Evolution of Leasing
• 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
• For several years, this company remained the
only company in the country until 20th
Finance Corporation was set up - this was
• 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
• 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
• ICICI, prominent among financial institutions,
entered the industry in 1983 giving a boost to the
concept 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
• As per RBI's records by 31st March, 1986,
there were 339 equipment leasing companies
in India whose assets leased totaled Rs.
• 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 capital markets were more
permissive, leasing companies have flocked the
• There has been appreciable entry of first
generation entrepreneurs into leasing, and in
retrospect it is possible to say that specialised
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
Committee's recommendations based on
which the RBI formed guidelines on
commercial bank funding to leasing
• The growth of leasing in India has distinctively
been assisted by funding from banks and
• 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
• The post-liberalisation era witnessed the slow
but sure increase in foreign investment into
• Starting with GE Capital's entry, an increasing
number of foreign-owned financial firms and
banks are currently engaged or interested in
leasing in India.
Evolution of Hire-purchase
• The British concept of hire-purchase has,
however, been there in India for more than 6
• The first hire-purchase company is believed to be
Commercial Credit Corporation, successor to
Auto Supply Company.
• While this company was based in Madras, Motor
and General Finance and Instalment Supply
Company were set up in North India.
• These companies were set up in the 1920s and
• Development of Hire-purchase took two
– consumer durables
– and automobiles
• Consumer durables hire-purchase was
promoted by the dealers in the respective
• Thus, Singer Sewing Machine company, or
Murphy radio dealers would provide
instalment facilities on hire-purchase basis to
the customers of their products.
• The other side developed very fast - hire-
purchase of commercial vehicles.
• The dealers in commercial vehicles as well as
pure financing companies sprang up.
• The value of the asset being good and
repossession being easy, this branch of financing
activity flourished fast, although until recently,
most of automobile financing business was in
hands of family-owned businesses.
Leasing and Hire-purchase: A
• Essentially, asset-based financing in India
particularly by non-banking financial
companies is split in two documentation
modes - lease and hire-purchase.
• These two are technically different
instruments, but in essence, there is not much
that differs between the two, except for the
• In spite of the substantive similarity, historically,
there has been a diametric separation between
these two forms.
• The assets usually subject matter of hire-
purchase have been different from those
generally leased out.
• Leasing has been used mostly for plant and
machinery, while hire-purchase has commonly
been used for vehicles.
• Even the players have been different.
• The reasons for this diametric distinction are more
historical than logical.
• Hire-purchase, essentially a British form, entered India
during the Colonial era, and thrived as almost the only
form of external finance available for commercial
• For the financiers, as witnessed World-over,
commercial vehicles was the natural choice for several
asset-features he loves: lasting value, ready secondary
market, self-paying feature, etc.
• Hence, the industry of hire-purchase became
synonymous with truck-financing.
• Besides, the motor vehicles laws gave the
surest legal protection any law could give to a
financier: the financier would not have to
carry any of the operational risks of a motor
vehicle, and yet, any transfer of the vehicle
would not be possible without the financier's
• Leasing, essentially a US-innovation, entered
the country significantly in the early 80s, and
was propagated as an alternative to
traditional modes of industrial finance.
• Besides, the early motivation (which
continues with a number of players even now)
of leasing was capital allowances, more
significantly the investment allowance, which
was not available for transport vehicles.
• Hence, the leasing form historically clung to
industrial plant and machinery.
• For several years, there was no lease of
vehicles, because the Motor Vehicles law
protection was not applicable to a lease, and
there was no investment allowance on
vehicles, and for reciprocal reasons, there was
no hire-purchase of industrial machinery.
• These reasons have vanished over time.
– The Motor Vehicles law now treats leases and hire-
purchase at par from the viewpoint of financier-
– Investment allowance has been abolished, and hence,
there are no predominant tax-preferences to a lease.
– The RBI treats lease and hire-purchase at par and has
stopped giving a distinctive classification to leasing
and hire-purchase companies.
– The accounting norms lead to the same effect on pre-
tax income, as also balance sheet values, be it a lease
or hire-purchase transactions.
Specialized leasing companies
• These 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
• 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.
• Most of these companies also offer hire-purchase activities,
and some of them might have a consumer finance division
• These companies are known, in regulator's jargon, as
non-banking financial companies, or NBFCs for short.
