Opinion
CASE NO. 11-82362-JAC-11.
September 29, 2011
MEMORANDUM OPINION
On August 23, 2011, this matter came before the Court for hearing on: (1) Debtor's Motion for Extension of the § 365(d)(5) Deadline; (2) the Motion by BancorpSouth Equipment Finance ("BEF") for Relief from Stay or in the Alternative, for Adequate Protection Payments on Trucks and to Compel Debtor to Assume or Reject Leases; (3) Motion by Wells Fargo Equipment Finance, Inc. ("Wells Fargo") for Relief from Stay on Trailers and/or to Require Debtor to Assume or Reject its Lease; (4) Motion by Regions Equipment Finance Corporation ("REFCO") for Relief from Stay or Alternatively for Adequate Protection Payments on Equipment and Motion to Compel Debtor to Assume or Reject Leases; (5) Motion by General Electric Capital Corporation ("GE Capital") for Relief from Stay and Motion to Require Debtor to Assume or Reject Leases; and (6) debtor's objections to the various motions. At the conclusion of the hearing, the Court continued the matters to allow the parties to brief a preliminary issue as to whether the agreements that are the subject of the various motions are "true leases" or are in fact leases intended as security.
The debtor argues that the agreements do not constitute "true leases" because same contain a Terminal Rental Adjustment Clause ("TRAC"), a common provision that requires a rental adjustment at lease termination according to the amount realized by the lessor upon sale of the leased equipment. The creditors argue that the subject agreements are "true leases" and that the presence of a TRAC provision in the agreements does not convert same to leases intended as security.
On September 13, 2011, the Court heard oral arguments on the TRAC provision issue. At the conclusion of the hearing, the Court allowed the parties an additional ten days to file supplemental briefs and took the matter under advisement with the understanding that the Court would issue a preliminary opinion on or before October 1, 2011 deciding the TRAC issue.
At the September hearing, the debtor and counsel for GE Capital requested that GE Capital's motion be continued until October 12, 2011. Subsequently, GE Capital filed a Supplemental Brief to its Reply to Debtor's Response to Motion to Require Debtor to Assume or Reject Leases. Therefore, this opinion will also address the transactions between the debtor and GE Capital.
JURISDICTIONAL STATEMENT
The Court has core jurisdiction over the subject matter and the parties of this contested matter pursuant to 28 U.S.C. §§ 1334, 157(a), (b)(1), (b)(2)(A) and (o).
FINDINGS OF FACT
On July 8, 2011, HB Logistics, LLC d/b/a McGriff Transportation, filed a voluntary petition for relief under Chapter 11 of the Bankruptcy Code. The debtor is engaged in the business of providing trucking and logistics services and other related transportation activities to various customers. Prior to filing bankruptcy, the debtor purchased certain assets from McGriff Transportation, Inc., an entity which had been in the trucking business since 1965. The debtor continues to operate under the McGriff Transportation name. Each of the subject TRAC agreements originated as obligations between McGriff Transportation, Inc. and the respective creditors. As part of the McGriff Transportation asset purchase, the debtor entered into an assumption and assignment of the TRAC agreements. The Court will undertake to briefly outline the pertinent facts related to each obligation.
REFCO:
On the petition date, the debtor had three TRAC accounts with REFCO designated by account numbers 4-005, 4-006, and 4-004. Each of the REFCO TRAC accounts originated with McGriff Transportation, Inc. before the debtor purchased the trucking company's assets. On or about February 28, 2010, the debtor, McGriff Transportation, Inc., and REFCO executed a document entitled Assignment and Assumption Agreement of Lessee's Interest in all Schedules under Certain Master Lease Agreements under which the debtor assumed the REFCO TRAC accounts.
See ECF No. 218, Ex. 1, 1A, 1B, 2 and 2A. The parties previously submitted an agreed order lifting the stay involving certain accounts designated by account numbers 4-002 and 4-003. REFCO further concedes that another account designated as a "$1.00 purchase option" is a lease intended as security based on the nominal purchase price and, further, that account 4-007 is an equipment finance agreement. Consequently, the only REFCO accounts this opinion addresses are the accounts that include TRAC provisions.
REFCO TRAC accounts 4-005 and 4-006 provide that the lessee has a right to make a "Lessee's Election" as set forth in part below and have identical TRAC provisions which provide for a fair market purchase option with a Terminal Rate Adjustment Clause:
"Lessee's Election" means Lessee's written election to (1) return the Equipment as provided at the end of the Term, (2) purchase the Equipment at its Fair Market Value at the end of the Term or (3) request Lessor's assistance in arranging or approving Lessee's arrangement of sale of the Equipment to a third party.
5. Lessee Liability. In the event that the Realized Value of the Equipment is less than the Estimated Residual Value thereof, Lessor shall notify Lessee in writing and Lessee shall, within ten (10) days of receipt of Lessor's written notice, pay to Lessor, as an adjustment to the rental payable under the Lease, an amount equal to the difference between the Realized Value and the Estimated Residual Value.
6. Lessor Liability. In the event the Realized Value of the Equipment exceeds the Estimated Residual Value thereof, and provided that Lessee is not then in default under the Lease and its Schedules with Lessor, Lessor shall pay to Lessee, as an adjustment to the rental payment under the Lease, an amount equal to 100% of such excess, but only to the extent Lessor actually receives the Realized Value in cash.
ECF No. 218, Ex. 4.
emphasis added
The Estimated Residual Value for both of the TRAC accounts is $227,981.25. Pursuant to the terms of the TRAC provision the difference between the Realized Value and the Estimated Residual value shall be paid to or refunded by REFCO as an adjustment to the rental payments.
The TRAC amount in lease 4-004 is expressed as 25% of the original cost of the leased equipment. The debtor has the option to purchase at the end of the lease for the TRAC percentage of the original equipment cost or return the equipment to REFCO. See REFCO Ex. 5, ECF No. 218. If the debtor chooses to return the equipment, the TRAC lease provides as follows:
If the amount received by Lessor for the TRAC Equipment in such sale or disposition exceeds the sum of the TRAC percentage of Lessor's Cost and the amounts remaining due under the Lease and all costs of sale, any such excess shall be returned by Lessor to Lessee as a rental adjustment. If the amount received by Lessor for the TRAC Equipment in such sale or disposition (after deduction of any amount remaining due under the Lease and all costs of sale) is less than the TRAC percentage of Lessor's Cost, then any such deficiency shall be paid by Lessee to Lessor as a rental adjustment.BEF:
The Court has previously ruled that the 2010 Master Lease Agreement between BEF and the debtor was a financing arrangement based on the $1.00 nominal purchase option at the end of the lease and the debtor has conceded that the 2009 Master Loan and Security Agreement between the debtor and BEF is a financing arrangement. Thus, the only transaction at issue between BEF and the debtor is the 1999 Master Lease Agreement under which the debtor does not have an option to purchase the equipment at the end of the agreement term. Paragraph 5 of the 1999 Master Lease Agreement provides as follows:
5. Title to Equipment: The Equipment is, and all times shall remain, the property of the Lessor; and the Lessee shall have only the right to possess and use the same under and subject to the terms, conditions and provisions of this Master Lease and the respective Equipment Schedules. . . .
