Mazuma Takes Exception on Being on Evergreen List
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Letter from H. Jared Belnap,
“Mazuma Capital Corp., hereafter (“Mazuma”) is represented by the Firm Prince, Yeates & Geldzahler, with Glenn Bronson as outside counsel. We are actively looking into a matter for a possible Trade Libel concerning the article posted on the Leasing News site titled “Companies who do not notify Lessee regarding termination” which was posted on July 12, 2012.
“We believe that you have crossed a line in by posting known ‘allegations’ and ‘claims’ in the context of proven ‘fact’ by stating that Mazuma was actively engaged in ‘taking advantage of…using evergreen clauses...and not providing notice’ to our clients. The use of this information in this manner may have opened you up to potential liability for Libel.
“Mazuma is willing to not pursue this issue any further if you will honor your commitment to me in your last correspondence by posting a full retraction of the article, remove reference to Mazuma Capital in the original post and release the following response in its current form and entirety from Mazuma;
“No attempt to contact Mazuma Capital was ever made prior to the posting of this article by Leasing News, its employees or agents concerning the subject matter of the article. Mazuma Capital vehemently denies ALL of the allegations that were presented in the suit brought by Anderson Dairy and the matter was settled out of Court.
“Mazuma has never been found liable for any allegations of any kind that are in any way similar to the claims and allegations that were made in that lawsuit. In fact the amended claims made in that lawsuit were identical in nature to claims made in another case brought by Worldwide Printing and Distribution, Inc. against defendant Tetra Financial Group, LLC., by the same law firm representing this client. Which by the declaration of James R. Moore, as a matter of public record, in this case were stated as ‘We now realize the allegations and counterclaims alleging fraud, civil conspiracy or other tortious conduct we made were based on inaccurate assumptions about the underlying facts and speculation of our counsel at Parsons Behle & Latimer.’
“Mazuma Capital is actively engaged in policies and procedures that require their salespeople to contact Lessee’s prior to the End of Term notification as called for in the Lease documents, to discuss the Lessee’s options at the End of Lease. Furthermore, we have always prided ourselves as being proactive in the marketplace in an effort to exceed customers’ expectations and provide transparency
“Mazuma Capital has never had the policy or used any document or form in any manner or context that contains an ‘evergreen clause’ as falsely stated in this article.”
There are a number of issues brought forth in this letter. Let's take the main reason for the letter ((a copy of the “Companies Who Do Not Notify Lessee regarding termination nor have such a standard for their discounters listing follows (1)). The Tetra and Mazuma case was "settled;" however the reason for the listing is in the court documents, as included in the article, and so stated in the article: It is the actual Mazuma Capital "purchase option."
Specifically, the basis of most of the litigation, an angst over the use of the Evergreen Clause, is found in Paragraph 21(k) of the lease, which sets forth three so-called “options” at the end of the lease. The paragraph in my opinion is quite confusing, I believe even for a trained legal mind to discern.
Mazuma Capital Purchase Option
The first option is to purchase the equipment for a price to be determined by Lessor and Lessee. This sounds like a fair market purchase option, but the “price to be determined” language means that the Lessor can set any price it wants. This option is illusory in my opinion.
The second option is to continue the lease for an additional 12 months, the “Evergreen” period. No notice of this provision is given to the lessee either in advance of signing or prior to exercising this option. Republic Bank purchases these 12 month extensions in advance of their exercise. How would the bank know that the lessee is going to exercise this option, unless everyone knows it is the only practical option for the lessee to exercise? Republic Bank President Boyd Lindquist confirmed in a telephone call that he “buys” these extensions from Mazuma and has for quite some time.
The third option is to return the equipment, but the clause is draped with the condition that the lessee has to re-lease identical equipment for a similar term. So what is the point of exercising this option? At the end of this re-lease, there would be the same three identical options, so the lessee would be required to re-lease and re-lease. It’s just like Groundhog Day.
Ultimately, because the first and third “options” are illusory, everyone knows the lessee has no choice but to sign a 12 month extension, and hence, Republic Bank purchases these extensions prior to their existence.