• The terms NBFCs includes several other financial
concerns too, and all such companies are regulated by
the Reserve Bank of India.
• There were no entry barriers to leasing business till
recently, but the January 1997 amendments to the RBI
law now require any non-banking finance company to
have a prior registration with the RBI, and the
conditions of registration virtually amount to
authorization by the RBI.
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
• 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
• Though State Bank of India, Canara Bank etc
have set up leasing activity, it is not currently
at a scale to make any difference on the
• This is different from the rest of the World,
where banks are front-runners in leasing
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
• Significantly, the ICICI was one of the pioneers
in Indian leasing.
• At State level also, financial institutions are
active in leasing business
• 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.
• The major items eligible for 100% depreciation
are gas cylinders, certain energy-saving devices,
pollution control devices etc.
• Severe scrutiny by revenue officials into lease
transactions at the time of assessment has
dampened the enthusiasm in this line of
leasing activity, however it carries on.
• Mostly such lease transactions are syndicated,
at times even funded, by active players in
• 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 potential for vendor leasing is truly great.
• Presently, vendors of automobiles, consumer
durables, etc. have alliances or joint ventures
with leasing companies to offer lease finance
against their products.
• However, there is no devoted vendor leasing
of the type popular in most of the advanced
markets, where a specific leasing company or
leasing program takes exclusive charge of a
• 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.
• Their requirements are usually massive.
• 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 focussed attention
towards consumer durables which incidentally, is all the all-
time favorite of financiers 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
• Commercial vehicles: Commercial vehicles
customers have always relied upon funding by
• The customer profile ranges from large fleet
owners to individual truckers.
• Earth-moving machinery customers: These
customers have also traditionally relied upon
• Their requirements are generally large - each
excavators costs more than Rs. 25 lacs.
• 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 yet to be launched to
any serious degree.
• Govt. deptts. and authorities: One of the latest entrants in
leasing markets is the Govt. itself.
• The Deptt. of Telecommunications of the Central Govt.
took the lead by floating tenders for lease finance worth
about Rs. 1000 crores.
• In its reforms programme, 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.
Sources of Law on leasing and hire-purchase
• Leasing and hire-purchase are essentially hiring
transactions - transactions in which possession of
goods is handed over along with right to use, for
a stated period and for consideration.
• Hiring transactions are species of bailments in
contract law - therefore, the transactions of lease
and hire-purchase are governed by the common
law of contracts dealing with bailment
• Contracts law, being common law, is codified
in the Indian Contracts Act 1872 but is
enriched by history of precedents from both
English and Indian Courts.
• Notably, the common law of contracts in India
is based largely on the British legal principles,
which have by and large been accepted as
applicable to India.
• Therefore, the principal sources of applicable
law on lease and hire-purchase transactions
are sections 148 to 171 of the Indian
Contracts Act dealing with bailments, and a
long series of Court rulings, principally on hire-
purchase transactions, but of late, on lease
transactions as well.
Leasing and Hire-purchase
• From legal rights and obligations viewpoint,
there is no difference between lease and hire-
purchase transactions. Both are viewed as
• Accordingly, most of the common law
applicable to hire-purchase transactions is
also applicable to leases, and vice versa.
• The difference between the two is principally
the non-existence of option to buy in case of
• In other words, lease transactions carrying an
option to buy, explicitly or implicitly, will be
treated as hire-purchase transactions.
• This may lead to differences in taxation
treatment, but there is no appreciable
difference in legal rights of parties
Requirements of a valid lease or hire-
• Both lease and hire-purchase, to be valid,
must be valid bailment transactions.
• Therefore, all the preconditions of a valid
bailment will be applicable to lease and hire-
purchase transactions too.
• As the lease contract envisages a delivery of
goods to the lessee, to be terminated by
redelivery of goods at the end of the lease
period, the goods must have the following
• The goods must last for at least as long as the
• Unless the lessor, or the lessee being under
obligation to do so, replaces them and the
goods so replaced become the subject matter
of the lease, the contract of lease comes to an
end as soon as the subject matter of the lease,
viz., the leased goods, cease to exist.
• The goods constitute the very string of relation
between the lessor and the lessee, and the relation is
snapped the moment the string is broken.
• There may be doubts as to the existence of an
intended lease where the goods leased are known not
to have an estimated life at least equal to the lease
• For example, a lease of an umbrella could be intended,
but not the lease of an ice cream.
