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.
HIGHLIGHTS TO THE PROPOSED CHANGES
TO ARTICLE 9 OF THE UNIFORM COMMERCIAL CODE
by Joseph G. Bonanno, Esq., Counsel to the National Association of Equipment Lease Brokers, [email protected]
Does Article 9 Apply? Article 9 applies to leases intended as security, not true leases under Article 2A. The distinction, as set out in the relevant portion of UCC 1-201(37) reads as follows:
Whether a transaction creates a lease or security interest is determined by the facts of each case, however, a transaction creates a security interest if the consideration the lessee is to pay the lessor for the right to possession and use of the goods is an obligation for the term of the lease not subject to termination by the lessee, and (emphasis added)
1. The original term of the lease is equal to or greater than the remaining economic life of the goods;
2. The lessee is bound to renew the lease for the remaining economic life of the goods or is bound to become the owner of the goods;
3. The lessee has the option to renew the lease for the remaining economic life of the goods for no additional consideration or nominal consideration upon compliance with the lease agreement; or (emphasis added)
4. The lessee has an option to become the owner of the goods for no additional consideration or nominal consideration upon compliance with the lease agreement.
Therefore, there is a two part test to determine if a security interest is created. The first part of the test is that the lessee does not have the ability to terminate its obligation to make lease payments during the term of the lease, even if the goods are inoperative and returned to the lessor (the "net lease" provision), and the second part of the test is that any one of the four remaining elements are met. If the first part and any one of the four remaining elements are met, then the lease is a security interest, governed by Article 9, not a true lease governed by Article 2A. Article 9 to the Uniform Commercial Code (UCC) has been adopted in all states (except Louisiana) and has not been revised since 1978.
Proposed Changes In July of 1998, the National Conference of Commissioners on Uniform State Laws promulgated a completely revised Article 9 for consideration by the States and for adoption by each individual state. Thus far in 1999, Arizona, California, Hawaii, Indiana, Maine, Montana, Nebraska, Nevada, Oklahoma, Vermont and West Virginia have introduced the revised Article 9 into the respective State Legislatures for adoption by the respective State. There may be some state variations, but for the most part, the sweeping changes of Article 9 will be adopted by the States. Ultimately, the interest of a particular state to remain uniform with the rest of the United States will also prevail. The highlights of the proposed changes include, but are not limited to, the following:
Application of Article 9 Property that must now be perfected to have a valid security interest within the meaning of Article 9 includes:(a) sale of intangibles,(b) promissory notes, (c) municipal debt, (d) health insurance receivables (e) commercial tort claims and (f) agricultural liens. Under the old (existing) Article 9, no filing (perfection) was required in these types of collateral to perfect the security interest. However, now perfection (filing) must be accomplished to be perfected. Perfection Under revised Article 9, filing a financing statement is the method to perfect a security interest, even if there is another method of perfection (good faith exception to the filing requirements). However, "Control" is now the preferred method of perfection for letter of credit rights, deposit accounts and investment property. Control is defined as the creditor being in a position that prevents the debtor from any form of transfer of the collateral (whether a name change or the addition of a second position lender) without the prior consent of the perfected creditor. Under the existing Article 9, there was an automatic 10 day period of perfection. Under the proposed new Article 9, that period is extended to 20 days. Then another method of perfection is required, such as filing or control.
Where to File Under the existing Article 9, filing (perfection) was accomplished by filing where the collateral was located. Under the proposed Article 9, filing (perfection) is to be accomplished in the state where the debtor is located. If the debtor is a business entity, then the location of the debtor is the state of the creation of the business entity, not (as under the existing Article 9), where the principal place of business of the debtor is located.
Dual Filings Also, the new Article 9 completely eliminates the need for dual filings; the new Article 9 contemplating a single filing system at the office of the Secretary of State. Under the new Article 9, the only occasion of a dual filing is where the collateral consists of real estate fixtures, which requires the second filing to be in the Registry of Deeds.
Recognition of Computer Filings This is to be made uniform. The office that accepts the financing statements for recording has no responsibility for the accuracy of information on the statements and the filing officer is completely relieved of any liability for the contents of any statements. Also, the signature requirement for a financing statement is completely eliminated. The authorization for electronic filings must be found in the underlying documents, i.e., a lease, security agreement or promissory note. In the event of a fraudulent filing, the debtor can, of their own initiative, filing a termination statement or a correction statement.
Five Year Filing Life Filings will have a five year life, and the filing will not be expunged from the records until 6 months thereafter. Thus, continuation statements can be filed 6 months after the five year period and still be effective. There will also be national forms of financing statements. Default There are three participants: (a) the debtor, who owns the collateral, (b) the obligor, who owes payment and (c) the secondary obligor, the guarantor. Under the new Article 9, the secondary obligor cannot waive suretyship defenses, which puts the secondary obligor on the same footing as the primary obligor. Thus, as to collection against a guarantor in the event of default, the guarantor can now raise as defenses, for example, the failure to conduct a commercially reasonable foreclosure sale, a waiver of this defense in a guaranty agreement no longer being enforceable. Further, in the event of a foreclosure sale, the secured creditor must now give notice of disposition of the collateral to all other parties that have filed financing statements against the debtor covering the same collateral. This is an effort to eliminate post-foreclosure disputes among secured creditors as to who owns the collateral. Secured creditors cannot buy at their own foreclosure sale and base the deficiency upon the amount that they bid. A secured creditor now has to base his deficiency action upon what would have been received if the sale at foreclosure was to an independent third party.
Good Faith The concept of "Good Faith" on the part of a secured creditor is now expanded to include both (a) honesty and (b) acting in commercial reasonableness. This two part test can expose lenders to further liability in their foreclosure process.
Concluding Comments Although there is a proposed uniform version of Article 9 as set forth by the National Conference of Commissioners on Uniform State Laws, the states are free to accept, reject or add any provisions that individual state committees determine. Therefore, when there is a choice of law provision in an equipment lease, one must be certain with respect to these new Article 9 issues, as to the controlling provisions and implications of the individual state actions.
7 June 1999