Sale-leasebacks are becoming more challenging.

Sale-leasebacks are becoming more challenging | Norton Rose Fulbright

April 01, 2003 | By Keith Martin in Washington, DC
SALE-LEASEBACKS are becoming more challenging.

Lessees should be careful in sale-lease-backs of power projects not to assign the lessor a contract to sell electricity from the project or pledge such a contract to the lessor as security to support the rents and other lease obligations.  Accounting firms are taking the position that this will rule out off-balance sheet treatment for the lease financing.  The only arrangement with which the accountants seem comfortable is where the lessor has a pledge of shares in the lessee to secure the rents.  The lessee can then agree to a covenant not to sell or assign the power contract.  The same analysis applies to tolling agreements.

Off-balance sheet treatment will also be a problem if the accountants view the power contract or tolling agreement as, in substance, a sublease of the power plant to whomever is buying the electricity. (For a detailed discussion of the sublease issue, see an article by Leslie Knowlton and Henry Phillips of Deloitte + Touche in the April 2002 NewsWire.)

Keith Martin