. Thus, the LIBOR determines the interest rates within the loan market. Draw down Date: This is the specific proposed date on which the borrower wishes to avail the draw down facility. The draw down facilities are generally provided after the same has been mentioned within a draw down notice. Thus in the draw down notice the borrower will have to mention the time period during which the facility is to be availed. However, the legal provisions states that this time period should be within the availability period of the loan agreement. Draw down facility is not available after the availability period. Similarly, the borrower is nt required to pay any extra commitment fees after the availability period is over. Debt service requirements: This term is included within the loan agreement since the draw down facility is not provided for all types of services. This term specifies that the lender may agree to provide the draw down facility of the borrower is able to confirm that the advances are taken for debt services. A debt service in this respect constitutes of the financing costs of the projects. In this case, the lender may also limit the draw down facility on the grounds if the borrower is not able to produce a valid DSR proof. Availability period As per the London loan market Association, availability period in a loan agreement is the period during which the borrower may draw down a loan. During this period, the lenders are obliged to provide advance loans. During this period, the borrower is also indebted to pay a commitment fee to the lender. As per the London Loan market Association, commitment fee is also known as the commitment commission. The payment of this fee is calculated on the terms of the loan amount. The commitment fee thus paid by the borrower acts as a source of mortgage during the availability period on the grounds of which the borrower may avail the draw down option and request the lender for further advances. Draw down facility Draw down facility within a flexible loan agreement enables the borrower to take further advances in form of loans in the middle of the existing loan with very low legal formality. The draw down facility is generally given within the availability period and the borrower is permitted to draw the advances against any suitable mortgage that has been kept as a part of the loan terms. The draw down facility is given out of the personal mortgage at any time during the commitment period provided the borrower does not increase the amount of the loan over the original mortgage amount. This is an option given by the banks to build a self-build mortgage facility. The facility thus helps the borrowers to get access to financial assistance during the terms of the project and this finance helps the borrower in completion of the initial stages within a project. As per Clause 4.1.5, the following terms are necessary for the systematic and legal processing of the drawdown loan: The proposed draw down date The purpose of the advance borrowing which should be for facility purpose The amounts of the drawdown advances which should be a minimum of 50,000 The provision however also states that the borrower is not liable to make a request for more than one advance in a calendar month falling within the availability period. Clause 4.1.1 states that the lenders are not obliged to make any advance available unless they receive the Draw down notice including all the three above stated terms. Further, Clause 4.1.6 states that a drawdown notice is irrecoverable and no draw down shall be made if the total amount of proposed advances exceeds the total commitment fees paid by the borrower to the lender. Analysis of the case The case here states that Hamlet bank who is the lender enters into a bilateral loan agreement with Lear Ltd who is the borrower with a two-year availability period. The 2 year availability period permits the borrower Lear to avail the opportunity of draw down facility within the period of 2 years from the date of the loan agreement. However, the lender bank that is Hamlet encounters problems related to issuing of draw down loan to the lender. The lender in this respect is concerned with the protection terms that will help the lender in avoidance of the draw down facility. For analyzing this case, the difference between the term loan facilities and the bilateral loan facilities needs to be discussed. The term loans provide a lump sum amount of money for no more than five years. The repayment schedule of a term loan is predetermined. The repayment schedules are amortization, balloon payment or bullet payment. Another advantage of the term loan facility is that the lender may issue the loan depending upon the needs of the borrower. These types of loan give the borrower the option of availing the availability period and the option of draw down facility. The major advantageof a term loan facility is that the borrower can manage the sum of the loan borrowing and thereby managing the amount of commitment fees and the interest rates accruing out of the loan. However, the major disadvantage of the same is that the amount, which is repaid, cannot be used for draw down facility. The provisions