Is It a True Lease or a Loan?
May 01, 2004
<i>Part One of a Two-Part Series.</i>Anyone who has been in the leasing business for much time at all understands that a transaction that the parties describe as a "lease" can be either a "true lease" where the lessor owns the leased equipment or a "loan" which results in the lessee being the owner and the lessor having merely a security interest. The latter is commonly referred to as "disguised security interests" or "leases intended as security" or "financing leases." Many people also have a general understanding of the distinction between the two, and most of those reading this article have heard one person or another proclaim the bright-line rule that a lease with a dollar purchase option is a loan and a lease with a fair market value purchase option is a true lease.
Circuit Court Ruling on Nonmonetary Defaults Sets Up Conflict Over Bankruptcy Code
May 01, 2004
A recent circuit court decision regarding the interpretation of section 365 of the Bankruptcy Code has set up a conflict between two circuits. On March 15, 2004, the Court of Appeals for the First Circuit issued an opinion regarding whether bankruptcy debtors are required to cure nonmonetary defaults prior to assuming unexpired leases under section 365 of the Bankruptcy Code, 11 U.S.C. §365. <i>In re Bankvest Capital Corp. (Eagle Insurance Co. v. Bankvest Capital Corp.)</i>, 360 F.3d 291 (1st Cir. 2004). The First Circuit found — expressly contrary to a holding of the Ninth Circuit Court of Appeals — that debtors are not required to cure such defaults, resulting in a split in the circuits over a very widely used section of the code.
Leveraged Lease Gone Bad? Avoid the Courtroom with Mediation
May 01, 2004
Throughout the 40-year history of U.S. leveraged leasing, deals have occasionally gone bad. Lessees default, markets change, equipment loses value ' sometimes even the best planned and executed deal may turn out to be the biggest problem in a lessor's portfolio.
In The Marketplace
May 01, 2004
Highlights of the latest equipment leasing news from around the country.
Real Property Law
April 01, 2004
The latest real property law rulings you need to know.
True Lease or Secured Financing: Recovering Meaningful Residual Value
March 31, 2004
Equipment lessors bargain for a very different set of legal rights than secured creditors. These bargained-for rights are often subject to attack, particularly in the Chapter 11 context where it is common for interested parties to challenge the characterization of a Chapter 11 debtor's obligations under an agreement styled as a lease. <i>See In re APB Online, Inc.</i>, 259 B.R. 812, 815 (Bankr. S.D.N.Y. 2001). As the recent decision by the Third Circuit in <i>Duke Energy Royal, LLC v. Pillowtex Corp. (In re Pillowtex, Inc.)</i>, 349 F.3d 711 (3d Cir. 2003) illustrates, when faced with the question of whether a transaction constitutes a "true" lease or a secured financing, Bankruptcy Courts will look through the cosmetics of the deal to its substance. To avoid the re-characterization of an equipment lease by a Bankruptcy Court, an equipment lessor must structure its transactions to retain an economically meaningful "residual value" in the leased property.
Leasing Industry Closes 2003 with Positive Signs
March 31, 2004
After three consecutive quarters of failing to show any portfolio growth, the equipment leasing industry came through at year's end to close 2003 with only a slight net loss in portfolio size. According to the Equipment Leasing Association's Quarterly Performance Indicators Report (PIR), total net portfolio growth decreased by a total of only 0.4% in 2003. While 2003 marked the second consecutive year in which the leasing industry failed to recognize any net portfolio growth for a calendar year, based on how 2003 was shaping up after the third quarter, the modest overall drop-off was not such bad news. In fact, 2003 was not as bad a year for the leasing industry as one might have expected given the many challenges that have been presented over the past few years. New business volume and credit approvals were up, and charge-offs and actual delinquencies were down. Employment remains a concern, but overall, it appears that the leasing industry is weathering the storm.
