Beyond the Signature Block: Analyze the Exhibits Attached to a Lease
December 28, 2006
In reviewing a draft of another party's form commercial retail lease, much time and effort is expended in analyzing the lease relative to the agreed-upon letter of intent and/or applying a client's leasing parameters into the lease. Many times the signature block is viewed as the proverbial 'goal line,' so if you can make it to the signature block, you are at the conclusion of your review; however, to review the form lease adequately and completely, one must continue the review and analyze all the exhibits attached to the form lease.
In the Spotlight: Beware of Lease Disputes in a Declining Market
December 28, 2006
We have just experienced a rising, perhaps frothy, commercial real estate market for the past half-decade, resulting in ever-increasing rental rates throughout much of the country. More recently, we have suffered increased gas prices that tax the budgets of all retail customers and appear to be reducing sales for many retailers.
Drafting a Better and More Effective Right of First Refusal
December 28, 2006
Land transfers date back to biblical times and have been the subject of an inordinate amount of litigation. Of course, the importance and value of land and the necessity for shelter might help to explain many of the disputes. Some, however, are due to human error, especially those involving the right to purchase property.
In the Marketplace
November 30, 2006
Highlights of the latest equipment leasing news from around the country.
The Credit Agency Reform Act: What Leasing Companies Need to Know
November 30, 2006
Any equipment leasing or finance company desiring to access the debt capital markets must quickly become adept at dealing with a unique feature of that world: the credit rating and its gatekeeper, the credit rating agency. Entering this realm can be a jolt for finance officers used to the relationship-friendly, competitive environment of commercial banks. Dominated by two monoliths, Standard & Poor's and Moody's, the rating agency process is steeped in the clinical analytics of credit modeling. Rating agencies are viewed by many as academic in perspective and, to some, remote and obscure in their approach.
Ninth Circuit BAP Holds Lease Payment Streams Are Not Chattel Paper
November 30, 2006
In August 2006 the U.S. Bankruptcy Appellate Panel of the Ninth Circuit rendered a decision in a case titled <i>In Re: Commercial Money Center, Inc.</i> (<i>Netbank, FSB v. Kipperman</i>), U.S. Bankruptcy Appellate Panel of the Ninth Circuit, BAP No. SC-05-1238-MoTB; Bk.No. 02-09721-H7; Adv. No. 03-90331-H7, holding that payment streams stripped from equipment leases are payment intangibles, not chattel paper, and thereby overturning the bankruptcy court decision. Accordingly, the assignment of the payment streams could be automatically perfected under '9-309(3) of Revised Article 9. Additionally, the court agreed with the bankruptcy court and held that the transactions in this case were loans, not sales, so there was no automatic perfection. Finally, the court held that there were unresolved factual and legal issues as to whether the lender had perfected its security interest in the leases by taking possession through a third-party agent, and therefore remanded the case for further proceedings.
