Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Bankruptcy and Insolvency From An International Perspective (Part 4)
by Steven Gilyeart, J.D., Editor, The International Leasing Resource
Editor's Note: This is the fourth and final in a multi-part series.
Priorities Most bankruptcy and insolvency proceedings follow what has been called "the absolute priority rule." This rule provides that after categorizing of a claim according to its status, every claimant of a higher rank must receive satisfaction of its claims in full before those on inferior rank are paid at all. This usually means that the class just above the class that will get nothing does not have enough funds available to it to satisfy everyone in full. For this category, the creditors receive payment on a proportionate basis. The top priority group is usually the bankruptcy lawyers (are you surprised?), accountants, appraisers, and others who actually administer the bankruptcy and make the system function. Employees and tax obligations are often not far behind. At the bottom are trade creditors, unsecured creditors and other claimants without an interest in collateral. Claimants with collateral are usually entitled to a separate settlement from the proceeds or value of the collateral, with any shortfall in payment of the insolvent's obligation to them being a standard unsecured claim. Unsecured claimants are usually lucky if they receive any payment at all. They are almost never paid anything close to what they are owed.
Stayed Actions Most jurisdictions have bankruptcy provisions that stop further collection, seizure and other enforcement actions against the insolvent who has filed a bankruptcy proceeding. Such a rule is necessary to accomplish the basic purpose of the proceeding--to provide an orderly and fair distribution of the insolvent's remaining assets when there is not enough to satisfy everyone. If creditor collection efforts continue and asset seizures and foreclosures remain a free-for-all, this goal will not be accomplished and there will have been no real point to the proceeding in the first place.
Preferences and the "Clawback" A person facing an impending bankruptcy proceeding has the natural human desire to prefer paying his or her friends rather than paying his or her enemies. The proceeding may be orderly but it will not be fair if the insolvent can pick and choose just who will be paid on the eve of bankruptcy and then file the proceeding to "lock it in." As most insolvents have usually been insolvent for some time before they actually file for the proceeding, most bankruptcy laws will assume that they have been insolvent for a specified period before then and will require that creditors who received payment during that period must return those funds to the bankruptcy estate for distribution as provided by the bankruptcy law. These "preference payments" are "clawed-back" by the bankruptcy estate for a period of presumed insolvency that may range from 30 to 90 days or even longer, sometimes as much as up to a year in the case of a relative or insider who may have known of the business' troubles sufficiently in advance to obtain special privileges for themselves.
Special Problem Areas for Lessor Lessee bankruptcy and insolvency risks and the issues that go with them are unavoidable if one is in the leasing business. As with any risk, since the risk can never be totally neutralized, the task becomes to minimize it. While the prescriptive measures are necessarily dependent upon the particular laws of the relevant jurisdiction, some general comments can be made.
Significant Contract Items Does the lease contract make the filing of a bankruptcy or other type of insolvency proceeding, a general assignment for the benefit of creditors, or just the inability to pay debts and other obligations when they are due, an event of default? While these types of clauses, known as ipso facto clauses ("the thing speaks for itself") may not be enforceable as against the lessee in some jurisdictions, such as the United States, they may create a default as against a guarantor of the lease. Does the lease contract give the lessor the right to repossess the lease asset in the case of a lessee default? If the lessor did not care enough about this right to put it into the contract, a court is going to be less inclined to direct the leased property's turnover in advance of a full hearing on the issue. Moreover, if the lessor intends to avail itself of a "self-help" repossession remedy, it better have some authority for such aggressive action. (Please see Repossession From an International Perspective for further discussion of these issues.) Does the lease contract provide for "liquidated damages" or other easy calculation of the amount that the lessee will owe if it defaults? Is such amount a fair and reasonable approximation of the harm that the lessor actually suffers"? All bankruptcy claims must ultimately be paid in money. A generalized claim for damages or a claim for compensation for a harm suffered must be reduced to an specific sum before it can be paid. If the lease contract does not specifically state a method for calculating that amount, it will be up to the bankruptcy court to determine that sum. Because of the inherent tendency of bankruptcy adjudicators to reduce claims rather than enlarge them in order to maximize the distribution pool for the greater good of all rather than the selfish interest of one, the bankruptcy proceeding is not a particularly favourable environment for abstract math. While the construction of liquidated damage provisions is a matter beyond the discussion at hand, the better approach, especially in mature markets, is to include in any acceleration of future payments, a discount to present value. It is also usually better to state a specific discount rate in the contract and not leave it to an arbitrary future determination. Without such discounting, the lessor can receive a windfall from receiving the future rents all at once in the present. It is generally not allowed to have contracts structured so that more money is made from their default than from their proper performance. These are just three of some of the more significant concerns. This is not an exhaustive listing.