ECF No. 216, Ex. A.
The amendment to the 1999 Master Lease Agreement includes the following TRAC provision:
1. 7. F) After return of any Item of Equipment, Lessor shall cause such item of Equipment to be sold at public or private sale, at wholesale, in any commercially reasonable manner. The "Net Sale Proceeds" for such Item of Equipment shall be the net amount received by and paid to Lessor after deducting the costs and expenses of the sale, including but not limited to, rectifying any condition set forth above which has not been met by Lessee, and otherwise preparing such Item of Equipment for sale.
Lessee hereby recognizes, acknowledges and agrees that Lessor anticipates receiving, and Lessor shall receive as additional rent, upon the scheduled termination of the lease term, a sum equal to 25.00 percent of the Capitalized Lessor's Cost of each Item of Equipment. In the event Lessor does not receive in Net Sale Proceeds the full amount anticipated as additional rent, then Lessee hereby agrees, covenants and binds itself to pay to Lessor on demand an amount equal to the difference in the Net Sale Proceeds and the additional rent due the Lessor upon the Lessor certifying in writing to Lessee the amount of such deficiency. Should termination of the lease occur prior to the scheduled date of its termination, then a sum equal to 25.00 percent of the Capitalized Lessor's Cost of such equipment shall be due the Lessor by the Lessee as additional rent and any deficiency in the additional rent due to Lessor that may exist after Lessor's receipt of the Net sale Proceeds shall be paid by Lessee to Lessor on demand. Provided, however, that upon expiration of the maximum term for any Item of Equipment, Lessee's liability for 25.00 percent of the original Capitalized Lessor's Cost of the Item of Equipment shall be limited to 11.00 percent of the original Capitalized Cost.Wells Fargo:
ECF No. 216, Ex. B through E.
On August 3, 2011, Wells Fargo filed a motion to lift stay or alternatively to require debtor to assume or reject its lease. The TRAC provision at issue between the debtor and Wells Fargo provides as follows:
3. Stipulated Loss Value: The "Stipulated Loss Value" of Trailers covered by this Lease shall be as noted on Exhibit II.
Terminal Rental Adjustment Clause (TRAC): In accordance with Section 7701(h) of the Internal Revenue Code of 1986, under penalty of perjury, Lessee hereby certifies that it intends that more than 50% of the use of the Equipment is to be in a trade or business of Lessee. Lessor and Lessee agree that at the expiration of the Base Lease Term of the Lease according to its original terms (and not early on account of default or otherwise) the Trailers will be sold by Lessor (or by an agent of Lessor). The proceeds of sale (the "Proceeds") shall be distributed as follows:
1. First, to reimburse Lessor or its agent for the cost of putting the Trailers in a condition to be sold, sales commissions, legal fees, expenses or repossession and all other expenses of sale.
2. Second, the balance to Lessor up to an amount equal to $4,795.00 per Trailer.
3. Third, the balance, if any to Lessee as an adjustment to rent previously paid by Lessee to Lessor pursuant to the Lease.
In the event the Proceeds are less than the sum of item 1 plus item 2 above, the Lessee shall pay to the Lessor the deficiency as additional rent pursuant to the Lease but in any event not more than $4,795.00 per Trailer.
Any amount paid to or by the Lessee pursuant to this Addendum shall be the "Terminal Rental Adjustment."
ECF No. 122, Ex. B.
Similar to the BEF agreement, the debtor does not have an option to purchase the equipment from Wells Fargo at the expiration of the agreement term. Instead, the trailers were to be returned to Wells Fargo and sold.
GE Capital:
As detailed in GE Capital's motion, prior to bankruptcy, the debtor assumed certain agreements between GE Capital and McGriff Transportation, Inc., including a Master Lease Agreement and the Amendment to the Master Lease Agreement dated May 24, 2006. Although the debtor has agreed to surrender some of the equipment several of the assumed agreements remain at issue as summarized below:
(1) Lease Renewal Amendment No. 4176016-001 covers ten pieces of equipment and contains an end of term purchase option price of $235,057.93 maturing on November 30, 2011.
(2) Lease Renewal Amendment No. 4176885-001 covers ten pieces of equipment and contains an end of term purchase option price of $242,134.60 maturing on June 1, 2012.
(3) Lease Renewal Amendment No. 4181219-001 covers ten pieces of equipment and contains an end of term purchase option price of $242,984.60 maturing on January 1, 2012.
(4) Lease Renewal Amendment No. 4188506-001 covers ten pieces of equipment and contains an end of term purchase option price of $242,984.60 maturing on June 1, 2012.
(5) Lease Renewal Amendment No. 4204366-001 covers two pieces of equipment and contains an end of term purchase option price of $48,457.65 maturing on November 30, 2012.
Each of these agreements includes a TRAC provision which reads as follows:
9. FINAL ADJUSTMENT for each Vehicle will be made upon receipt of the net sale proceeds therefor and, unless any default shall have occurred and except as provided below, Lessor shall pay to Lessee the amount, if any, by which the sum of (a) the net sale proceeds, plus (b) surplus insurance recoveries, if any, on such Vehicle, exceeds the sum of the (c) Termination Value, as hereinafter defined, calculated as of the date of receipt of the last Monthly Rental received by the Lessor with respect to such Vehicle, plus (d) all accrued and unpaid Monthly Rentals and all other amounts then due and remaining unpaid. "Termination Value", as used in this Lease, as of any date other than after the scheduled expiration of the Lease Term for the Vehicle, shall mean the amount equal to the then present worth of all unaccrued Monthly Rentals plus the then present worth of the Residual Value specified in the Schedule "A" relating to such Vehicle (determined by discounting such Monthly Rentals from their respective due dates at the Termination Value Rate specified in the Schedule "A" relating to such Vehicle, and by discounting such Residual Value from the first day of the month following the month in which the first Monthly Rental is due at the Termination Value Rate), compounded at the same intervals as such Monthly Rentals are payable. The Value as of the scheduled expiration of the Lease Term, and any date thereafter, shall mean the Residual Value. If the sum of items (a) and (b) above is less than The Termination Value, Lessee shall, within ten (10) days after notice thereof, pay the deficiency to Lessor as Adjusted Rental without abatement, off-set or counterclaim arising out of any circumstance whatsoever. Lessor shall promptly determine the aforesaid amounts and shall render statements therefor to Lessee. Lessor may apply any sums received as proceeds from any Vehicle which would otherwise be due to Lessee hereunder against any other obligation of Lessee and Lessor may off-set the amount of any such rental adjustment against any claim it may have against Lessee.
ECF No. 219, Ex.B.
CONCLUSIONS OF LAW
The debtor, as the party contending that the subject lease agreements are something other than what they purport to be, bears the burden of proving that same are disguised security agreements rather than true leases.
