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Perfection and Priority of a Security Interest in Internationally Mobile Goods

By James F. Fotenos
September 26, 2012

Assume an international bank, with branch offices in New York and the Cayman Islands, makes a secured loan to a newly organized special purpose entity, organized as a Bermuda exempted company, secured by all of the borrower's assets. Borrower's assets consist of marine cargo containers and the leases of such containers. Most of the container leases qualify as operating leases under U.S. generally accepted accounting principles (“GAAP”), with the balance of them qualifying as direct financing or sales type leases under GAAP. The loan and security agreements entered into by borrower and the bank stipulate New York law as their chosen law. There are numerous lessees of the containers owned by borrower: Such leases generally, but not universally, stipulate English law as their chosen law (others, at the insistence of the lessee, stipulate lessee's choice of law as the chosen law of the lease, such as Singapore law).

Lender requests your assistance in perfecting its security interest in borrower's assets as a first priority security interest in such assets.

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