states the draw down facility can only be availed from the commitment fees. On the contrary, bilateral loaninvolves two parties, namely the lender and the borrower. Bilateral facilities are common in the case of small term loan, revolving credit and overdraft facilities. Since it is a short period loan, hence the commitment fees are also low. However, in a short period of time the sanction of draw down loan will not be given to the borrowers.In this case, the loan is taken for a period of 5 years which shows that although its a bilateral loan however the loan was taken as a term loan. Hence as per the terms of the term loan the lender is obliged to make the draw down facility available to the borrower Since the borrower is making the payments of the commitment fees for the availability period of 2 years. The draw down loan is the accumulated reserves of the borrower himself. The borrower is liable to make advance issues from the commitment fees hence the money taken as loan is the money of the borrower by default. Hence, draw down facility is a legal right o f the borrower. Thus, analyzing the case shows that the borrower in this case has the right of withdrawing the loans during the availability period. However, the draw down facility is provided only once to the borrowers within the total tenure of the availability period. Since the draw down facility is a interest free advance loan hence the borrower will have to make regulations that will allow the borrower to take the loan only once. Thus, Hamlet in this respect can limit the draw down facility for Lear. Thus the case analysis suggests that the draw down facility is compulsory and there are no potential terms or laws which will protect the lender from issuing of such loans. Thus, the lender in the case study that is Hamlet is obliged to make draw down loans to Lear whenever the loan is demand within a period of 2 years. Assignment 2 Concepts and terms Syndicated loan The syndicated lenders regulate the secondary market of UK and US. The syndicated loans are the loans provided by a group of lenders and are arranged by one or several commercial banks or investment banks. Clause 26 of the LMA standard Loan agreement states that the arranger bank is the bank that acts as the contact point between the party and the syndicate lenders. As per the legal provisions, they are required to negotiate the lending terms and the arrangement of the syndicate loans. As soon as the syndicate loan agreement is signed the arranger takes the responsibility of processing the loan, assignment of the loan proportions, interest payments to different syndicate members. In the UK, secondary market the participants prefer syndicate loans compared to bilateral loans since the syndicate loans unites the borrowers and the lenders under one contractual agreement. The price of syndicated loan iscombined of loan interest and fees. The loan is provided for a period of three to five years for short-term purpose, seven to ten year for medium term and 10 to 20years for long term purpose. Another he advantage of this type of loan includes the fact that it has a multi-currency facility. Hence, it is advisable to take syndicated loans. However in case of syndicated loans since the arranger and the arranger handle the whole process is responsible for the process of providing the information to the lenders and the borrowers hence the breach of turst and misrepresentation of the information gives rise to the economic loses. Legal liabilities of arrangers or house banks in syndicate loans As per the English Law, the liability of the arrangers in a syndicate loan can arise in four major ways namely: The tort of negligence The Misrepresentation act 1967 The tort of deceit A claim for breach of fiduciary duty Under the above terms, the syndicate lenders or the borrowers may make claims against the arranger. The tort of negligence will arise if the arranger will make any negligent statement that may result in any economic loss of either the lender or the borrower. The case of The Sumitomo Bank Ltd v Banque Bruxelles Lambert S.A, stated that it is the duty of the arranger to take reasonable care in delivery of information to the lender. The Misrepresentation act 1967 terms that any inaccuracies or misleading information within the information memorandum provided to the syndicate lenders will make the arranger liable for the loss. This can also arise from a tort of deceit. However, the tort of deceit can be charged against the arranger if the plaintiff is able to prove the case. Finally, the arranger can be made liable if the arranger owes any fiduciary duty of disclosure to the syndicate lenders. However, if the arranger takes the help of the exclusion clauses then the arranger is able to g et free from the liability of the syndicate loans. Relevant case laws Harbinger Capital Partners Master Fund I, Ltd. v Wachovia Capital Mkts., LLC. 2011 NY This case was long pending in the supreme court of New York. The case arose out of a massive fraud committed by the Le Nature Inc. who is a beverage manufacturer in Pennsylvania. The Harbinger Capital who acted as one of the syndicate lenders in the syndicate loan