In re Pillowtex, 349 F.3d 711, 717 (3rd Cir. 2003) (Chapter 11 debtor, claiming that purported lease obligation was in fact secured financing arrangement bore burden of proof); In re Warne, 2011 WL 1303425 *2 (Bankr. D. Kan. 2011) ("[a]s the party contending that the Agreement is not what it purports to be, the Debtor has the burden of proof."); In re Double G. Trucking of the Arklatex, Inc., 432 B.R. 789, 794 (Bankr. W.D. Ark. 2010) (under bankruptcy law, the burden of proof is on the party seeking to characterize a purported lease agreement as a disguised security agreement); In re Ecco Drilling Co., Ltd.,, 390 B.R. 211, 226 (Bankr. E.D. Tex. 2008) (burden of proof was upon debtor as the party asserting that alleged finance leases should be recharacterized as disguised security agreements).
Despite the debtor's argument to the contrary, this issue is governed by applicable non-bankruptcy law, i.e. state law. "[P]roperty interests are created and defined by state law,' and '[u]nless some federal interest requires a different result, there is no reason why such interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding." Id. at 2616. Thus, the determination of whether a contractual agreement is to be characterized as either a lease or security agreement is a matter of state law. At all relevant times, the debtor was incorporated in and had its principal place of business in the state of Alabama.
The debtor cites the case of United Airlines, Inc. v. HSBC Bank USA, N.A., 416 F.3d 609 (7th Cir. 2005), but the Court finds that the debtor's reliance upon this case is misguided. See Butner v. United States, 440 U.S. 48, 54-55 (1979); In re Double G. Trucking of the Arklatex, Inc., 432 B.R. 789, 794 (Bankr. W.D. Ark. 2010); In re Brankle Brokerage Leasing, Inc., 394 B.R. 906, 909 (Bankr. N.D. Ind. 2008).
Stern v. Marshall, 131 S. Ct. 2594, 2616 (June 30, 2011).
According to the terms of the agreements between the debtor and REFCO, any issues arising under the terms of the purported leases are to be decided under Alabama law. Accordingly, the Court will rely on Alabama law to determine whether the transactions between the debtor and REFCO are true leases or leases intended as security. According to the terms of the 2005 Master Lease Agreement between the debtor and GE Capital and 2006 Amendment to the Master lease agreement, any issues arising under the terms of the lease are to be decided under Texas law. The agreements between the debtor and Wells Fargo provide that Minnesota law applies. The Master Lease agreements between the debtor and BEF provide that the laws of the State of Mississippi apply. Each of these states has adopted substantively identical versions of the Uniform Commercial Code and the legislatures in Alabama, Minnesota and Texas have enacted statutory provisions that treat otherwise qualifying TRAC leases as true leases.
ECF No. 218, Ex. 1.
ECF No. 219, Ex. A.
ECF No. 122, Ex. 1.
ECF No. 216, Ex. A.
A. Under Alabama law, the transactions between the debtor and REFCO which were structured as leases by the parties are actually "true leases."
Like most states, the Alabama Legislature has enacted a TRAC statute that reads:
In the case of motor vehicles as defined in Section 32-8-2(10), notwithstanding any other provision of law, a transaction does not create a sale or security interest merely because the transaction provides that the rental price is permitted or required to be adjusted under the agreement either upward or downward by reference to the amount realized upon sale or other disposition of the motor vehicle.
ALA. CODE § 32-8-60.1 (1975).
Pursuant to Alabama's TRAC statute, a transaction involving a motor vehicle does not create a security interest merely because the transaction provides that the rental price is permitted or required to be adjusted by reference to the amount realized upon the sale of the motor vehicle. The debtor argues that the REFCO TRAC accounts do not constitute "true leases" because same contain TRAC provisions which effectively transfer all of the risk and reward of ownership to the debtor. The debtor cites the following cases in support of his argument. In re Lash, 2010 WL 514760 (Bankr. M.D.N.C. 2010); In re Grubs Construction Co., 319 B.R. 698 (Bankr. M.D. Fla. 2005); In re Brankle Brokerage Leasing, Inc., 394 B.R. 906 (Bankr. N.D. Ind. 2008); In re Zerkle Trucking Co., 132 B.R. 316 (Bankr. S.D.W. Va. 1991). The bankruptcy courts in each of these cases found that the subject TRAC provisions provided equity to the lessees and that the leases were transformed into security agreements by virtue of the lessees' equity in the equipment.
The Alabama Supreme Court has addressed this equity argument and specifically rejected same in Sharer v. Creative Leasing, Inc., 612 So.2d 1191 (Ala. 1993). In Sharer, the lessor of a truck sued the lessee for the amounts owing under the lease following repossession and sale of the truck. Sharer explained that in order to be viewed as creating a security interest, a lease agreement must provide the lessee with some ownership interest of the leased property. The Alabama Supreme Court disagreed with the case of Bill Swad Leasing Co. v. Stikes (In re Tillery), 571 F.2d 1361 (5th Cir. 1971), in which the Fifth Circuit applied Alabama law and recognized the "equity of the 'Lessee'" in an agreement purporting to be a lease with a "'termination formula' which provided that the lessee would bear any loss or receive the benefit of any gain resulting from the sale of the leased vehicle after termination." The Alabama Supreme Court wrote:
Sharer v. Creative Leasing, Inc., 612 So.2d 1191, 1195 (Ala. 1993).
Viewed as to its economic function, such a termination clause does not represent an equity in the vehicle, but a shifting of the risk that the actual value of the leased vehicle at the time the lease is terminated-as determined by the actual sale of the leased vehicle or, as in the instant case, by the taking of bids-will be different from the predicted "book value" or "depreciated value," e.g., the cost of the vehicle adjusted by a constant depreciation figure. If the actual value at the time of termination is less than the predicted book value, the lessee must pay the lessor the difference; if the actual value at the time of termination is more than the predicted book value, the lessee receives the benefit of this gain. We do not agree that the resulting loss or gain to the lessee necessarily represents an "equity" in the property.
"Equity" in an item, such as a truck, is generally considered to be the amount or value of property over the indebtedness against it. See Black's Law Dictionary 540 (6th ed. 1990) (citing Dorfman v. Dorfman, 457 S.W.2d 417, 422 (Tex.Civ.App. 1970)). The lessee, under the termination scenario provided by the lease agreement at issue, assumes the risk of loss (or gain) in the event that the vehicle, at the end of the lease, cannot be disposed of at an amount equal to its "book value" or "depreciation value." Therefore, it cannot be said that such a shifting of the risk of loss in value of the item alone is sufficient to hold that any lease agreement containing such a clause necessarily was intended to create a security interest.
Based upon the rationale of LMV Leasing, supra, and its interpretation of a substantially similar agreement, we hold that the agreement between Sharer and Creative Leasing is a lease agreement and did not create a security interest.
Sharer v. Creative Leasing, Inc., 612 So.2d 1191, 1195-1196 (Ala. 1993).
Based on the forgoing, the Court rejects the debtor's equity argument and finds that Sharer is controlling.
The debtor also argues that Alabama's TRAC statute was implicitly repealed or overruled by a subsequent amendment of Alabama's version of the UCC which provides how a true lease is to be distinguished from a security interest and reads as follows:
§ 7-1-203. Lease distinguished from security interest.
