Before applying this test, the Court shall address Debtor's request to admit its affidavit to show that Debtor believed that under the Agreement the Equipment would belong to Debtor at the end of the sixty month lease term. It is true that the question of the parties' intent is at the heart of the distinction between a true lease and a security agreement, and that evidence of intent can be used to explain the terms of a contract in order to determine their true nature, even in the presence of a contract provision that states that the agreement constitutes the entire understanding between the parties, Citizens and Southern Equip. Leasing, Inc. v. Atlanta Fed. Sav. Loan Ass'n, 144 Ga. App. 800, 805, 243 S.E.2d 243 (1978) (hereinafter referred to as " CS"); In re Nat'l Traveler, Inc., 110 B.R. 619, 621 (Bankr.M.D.Ga. 1990). However, the Court in CS explicitly recognized that self-serving testimony cannot be used as evidence of intent, 144 Ga. App. at 808, 243 S.E.2d 243 and such intent may only be determined through an analysis of the contract language itself and the circumstances surrounding the contract, Id. at 805-06, 243 S.E.2d 243; National Traveler, 110 B.R. at 621; see also Kleiner v. First Nat. Bank, 97 F.R.D. 683, 693 (N.D.Ga. 1983).

However, no case has been located which addresses the requirement that there must be an agreement by the lessee to pay the lessor a set amount. Still, the implication that Georgia courts would employ the same three requirements test is unmistakable. For example, in Citizens Southern Equipment Leasing, Inc. v. Atlanta Federal Savings Loan Assoc., 144 Ga. App. 800, 243 S.E.2d 243 (1978), it is clear that one of the main reasons that the Court found the contract in question to be a financing agreement rather than a true lease was that upon the occurrence of any of a variety of contingencies the lessor had the right to accelerate all "remaining lease `rentals'". Id. at 807, 243 S.E.2d 243. The acceleration provision creates a sum certain which the lessee agreed to pay the lessor.

(Punctuation omitted.) CS Leasing v. Atlanta Fed. Sav. c. Assn., 144 Ga. App. 800, 804 (1) ( 243 SE2d 243) (1978). Here, we cannot say that any possible waiver by Noferi was clear and unmistakable.

Regardless of how the interests created under the lease agreement might be classified as between GMAC and Zeller, Metropolitan has designated GMAC in its policy as having the equivalent of a lienholder's interest in the insured automobile, and, there being no claims of fraud, Metropolitan is estopped from varying the terms of the policy as written.Citizens Southern Equip. Leasing v. Atlanta Federal Savings c., 144 Ga. App. 800, 805 (3) ( 243 S.E.2d 243) (1978). See Christian v. Allstate Ins. Co., 239 Ga. 850, 853 ( 239 S.E.2d 850) (1977).

In deciding whether a lease is a security agreement, "`[t]he determining factor to be considered is the intention of the parties at the time the contract was entered into as construed in the light of facts and circumstances as they existed at that time[.]...' [Cits.]" Citizensc. Leasing v. Atlanta Fed. Savings c. Assn., 144 Ga. App. 800, 805 (3) ( 243 S.E.2d 243) (1978). Where the "parties' agreement [is] a lease agreement and not intended to evince a secured transaction, the lease provisions govern the rights of the parties."

For example, "default" is defined as not only the lessee's failure to pay any monthly payment or to maintain insurance, but also as an event occurring when the original lessor or its assignee "reasonably deems itself insecure or its prospects for payment under [the] lease impaired." See Citizens Southern Equip. Leasing v. Atlanta Fed. Savings c. Assn., 144 Ga. App. 800, 807 ( 243 S.E.2d 243) (1978). Additionally, the burden of repairs, taxes, and insurance is placed upon the lessee.

Scrutiny of the record discloses that this evidence was never refuted, and that other evidence was adduced tending to identify the documents in question as a conditional sales contract rather than as a "true lease." See C. S. Equip. Leasing v. Atlanta Fed. Savings c. Assn., 144 Ga. App. 800, 805-808 ( 243 S.E.2d 243) (1978); Peden, "The Treatment of Equipment Leases as Security Agreements," 13 Wm. Mary L. Rev. 110, 136. We cannot say that the trial court committed "plain error" in finding that the "major equipment lease" was actually a financing arrangement which created a security interest in favor of Mann, and we therefore affirm its finding of fact on this issue.

We are aware that retention of title in Rollins is not dispositive in the analysis of whether the agreement is a lease or security agreement. See Citizens Southern Equip. Leasing v. Atlanta Fed. Savings c. Assn., 144 Ga. App. 800 (3) ( 243 S.E.2d 243) (1978). However, viewing the lease as a whole, it is apparent that Rollins never intended at any time to relinquish such title.

While the instrument in this case is entitled an "indirect lease agreement," it is in effect a security agreement subject to the above statutory provision. See OCGA § 11-9-102, generally; Stenger Indus. v. Eaton Corp., 165 Ga. App. 77 ( 298 S.E.2d 628) (1983); Citizens Southern Equipment Leasing v. Atlanta Fed. Sav. c. Assn., 144 Ga. App. 800 ( 243 S.E.2d 243) (1978). In this case, it was uncontroverted that the appellee GECC took the lease agreement assignment from Minolta in good faith and for value, and without any notice of claim or defense asserted by the appellant.

3. Appellant contends that the trial court erred in including unearned and undue lease payments in the judgment and interest from June 30, 1979 at 7%. While the contract in question is entitled an "Equipment Lease Agreement," it is in fact a security agreement under the provisions of Code Ch. 109A-9 (now OCGA Ch. 11-9). Citizens c. Leasing v. Atlanta Fed., 144 Ga. App. 800 ( 243 S.E.2d 243) (1978). The contract provides that upon default Lessor may "... demand payment of all amounts due and to become due from Lessee, whereupon all such amounts shall become immediately due and payable with interest at the maximum legal rate ...