• That is to say, goods which are consumed in the
process of using them are incapable of lease.
Movability and severability
• The goods leased are to be returned at the end of
the lease period, since the possessory interest is
only for a specific period.
• At the end of the period, the goods must
• This requires two attributes:
– that the goods must not have been permanently
attached or affixed to an immovable property and
hence rendered immovable,
– nor must they have been attached unseverably to any
• To ensure that the bailee holds the goods owned by the
bailor, the goods possessed by the lessee must be held
distinct and ascertainable;
• in other words, the leased goods must not be mixed to
render them unascertainable.
• The law of contracts distinguishes between mixture with or
without the bailor's consent.
• Where the mixture is with the bailor's consent, the bailor
and bailee will have proportionate interest in the lot. [Sec.
• Where the mixture is without the bailor's consent and the
goods are unseverable, the bailor becomes entitled to be
compensated by the bailee for the loss of goods.
Supreme ownership rights of the
• Indian Courts have generally recognized the
ownership rights of a lessor over the leased
• Even if the lease is avowedly a financial lease,
such as in case of a hire-purchase transaction,
the Courts respect the way the parties have
sought to create and protect their rights.
Obligations relating to the goods
• While enjoying all the rights of ownership,
• the lessor may virtually escape all obligations
relating to the goods - conditions of fitness,
quality, usefulness for purpose, or any damages
on account of defects in goods,
• can be effectively avoided by a disclaimer clause
in the agreement
• backed by evidence that the lessor was not
involved in selection of the goods
• nor did he influence the lessee's decision as to
the goods or the supplier.
Obligations regarding operation and
use of the goods
• While being the owner of the goods, the lessor
may completely distance himself from obligations
relating to the operation and use of the goods.
• This issue is very comfortably settled in India
though there is a raging controversy on this point
in number of other markets.
• The lessor is not in effective possession and is not
the user of the goods.
• The lessee cannot be taken to be the agent of the
[Sundaram Finance Ltd. v. D G Nanajappa and Others]
• A bus given on hire-purchase collided with a
tree and killed several people. Hire-purchase
financier as owner was not responsible. The
driver of the bus was not to be taken as agent
and the financier a "master".
[Great Finance (P) Ltd. v.The State]
• A truck given on hire-purchase was found
carrying opium. The financier cannot be held
responsible as the misuse of the vehicle could
not have been with his consent and there was
no possibility of the financier having control
over the actual use by the hirer.
[Pradeep and Co. v. Collector of Customs AIR 1973 Cal 131.]
• While the owner of the asset has been held
not to be responsible for misuse, he still
claims right to be notified before confiscation
of his asset.
Repossession of the goods
• On the lessee committing a breach of
contract, the lessor being the owner of the
goods is entitled to terminate the agreement
of lease or hiring and repossess the goods.
• No judicial intervention is required in case of
repossession of goods - however, the practice
depends upon the physical ease in
repossession and the need to enter private
premises or enclosures.
• Repossession being an extra-ordinary remedy
should be resorted to with great caution and
with full force to the rules of fair play.
• In case of UP State Financial Corporation,
• the Supreme Court set a number of
preconditions for possession and sale of
• - though those conditions were imposed due to
the benevolent position of the Corporation, to a
large extent, these conditions apply to every
• Hence, it is considered appropriate that before
sale of the confiscated goods, the lessee should
be given a right of buying the goods at the best
Motor vehicles law on lease and hire-
• Motor vehicles law in India contains specific provisions
relating to lease and hire-purchase transactions.
• In respect of all motor vehicles, registration with
motor vehicles authorities is compulsory.
• The motor vehicle is given a registration certificate,
which contains the name of the "owner".
• Owner, for the purposes of the motor vehicles law, is
defined as the person effectively using the asset-
obviously therefore, the name of the lessee/hirer is
reflected as owner there.
• The name of the legal owner, viz., the lessor or hire-
vendor, is reflected merely by way of an endorsement.
• However, it is clear understanding of the law that
the neither the name on the registration
certificate, nor the endorsement therein, have
any reflection on the legal ownership of the
• It is also provided that no transfer of a motor
vehicle bearing the endorsement of a lease or
hire-purchase (or hypothecation) shall be
• without the non-objection letter of the
Lease and Hire-purchase
• The documentation recommended for an
ordinary lease/hire-purchase transaction is a
simple lease or hire-purchase agreement.