(a) Whether a transaction in the form of a lease creates a lease or security interest is determined by the facts of each case.
(b) A transaction in the form of a lease creates a security interest if the consideration that 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 and is not subject to termination by the lessee, and:
(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 an option to renew the lease for the remaining economic life of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement; or
(4) The lessee has an option to become the owner of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement.
(c) A transaction in the form of a lease does not create a security interest merely because:
(1) The present value of the consideration the lessee is obligated to pay the lessor for the right to possession and use of the goods is substantially equal to or is greater than the fair market value of the goods at the time the lease is entered into;
(2) The lessee assumes risk of loss of the goods;
(3) The lessee agrees to pay, with respect to the goods, taxes, insurance, filing, recording, or registration fees, or service or maintenance costs;
(4) The lessee has an option to renew the lease or to become the owner of the goods;
(5) The lessee has an option to renew the lease for a fixed rent that is equal to or greater than the reasonably predictable fair market rent for the use of the goods for the term of the renewal at the time the option is to be performed; or
(6) The lessee has an option to become the owner of the goods for a fixed price that is equal to or greater than the reasonably predictable fair market value of the goods at the time the option is to be performed.
(d) Additional consideration is nominal if it is less than the lessee's reasonably predictable cost of performing under the lease agreement if the option is not exercised.
Additional consideration is not nominal if:
(1) When the option to renew the lease is granted to the lessee, the rent is stated to be the fair market rent for the use of the goods for the term of the renewal determined at the time the option is to be performed; or
(2) When the option to become the owner of the goods is granted to the lessee, the price is stated to be the fair market value of the goods determined at the time the option is to be performed.
(e) The "remaining economic life of the goods" and "reasonably predictable" fair market rent, fair market value, or cost of performing under the lease agreement must be determined with reference to the facts and circumstances at the time the transaction is entered into.
Contrary to the debtor's assertions, the Court finds that the Alabama Legislature did not repeal the Alabama TRAC statute by implication when it enacted § 7-1-203. Section 7-1-203 does not specifically reference ALA. CODE § 32-8-60.1 and the two statutes can be easily read together without conflict. The Supreme Court has held that "a later statute will not be held to have implicitly repealed an earlier one unless there is a clear repugnancy between the two" and other courts have repeatedly applied this analysis.
United States v. Fausto, 484 U.S. 439, 453 (1988); See also Jones v. Conradi, 673 So.2d 389, 393 (Ala. 1995) (finding the statutes in issue would have to be "directly repugnant" for the court to find repeal by implication); Currie v. Diamond Mortg. Corp. of Ill., 859 F.2d 1538, 1542 (7th Cir. 1988) (explaining that "[c]ourts strongly disfavor repeal by implication and will invoke this doctrine of statutory construction only where a statute enacted later in time is repugnant to an earlier statute such that the two acts cannot stand together."); Cooper v. Wal-mart Stores, Inc., 595 F.Supp. 964 (C.D. Ill. 1997) (finding that an implied repeal results only when the terms and necessary operation of a later statute cannot be harmonized with the terms and effect of an earlier statute).
The Official Comments to § 7-1-203 explain that the section "draws a sharper line between leases and security interests disguised as leases to create greater certainty in commercial transactions." When read in tandem § 7-1-203 and § 32-8-60.1 merely further sharpen the line between leases and security interests disguised as leases to create greater certainty in commercial transactions involving motor vehicles. Accordingly, there is no repeal by implication and both provisions remaining binding.
Construing these statutes in tandem, the Court finds that the TRAC agreements between the debtor and REFCO are true lease agreements and same did not create a security interest based on the facts of this case. Subsection (b) of ALA. CODE § 7-1-203 creates a "bright line" test to determine "when a transaction in the form of a lease creates a security interest as a matter of law based upon the terms of the transaction." If a security interest is not created per se under § 7-1-203(b), then the court must consider "the 'facts of each case' to determine if an economically meaningful interest was reserved to the lessor at the end of the lease term." As discussed above in Sharer, it cannot be said in Alabama that the fact that the purported lease agreements contain TRAC provisions alone is sufficient to hold that same were necessarily intended to create a security interest.
In re Warne, 2011 WL 1303425 *3 (Bankr. D. Kan. 2011) (describing the "bright line" test under § 1-203 of the UCC).
Id.
Sharer v. Creative Leasing, Inc., 612 So.2d 1191, 1195-1196 (Ala. 1993).
The "bright line" test under § 7-1-203(b) creates a two part test under which a transaction in the form of a lease will be deemed to have created a security interest as a matter of law if: (1) the agreement cannot be terminated by the lessee, and (2) the Court finds that any one of the following requirements is satisfied —
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 an option to renew the lease for the remaining economic life of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement; or
(4) The lessee has an option to become the owner of the goods for no additional consideration or for nominal additional consideration upon compliance with the lease agreement.
Although the REFCO TRAC agreements cannot be terminated by the debtor, the Court finds that none of the other four requirements is present under the terms of the TRAC agreements. Each of the REFCO TRAC agreements matures within the next five months and REFCO has submitted an appraisal indicating that the trucks which are subject to these purported leases are currently valued between $22,000 and $30,000 each. Accordingly, the Court finds that the original term of the lease is not equal to or greater than the remaining economic life of the trucks. Subsections 7-1-203(b)(2) and (3) do not apply because the TRAC leases do not have mandatory or optional renewal provisions.
ECF No. 218, Ex. 6.
Nor does the Court find that the debtor has an option to become the owner of the trucks for no additional consideration or for nominal consideration at the end of the lease terms. Under REFCO TRAC accounts 4-005 and 4-006 the debtor has the option to purchase the trucks for the fair market value at the end of the transaction term. TRAC account 4-004 provides that the debtor has the option to purchase for an amount equal to 25% of the original value of the equipment at the end of the transaction term. Subsection (d)(2) of § 7-1-203 provides that additional consideration is not nominal if "the price is stated to be the fair market value of the goods determined at the time the option is to be performed." Here the debtor has the option to purchase for the fair market value under two of the TRAC agreements and the parties have stipulated that the 25% purchase option in the third agreement is a reasonable estimate of the fair market value of the equipment under that lease. Thus, the fourth requirement under § 7-1-203(b) is not satisfied.
Finally, the Court finds based upon the facts of the case and pursuant to § 7-1-203(c) that REFCO retained a significant reversionary interest in the subject equipment and that the debtor does not have any equity in same. Thus, the purported lease agreements are "true leases" under Alabama law.
B. Under Alabama and Texas law, the transactions between the debtor and GE Capital which were structured as leases by the parties are actually "true leases."
The Alabama and Texas versions of the UCC and TRAC statutes are substantively identical. Accordingly, the Court finds that the inclusion of a TRAC provision in the purported lease agreements between the debtor and GE Capital alone is not sufficient to support a finding that the same are disguised security agreements and the TRAC provisions do not represent equity in the subject equipment.
TEX. BUS. COM. CODE ANN. § 1-203 and Tex. Transp. Code Ann. § 501.112.
