Ken Weinberg

Ken Weinberg has been actively involved in the commercial equipment leasing and finance industry for decades and is the recipient  of the Edward A. Groobert Award for Legal Excellence, given by the Equipment Leasing and Finance Association (“ELFA”) for making significant contributions over a substantial period of time.

Ken has experience across a wide spectrum of commercial equipment leasing and finance transactions, including TRAC, First Amendment, FMV, service contract and other true lease structures; synthetic leases, leases intended as security, equipment finance agreements and traditional loan transactions; progress payment, interim funding and construction financings; sublease and inventory structures; mixed goods and services transactions; vendor lease programs; assignments and syndications; warehouse and funding lines; and refinancings, back-leveraging, lease assignments, sales of interest and portfolio acquisitions.

Ken also has additional experience in the niche of energy financing, representing lenders, investors and developers in recourse and non-recourse financing transactions (debt and tax-driven sale-leasebacks) for energy facilities across the country and internationally, including biomass facilities, landfill-gas-to-energy projects, solar facilities, and natural-gas-fired plants.

PROFESSIONAL ACTIVITIES, CONTRIBUTIONS & HONORS

• Recipient of the 2023 Edward A. Groobert Award for Legal Excellence, Equipment Leasing and Finance Association, 2023 (the highest honor given to an attorney by the Association, awarded for making significant contributions to the industry over a substantial period of time).
• AV® Preeminent™ Peer Review Rated by Martindale-Hubbell™
• Recognized in The Best Lawyers in America®, Banking and Finance Law.
• Top Rated Lawyer in Lawyers in Banking & Finance Law, American Lawyer Media and Martindale-Hubbell™
• Legal Committee Member, Equipment Leasing and Finance Association, the preeminent commercial organization in the equipment leasing and finance industry (2018 – 2021)
• Co-Chair, Energy Subcommittee, Equipment Leasing and Finance Association (2019 – present)
• Regular speaker at client and industry association events, including:
  • “Advanced UCC,” Legal Forum for the Equipment Leasing and Finance Association (May 2022)
  • “Legal Update,” Equipment Leasing and Finance Association Legal Forum (May 2021)
  • “Merger-Up and Other Restructures,” Equipment Leasing and Finance Association Legal Forum (May 2021)
  • “UCC Basics and Advanced,” Equipment Leasing and Finance Association Legal Forum (May 2021)
  • “Merger-Up and Other Restructures: Lessons Learned and Successful Outcomes,”  Equipment Leasing and Finance Association Annual Convention (October 2019)
  • “Legal Update,” Legal Forum for the Equipment Leasing and Finance Association (April 2019)
  • “Advanced UCC,” Legal Forum for the Equipment Leasing and Finance Association (April 2019)
  • “Advanced UCC,” Legal Forum for the Equipment Leasing and Finance Association (May 2018)
  • “Advanced UCC,” Legal Forum for the Equipment Leasing and Finance Association (May 2017)
  • “Advanced UCC Topics,” Legal Forum for the Equipment Leasing and Finance Association (May 2016)
  • “Structured Finance,” Legal Forum for the Equipment Leasing and Finance Association (May 2015)
• Author of Dispatches from the Trenches, a regular column in the Monitor, one of the most widely circulated magazines serving the equipment leasing and finance industry (with approximately 100 articles published since 2002). See below for a list of some of the articles.
• Editorial Board Member, Law Journal Newsletters (LJN), Equipment Leasing Newsletter
• Bar Admission: Alabama, 1999