• Evidence of having received delivery of goods
should be obtained from the lessee/hirer.
• In general, it is advisable that the lessor limits
himself to giving delivery of the leased asset,
and commences the lease/hire instantly on
delivery of the goods.
Basic tax treatment of lease and hire-
• The tax treatment of lease transactions in India is
based on whether the lease qualifies as a lease or
will be treated as a hire-purchase transactions.
• If the transaction is treated as a lease, the lessor
shall be eligible for depreciation on the asset.
• The entire lease rentals will be taxed as income
of the lessor.
• The lessee, correspondingly, will not claim any
depreciation and will be entitled to expense off
• If the transaction is a hire-purchase or
conditional sale transaction, the hirer will be
allowed to claim depreciation.
• This is based on an old Circular of the Deptt
issued in year 1943.
• The financing charges inherent in hire
instalments will be taxed as the hire-vendor's
income and allowed as the hirer's expense.
What distinguishes between lease
• Being the sole determinant of the tax
treatment of leases, the distinction between
lease and hire-purchase transactions becomes
• Essentially, the distinction is based on the
beneficial ownership of the asset.
• In order to qualify for depreciation, the lessor has to
establish himself to be both the legal and beneficial owner
of the asset.
• As in a hire-purchase transaction, the lessor allows to the
lessee the right to buy the asset at a nominal price, it can
be seen that the lessor has parted with the whole of his
beneficial interest in the asset.
• The lessor will not be able to benefit from the asset during
the lease period (as there is a committed right to use to the
hirer), and beyond the lease period (as there is a right to
buy the asset with the hirer).
• Having thus permanently divested himself of his beneficial
rights, the lessor becomes ineligible to claim depreciation.
• As it is the beneficial ownership rights of the
lessor that is crucial, the distinction between
lease and hire-purchase goes beyond the
mere existence of option to buy in the lease.
• If, explicitly or implicitly, it is apparent that the
lessor has agreed to a permanent beneficial
enjoyment of the asset by the lessee, the
lease may be treated as a hire-purchase or a
plain financing transaction.
Sale and leaseback transactions
• Sale and leaseback transactions came under a lot of flak
during 1995-96, when transactions in junk funding were
being labeled as sale and leasebacks at phenomenal values.
• The Income-tax law was amended to insert a specific
provision about sale and leasebacks, which now restricts
the amount with reference to which depreciation can be
claimed in a sale and leaseback transaction, to the written
down value in the hands of the seller-lessee.
• That is, the actual cost of the asset to the lessor will be
ignored, and instead, depreciation will be allowed on the
seller's depreciated value.
• This provision is applicable only where the
seller is the lessee; in other words, not
applicable for every lease of second-hand
• However, in such cases, the fair valuation rule
that existed earlier, in Explanation (3) to sec.
43 (1) shall continue to apply.
Tax treatment in case of hire-
• In case of hire-purchase transactions, the hire-
vendor pays tax on the income inherent in
hire instalments, not on the whole of the hire
• Thus, the tax is charged only on the income,
and not the inflow.
• There are no well-defined rules on
determination of income in case of hire-
purchase transactions - therefore, accounting
method adopted by the tax payer will
generally be followed.
• Thus, either of the straight-line, sum-of-digits,
or actuarial or IRR basis can be adopted for
Deduction of rentals by the Lessee
• In general, in a lease, the lessee will be
allowed to claim the rentals as an expense
What Is the Concept of Leveraged Leasing?
• It is simply a lease transaction in which the
lessor puts in only a portion, usually 20% to
40%, of the funds necessary to buy the
equipment and a third-party lender supplies
• Because the benefits available to the lessor are generally
based on the entire equipment cost, the lessor's investment is
said to be "leveraged" with third-party debt.
• Generally, the third-party loan is on a nonrecourse-to-the-
lessor basis and ranges from 60% to 80% of the equipment's
• The nonrecourse nature means the lender can only look to
the lessee, the stream of rental payments that have been
assigned to it, and the equipment for repayment.
• The lessor has no repayment responsibility even if the lessee
defaults and the loan becomes uncollectible.
• Although the concept of leveraging a lease
investment is simple, the mechanics of putting
one together is often complex.
• Leveraged lease transactions, particularly
ones involving major dollar commitments,
frequently involve many parties brought
together through intricate arrangements.
