Юридические документы о лизинге.
Проект документов о лизинге учрежден 01-10-1999 ; редакция от 01-11-2001.
Международная лизинговая энциклопедия.
The International Leasing Encyclopedia by Steven Gilyeart.
Энциклопедии не было в интернет последние полтора года, но это не означает, что ее нет вообще. я взял на себя смелость разместить на этом сайте всю подборку статей (собственно энциклопедию), с указанием адресов электронных почт авторов материалов и редактора. Материал на английском языке.
Software Financing (Part 1)
by Jeffrey J. Wong, Esq., Cooper, White and Cooper, San Francisco* [email protected]
*The author gratefully acknowledges the contributions of William S. Veatch, J. Eric Atherholt and Madelyn Law to this article.
Introduction Software financing transactions involve multiple parties. There is the financier who finances the software license fees or may be the licensee of the software. There will also be a software developer and/or vendor ("licensor") who is the licensor of the software and the licensee or sublicensee of the software ("licensee"). The rights and obligations of the parties will depend on the terms and conditions of the Lease/Finance Agreement or Installment Payment Agreement (collectively "IPA"), the Software Licensing Agreement ("license") covering the software and any agreement between the financier and the licensor. While software financing may often times be referred to as a software lease, it is not a lease and essentially is a financing of the license fees. These software financing transactions generally follow one of the following structures: 1. direct acquisition; 2. IPA or license financing--with the financier outside the chain of ownership; or 3. IPA or license--directly with the financier. Direct Acquisition With direct acquisition, the licensor sells the software to the licensee, i.e., perpetually licenses the software and sublicenses any third party software being utilized. The consideration for the acquisition for the software is set forth as installment payments with interest over a fixed period of time. The licensee agree to a "hell or high water" obligation on payments (no set-offs for claims against the licensor). The licensee grants a security interest in the software to the licensor and consents to the assignment by the licensor to the financier of the payment stream, the security interest in the software and the remedies for default. The licensor makes the assignment to the financier with or without notice to the licensee and with or without the acknowledgement of the assignment by the licensee. The financier bills and collects the monthly payments in its own name or in the name of the licensor, depending on whether the licensee received notice of the assignment. IPA or License Financing--With the Financier Outside the Chain of Ownership In this structure, the licensor enters into an IPA (which is really a license with respect to the software) with a licensee. The licensee obtains the use of the software for a specific period of time rather than receiving a perpetual license to use the software. The licensee make installment payments for the IPA term or may cover a term which is shorter than the IPA term. The licensee agrees to a "hell or high water" obligation and the licensee agrees to grant a security interest in the software to the licensor. The licensor assigns the lease to the financier, including all IPA payments, security interest in the software and remedies. The assignment may be with or without notice to the licensee and may be with or without the acknowledgement of the licensee. The Financier bill and collects the monthly payments in its own name or in the name of the licensor, depending on whether the licensee received notice of the assignment. IPA or License--Directly With the Financier. In this structure, the licensor grants a perpetual license to use the software to the financier for a lump sum cash payment. The licensor consents to a sublicense by the financier to the licensee. The financier grants a sublicense to the licensee pursuant to a lease or financing agreement which includes the monthly lease payments (installment payments), "hell or high water" provisions and the grant of a security interest in the software. As previously stated, the financier is not the owner of the software. Depending upon how the transaction is structured, the financier is either: a. a licensee of the software from the licensor and a sublicensor of the software to a licensee; or b. a third party beneficiary of the license between the licensor and the licensee. No Collateral Unlike most secured transactions, software financing transactions provide no collateral that the financier can truly seize and sell (or-refinance) in order to apply the proceeds against any default deficiency. Thus, even where the financier perfects a security interest in the software, the financier cannot use the software collateral to recoup a default deficiency without the assistance of the licensor. The financier cannot blame its inability to seize and re-license the software on the intangible nature of the software because software is contained in tangible media that the customer can be prevented from using. Instead, the financier's difficulty come in re-licensing the software. Tangible property such as computer hardware may achieve commodity-like value for re-sale purposes because it costs as much to replicate as to produce originally. In contrast, a licensed copy of software costs virtually nothing to replicate and once the program is acquired by a licensee, it has a limited value to the financier unless: a. it has sufficient fungibility to be useable by and valuable to a user other than the licensee, which will be unlikely to exist with respect to custom software systems; b. the licensor has agreed to permit the financier to re-license the software in the event of the licensee's default or at the end of the lease term; and c. the financier has the capability and inclination to attempt to remarket the software or has the ability to negotiate remarketing rights with the licensor. In short, software does not provide the residual value found in hardware. Even a financier is able to repossess the diskettes containing the software, together with the supporting documentation, it may be impossible to prevent a licensee from keeping a copy of the software and continuing to use the software in its business unless the financier cooperates with the financier by: a. terminating the licensee's license to use the software; b. disabling the software; or c. refusing to provide maintenance and support for the software. The other alternative is that the larger software systems become fungible. Yet, this is a concept which is directly at odds with the marketing orientation of systems integrators who typically design a unique system specifically for a particular customer. As a result, the implicit interest rate of a software system financing transaction is likely to be higher than that of a fully collaterized financing transaciton. However, even if the financiers unable to recoup its deficiency in the event of a default by seizing and re-licensing the software system, the financier should still view a software financing transaction as significantly preferable to an ordinary unsecured transaction due to the "negative leverage" power of software system financing. This is the right of the financier to "pull the plug" on a software system on which the licensee probably places significant value. Indeed, in the case of a modern technology-base licensee, the licensee may consider its information to be its single most valuable asset. Next Article In Series: Software Financing (Part 2)--Minimizing Financier's Risks and Financier's Relationship With the Licensor
Updated 25 May 1999