REPRESENTATIVE MATTERS

• Creation of form documentation used by several of the largest equipment leasing and finance companies in the United States (as rated by The Monitor 100) for transactions of all sizes and types, including for true leases, non-true leases, equipment financings, and syndications.
• Preparation of fifty-state surveys on a variety of relevant topics, including licensing, usury, motor vehicle titling, and landlord lien issues.
• Preparation of comprehensive internal policies and analysis covering lien perfection, lessor liability, insurance and corporate verification.
• Establishment of policies and procedures for multiple banks and bank subsidiaries concerning electronic signatures and  electronic chattel paper.
• Representation of bank subsidiary in connection with a $20 million financing of vehicles subject to a complex operating and fleet management structure used by the borrower and unaffiliated third parties, raising unique collateral issues.
• Representation of bank subsidiary in connection with several synthetic leases of earthmoving, construction and material handling equipment totaling in excess of $50 million.
• Representation of equipment leasing and finance company in connection with its acquisition of a lease of equipment involving ongoing maintenance, warranty and other obligations of the original lessor/assignor that raised “bundling,” true sale and other issues.
• Representation of the equipment finance subsidiaries of multiple banks in connection with the sale-leaseback transactions of solar generation facilities in Alabama, Georgia, Mississippi and Tennessee.
• Representation of a bank in connection with the $50 million financing of tractor trailers in connection with the acquisition of the borrower by an operating and investment company, and representation of the bank in connection with the subsequent syndication of portions of such transaction to multiple investors.
• Representation of multiple banks and bank subsidiaries in connection with the acquisition of equipment leases and financings with a value of over $1 billion, including review and diligence of underlying leases or loans being assigned and negotiation of assignment documents.
• Representation of a bank subsidiary in connection with multiple acquisitions of beneficial ownership interests in titling trusts involved with TRAC and Split TRAC leases, including transactions acquired by the assignor through vendor programs.
• Representation of multiple banks and bank subsidiaries in connection with leases or financings provided to various transportation companies, many of which sublease or lease the vehicles to unaffiliated third parties, including owner operators.
• Representation of bank subsidiary in connection with its acquisition of a portfolio of over $100 million of equipment leases, installment sales contracts and other equipment financings.
• Representation of a financial services corporation in the structuring, documenting, and closing of a non-recourse project financing covering five biogas energy facilities in California (under the Bioenergy Market Adjusting Tariff), that also involved a tax-exempt overlay with the California Pollution Control Finance Authority.
• Served as U.S. counsel in connection with multiple financing transactions in Latin America, including a $148 million financing of mining equipment; a $30 million construction to term loan financing involving two cold reserve power plants capable of producing approximately sixty megawatts of electricity; and an $11 million financing of a power plant.
• Representation of captive finance company in connection with its sale of a portfolio of railcars and the associated leases in transactions worth approximately $200 million.
• Representation of the equipment finance divisions of multiple banks in transactions in which the divisions sold their beneficial interests, as owner participants, in leveraged lease transactions involving aircraft and railcars.