• The "lessor" is typically a group of investors joined together
by a partnership or trust structure. The partnership or trust is
the legal owner, or "titleholder," of the equipment.
• The "lender" is often a group of lenders usually acting
through a trust arrangement.
• This is further complicated by the fact that each participant
will be represented by counsel with varying views.
• As a result, the job of organizing, drafting, and negotiating the
necessary documents is generally very difficult.
• Because the expenses involved in documenting a leveraged
lease can be substantial, transactions involving less than $2
million worth of equipment can be economically difficult to
structure as a leveraged lease.
• If, however, documentation fees (such as counsel fees) can be
kept within reason, smaller equipment amounts can be
financed in this manner.
• In many cases a prospective lessor or underwriter has an in-
house legal staff with the ability to originate and negotiate
the required documents.
• If so, this will help keep costs down.
• Generally, leveraged lease financings are arranged for prospective lessees
by companies or individuals who specialize in structuring and negotiating
these types of leases.
• These individuals and firms are referred to as lease underwriters.
• Essentially, their function is to structure the lease economics, find the
lessor-investors, and provide the necessary expertise to ensure that the
transaction will get done.
• In a limited number of situations, they also find the debt participants.
They do not generally participate as an investor in the equipment.
• Because the vast majority of leveraged leases are brought
about with the assistance of lease underwriters, lease
underwriting has become synonymous with leveraged
• The premise on which lease underwriting services are
provided by an underwriter (that is, on a "best efforts" or
"firm" basis) varies significantly.
• It is, therefore, worthwhile at this stage to explore the two
types of underwriter offers: "best efforts" and "firm
commitment" underwriting arrangements.
A 'Best Efforts' Underwriting Arrangement Can
• Lease underwriting transactions are frequently bid
on a "best efforts" basis.
• This type of bid is an offer by the underwriter to do
the best it can to put a transaction together under
the terms set out in its proposal letter.
• There are no guarantees of performance.
• As a result, a prospective lessee accepting the offer
may not know for some time whether it has the
• In practice, a best efforts underwriting is not
as risky as it appears.
• Most reputable underwriters have a good feel
for the market when bidding on this basis and
usually can deliver what they propose.
• Thus, there is a good chance they will be able
to get "firm commitments" from one or more
prospective lessor-investors to participate on
the basis offered.
A 'Firm Commitment' Underwriting Arrangement Is
Often the Best
• From a prospective lessee's viewpoint, a "firm
commitment" underwriting proposal is
generally the preferred type of offer.
• When an underwriter has "come in firm" it is
guaranteeing to put the proposed lease
• Typically, before an underwriter submits this
type of proposal, it has solid commitments
from lessor-investors to enter into the
transaction on the terms presented.
• This, however, is not always the case. The
underwriter's firm bid may only represent its
willingness to be the lessor if it cannot find a
• Generally, the term of an equipment lease will
begin on acceptance of the equipment, which
sounds much more simple than we all know it
• This is one of many areas where the reliance
on standard form documentation, without
periodic review and a bit of thought in
individual circumstances, can lead to disaster.
Coordination of the lease
• the schedule (if a master lease is used), the
delivery and acceptance certificate and the
purchase order are key
• The date on which the term begins should be
• Most leases clearly state whether the rent is
intended to be paid in advance or in arrears.
• Be mindful of this in structuring casualty or
termination value tables
• Far more common than problems about the term and rent
provisions are problems regarding the lessee's late payment
• Generally, this is not a usury problem in most states —
penalty rent is not considered to be "interest" for usury
purposes under most state laws.
• However, several types of problems can arise if the late
charges are not consistently applied. If the lessee is going to
be given grace for any reason, a written letter to the lessee
should explain that the lessor reserves the right to reinstitute
the penalty later on.
• Late charges fall into several categories.
• Some leases require a single lump sum
payment, which should be invoiced to the
lessee as soon as it is due.
• Other leases require a calculation of interest,
usually from the date due until the date of
Net Lease/Hell or High Water Clause/Warranty
• The net lease provision states that the lessee
is responsible for paying operating costs, taxes
• This effectively means that the rent payment
is "net" to the lessor (except for the lessor's
income taxes and overhead).
hell or high water clause
• The hell or high water clause is important to
establish that the lessee must pay the full amount of
rent whether or not the equipment functions and
has no right of offset. If this clause is explained to the
lessee, it should be pointed out that the lessee does
not, in this clause alone, give up its right to sue the
lessor if it feels that the lessor has breached any
terms of the lease, including representations
regarding the equipment.
