Financing deals have become increasingly complicated as parties attempt to raise capital and take advantage of accounting and tax incentives. These transactions often face scrutiny when one party files for bankruptcy. During a Chapter 11 reorganization, a debtor must use all tools at its disposal to best restructure its obligations. In contrast, a creditor must work to ensure it receives the best possible return. The term "lease" is not defined in the Bankruptcy Code. Due to this lack of a clear definition, creditors and debtors will often attempt to recharacterize agreements between the parties. In this context, a secured creditor or debtor may argue that a "lease" is actually a disguised secured financing. In the converse, a party could also argue a secured financing is actually a "true lease." This is due to the Bankruptcy Code's different treatment of secured debt and leases. Depending on the factual scenario, this differing treatment could significantly change the parties' obligations.
- December 02, 2005James A. Timko
Chapter 4 of Revised Article 9, titled "Rights of Third Parties," deals with several issues affecting the assignment of accounts, leases, and other contract rights. See, in particular, Sections 9-403 to 9-409. These sections replace former Sections 9-206 and 9-318 and part of Section 2A-303. This article summarizes some of the key provisions of Chapter 4 of Revised Article 9, compares these provisions to former Article 9, and describes a few recent cases under this Chapter. Note that different rules apply in a consumer transaction or if the account debtor is an individual who incurred the obligation primarily for personal, family or household purposes; this article does not address these issues. In addition, this article does not address the assignment of a health care insurance receivable.
December 02, 2005Barry A. GraynorHighlights of the latest commercial cases from around the country.
December 02, 2005ALM Staff | Law Journal Newsletters |There is no one-size-fits-all solution for business resumption following a disaster. However, the American Society of Safety Engi-neers ("ASSE") offers this disaster safety checklist to assist businesses before, during and after a disaster, such as Hurricane Katrina.
December 02, 2005ALM Staff | Law Journal Newsletters |The Terrorism Risk Insurance Act ("TRIA"), 15 USC §6701 et. seq., designed to make terrorism insurance readily available to property owners, is scheduled to sunset on Dec. 31, 2005. If the Act is not extended and the cost of terrorism insurance becomes prohibitive, lenders and borrowers may once again find themselves embroiled in controversy over the question of whether governing loan documents require such insurance.
December 02, 2005Kenneth M. Block and Jeffrey B. SteinerWhat do negotiators fear most? Failure, being manipulated and being second-guessed. Why do negotiators fail and why are they manipulated or second-guessed? Often, it's lack of adequate preparation and disregard for the issues, purposes and concerns of the other side. A lack of internal alignment can lead to confusion and that dreaded second-guessing. A well-prepared negotiator can be manipulation proof, avoid the second-guessing and achieve valuable results.
December 02, 2005Bill BoyarThe fourth anniversary of the tragedy in New York has come and gone, and our country remains on alert in an effort to prevent another terrorist attack. While we see frequent warnings published in the news and through industry groups, the heightened awareness those warnings generate does not put our companies in compliance with the laws requiring our participation in the fight against terrorism. This article examines the anti-terrorism laws that affect our industry and outlines best practices for compliance with those laws. It also provides information on enforcement activities that have occurred. It provides a basis for evaluating whether or not your company is in compliance with the anti-terrorism laws.
December 02, 2005Christopher A. Myers and Carole Laude PechiTo outsiders of the legal community, no rule is more familiar than the attorney-client privilege. In simple terms, what a client tells his attorney is supposed to stay between the client and his attorney. It is this covenant of secrecy that prompts some (but certainly not all) clients to be honest and forthcoming with the facts underlying a particular claim. In turn, it allows the attorney to provide the most effective representation to his/her client. Yet, in the world of bad faith claims, courts have proved willing to find that an insurance company has impliedly waived the attorney-client privilege even in cases when the insurer has not argued that it relied upon the advice of counsel in denying the claim. See Steven Plitt, The Elastic Contours of the Attorney-Client Privilege and Waiver in the Context of Insurance Company Bad Faith: There's a Chill in the Air, 34 Seton Hall L. Rev. 513 (2004).
December 01, 2005Anthony J. Golowski II and Anthony M. RainoneHighlights of the latest insurance cases from around the country.
December 01, 2005ALM Staff | Law Journal Newsletters |Reinsurance and insurance contracts would be thousands of pages long if they explicitly defined every possible term, however mundane, or if they anticipated every possible contingency, however remote. Fortunately, (or perhaps unfortunately) for the drafters of these contracts, the U.S. legal system typically employs a more streamlined model. That is, parties commit to an agreement with the understanding that courts and other adjudicatory bodies may play a role in filling in contractual "gaps" and giving meaning to indefinite or indeterminate contractual terms. Cf. Phelps Dodge Corp. v. Schumacher Elec. Corp., 2005 U.S. App. LEXIS 14318 (7th Cir. 2005). Although there are a number of methods by which a court can interpret a contract, the importation of custom and usage evidence plays a special role in illuminating insurance and reinsurance contracts. This article explores whether and when courts will admit such evidence, and it divides into three sections: First, the article explains the rules that courts will employ when they determine whether and when to admit custom and usage evidence; second, it considers the effect of integration clauses on the possible importation of custom and usage evidence; and, third, it provides several practical suggestions for a party seeking to import custom and usage evidence.
December 01, 2005John M. Nonna and Marc L. Abrams