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 2)
Minimizing Financier's Risks and Financier's Relationship With the Licensor
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.
25 May 1999. Since the financing of software is no longer a mere afterthought in computer hardware transactions, it requires a separate and distinct analysis. As countries such as the United States produce more services than goods, it is becoming apparent that software is not just a driving force within the service industries, increasingly it is the service. Even the production of goods itself involves ever increasing components of software. The investment in software is exploding and the investment in hardware components is shrinking. As a result of these changes and the faster obsolesce of hardware, the value of hardware as collateral is substantially less than that of the related software. Additionally, a financier's power to repossess collateral is a greater threat when the collateral is indispensable. For example, custom software which is less fungible than hardware may be a greater deterrent to defaults than hardware. In addition, if a financier only finances software packages that are critical to a licensee's business, it is less likely that a licensee will reject the software in the event of the bankruptcy of the licensee. While software may not even be viewed as the ideal collateral, software may serve as the most meaningful collateral. In addition to minimizing its risks by financing software which is essential to the licensee's business activities, a financier needs to protect its interest in the software through its relationship with the licensor. The licensor should agree, for the benefit of the financier as well as the licensee, to perform all contractual duties, representations and warranties to the licensee under all documents relating to a transaction, including any agreed upon maintenance and support. The financier should attempt to include the following provisions in any agreement with the licensor:
1. Exclusive financing rights from the licensor. As part of an agreement with the licensor, the financier should be provided with the exclusive right to provide financing for its customers. In the event the licensor will not agree to designate the financier as its exclusive source for software financing the agreement should at least provide that the financier is the licensor's primary source with a right of first refusal to provide financing services for any of the licensor's prospective software financing transactions. In addition, if under the terms and conditions of the agreement the financier is the licensee of the software, the agreement should provide the financier with the exclusive rights to sublicense the software (including all upgrades and subsequent versions) to the vendor's customers.
2. Exclusive agreement of the licensor to terminate maintenance and service agreements with the licensee. In order to provide a financier with additional leverage in the event of a licensee default, an agreement should provide that the licensor will cease supporting and maintaining the software upon default by the licensee under the Installment Purchase Agreement (IPA). If the agreement provides that the software license is to be issued to the licensee, the software license should provide that any default under the IPA would constitute an event of default under the license and likewise, the lease should provide that a default pursuant to the terms and conditions of the license will constitute an event of default under the IPA.
3. Licensor's consent to permit the financier to substitute a new licensee upon a default by the original licensee. The agreement should provide the financier with the right to refinance the software to a new licensee in the event of a licensee default or at the end of the original lease term without the imposition of an additional license fee payable to the licensor.
4. Licensor's assistance in remarketing the software. The licensor is more likely than the financier to have a sales force that can effectively remarket the software through a substitute licensee. In addition, the licensor may not want the financier to be competing with it in the sales of software. Therefore, the financier may wish to include remarketing in the agreement whereby the licensor agrees to use its best efforts to remarket the software in the event of a licensee default or at the end of the originally scheduled IPA term.
5. Source code escrow. To protect itself in the event of the bankruptcy of the licensor, the financier may wish to consider having the licensor deposit into escrow a copy of the source code for the software. In addition, the financier will need to negotiate a license to use the source code in the event of a licensor bankruptcy.
6. Repurchase provisions. The agreement should provide that if the licensor breaches any of its material representations or warranties set forth in the agreement and as a result of such a breach, a software financing contract becomes in default, the licensor shall repurchase the IPA for an amount equal to the financier's net book value. The repurchase provisions may also provide for a cure period in which the licensor may attempt to cure such a default to the financier's satisfaction.
7. Indemnification In addition to standard indemnification provisions for breach of representations and warranties by the licensor, the agreement should also specifically provide that the licensor will indemnify the financier against any claims asserted or commenced against the financier which allege that the software infringes any patent, trademark, copyright or trade secret of a third party.
8. Credit support. The agreement may also provide that the licensor may provide credit support for licensees that do not meet the financier's credit standards. The terms of such credit support can be negotiated on a transaction-by-transaction basis or a specific formula may be set for the in the agreement which would apply to all transactions designated by the financier and licensor as requiring credit support.
9. Documentation Support The licensor may be willing to provide support for software financing transactions in which all of the documentation requirements had not been fulfilled at the time the licensor requests funding or where the licensee has requested the financier to accept changes to the terms and conditions of the financier's standard documents or has requested the financier to accept non-standard documents. Such a provision would normally require the licensor to repurchase an IPA designated by the parties as requiring documentation support in the event of a default for an amount equal to the financier's net book value for the IPA.
To be continued... Previous Article in Series: Software Financing (Part 1)
Updated 25 May 1999