Be the Quarterback
Last month's installment discussed how a real estate attorney should create a checklist to bring a transaction from concept to fruition. Part Two of this series addresses compliance issues, dissemination of information, and the level of detail of the checklist.
In the Spotlight: Beware of 'Lite' Indemnification
Some commercial landlords consider indemnification clauses in leases to constitute mere 'legal boilerplate' that do not merit attention from a business perspective. Some lawyers, feeling pressure to minimize the length of lease documents, may seize upon this clause as an opportunity to save space. As a result, it is not uncommon to encounter abbreviated indemnification clauses. At first glance, the language appears suitable. However, when put to the test, these 'lite' clauses often leave landlords unsatisfied. This article demonstrates the value of 'kicking it up a notch' by including ingredients called for in the recipe but often left out of the mix.
Green Issues in Commercial Office Leases
Tenants are beginning to address green issues in leases for many reasons, including reduced operating costs over the term of the lease and increased productivity among employees. In addition to corporate green policies or shareholder green initiatives, cities and localities such as Washington, DC; Montgomery County, MD; and Boston have passed green legislation of various kinds. Other cities such as Kansas City, MO are considering similar legislation. Many public entities such as the state of California and the city of Chicago have required compliance with green standards for their public buildings and offices for some time. The difference today with the new green legislation being passed in Washington, DC; Montgomery County, MD; and Boston is that the private sector both for commercial and residential projects of a certain scale, not just the public sector, will be required to comply with green standards. This will be especially true if a private development is receiving taxpayer funds. It is very likely that lawyers, real estate brokers, contractors, and other real estate professionals may need to address green issues when looking at space options, reviewing a lease, and constructing leasehold improvements ' not only for a client but also for their own office space.
The High Cost of FCPA Violations
Earlier this year, Baker Hughes Inc. ascended to the top of an exclusive and prominent list, but it is one on which few companies would want to be mentioned. On April 26, 2007, the Texas-based oil field products and services company announced that it was settling a federal probe alleging that it violated the Foreign Corrupt Practices Act ('FCPA'), and that it would pay fines and penalties in excess of $44 million ' the largest combined punishment under that law. It was truly one for the record books ' at least for the time being.
In the Marketplace
Highlights of the latest equipment leasing news from around the country.
Equipment Finance in Canada: Changes to the Income Tax Act May Have an Impact
Canada's conservative minority government recently passed its 2007 Financial Budget (the 'Budget'), which will likely impact the equipment finance industry and particularly cross-border (U.S./Canada) transactions. Central to the Budget was the proposal to eliminate withholding tax on interest payments on loan transactions. As will be discussed below, the likely impact will be that traditional cross-border transactions will be restructured to: 1) provide for quicker repayment of the principal portion of the loan, and 2) provide a means for a greater number of less internationally focused commercial banks and finance companies to undertake cross-border transactions which, prior to the enactment of the new legislation, would have be seen as too complex. This second impact may cause a more competitive environment and further add liquidity to any already liquid market. It is not clear, however, that the proposed legislation will have a significant impact on larger transactions or the activities of internationally focused lenders. While there will likely be enhanced competition for smaller straightforward transactions than currently exists, the market for complex large transactions, while restructured, will have the same level of competition as currently exists.
An Overview of FIN 48: Accounting for Uncertain Income Tax Positions
In an effort to increase comparability and consistency in how companies report income tax positions on financial statements, the Financial Accounting Standards Board ('FASB') issued on July 13, 2006 FASB Interpretation Number 48 ('FIN 48'), <i>Accounting for Uncertainty in Income Taxes.</i> FIN 48 changes the way companies must account for uncertain tax positions taken on federal, state and local, and international income tax returns for financial reporting purposes. Despite the requests for delay by numerous companies and trade and lobbying groups, the provisions of FIN 48 became effective for fiscal years beginning on or after Dec. 15, 2006. The provisions of FIN 48 apply broadly to all companies that issue financial statements in accordance with generally accepted accounting principles ('GAAP') and that are potentially subject to federal, state and local, or foreign income taxes.
Today's Approach to Distressed Situations: A Lessor's Guide
Back in 1985, one of us contributed to an industry publication an article titled <i>Strategies for Recovery in Lessee Bankruptcy</i>. Twenty-two years later, the landscape of bankruptcy law and the leasing industry have changed dramatically, and issues and problems faced by the equipment lessor today have much different priorities. As the equipment leasing community contemplates the landscape today, some new approaches and decision drivers face the leasing executive when his lessee files Chapter 11, or threatens to do so.