All other facts under the leases indicate that same are true leases under both Texas and Alabama law: (1) the lease term does not exceed the life of the equipment as indicated by the debtor's desire to retain the equipment and representations to the Court that same is essential to the operation of its business; (2) the debtor is not required to renew the leases; (3) the debtor does not have an option to renew the leases for the remaining economic life of the equipment without providing additional consideration; and (4) the end of term purchase options are substantial and representative of the fair market value of the equipment. Accordingly, the Court finds that the economic realities of the purported lease agreements between the debtor and GE Capital require a finding that same are true leases under both Alabama and Texas law. C. Under Alabama and Mississippi law, the transactions between the debtor and BEF which were structured as leases by the parties are actually "true leases."
Mississippi's version of the UCC is substantively identical to that of Alabama. Although BEF has not argued that Mississippi has passed a TRAC neutral statute similar to that of Alabama's, the Court finds that the purported lease agreements are clearly true leases under MISS. CODE § 75-1-203. Although the leases are not subject to termination, the debtor cannot satisfy any of the other four requirements under the bright line established by MISS. CODE § 75-1-203: (1) The original term of the lease is not equal to or greater than the remaining economic life of the goods as BEF will not receive its return on its investment until the lease has expired and BEF sells the leased equipment. Further, BEF is guaranteed to receive at least 25% of the original cost of the equipment from the sale of the equipment at the end of the lease term pursuant to the terms of the TRAC provision. (2) The debtor is not required to renew the lease, nor does the debtor have the option to renew same. Instead, BEF is entitled to sale the equipment at the end of the lease and realize all proceeds from the sale. (3) The debtor has no option to renew the lease for nominal consideration and has no right to become the owner of the goods at the end of the lease. Accordingly, the Court finds that the agreements between the debtor and BEF are true leases based on the economic realities of same.
D. Under Alabama and Minnesota law, the transactions between the debtor and Wells Fargo which were structured as leases by the parties are actually "true leases."
Similar to Alabama, Minnesota has a TRAC neutral statute which reads as follows:
Notwithstanding any other provision of sections 168A.01 to 168A.31 or other law, in the case of a lease agreement with respect to a vehicle other than a vehicle used primarily for personal, family, or household purposes, the determination whether the lease agreement constitutes a lease and does not create a conditional sale or security interest shall be governed by the stated intent of the parties set forth in the lease agreement, unless it can be shown by a preponderance of the evidence that the terms of the lease agreement cannot be reconciled with the stated intent. In no event shall the lease agreement be deemed to create a conditional sale or security interest merely because it permits or requires the amount of rental payments to be adjusted upward or downward by reference to the amount realized by the lessor upon sale or disposition of the vehicle.
MINN. STAT. § 168A.17(a) (2008).
emphasis added
Further, the Alabama and Minnesota versions of the UCC statutes are substantively identical. Accordingly, the Court finds that the inclusion of a TRAC provision in the purported lease agreements between the debtor and Wells Fargo alone is not sufficient to support a finding that same are disguised security agreements and the TRAC provisions do not represent equity in the subject equipment.
All other facts under the leases indicate that same are true leases under both Minnesota and Alabama law: (1) the lease term does not exceed the life of the equipment as evidence by the anticipated 20% residual value of the equipment at the end of the lease term; (2) the debtor is not required to renew the leases; (3) the debtor does not have an option to renew the leases for the remaining economic life of the equipment; and (4) the debtor does not have the option to purchase the equipment at the end of the lease term. Instead, the lease requires the debtor to return the equipment to Wells Fargo. Accordingly, the Court finds that the subject TRAC leases are true leases based on the facts of the case.
(e) § 365(d)(5) Deadline Extension
In light of the history of this case and with the Court having now determined that each of the disputed TRAC leases are true leases, and the Court further taking judicial notice that the debtor has not been able to satisfy the lease payments and that the subject equipment continues to depreciate, the Court hereby denies debtor's motion to extend the deadline under § 365(d)(5).
A separate order will be entered consistent with this opinion.
Notice Recipients
Recipients of Notice of Electronic Filing: Recipients submitted to the BNC (Bankruptcy Noticing Center):
