- 63 - year terms for leveraged buyouts. We are not convinced by that testimony. First, petitioners' commercial loans during the years in issue were generally for 5 years. Second, leveraged buyouts typically require the borrower to provide a security interest in its assets, and are subject to financial covenants which impose severe restrictions unlike the LIIBV advances. This factor supports treating the LIIBV advances to petitioners as equity. 4. Whether the Provider of the Funds Has the Right to Enforce Payment of Principal and Interest A definite obligation to repay an advance suggests that the advance is a loan. Estate of Mixon v. United States, supra; see Campbell v. Carter Found. Prod. Co., 322 F.2d 827, 832 (5th Cir. 1963). The documents evidencing the LIIBV advances showed that LIIBV had a right to enforce payment of principal and interest. Petitioners contend that these loan agreements are significant because they were legally binding. We disagree because LIIBV and petitioners did not enforce any of the loan agreements. The fact that the agreements may have been legally binding counts for little if, as here, the parties understood that they would never be enforced. As discussed at par. II-D-3, above, the right to enforce payment may be meaningless if the parties do not expect the recipient to repay. This factor supports treating the LIIBV advances to petitioners as equity.Page: Previous 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 Next
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