The letter from H. Jared Belnap raises two issues
First, is the statement that they never use “Evergreen Clauses.” Given the very clear forced renewal charges set forth in Para 21(k) of their lease, I believe that Mr. Belnap may be confused as to what an “Evergreen Clause” is or isn’t. In my judgment, Paragraph 21(k) is the classic “Evergreen Clause,” albeit draped in confusing language. Leasing News would invite Mr. Belnap to explain how he defines an “Evergreen Clause.”
The second issue is that assuming there is an Evergreen Clause, Mazuma gives the lessee advance notice of the provision. That may be true, but there is no practical way to avoid the forced renewal because the other two end of lease options are, in my opinion, illusory. It is a forced renewal, as evidenced by Republic Bank purchasing the renewal contracts in advance of the exercise of this option. Leasing News would invite Mr. Belnap to confirm or deny that Mazuma actually assigns these contracts prior to the exercise of the renewal option.
There are other court cases, including one in Maine, "House of Flavors," that Tetra Financial Group lost due to the same type purchase option (2).
As to the issue of not communicating with Mazuma, the facts are for over eight months I have attempted to reach officers, at first on the position regarding Evergreen Clauses. I also communicated with Mazuma PR & Marketing Jewls (Julie) by telephone, email, and LinkedIn about joining the Leasing News "Funder" list and sent her the form several times (requires bank or investor verification to be listed). This went on for at least 45 days, and then on December 17, 2011, I decided to run some states’ UCC on Mazuma (4); then I called a few bankers from the assignments noted on the UCC and the transactions were all non-recourse that I contacted. The issue if not recourse, then by IRS rules, as I understand it, is not an "operating lease," especially if the 12 month extension are pre-sold. I am not a CPA, but certainly would question the transactions for tax purposes.
While it is not uncommon for banks to discount "purchase options," in this case it is a 12 month extension or "Evergreen clause," in my opinion. The involvement Mike Lee, ex-member of the board of directors of Mazuma Capital Corp., now US Senator Mike Lee, in these transactions with Republic Bank is unknown at this time.
I consider the “funder” definition (5) investigation that I started over eight months ago as an "active story" under development, continuing to seek public information.
My Linkedin.com reply did not contain any retraction offer, but was basically to request a comment or statement to be printed in Leasing News. I appreciate your response to set forth your opinion.
Kit Menkin, editor
(1) Companies Who Do Not Notify Lessee regarding termination
(3) US Senator Mike Lee
(4) “To qualify for this list, the company must be a "funder" and not a "Broker/Lessor" or "Super Broker/Lessor". The company may sell off its portfolio from time to time, but the definition is for a company or financial institution where 50% or more of its business is from actually "funding" transactions themselves, where they are on "recourse." Every non-public company' banker and/or investor(s) are contacted to verify this. “
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Lease-$mart, Oro Valley, Arizona
"We have our own portfolio of leases on which we ALWAYS notify our Lessees of their upcoming lease-end and give them options for purchase or renewal at a reduced rate. The renewals are invoiced every month INCLUDING A REMINDER that the minimum term has been satisfied and they can purchase at any time. We do not use any automatic 12-month renewals, nor any similar 'gotcha' clauses.
"In addition, we make great effort to monitor our various brokered transactions to make sure that they do not blindly go into a continuing rental, unless the Lessee specifically intends for that result. Our transaction management system alerts us to follow up with our Lessees 3 to 6 months before the scheduled lease termination date so that OUR clients are not subject to this abuse by unethical lenders.
"I have personally spent countless hours and fought hundreds of battles on behalf of my Lessee-customers to make sure that they get what they were promised. We always keep every approval, every quote and every signed document in connection with our leases, so that we always have proof in support of our clients claims for $1 purchase options, or other fixed-price residuals. This is key, because our Lessee customers don't always have perfect record-keeping and filing systems. I estimate that simply having complete documentation in our archives has saved our customers in excess of $100,000 in abusive assessments by Lessors who are lacking in moral conscience and basic business ethics. They sometimes attempt to take advantage of the unsuspecting good businessmen and women we work with, but we come prepared - armed with the facts of the transactions - and the 'tickler' system to protect our customers from their schemes.