District/Off: 1126-8 User: kpressnel Date Created: 9/30/2011 Case: 11-82362-JAC11 Form ID: pdf000 Total: 241 ba Richard M Blythe Richard_Blythe@alnba.uscourts.gov aty Andrew R Turner aturner@cwlaw.com aty Bill D Bensinger bbensinger@bakerdonelson.com aty Bradley Richard Hightower brhightower@csattorneys.com aty Brent W Dorner bdorner@burr.com aty Bruce C Bailey bbailey@cbslawfirm.com aty Clyde Ellis Brazeal, III ebrazeal@walstonwells.com aty Daniel D Sparks ddsparks@csattorneys.com aty FINIS E. ST. JOHN stjohnamy@bellsouth.net aty James Blake Bailey jbailey@babc.com aty Lawrence W. Bigus lbigus@stinson.com aty Paul M. Hoffmann phoffmann@stinson.com aty Richard E. O'Neal USA-ALN-Bankruptcy@usdoj.gov aty Ronald G Steen, Jr ronald.steen@stites.com aty Stuart M Maples smaples@maplesandray.com aty Theresa L. Critchfield tcritchfield@cbslawfirm.com aty Vera Smith Hollingsworth vshlaw@bellsouth.net aty William J Gibbons darla.furman@gibbonsandfurman.com aty William Lee Phillips, III bphillips@marksweinberg.com aty Windy A Hillman whillman@wargofrench.com TOTAL: 20 db HB Logistics, LLC 539 County Road 1339 Cullman, AL 35058 cr Regions Equipment Finance Company P.O. Box 421 Montgomery, AL 36101 cr Wells Fargo Equipment Finance, Inc., c/o C. Ellis Brazeal III Jones Walker LLP 1819 5th Avenue North Suite 1100 Birmingham, AL 35203 aty Theresa L. Critchfield Chambliss, Bahner Stophel, P.C. 1000 Tallan Building Two Union Square Chattanooga, TN 37402 cr McGriff Industries, LLC c/o CHRISTIAN SMALL LLP Bradley R. Hightower 1800 Financial Center 505 20th Street North Birmingham, AL 35203 cr Reliance Partners, Inc. c/o Theresa L. Critchfield Chambliss, Bahner Stophel, P.C. 1000 Tallan Building Two Union Square Chattanooga, TN 37402 cr Cullman Electric Cooperative P.O. Box 1168 Cullman, AL 35055 cr BancorpSouth Equipment Finance c/o William J Gibbons Jr 117 Jefferson Street North Huntsville, AL 35801 cr Insolvency Section Internal Revenue Service 801 Broadway MDP 146, Room 285 Nashville, TN 37203 cr BankDirect Capital Finance, LLC c/o James B Bailey Bradley Arant Boult Cummings LLP 1819 Fifth Avenue North Birmingham, AL 35203 cr General Electric Capital Corporation c/o Windy A. Hillman 999 Peachtree St. NE 26th Floor Atlanta, GA 30309 intp Porter Capital Corporation c/o Burr Forman LLP 420 North 20th Street Suite 3400 Birmingham, AL 35230 cr Tom McCleod Software c/o Bill Bensinger 420 20th Street North Suite 1600 Birmingham, AL 35203 cr Regions Bank P.O. Box 431 Montgomery, AL 36101 smg Richard Blythe BA Decatur P O Box 3045 Decatur, AL 35602 7009736 157 Hardware 4110 Al Hwy 157 Cullman AL 35058-0000 7009737 1st Guard Corporation 200 Nokomis Ave South 4th Floor Venice FL 34285-0000 7009738 ACS Expedited Solutions Affiliated Computer Services P.O. Box 201322 Dallas TX 75320-1322 7022089 ALA DEPT OF REVENUE LEGAL DIV P.O. BOX 320001 MONTGOMERY, AL 36132-0001 7009751 AT 85 Annex Atlanta GA 30385-0001 7009752 AT P.O. Box 105068 Atlanta GA 30348-5068 7009753 AT P.O. Box 5019 Carol Stream IL 60197-5019 7009756 AWA Insurance Trust (AAAS) 11245 Chantilly Parkway Court Montgomery AL 36117-0000 7009739 Airgas South P.O. Box 532609 Atlanta GA 30353-2609 7009741 Al Trucking Assoc. Work. Comp. Fund Dept. SF 1 P.O. Box 830525 Birmingham AL 35283-0525 7009740 Al and Norma Ciriello 8180 South Kimberly Circle Floral City FL 34436-2630 7009742 Alabama Child Support Pmt Center P.O. Box 244015 Montgomery AL 36124-4015 7009743 Alabama Dept. of Revenue Corporate Tax Div/W/Holding Tax Sect 50 N Ripley Montgomery AL 36132 7009744 Alabama Trucking Association P.O. Box 242337 Montgomery AL 36124-2337 7009745 Alabama Windshield P.O. Box 2265 Tuscaloosa AL 7009746 American Express P.O. Box 650448 Dallas TX 75265-0448 7009747 American Overhead Door Attn: Kim D Danich 126 Jetplex Circle Madison AL 35758-8960 7009748 Ameriplan Benefit Corporation Attn: Barbara Sherrod P.O. Box 51148 Knoxville TN 37950-1148 7009749 Ameriquest — Headquarters P.O. Box 828997 Philadelphia PA 19182-8997 7009750 Apel Machine Supply Company P.O. Box 2010 Cullman AL 35056-0000 7009754 Atlanta Commercial Tire 5067 Kennedy Road Forest Park GA 30297-0000 7009755 Avaya P.O. Box 5332 New York NY 10087-5332 7009757 Bancorpsouth Equipment Finance DBA Bancorpsouth Exchange LLC P.O. Box 88550 Milwaukee WI 53288-0550 7009758 Bankdirect Capital Finance P.O. Box 660448 Dallas TX 75266-0000 7009759 Best Western Fairwinds Inn 1917 Commerce Ave NW Cullman AL 35055-0000 7009760 Big Moe Spring Aign. of B'ham Inc P O Box 438 Fairfield AL 35064 7009761 Bo's Body Shop 9429 Al Hwy 157 Vinemont AL 35179-0000 7009762 Boulevard Tire Center 816 S Woodland Blvd Deland, FL 32720 7009763 Bridgestone (BRNT, LLC) P.O. Box 905392 Charlotte NC 28290-5392 7079416 Bridgestone Americas Tire Operations Attn: N Sue Van Sant Palmer 535 Marriott Drive, 9th Floor Nashville, TN 37214 7009766 CD M Communciations 48 Free Street Portland ME 04101-0000 7009767 CDL Job.Com P.O. Box 85 Lisbon IA 52253-0000 7009768 CDW Direct P.O. Box 75723 Chicago IL 60675-0000 7009764 Capstone Bank 2301 University Blvd. Tuscaloosa AL 35401-0000 7009765 Carrier Web LLC Account Payable 200 Technology Ct. SE Smyrna GA 30082-5234 7009769 Check Depot — Aberdeen P.O. Box 165 Aberdeen MS 39730-0000 7009770 Cintas Corporation (5064) 15201 Alabama Hwy 20 Madison AL 35756-0000 7009771 Cintas Corporation (5065) 15201 Alabama Hwy 20 Madison AL 35756-0000 7009772 City of Cullman P.O. Box 278 Cullman AL 35056-0278 7009773 Class A Driver Dept LA 23419 Pasadena CA 91185-3419 7079413 Comdata Network Inc Attn: Daniel Mann 5301 Maryland Way Brentwood, TN 37027 7009774 Comdatas Network, Inc. P.O. Box 548 Brentwood TN 37024-0000 7009775 Comfort Suites (AL285) 2048 St. Joseph Dr. NW Cullman AL 35055-0000 7009776 Complete Family Medicine DBA ASC Occupational Heath P.O. Box 638 Cullman AL 35056-0000 7009777 Cook's Pest Control Attn: Marianne Britton P.O. Box 1266 Cullman AL 35056-1266 7009778 Creative Printers P.O. Box 1605 Albertville AL 35950-0000 7009779 Creative Signs 300A 2nd St. SE Cullman AL 35055-0000 7009780 Cullman Cabinet and Supply Co. Inc. P.O. Box 1150 Cullman AL 35056-0000 7009781 Cullman Electric Cooperative P.O. Box 1168 Cullman AL 35056-1168 7009782 Cullman Employment Center Attn: Don Bryan P.O. Box 2367 Cullman AL 35056-2367 7009783 Cullman Power Board P.O. Box 927 Cullman AL 35055-2904 7009784 Cullman Security Systems, Inc. 2730 County Road 1043 Cullman AL 35057-0000 7009785 Cullman-Jefferson Counties P.O. Box 399 Cullman AL 35056-0399 7009786 DC Lawn Service 4025 County Road 201 