Leasing Grows in Latin America
September 01, 2006
According to a recent report by the Alta Group Latin American Region ('LAR'), equipment leasing volume in Latin American countries increased by more than 50% on average in 2005. The Alta LAR 100 report, which includes the firm's second annual ranking of the Top 100 leasing companies in Latin America, has expanded with new information revealing the region's fastest-growing businesses, key multinationals, and growth in each country. Rafael Castillo-Triana, principal for The Alta Group LAR, noted that 'Brazil, which has the largest leasing industry in the region, experienced tremendous growth and almost doubled in size.' In addition, 'The report also shows that Argen-tina's leasing industry is recovering from the downturn following the country's economic crisis of 2002.'
In the Marketplace
September 01, 2006
Highlights of the latest equipment leasing news from around the country.
Financial Restatement Due to Lease Misclassification Not Actionable
September 01, 2006
As internal control issues continue to emerge for public companies, one of the questions that a leasing or financial services company might likely be asking is what happens if we need to restate our earnings based on a misclassification of our leases as sales-type leases rather than operating leases. What would our exposure be?
Dealing with Insurers in Liquidation
September 01, 2006
Insurer insolvency has become an increasingly significant concern. Since 1969, more than 400 property and casualty insurers have been placed in liquidation. The past 5 years have seen several larger commercial insurers go into liquidation, among them The Home Insurance Company and Reliance Insurance Company. Indeed, from just 2001 to 2003, Guaranty Associations paid approximately $5 billion in covered claims — more than half the $10 billion they had paid in the previous 31 years from their inception. This article addresses what creditors need to know when dealing with a financially troubled insurer.
California Tax Update
September 01, 2006
There may be gold in them California hills. But there's a price to be paid when panning for it. It has become clear that leasing companies need to exercise particular vigilance when operating in the Golden State.
Seventh Circuit Finds 'Floating' Forum Selection Clauses Valid
September 01, 2006
The sale of individual equipment leases from one equipment lessor to another, or entire portfolios of equipment leases, is common practice in the United States. One component that parties interested in purchasing equipment leases or portfolios of equipment leases desire in the equipment lease contract is a choice of forum clause that provides the flexibility for the purchasing party to initiate litigation in its own home state. However, the enforceability of forum selection clauses providing for one or more appropriate forums has been the question of some debate both in the federal and state courts. Recently, the Seventh Circuit Court of Appeals issued an opinion coming down squarely in favor of the enforceability of such forum selection clauses.
In the Marketplace
July 28, 2006
Highlights of the latest equipment leasing news from around the country.
Post-Petition Enforcement Against the Seller of Contracts for the Sale of Goods
July 28, 2006
Generally speaking, after a bankruptcy filing, executory contracts are not enforceable against a debtor that has not yet assumed the contract. <i>N.L.R.B. v. Bildisco and Bildisco</i>, 465 U.S. 513, 531 (1984). However, the reverse is not true. During the pre-assumption period the non-debtor party to the contract is presumed to be obligated to perform in accordance with a contract. Howard C. Buschman III, <i>Benefits and Burdens: Post-Petition Performance of Unassumed Executory Contracts</i>, 5 Bankr. Dev. J. 341, 346, 359 (1988); <i>Univ. Med. Ctr. v. Sullivan (In re Univ. Med. Ctr.)</i>, 973 F.2d 1065, 1075 (3d Cir. 1992); <i>McLean Indus., Inc. v. Med. Lab. Automation, Inc. (In re McLean Indus., Inc.)</i>, 96 B.R. 440, 449 (Bankr. S.D.N.Y. 1989). Of course, a debtor who elects to receive the benefits of a contract while deciding whether to assume or reject the contract is expected to pay for the value of the goods and services received in accordance with the contract. As the Supreme Court noted in <i>Bildisco</i>, 465 U.S. at 531, 'If the debtor-in-possession elects to continue to receive benefits from the other party to an executory contract pending a decision to reject or assume the contract, the debtor-in-possession is obligated to pay for the reasonable value of those services ... ' <i>See also Schokbeton Indus., Inc. v. Schokbeton Prods. Corp. (In re Schokbeton Indus., Inc.)</i>, 466 F.2d 171, 175 (5th Cir. 1972).
Forbearance Agreements: A Useful Tool for Lenders After Default
July 28, 2006
With a borrower in default and facing the threat of imminent litigation or bankruptcy, both lenders and borrower are increasingly looking to the appealing alternative of forbearance agreements. These are arrangements whereby lenders refrain from exercising their available default remedies in exchange for certain concessions from the borrower. Depending on the circumstances, forbearance agreements give lenders an alternative to the expenses and delays associated with litigation or bankruptcy. Forbearance agreements can also be used to take the place of a more long-term modification of the parties' arrangement. Accordingly, a forbearance usually gives up little on the part of the lender, but allows the lender to secure a number of benefits that will be very helpful in the event of a subsequent default by the borrower.