"We strongly support what you and Leasing News are doing to shine a light on this unethical practice which blemishes our entire industry. Keep up the good work!"
Companies who notify lessee in advance of lease expiration
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www.Lessors.com changes it claim
I emailed John Semon, publisher of www.lessors.com he was not being "honest" by stating Lessors.com was the most visited leasing web site by leaving out the Leasing News Alexa rating.
He didn't add Leasing News, but changed it to: "The Lessors Network attracts the largest equipment lease finance community on the Web (Learn More)
"IMPORTANT: A low Alexa Ranking should not be your only consideration. Advertisers need to visit and view the site's content to ensure the site attracts prospective customers. Blogs and Sites publishing wine and movie reviews, pet adoptions, etc. to artificially influence their Alexa Rankings are therefore not included in the above comparison. Sites listed above are "professional" vertical equipment lease finance sites with a proven track record of attracting a professional equipment finance audience."
(The lower the ranking, the higher the
Kit Menkin, editor
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What is a SWAG residual?
It is difficult to place a value on equipment that is new to the marketplace and has not been around long enough to establish an end of lease value. This means you need to contact the manufacturer and request information on the use, maintenance requirements, and possible technological life span. Many of the new medical machines fall into this category along with data process equipment. But there are many markets that bring new equipment that completely changes the value of old technology. Trying to be competitive in these markets may require you to take residuals that are hard to back up and therefore are risky.
All of the rules are focused on the purchase options and not the residual taken by the lessor. Therefore many lessors assume very low residuals and place purchase options at the anticipated future value of the new equipment.
The purchase option needs to be backed up by recording conversations with outside experts, manufacturers, and competitors in the secondary market because guide books only reflect equipment that has been around long enough to establish a value. The more contacts you can make the better your information will be. Try to get the names and contact information on companies that have taken delivery of the same type of equipment to see how it is functioning and their attitude on its use.
There needs to be a minimum 20% difference between the residual and the purchase option to avoid the tax rule stating that if the total funds required to obtain title of the leased equipment equal what funds required to be paid on a sales contract with a balloon then it fails the tax test. Sometimes no purchase option is stated on new equipment to avoid any problems.
One of the real problems is the lease term. If the new equipment renders some existing equipment obsolete or lowers its value considerably then you should question when it will happen to this equipment. Therefore, the longer the term, the stronger the required credit.
The current value may be elevated because of the need to recover development costs and this could cause the future value to be reduced very rapidly. In addition if it is new technology it value may be effected by refinements or additional advancements in the near future so having a conversation with someone in the same industry that writes articles or is an expert in that field may become a necessity the higher the equipment cost becomes.
What is a SWAG residual? Once you have all the information you can gather and the competition forces you to a lower number by increasing the size of your residual then you make a “Scientific Wild Ass Guess” as to the residual amount and pray you are in the ball park. Scientific because you have done your homework and a “wild ass” guess as to the value.
Mr. Terry Winders, CLP, has been a teacher, consultant, expert witness for the leasing industry for thirty years and can be reached at firstname.lastname@example.org or 502-327-8666.
He invites your questions and queries.
Previous #102 Columns:
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Here are the top ten stories opened by readers
(1) Archive July 27, 2009
(2) Archives July 23, 2007
(3) Archives---July 25, 2000
(4) Lessor Escapes NY Evergreen Clause Class Action
(5) Cartoon—Dip in Sales
(6) Leasing 102 by Mr. Terry Winders, CLP
(7) Countries Where People Work Least
(8) Proposed Changes in Lease Accounting
(9) Largest remaining TARP investments in banks & thrifts
(10) (Tie) New Hires---Promotions
(10) (Tie) Cartoon---Who Forgets?
Jasper Banking becomes the nation’s 39th banking failure and the ninth in Georgia which leads the nation in banking failures.