Crane Hill AL 35053-0000 7009789 DRBA Customer Service Center P.O. Box 71 New Castle DE 19720-0000 7009787 Deluxe Business Checks and Solutions First Commercial Checks) 3660 Ictoria St. N Shoreview MN 55126-0000 7009788 Dickinson Fleet Services 16389 Collections Center Dr. Chicago IL 60693-0000 7009790 Duke Energey P.O. Box 1771 Cincinnati OH 45201-1771 7009793 EFS Transportation Services P.O. Box #300848 Memphis TN 38130-0000 7009791 Earl's Body Shop Inc Attn: David Shaddix P.O. Box 2037 Cullman AL 35056-2037 7009792 Edward Jones River Oaks Village 3301 South 14th, Suite Abilene TX 79605-0000 7009794 Elaine Leathers DBA Clarity Clean Headlight Girl P.O. Box 15 Falkville AL 35622-0000 7009795 Employment Guide.Com Cleveland Employment Guide P.O. Box 34766 Kansas City MO 64116-1166 7009796 Express One, Inc. P.O. Box 129 Brewton AL 36427-0129 7009797 Family Support Registry-Georgia P.O. Box 1800 Carrollton GA 30112-1800 7009798 Fed-Ex P.O. Box 660481 Dallas TX 75266-0481 7009799 Fleet Air Technologies P.O. Box 158 Hartselle AL 35640-0000 7009800 Fleet Pride P.O. Box 281811 Atlanta GA 30384-1811 7009801 Florida Department of Revenue Unemployment Tax 5050 W. Tennessee Street Tallahassee FL 32399-0110 7009802 Florida Detroit Diesel-Allison 5040 University Blvd. West Jacksonville FL 32216-0000 7009803 Free Heat Inc. P.O. Box 458 Henagar AL 35978-0000 7009804 GE Appliance 307 N. Hutstbourne Pkwy Louisville KY 40222-0000 7009805 GE Appliances P.O. Box 840111 Dallas TX 75284-0111 7009806 GE Transportation Finance (ATL) P.O. Box 740425 Atlanta GA 30374-0425 7009807 GE Transportation Finance (Phil) P.O. Box 822108 Philadelphia PA 19182-2108 7009808 General Electric Company P.O. Box 402259 Atlanta GA 30384-2259 7009809 General Sessions 115 N Main Mount Pleasant TN 38474-0000 7009810 Georgia — Pacific Brewton Mill P.O. Box 709 Brewton AL 36427-0000 7009811 Grainger Dept. 837356351 Palatine IL 60038-0001 7009812 Great Dane Trailers Drawer CS 198006 Atlanta GA 30384-0000 7009813 Greater Bay Distributors 2310 Starkey Road Largo FL 33771-0000 7009814 Greater Birmingham Transportation 5804 Oporto Madrid Blvd. Birmingham AL 35210-0000 7009815 Greyhound Lines, Inc. 5247 Paysphere Circle Chicago IL 60674-0000 7009816 Guardian P.O. Box 95101 Chicago IL 60694-5101 7009823 HS Trailer Repair LLC Attn: Harold Stinnett 3511 County Hwy 26 Blountsville AL 35031-4140 7009817 Hatley Heating and A/C, Inc. P.O. Box 1126 Cullman AL 35056-0000 7046688 Hays Son Oil Co Inc c/o Billy W Jackson Jackson Williams Attorneys 418 1st Ave SE Cullman, AL 35055 7009818 Hays Son Oil Co., Inc. P.O. Box 976 302 Broadway Dr. S.W. Cullman AL 35056-0000 7009819 Hester Supply PO Box 703 Moulton AL 35650-0000 7009820 Hireright Solutions, Inc. 23883 Network Place Chicago IL 60673-1238 7009821 Hiwaay Internet Services PO Box 86 Huntsville AL 35804-0000 7009822 Holston Gases 206 Main Ave. SW Cullman AL 35055-3346 7009824 Hydraulic Supply, LLC 1416 Sportmans Lake Road Cullman AL 35055-0000 7009830 IRS PO Box 21126 Philadelphia, PA 19114 7009825 Instructional Technologies P.M.B. #203 800 NE Tenney Road Vancouver WA 98685-0000 7010460 Internal Revenue Service P O Box 7346 Philadelphia, PA 19101-7346 7009827 International Paper Attn: Angela Snell 601 County Road 78 Selma AL 36703-0000 7009826 International Paper Lock Box #771324 1324 Solutions Center Chicago IL 60677-1003 7009828 Internet Brands Dept. LA 23419 Pasadena CA 91185-3419 7009829 Internet Truckstop PO Box 99 New Plymouth ID 83655-0000 7009834 JHT Companies, Inc. dba Automotive Equipment Service Attn: Jane Thompson 1119 Navajo Trail Alabaster AL 35007-9247 7009831 Jack's Radiator Services 1607 Sharpton Road NE Cullman AL 35055-0000 7009832 Janpak Supply Solutions 1140 Jordan Road Huntsville AL 35811-0000 7009833 Jerich USA, Inc. 1 Industrial Road, Suite 102 Dayton NJ 08810-0000 7009835 Jiggy Jobs.com PO Box 201322 Dallas TX 75320-1322 7009836 Jim Keller Enterprises, Inc. 1279 County Hwy 2A Defuniak Springs FL 32433-0000 7102257 Judy Hutchinson P O Box 159 Hanceville, AL 35077 7009837 KKJump Start/S. East Co. Trust 1205 Johnson Ferry Road Suite 136, PMB 506 Marietta GA 30068-0000 7037816 Kentucky Transportation Cabinet Division of Motor Carriers 200 Metro Street Frankfort, KY 40602 7009838 Lawayne Allred Construction 562 County Road 601 Hanceville AL 35077-0000 7009839 Lease All, Inc. PO Box 1148 Cullman AL 35056-0000 7009840 Lozier 401 Taylor Street Scottsboro AL 35768-0000 7009841 Lube Supplies and Service, Inc. 3009 5th Ave. North Birmingham AL 35203-0000 7009842 Manning Drayage Service, Inc. PO Box 427 15 Pearl Pentocost Road Winder GA 30680-0000 7009843 McAfee PO Box 60157 Los Angeles CA 90060-0157 7084001 McGriff Commercial Coface North America Insurance Company 50 Millstone Rd., Bldg. 100, Ste. 360 East Windsor, NJ 08520 7009844 McGriff Commercial Tire (Goodhope) PO Box 1148 Cullman AL 35056-0000 7009845 McGriff Industires PO Box 1148 Cullman AL 35056-0000 7012777 McGriff Partners 86 Walnut Street NE Cullman, AL 35055 7009846 McGriff Partners PO Box 1148 Cullman AL 35056-0000 7009847 McLeod Sortware PO Box 43200 Birmingham AL 35243-0200 7009848 McPherson Oil Products PO Box 890145 Charlotte NC 28289-0145 7009849 Miller Martin PLLC 832 Georgia Avenue Chattanooga TN 37402-0000 7111056 Miller Martin PLLC Attn: Nicholas W Whittenburg 832 Georgia Ave Ste 1000 Chattanooga, TN 37402 7009850 Mississippi Dept. of Human Services Central Receipting and Disbursement Division of Child Support Jackson MS 39296-0000 7009851 Mohawk Home PO Box 406289 Atlanta GA 30384-6289 7009852 Morgan Southern, Inc. PO Box 150190 Atlanta GA 30315-0000 7009853 Motor Carrier Safety Consulting PO Box 531195 Birmingham AL 35253-1195 7009854 Myers Tire Supply Company 24377 Network Place Chicago IL 60673-1243 7106700 Myers Tire Supply Distribution Inc 1293 South Main Street Akron, OH 44301 7009855 NC Division of Motor Vehicles