given to Le Nature filed a suit against Wachovia who was the loan arranger claiming Wachovia to be liable for the fraud.Wachovia in the year 2006 arranged for a syndicate loan of $ 258 million for Le nature Inc. Harbinger Capital was one of the syndicate lenders in this loan process. However, shortly after the loan was arranged and sanctioned it was revealed that Le Nature was financially weak and had produced false financial statements and is unable to make repayment of the loan. After this fact came into notice, Le Nature filed for a bankruptcy protection. The lenders thus filed a suit against the company as well as the arrangers stating that it was the liability of the arrangers to ensure the correct submission of the fi nancial information of the borrower to the lender. However, the verdict of the court was in the support of Wachovia because Wachovia took the help of the exclusion clause. Case analysis In the given case White Rose is the syndicate lender who sanctioned a loan to Yorkie Ltd who is the borrower. The arranger of the syndicate loan was Red Rose bank. Yorkie Ltd used the loan to make a financial acquisition of Lancopia Inc. The arranger in this case was made aware of the false representations within the financial statements of Lancopia. This information was given to the arranger prior to the sanctioning of the loan. The arranger however did not pass the information to the syndicate lender nor was the information provided within the information memorandum. The misleading info4rmtaion within the financial statement of Lancopia will lead to insolvency of Yorkie in future, which will make it difficult for the company to repay the syndicate loan.Analysis of the case shows that as per the English Law, the arranger here had not made any exclusion clause within the syndicate loan agreement, which confirmed that the arranger is liable for any economic or legal losses. Since the information about the liability issues within the financial statement of Lancopia were provided to the arranger prior to the arrangement of the syndicate loan, hence the non-disclosure of the information will be regarded as Tort of deceit on the part of the arranger. Moreover, Article 8 of the Banking Regulatory commission states that following are the major functions of the arranger bank namely Launching and organizing a syndicate loan Appropriate the loan parts to the member banks Conduction of due investigation about the borrower before arranging for the loans Provide all the necessary information both positive and negative about the borrower within the information memorandum Negotiation of the loan terms Assisting the correspondent bank in arrangement of the loan Article 20 suggests that information memorandum is the most important source of reference for the syndicate lenders in consideration of the credit opportunities. Thus, the article states that the memorandum should include the following terms namely Conditions for applying a syndicate loan Legal status and financial performance of the borrower Over all explanation of the project for which the loan is taken and the potential risks involved with the project Information about the guarantor or the collateral security Risky situations and counter measures that should be taken by the borrow for loan payment Approval documents for the project and environmental assessment documents for the project As per the provisions of the article 20, the arranger in the given case should have supplied the information about the legal status and financial performance of Lancopia within the information memorandum. Moreover, Article 20 also requires the arranger to disclose the risks related to the project undertaken by the borrower with the loan amount. In the given case, Red Rose has failed to make any disclosure related to the risk that Yorkie Ltd will face after the acquisition of Lancopia. In order to file a case on the grounds of Tortof Deceit, White Rose needs to show evidences that Red rose has made the misrepresentations knowingly and dishonestly. However, if the arranger proves that the misrepresentation conducted by the arranger was believed to be true by the arranger than the liability for deceit cannot be filled against the arranger. In the given case, though the arranger that is the Red Rose bank cannot claim that the failure to provide the information about Lancopia was an act of carelessness. The arranger can also not suggest that the arranger had misinterpreted the financial statements of Lancopia since the liabilities were not disclosed within the financial statements. The facts that the liabilities are not stated within the financial statements were previously informed to Red rose. However, Red Rose did not bother to include the same within the information memorandum. Thus White Rose can make claims against Red Rose successfully on the grounds if Tort of deceit. In thecae United Pan-Europe Communications NV v Deutsche Bank, it was confirmed by the court that the arrangers have fiduciary duty of loyalty towards the lender and the borrower both. Thus keeping the prospect in mind it may be concluded that in the given case the arranger bank that is Red Rose has a fiduciary duty