• Under Article 2A, a warranty is implied by the lessor
whether the equipment is leased under a true lease
or a disguised security arrangement.
• In other words, you are all deemed to be making an
implied warranty that the equipment is
"merchantable" and "fit" for the lessee's intended
• UNLESS THE WARRANTY DISCLAIMER LANGUAGE IS
PRESENT IN YOUR LEASE.
Delivery & Acceptance/Purchase
• As a general rule, virtually all of the lessee's
obligations to the lessor, including the
obligation to pay rent and to indemnify the
lessor, arise only when the equipment has
• Likewise, the lessor's obligation to make
payment to the vendor of the equipment
arises on the lessee's acceptance.
• One of the provisions which addresses directly
the lessor's anticipated residual value
realization is the return provision of the lease.
• These provisions include provisions addressing
the condition in which the equipment must be
on the date of return, the allocation of the
costs of redelivery and what additional
charges the lessee may be required to pay.
• On their face, few things are as simple as the
concept of a renewal or purchase option. In
fact, few provisions cause more problems.
• It is essential that the Lessor be fully familiar
with the terms of the renewal or purchase
option provision as it relates to the particular
lessee and equipment.
• "Fair market value" may be a difficult concept
• If the lessee desires to exercise a renewal or purchase option, check to
ensure that no default exists, that no liabilities are outstanding and that
the lessee has complied with all notice and other requirements.
• In addition, a provision describing how fair market value should be in
your lease form.
• Be sure you are comfortable with its workings and the potential cost in
dollars and time.
• Contact potential appraisers in advance and be sure that they are familiar
not only with the type of equipment but the concept of a fair market
value determination for equipment lease purposes.
You own the vehicle and get to keep it as
long as you want it.
You don't own the vehicle. You get to use
it but must return it at the end of the
lease unless you decide to buy it.
They include the cash price or a down
payment, taxes, registration and other
They typically include the first month's
payment, a refundable security deposit, a
down payment, taxes, registration and
Loan payments are usually higher than
lease payments because you're paying off
the entire purchase price of the vehicle,
plus interest and other finance charges,
taxes, and fees.
Lease payments are almost always lower
than loan payments because you're
paying only for the vehicle's depreciation
during the lease term, plus interest
charges (called rent charges), taxes, and
You can sell or trade in your vehicle at any
time. If necessary, money from the sale
can be used to pay off any loan balance.
If you end the lease early, early-
termination charges can be almost as
costly as sticking with the contract.
You'll have to deal with selling or trading
in your car when you decide you want a
You can return the vehicle at lease-end,
pay any end-of-lease costs, and walk
The vehicle will depreciate but its cash
value is yours to use as you like.
On the plus side, its future value doesn't
affect you financially. On the negative
side, you don't have any equity in the
You're free to drive as many miles as you
want. (But higher mileage lowers the
vehicle's trade-in or resale value.)
Most leases limit the number of miles you
may drive, often 12,000 to 15,000 per
year. (You can negotiate a higher mileage
limit.) You'll have to pay charges for
exceeding your limits.
Excessive wear and tear
You don't have to worry about wear and
tear, but it could lower the vehicle's
trade-in or resale value.
Most leases hold you responsible. You'll
have to pay extra charges for exceeding
what is considered normal wear and tear.
End of term
At the end of the loan term (typically four
to five years), you have no further
payments and you have built equity to
help pay for your next vehicle.
At the end of the lease (typically two to
four years), you'll have to finance the
purchase of the car or lease or buy
The vehicle is yours to modify or
customize as you like.
Because the lessor wants the vehicle
returned in sellable condition, any
modifications or custom parts you add
will need to be removed before you
return the car. If there is any residual
damage, you'll have to pay to have it
• Companies have usually several options when
acquiring capital equipment.
• There are at least three possibilities:
– buy and finance through a loan
– buy with cash on hand
• Cash flows of these three options are driven
by several components including
• interest and discount rates,
• effective tax rate,
• number of depreciable years for tax purposes,
• how long the equipment will be used,
• and the salvage value at the end of its use.
