Treasury Extends the 'Make Available' Provisions of the TRIA
June 30, 2004
In an announcement that comes as a relief to the leasing industry, the Treasury Department stated on June 18 that it will extend the "make available" provisions of the Terrorism Risk Insurance Act (TRIA) through 2005, the third year of the federal Terrorism Risk Insurance Program.
Drafting a Ground Lease When the Underlying Tenant Will Be a Single-Use Entity
June 01, 2004
Commercial real estate professionals often draft ground leases for those situations in which a tenant (the "Ground Lessee/Sublessor") leases land from a fee owner (the "Ground Lessor") to be developed into a shopping center or some other development with a mix of retail or other commercial tenants. Numerous occasions arise, however, in which a ground lease is needed because the Ground Lessee/Sublessor intends to sublease the parcel to a single-use tenant entity (the "Tenant"). When drafting the sublease for this Tenant, the real estate practitioner must tailor the ground lease to take into account the specific requirements of the Tenant's sublease.
The Leasing Hotline
June 01, 2004
Highlights of the latest commercial leasing cases from around the country.
Environmental Issues in Leasing Transactions
June 01, 2004
Due to the potential for extraordinary liability associated with contamination problems, landlords and tenants in commercial leasing transactions should address environmental concerns in the leasing documents. Subsurface contamination involving soil and groundwater concerns could result in substantial costs and liabilities for both parties. In addition, asbestos can present unique issues for both the landlord and the tenant. The landlord should be concerned that the tenant's operations will result in the contamination of the premises. The tenant should be concerned that existing contamination, whether soil, groundwater, the presence of asbestos, or other problems, could present liability issues for itself.
In the Spotlight: Tenants Should Keep Watch for Innocuous-Appearing Provisions
June 01, 2004
Most leases provide for a rent abatement in the event of a casualty to either the building or leased premises that renders the leased premises unfit for the tenant's use until the casualty damage has been repaired. At first glance, the only items to be negotiated in such provisions are those that clarify what portion of the building or premises — as the case may be — must be affected in order to provide for an abatement, how quickly the landlord is obligated to restore the damage, and under what circumstances the parties may terminate the lease.
Is It a True Lease or a Loan?
June 01, 2004
The first part of this article, published in last month's issue, addressed the importance of the distinction between true leases and loans and began a detailed analysis of the rules that courts use for state law and bankruptcy purposes to determine the category in which a given transaction belongs. <br>As outlined in part one of this article, courts utilize the Two-Part Test provided in §1-201(37) of the Uniform Commercial Code, and any transaction that satisfies that Two-Part Test creates a security interest as a matter of law. The first prong of the test is satisfied if the lessee does not have the option of terminating the lease early or if any such early termination option requires the lessee to pay the lessor a significant sum. The second prong, which addresses the issues that are most often litigated, is discussed below.
In The Marketplace
June 01, 2004
Highlights of the latest equipment leasing news from around the country.
On-Site Sales: What Lessor's Counsel Should Know
June 01, 2004
When equipment lessors evaluate the risks of underwriting lease transactions for manufacturing equipment, one of the primary considerations in the credit decision is the resale value of the equipment in the event of default. In preparing for this risk, a key component of an underwriter's evaluation must be how to access and market the equipment in the event of a default. Therefore, it is critical to look at every transaction from the perspective of how much money a piece of equipment will bring in a sale, if there is an established market for the particular equipment, and also, how and where the equipment can best be marketed and sold if a liquidation is necessary. An often-overlooked and significant factor in this analysis is whether the lessor will have unfettered access to remove the equipment to sell, refurbish, and/or prepare for liquidation at the location where it has been used.
Court Watch
June 01, 2004
Highlights of the latest franchising cases from around the country.
The Leasing Hotline
June 01, 2004
Highlights of the latest commercial leasing cases from around the country.