Local Bankruptcy Law Examination When examining the domestic bankruptcy legislation, there are several key items of concern. Is the definition or description of the "bankruptcy estate" written in such a way that the leased asset (not the leasehold interest but the asset itself), even if the lease is the truest of true leases, will be considered an asset of the estate? If the actual asset is part of the estate, the bankruptcy trustee or administrator may have substantial discretion in how it handles its sale, use, or other disposition. Such discretion is not usually exercised in a manner favourable to the lessor. Yet, more to the point, if the leased asset has this type of label attached, the issues for the lessor will expand greatly, because the use of this label or "handle" typically permeates the entirety of the bankruptcy legislation, controlling many aspects of the court's authority to do things which a lessor may not find in its best interest. Even when the lessor is entitled to separate settlement of its claims from the leased asset, the asset can still be considered property of the estate. The concepts are not mutually exclusive. Regardless of whether or not the leased asset is included in the bankruptcy estate, what can the bankruptcy trustee or administrator do with the leased asset without the lessor's consent or over its objection? This question really just raises more: Can the lessee continue to use it without paying the rent? Can the rent be modified (i.e., reduced)? Can the lessor force the bankruptcy trustee or administrator to decide to either adopt the lease or reject it? Can the asset be sold without the lessor's consent? Over the lessor's objections? Does the lessor get the proceeds or does the estate get them? Most emerging markets have relatively simple bankruptcy laws that operate from the assumption that everything gets sold, the proceeds pooled, and then divided amongst the creditors. If attention is given to lease issues, the law might include a right of separate settlement of the lessor's claims from the leased asset, but disposition of the leased asset is still expected to be managed by the bankruptcy trustee or administrator. Accountability and motivation for proper disbursement of those specific proceeds may be lacking in that circumstance. In most bankruptcy situations the proceeds from the asset's disposition will be the only financial recovery the lessor will have. No one is more motivated or in a better position to maximize those proceeds than the lessor. Most lessors would rather dispose of the asset themselves. Can the bankruptcy court give a "superpriority" interest in the leased asset to a party providing loans, credit, or other new benefits to the bankruptcy estate? Although this question is related to the previous one, it is slightly different. The focus in this situation is in the specific taking of the lessor's interest and diminishing it for the purpose of trying to keep the insolvent's (failing) business going. Regardless of the validity and strength of the lessor' s interest, it will be reduced by court discretion--even if the law would otherwise allow the lessor a separate settlement of its claim. The typical instance involves giving a lender a first position lien on all property of the bankruptcy estate for making new loans or advances to a debtor attempting to reorganize. (This situation only rarely occurs in liquidation proceedings.) If the leased asset is considered "property of the estate," it will be encumbered by such action. Can the lessor get an early resolution of such issues as the return of the leased asset or resumption of rental payments? Leased equipment is almost always depreciating in value. Even outside of bankruptcy situations, if there are delays in repossession and disposition, proceeds will be diminished and losses will be greater. The situation is aggravated in a lessee insolvency proceeding. With the lessee unable to meet its most pressing bills, it will not likely be maintaining the equipment properly. Insurance may have lapsed for failure to make a premium payment. Required licenses may not have been renewed. The risk to the equipment and its value will have increased. Yet, the speedy response called for may be foreclosed by the rules of the bankruptcy proceeding. Unlike in some mature markets, the bankruptcy law in a number of emerging markets does not provide for any expedited proceedings to resolve lease or other similarly urgent issues. The assumption behind the law's structure is that disputes will be addressed when there is something worth dividing, i.e., after the assets are sold and the proceeds are collected. Even bankruptcy laws that provide for reorganization can be fairly sparse and vague in setting forth the process for managing that reorganization. Even if it is clear in the law, it may not happen that way in practice. Yet, a realistic understanding of the delays is necessary to properly evaluate the risk of a lessee bankruptcy or insolvency. It should go without saying that these are only a few of the bankruptcy issues. General concerns such as the timely filing of claims, approval of reorganization plans, and a host of other issues relevant to all creditors, as well as other issues specific to lessors, cannot be adequately addressed in an article of this nature. Only some of the highlights have been mentioned. Competent local counsel consultation is always advisable.
Concluding Comments Even lessors with the most stringent credit criteria will someday have to deal with a lessee bankruptcy. It is statistically unavoidable. Advance planning, realistic assessments of the credit, asset, and legal risks, reasonable expectations about the process, and a tolerance for frustration can help turn an exasperating experience into an educational opportunity in better preparation for the next one.
Updated 15 March 1999
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