as well towards the White Rose. Hence, the White Rose can claim for the economic losses from the arranger since the arranger has breached the terms of syndicated loans under two grounds namely the Fiduciary ground and the Tort of deceit grounds. Thus the case can be concluded with the basic notification of the fact that the lender can legally claim compensation from the arranger since the arranger has deliberately restrained from providing the useful financial risks involved with the loan sanction. However, White Rose cannot make any legal claim on the borrower that is the company because the company had substantially supplied all necessary information about the probable risks that may arise due to the non-disclosure of the liabilities in the financial statements. Conclusion The assignment shows the legal aspect of the loan agreement terms. From the first part of the assignment, it is clear that the major terms that are included within a term loan are the LIBOR interest rates, the availability period, the percentage of commitment fee, the loan period and the breach terms. The first assignment also shows that Hamlet is legally liable for payment of draw down loans to Lear. If Hamlet restrains from making payments to Lear, then Lear can file legal suits against Hamlet. However, Hamlet is able to restrain the loan on two major grounds, firstly if the borrower that is lender is not able to produce any proof of the DSR or if the borrower that is Lear, makes claim of the loan more than once. The second part of the assignment focuses extensively on the syndicate loan terms and policies. The second par shows that since the syndicate loans involve three major factors namely the group of lenders, the party and the arranger hence all the three parties have a legal obligation of loyalty against each other. The case analysis of the second case shows that arranger of the syndicated loan is a defaulter on the grounds of tort of deceit and Fiduciary obligation. Since the arranger had not included any exclusion clause at the time of arrangement of the syndicate loan agreement hence the arranger is liable of the economic loss that the bank will suffer due to the bankruptcy of the party. Thus the second case suggests that the lender has the option of taking legal actions and filling suits against the arranger. Reference list Billiot M and Daughtrey Z, 'Evaluating Environmental Liability Through Risk Premiums Charged On Loans To Agribusiness Borrowers' (2001) 17 Agribusiness Black O, 'AGREEMENTS, UNDERTAKINGS, AND PRACTICAL REASON' (2004) 10 Legal Theory Bond P, 'Joint Liability Among Bank Borrowers' (2004) 23 Economic Theory Chasek P, 'Multilateral Environmental Agreements: Legal Status Of The Secretariats - By Bharat H. 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Jonathan Mechanic and Martin D Polevoy,Negotiating Real Estate Deals, 2014. Kazi Abdur Rouf, 'Grameen Bank Women Borrowers Familial And Community Relationships Development In Patriarchal Bangladesh' (2012) 1 IJRSP. Robert Schtze, 'EC Law And International Agreements Of The Member StatesAn Ambivalent Relationship?' (2012) 9 Cambridge yearbook of European legal st. Yong-Chin Liu and Hsiang-Ju Chen, 'Economic Conditions, Lending Competition, And Evaluation Effect Of Credit Line Announcements On Borrowers' (2012) 20 Pacific-Basin Finance Journal. 'Mali: IDB Loan Agreements' (2012) 49 Africa Research Bulletin: Economic, Financial and Technical Series. Paul M. Taylor, 'The Vertical Agreements RegulationA Critical Appraisal' (2012) 3 Cambridge yearbook of European legal st. Joshua Stein and Everett S Ward,Commercial Real Estate Financing, 2014. Paul M. Taylor, 'The Vertical Agreements RegulationA Critical Appraisal' (2012) 3 Cambridge yearbook of European legal st. Xiaowei Li and Weida Kuang, 'Prepayment Behavior Of China's Mortgage Borrowers: Evidence From The Loanà ¢Ã¢â€š ¬Ã‚ Level Data' (2012) 5 Int J of Hous Markts and Analy. Yuan Zhang, Christopher Gan and Zhaohua Li, 'Effects Of Borrowers' Quality On The Size Of Market Response To Bank Loan Announcements In China' (2012) 35 Management Research Review. Yuan Zhang, Christopher Gan and Zhaohua Li, 'Effects Of Borrowers' Quality On The Size Of Market Response To Bank Loan Announcements In China' (2012) 35 Management Research Review. Gordon C. Duus, 'Using The New Jersey Spill Act Safe Harbor To Protect Lenders' (2013) 25 Environmental Claims Journal. Linda DezsÅ‘ and George Loewenstein, 'Lenders Blind Trust And Borrowers Blind Spots: A Descriptive Investigation Of Personal Loans' (2012) 33 Journal of Economic Psychology. D. French, 'Multilateral Environmental Agreements: Legal Status Of The Secretariats. By BHARAT H DESAI' (2011) 23 Journal of Environmental Law. Philip Bond, 'Joint Liability Among Bank Borrowers' (2004) 23 Economic Theory. Pamela Chasek, 'Multilateral Environmental Agreements: Legal Status Of The Secretariats - By Bharat H. Desai' (2012) 29 Review of Policy Research. Oliver Black, 'AGREEMENTS, UNDERTAKINGS, AND PRACTICAL REASON' (2004) 10 Legal Theory. Yann Joly, Nik Zeps and Bartha M. Knoppers, 'Genomic Databases Access Agreements: Legal Validity And Possible Sanctions' (2011) 130 Human Genetics.