A sale of property where the owner simultaneously leases it back from the buyer. Such a transaction can be vulnerable to recharacterization as a loan rather than a lease. If, considering the transaction as a whole, the seller/lessee is deemed to have transferred all significant risks and rewards of property ownership to the buyer/lessor, the transaction will be entitled to treatment as a lease under the Code. That treatment is more favorable because the debtor cannot modify the terms of a true lease under a Chapter 11 plan, while the terms of a debt obligation (including a lease recharacterized as a debt) can be modified under a plan. Further, the debtor is obligated to stay current on postpetition non-residential real estate lease obligations during the pendency of its bankruptcy case. By contrast, lenders often receive no payment at all until after confirmation of a plan.

Bankruptcy Code ยง 365(d)(3). See also Disguised Financing, Recharacterization, True Lease, True Sale.

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