• Simply comparing different cash flows in
different time periods may not be practical in
order to arrive at a capital investment
• Hence there is a need for a metric that can
accurately summarize these cash flows for
each investment option.
• Net present value (NPV) is such a metric. NPV is
calculated as the sum of present values of current and
future cash flows.
• The focus on NPV forces companies to identify all
cash flows from these three lease-or-buy options,
which ensures that not only the month-to-month
payments are considered.
• Hence, from a purely financial point of view,
companies should acquire capital equipment based
on the option with the lowest NPV.
• By leasing, the company can use its cash for
investment in its core business rather than in
the infrastructure required to run it.
• Equipment that is often leased includes
computers and peripherals, office furniture,
manufacturing and construction equipment,
and commercial vehicles.
• Between leasing and financing, leasing usually
offers the lowest month-to-month payments.
• But there are also other costs associated with
a lease, especially the residual value of the
equipment and the buyout price agreed with
the leasing company upfront.
• Some lessees make the mistake of focusing on the
low monthly payments and don't consider also the
choices that they will need to make at the end of the
• Lessees should keep in mind for example that they
may need to continue using the equipment, which
may require extending the lease or buying out the
• Both choices may generate additional costs
• Financing the purchase through a loan may
make more sense if the company needs to use
the equipment longer than just few years.
• Cash purchase could be the preferred option,
on the other hand, if the equipment is needed
for longer period of time and the interest rate
of the lease or loan significantly exceeds
company's cost of capital.
• The decision to buy or lease can be made only
after a systematic evaluation of the relevant
• The evaluation must be carried out in two
– First, the advantages and disadvantages of
purchase or lease must be considered, and
– second, the cash flows under both alternatives
must be compared.
• This is the presumed value of the asset being
leased, at the time that the lease is signed. It
is the present value of the future payments on
the lease, including the residual value.
• This is the assumed value of the asset at the end of the life of the lease.
• Often, as is the case for auto loans, the lessee has the option of
purchasing the asset for this price when the lease is up.
• For example, an auto lease may specify a residual value of $15,000 when
the lease is up in 3 years.
• At that time, the lessee has the right, but usually not the obligation, to
purchase the vehicle for $15,000.
• If the lessee chooses not to exercise that option, then the vehicle will be
turned over to the lessor.
• In this example, the lease has a built-in call option with a strike price equal
to the residual value.
• Sometimes the lease terms call for a number of
payments to be paid in advance, when the lease is
• The number of advance payments could be 0, 1, 2, or
• For example, suppose that a lease calls for a $300
monthly payment with 2 advance payments.
• Then, when the lease is signed, you would pay $600
(2 payments) and the first regular payment of $300
would be due in one month.
Calculating the Monthly Lease Payment
• If we assume that the lease does not call for any
advance payments, then calculating the regular
monthly payment is straightforward.
• The lease cash flows are an annuity (the monthly
payment) and a lump sum (the residual value) at the
end of the lease.
• Our example lease has a present value of $3,500, a
residual value of $1,000, and a monthly payment of
The cash flows of the lease resemble those on a bond, as can be seen in the
• The principle of value additivity states that the
present value (lease amount) is equal to the
present value of the monthly payments (an
annuity) plus the present value of the residual
value (a lump sum).
Therefore, we have the following
formula as our starting point:
• We already know the PV (that is, the lease amount)
and the FV (the residual value), and we want to solve
the above equation for the monthly payment
• This requires a minor amount of algebra to rearrange
the equation, and the result is:
Cross Border Leasing and
Vikram Singh Sankhala
• Cross-border leasing is a leasing arrangement
where lessor and lessee are situated in
• This presents significant additional issues
related to tax avoidance and tax shelters
• Cross-border leasing has been widely used in some
European countries, to arbitrage the difference in the
tax laws of different jurisdictions, usually between a
European country and the United States.
• Typically, this rests on the fact that, for tax purposes,
some jurisdictions assign ownership and the attendant
depreciation allowances to the entity that has legal
title to an asset, while others (like the U.S.) assign it to
the entity that has the most indicia of tax ownership
(legal title being only one of several factors taken into
• In these cases, with sufficiently long leases
(often 99 years), an asset can end up with two
effective owners, one in each jurisdiction; this
is often referred to as a double-dip lease.