PO Box 29615 Raleigh NC 27626-0615 7009856 North Alabama Tire and Auto Parts c/o Corporate Billing, LLC PO Box 1000, Dept. 959 Memphis TN 38148-0000 7009857 Oden's Auto Glass, Inc. 2253 Second Ave NW Cullman AL 35058-0000 7009858 Office Equipment Company, Inc. 209 Third Street SE Cullman AL 35055-0000 7009859 Office of State Police PO Box 61047 New Orleans LA 70161-1047 7009860 Ohio Child Support Payment Central PO Box 182394 Columbus OH 43218-0000 7009861 Overweight Assessment Citation Unit PO Box 406100 Atlanta GA 30384-6100 7009862 Pacific Financial Association, Inc. c/o Federal Service Corporation 1606 W. Whispering Wind Phoenix AZ 85085-0000 7009863 Peleman Industries, Inc. 11820 Willis Road, Suite 100 Alpharetta GA 30009-0000 7009864 Pennsylvania Turnpike Commission 8000C Derby Street Harrisburg PA 17111-0000 7009865 Philip A. Geddes Chapter 13 Trustee PO Box 952 Memphis TN 38101-0952 7009866 Piggly Wiggly #296 4933 AL Hwy 157 Cullman AL 35055-0000 7009867 Pilot 6418 Centennial Boulevard Nashville TN 37209-0000 7100625 Pilot Travel Centers LLC c/o Scott Hundley 5500 Lonas Dr Ste 260 Knoxville, TN 37909 7084284 Pitney Bowes Global Financial Services 27 Waterview Drive Shelton, CT 06484 7009868 Pitney Bowes Global Financial Svc LLC PO Box 371887 Pittsburgh PA 15250-7887 7039930 Pitney Bowes Inc 4901 Belfort Rd, Ste 120 Jacksonville FL 32256 7009869 Porter Capital Company 2112 1st Avenue North Birmingham AL 35203-0000 7009870 Prepass 23566 Network Place Chicago IL 60673-1235 7079421 Prepass/ACS Government Solutions 101 North 1st Ave Ste 2200 Phoenix, AZ 85003 7009871 Quality Inn (AL117) 5917 SR 157 NW Cullman AL 35058-0000 7009872 Randstad PO Box 2084 Dallas GA 30132-2084 7083028 Randstand 2015 South Park Place Atlanta, GA 30317 7009873 Red Diamond, Inc. (AP) PO Box 11407 Birmingham AL 35246-0000 7009874 Regions Equipment Finance Corp. PO Box 2545 Birmingham AL 35202-0000 7009875 Reliance Partners 2515 E. 43rd Street Chattanooga TN 37407-0000 7030876 Reliance Partners, Inc. Attention: Andrew Ladebauche 2513 43rd Street Chattanooga, TN 37407-2636 7009876 Riley Business Products, Inc. PO Box 1676 Cullman AL 35056-1676 7039552 RockTennCP LLC Attn: Frank Riddick 504 Thrasher Street Norcross, GA 30071 7009877 Russell Truck Repair, Inc. PO Box 9401 Montgomery AL 36108-0000 7009878 Safety-Kleen PO Box 650509 Dallas TX 75265-0509 7010459 Secretary of the Treasury 1500 Pennsylvania Ave NW Washington, DC 20220 7009879 Securian 400 and 401 Robert Street North Saint Paul MN 55101-0000 7009880 Smurfit-Stone Container Corporation PO Box 409813 Atlanta GA 30384-9813 7009881 Star Fire Equpment 8705 Alabama Hwy 91 Hanceville AL 35077-0000 7009882 State of Alabama Dept. of Revenue 50 N. Ripley Montgomery, AL 36132 7009883 State of Alabama Dept. of Ind. Relations Unemployment Compensation Agency Unemployment Tax Hanceville AL 35077-1104 7009884 State of Alabama Dept. of Revenue Collection Services Division PO Box 327820 Montgomery AL 36132-7820 7009885 State of Florida Disbursement Unit PO Box 8500 Tallahassee FL 32315-8500 7102887 State of Florida-Dept of Revenue Bankruptcy Section Post Office Box 5558 Tallahassee, FL 32314-6668 7102888 State of Florida-Dept of Revenue c/o Frederick F Rudzik P O box 5558 Tallahassee, FL 32314-6668 7009886 Stewart's Auto Supply, Inc. 1211 Loring Street Cullman AL 35055-0000 7009887 Superior Vision Services, Inc. Q PO Box 201839 Dallas TX 75320-1839 7009888 TCI Tire Centers, LLC 1061 McEntire Lane Decatur AL 35601-0000 7009889 TEK Links, Inc. 201 Summit Parkway Birmingham AL 35209-0000 7009896 TMP Trucking Division PO Box 2685 Anniston AL 36202-0000 7009890 Tenstreet, LLC 6950 S. Utica Avenue Tulsa OK 74136-0000 7009891 The Birmingham News Company PO Cox 905523 Charlotte NC 28290-5523 7009892 The Cullman ITmes 300 4th Avenue SE Cullman AL 35055-0000 7009893 The Roberts Group PO Box 5810 Huntsville AL 35814-5810 7009894 Thermo King of Birmingham PO Box 1305 Forest Park GA 30298-0000 7009895 Thistle Business Forms, Inc. PO Box 1317 Decatur AL 35602-1317 7009897 Tony Dutt 26 Pleasure Cove Spring TX 77381-0000 7009898 Trailer Service, Inc. PO Box 9595 Montgomery AL 36108-0000 7009899 Transamerica PO Box 863 Little Rock AR 72203-8063 7009900 Transamerica Worksite Marketing PO Box 742504 Cincinnati OH 45274-2504 7009901 Transcore PO Box 8500 Philadelphia, PA 19178-3801 7009902 Travel Centers of America TA Operating LLC PO Box 641906 Cincinnati OH 45264-1906 7009903 Truckare 1, Inc. PO Box 31246 Tampa FL 33631-3246 7010458 U.S. Securities and Exchange Commission Regional Director Branch of Reorganizati Atlanta Regional Office 3475 Lenox Rd NE Ste 500 Atlanta, GA 30326 7009905 US Dept. of Education National Payment Center PO Box 105081 Atlanta GA 30348-5081 7010461 United States Attorney Northern District of Alabama 1801 Fourth Avenue North Birmingham, AL 35203 7010462 United States Bankruptcy Administrator Northern District of Alabama 1800 Fifth Avenue North Birmingham, AL 35203 7009904 United States Treasury Cincinnati Service Center Cincinnati OH 45999-0025 7009906 Utility Trailer PO Box 170698 Birmingham AL 35217-0000 7009907 V.A.W. Water System, Inc. PO Box 10 Vinemont AL 35179-0000 7009908 Verizon Wireless PO Box 660108 Dallas TX 75266-0108 7009909 Village of Bolingbrook 375 W. Briarcliff Road Bolingbrook IL 60440-0000 7090534 W W Grainger Inc Attn: Special Collections Dept 7300 N Melvina Niles, IL 60714 7009910 W. W. Williams Dept. L-303 Columbus OH 43260-9303 7009911 Wells Fargo Equipment Finance 733 Marquette Ave., Suite 700 Minneapolis MN 55402-0000 7009912 Western Express, Inc. PO Box 306035 Nashville TN 37230-6035 7009913 Wheeler Machine 205 Harrison St. NW Cullman AL 35055-0000 7009914 Windjammer Cable PO Box 2016 Omaha NE 68103-2016 7009915 Xata Corporation Dept. CH17402 Palatine IL 60055-7402 7009916 ZEP Sales and Service PO Box 404628 Atlanta GA 30384-4628 TOTAL: 221