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August 01, 2003

Highlights of the latest equipment leasing news from around the country.

Selected Issues in Domestic Tax-Exempt Leasing Transactions

August 01, 2003

Lease investors have been participating in cross-border transactions for a wide variety of municipal facilities for several years. Assets have included water and sewer systems, electric and gas distribution systems, rail rolling stock and infrastructure, and convention centers. Investors have also been participating in transactions involving U.S. state and local government entities for several years. However, the preponderance of the U.S. transactions closed to date have involved rolling stock or transit facilities.

A Tale of Two Cases: Mobile Goods Require Uniformity of State Statutes

August 01, 2003

Nationwide uniformity of commercial laws has always been a fundamental goal of the drafters of Article 9 of the Uniform Commercial Code. One area, though, that has continually eluded standardization is perfection of liens on mobile goods. Financiers of mobile goods, including vehicles, vessels, trailer homes and modular offices, must grapple with arcane certificate of title statutes that vary widely from state to state. Other state statutes that regulate title and lien interests in mobile goods can become a trap for the unwary. The nature of mobile goods makes uniformity among state statutes a compelling issue for financiers.

Debtor May Assume License as Executory Contract Despite Anti-Assignment Language

August 01, 2003

In a recent decision of interest to the leasing community, the U.S. District Court of Maryland has held that a Chapter 11 debtor could assume a software license agreement (SLA), as an executory contract, although the agreement contained a clause that the debtor could not "assume or assign" the agreement, and even though the assignability of the SLA was clearly precluded by federal copyright law.

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Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
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The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
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The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
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Don't Sleep On Prohibitions on the Assignability of Leases
Attorneys advising commercial tenants on commercial lease documents should not sleep on prohibitions or other limitations on their client's rights to assign or transfer their interests in the leasehold estate. Assignment and transfer provisions are just as important as the base rent or any default clauses, especially in the era where tenants are searching for increased flexibility to maneuver in the hybrid working environment where the future of in-person use of real estate remains unclear.
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Developments in Distressed Lending
Recently, in two separate cases, secured lenders have received, as part of their adequate protection package, the right to obtain principal paydowns during a bankruptcy case.
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