The three branches of Jasper Banking Company, Jasper, Georgia, were closed with Stearns Bank National Association, St. Cloud, Minnesota, to assume all of the deposits.
According to problembanklist.com, "Including Jasper Banking Company, Stearns Bank has now acquired a total of 8 failed banks since October 2008 as well as a $730 million failed bank loan portfolio from the FDIC. Stearns Bank is an example of a superbly run bank that did not engage in reckless lending during the real estate lending mania. Lead by super banker Norman C. Skalicky, Stearns Chairman and CEO, the Bank has profited by feasting on the remains of failed banks.
"In 2009, Mr. Skalicky said 'We have been preparing for opportunities, such as this, since late 2006. We began to curtail lending and increase our capital ratios and really focused on this beginning in August 2007. One of our main strategies during that time was to be prepared to capitalize on opportunities prior to the end of this banking cycle.' Too bad the rest of the banking industry did not share Mr. Skalicky’s views on properly assessing lending risks."
"Stearns Bank, N.A., was founded in 1912, is one of the best capitalized banks in the nation with a Tier One Leverage Capital ratio of over 16% and has over $1.3 billion in assets."
Jasper Banking was founded March 12, 1945, the bank had 44 full time employees as of March 31, 2012 at there three branches in Jasper; through December 31, 2009 had 65 full time employees, which fell to 55 year-end 2010 and 45 year-end 2011.
The bank was the second to fail in Jasper, the first being Crescent Bank and Trust company on July 23, 2010. According to the Atlanta Journal-Constitution Newspaper, "Crescent was a heavy lender to subdivision developers, strip retail centers and builders of vacation homes. From 2004 to 2008, Crescent doubled in size from $500 million in assets to $1 billion, fueled by a diet of real estate development loans.”
Problems started in 2007 with the collapse of the housing market."
From the March 31, 2009 period to March 31, 2010 the bank had gone from 186 full time employees to 169, net equity had diminished from $56 million to $12.3 million after a loss of $4.7 to a loss of $13.2 with $112.6 million in non-current loans and a charge off of $12.8 million ($9.7 million construction and land development, $1.4 million in 1-4 multifamily residential property, $736,000 multifamily residential property, and $611,000 in non-farm non-residential property, as well as $233,000 in commercial and industrial loans. Tier 1 risk-based capital ratio 1.52%.
The loss share transaction was $617.4 million with the cost to the Deposit Insurance fund of $242.4 million.
In Jasper Banking Company the FDIC estimates that the cost to the Deposit Insurance Fund (DIF) will be $58.1 million. The FDIC and Stearns Bank National Association entered into a loss-share transaction on $106.0 million of the banks assets. Stearns Bank National Association will share in the losses on the asset pools covered under the loss-share agreement.
The Atlanta Journal-Constitution commented, "The bank, heavily tied to commercial real estate and real estate development loans, tried to pull back but succumbed to borrowers who could no longer pay. The region also has been hard hit by collapses of competing banks and the glut of foreclosed property that has hurt real estate sales and property values.
"Chip MacDonald, a banking attorney at Jones Day in Atlanta, said the bank also had a sizable portfolio of loan participations, or pieces of larger loans it bought from other banks."
The charge offs began in 2009 with $2.3 million, then $3.1 million, and $6.1 million year-end 2011. The first quarter of this year: $2.7 million. Worse were the non-current loans, not being paid, froma jump in 2007 of only $270,000 to $6.4 million in 2008, following each year from $7.9 million, to $19.8 million in 2010 and $25.3 million in 2011. The first quarter saw it at $25 million. Thus the equity had gone from $21 million in 2007 to $3.4 million the first quarter of this year and a Tier 1 risk-based capital ratio 2.65%.
(in millions, unless otherwise)
Construction and Land, 1-4 family multiple residential, Multiple Family Residential, Non-Farm Non-Residential loans.
As of March 31, 2012, Jasper Banking Company had approximately $216.7 million in total assets and $213.1 million in total deposits. In addition to assuming all of the deposits of the failed bank, Stearns Bank National Association agreed to purchase essentially all of the assets.
List of Bank Failures:
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