• Leasing techniques have been used for financing
purposes for several decades in the United
• The practice developed as a method of financing
• Several airlines in the early 1970s were
notoriously unprofitable and very capital
• These airlines had no need for the depreciation
deductions generated by their aircraft and were
significantly more interested in reducing their
• A very prominent bank would purchase aircraft
and lease them to the airlines.
• Because the bank was able to claim depreciation
deductions for the aircraft,
• the bank was able to offer lease rates
significantly lower than the interest payments
that airlines would otherwise pay on an aircraft
purchase loan (and most commercial aircraft
flying today are operated under a lease).
• In the United States, this spread into leasing
the assets of U.S. cities and governmental
entities and eventually evolved into cross-
• In a globalizing environment, cross-border
leasing has not picked up the way it might
have been expected.
• Cross-border lease transactions are generally
restricted to aircraft leasing, where this is the
most popular means of financing, marine
equipment and railroad rolling stock to some
• Equipment Leasing is big business that can
bring in good profits for your company,
• but to accomplish that, you need to market
your Equipment Leasing business properly.
• Equipment Leasing marketing will work, first
of all, if you have the right business plan in
• This is the most crucial part of the Equipment
• You will then need to examine the history of
your Equipment Leasing company the right
• by starting at its beginnings and
• analyzing how it was able to survive up to its
present state and age without going under.
• You have to tag the events and trends that
influenced the Equipment Leasing industry at
various periods in time,
• then look at the present condition of your
Equipment Leasing business to see
• what factors exist now
• and what events seem to impact on the
• This will help as you refine your Equipment
Leasing business plan and Equipment Leasing
• Now you have to analyze how much of a
budget you have for marketing your
Equipment Leasing company the right way
and to the right customers.
• Analyze the return on investment properly,
• You may have to factor in various aspects of
an Equipment Leasing company's overhead
• (such as personnel compensation, lights,
water, and maintenance of the heavy
equipment you are leasing out.)
Prepare a mission statement
• The mission statement clearly and succinctly
describes the nature of the business, services
offered, and markets served
• —usually in a few sentences.
• Sometimes for larger companies it’s combined
with a vision statement that can be two to
three paragraphs in length.
List and describe target or niche
• In this section, list and describe potential groups
of users or clients.
• After you create the list, identify various
segments of a market.
• Segments can include specific types of people in
a company by role—for example, chief executive
officer, chief financial officer, or marketing
• Department heads are another type of market
segment. For segmenting the consumer market,
consider age groups.
• In addition, niche markets are an integral part
• Within a target market of attorneys, for
instance, there may be niche groups such as
trial or malpractice attorneys.
• In some instances, targeting by firm size is an
Describe your services
• As mentioned above, it’s necessary to conduct
market research to understand your market
and to identify the services they require.
• At the same time, inventory the services you
currently offer and identify new services you
wish to provide.
• Determine what it will take to provide these
services in terms of staff, expertise, and costs.
Spell out marketing and promotional
• Various strategies work better for different target
markets and, therefore, several may be required
• The key for successful marketing is understanding
what makes someone want to use or buy services
and what type of marketing strategy they
• This requires you to learn needs, problems,
industry trends, and buzzwords.
• Find out what works best for the markets you
Identify and understand the
• As part of the market planning process, you must
learn about your competitors and how to
position yourself in relation to them.
• Describe your strengths and what you want to
• Once you identify both direct and indirect
competition (for example, the Internet as indirect
competition), you can determine how and why
your services are special and benefit users in a
• You can compete based on value, price,
product, or service, or some combination of
• Your unique position in the marketplace must
be touted in your marketing programs and
Establish marketing goals that are
• Marketing goals can include setting the
number of new clients you would like to
acquire, the number of people you would like
to reach, or the amount of income you would
like to generate.
• Be realistic and practical in establishing your
• Take a good look at the available skills and
resources that you can commit to implement
and integrate your goals into your marketing
• Study the budget requirements for the
strategies you select and plan accordingly
Monitor your results carefully
• By monitoring results, you determine which of
your marketing strategies are working and which
• Identify strategies that generate leads and sales.
• This involves tracking and evaluating customers’
responses to each marketing strategy.
• Survey or interview regular users for comments
about why they find a service important.
• Step One: Situation Analysis
• Step Two: Problems and Opportunities
(SWOT-strengths, weaknesses, opportunities,
• Step Three: Goals and Objectives
• Step Four: Strategies
• Fifth Step: Tactics; analyzing plan results.