PUBLICATIONS

• “The Effect of Electronic Signatures on Chattel Paper: Zooming in on the Key Questions”, Monitordaily (July 2021)
• “When Your Customer Subleases: Strategies for Addressing Legal Risk,” Monitordaily (November/December 2020)
• “More Developments on General Collateral Descriptions on UCC Filings,” Monitordaily (November/December 2019)
• “Usury and Choice of Law Considerations”, Monitordaily (August 2019)
• “A Little Something to Consider When Crossing State Lines,” Monitordaily (January/February 2019)
• “General UCC Filings: All Equipment Leased or Financed,” Monitordaily (November/December 2018)
• “A Little Something About Proof of Insurance (This Article Confers No Rights Upon the Reader),” Monitordaily (July/August 2018)
• “Six Ways From Sunday: How to Handle Conflicting Liens,” Monitordaily (January/February 2018)
• “A Good Road is Paved with Fixed Intentions: What Do Your Documents Say About Fixtures?,” Monitordaily (November/December 2017)
• “The B-B-Billion Dollar Mistake: Remember to Take a Deep B-B-Breath Before Touching Financing Statements,” Monitordaily (July/August 2017)
• “Is Your Chattel Paper All Wet? An Even Deeper Dive Into the Super-Priority of Possession,” Monitordaily (January/February 2017)
• “Is Your Chattel Paper All Wet? A Deep Dive Into the Super-Priority Rule,” Monitordaily (November/December 2016)
• “Part Two: Challenges in Solar Equipment Finance,” Law Journal Newsletters’ Equipment Leasing, Volume 35, Number 9 (October 2016)
• “Part 1: Challenges in Solar Equipment Finance,” Law Journal Newsletters’ Equipment Leasing, Volume 35, Number 8 (September 2016)
• “Chasing Crooks: Successor Liability and Transfers of Trust,” Monitordaily (July/August 2016)
• “Lessons Learned in Project Financing: Revenue Streams That Are Not Absolute & Unconditional,” Monitordaily (January/February 2016)
• “Structured Finance and Revenue Streams: Not Absolute and Unconditional,” Monitordaily (November/December 2015)
• “Alabama: Embrace Cleantech,” Birmingham Business Journal (November 2015)
• “The Importance of Casualty and Loss Provisions in Equipment Financing,” Monitordaily (July/August 2015)
• “Pruning the Rose Bush . . . Use Careful Consideration When Drafting Collateral Descriptions,” Monitordaily (January/February 2015)
• “Usury Savings Clauses May Not Save Your Loan Documents,” Monitordaily (January 2015)
• “Does a Rose by Any other Name Smell as Sweet? Drafting Collateral Descriptions that Pass the Sniff Test,” Monitordaily (November/December 2014)
• “Identifying Indemnity Issues,” Monitordaily (July 2014)
• “Down the Rabbit Hole: When you PMSI Must be Perfected,” Monitordaily (March 2014)
• “Fraudulent Transfer Laws: Tread Carefully,” Monitordaily (December 2013)
• “Good Faith, Fair Dealing and Moral What? Beyond the Four Corners of Your Documents,” Monitordaily (July 2013)
• “UCC Filings and Incorrect Information (Not All Content is Equal),” Monitordaily (February 2013)
• “Titled Vehicles: Roll Through UCC Provisions Carefully and Watch Out for Speed Trap,” Monitordaily (November 2012)
• “Considering Guaranties,” Monitordaily (July 2012)
• “Amendments to Article 9 of the Uniform Commercial Code,” Monitordaily (January 2012)
• “It’s a Bird…it’s a Plane…it’s a SUPER-Priority Purchase Money Security Interest!!!” Monitordaily (November 2011)
• “Explaining What We Do: Finance Leases Versus Vendor Leases,” Monitordaily (October 2011)
• “Resting Comfortably — Four Paths to Perfection,” Monitordaily (July 2011)
• “Attachment: Your Security Interest Isn’t ‘Perfect’ Without It,” Monitordaily (May 2011)
• “A Little Something about Collateral Categories under Article 9,” Monitordaily (March 2011)
• “Outside the Comfortable Confines of Article 9,” Monitordaily (January 2011)
• “Are you SURE you want Co-Borrowers/Co-Lessees? A Little Something About Suretyship,” Monitordaily (November 2010)
• “Certificates of Title: Owners, Lienholders and Courts, Oh My!,” Monitordaily (October 2010)
• TOUSA, Inc.:  “Upstream Guaranties, Fraudulent Transfers and “Cute” Savings Clauses,” Monitordaily (September 2010)
• “A Little Something About Software Leasing and Finance,” Monitordaily (July 2010)
• “Follow the UCC Road – Searching for a Little Courage,” Monitordaily (June 2010)
• “Meet John Does: A Little Something About Sole Proprietorships,” Monitordaily (March 2010)
• “Fraudulent Inducement, Mistake and Unconscionability Defenses; and the Importance of Language Stating the Leased Equipment is not a Fixture,” Monitordaily (November 2009)
• “Damages and Indemnities: Fair and Clear,” Monitordaily (August 2009)
• “Fixtures: A Healthy Fixation with Special Priority Rules,” Monitordaily (July 2009)
• “A Little Something about Lessee Assignments and Assumptions: Is your Collateral Protected?,” Monitordaily (May 2009)
• “Which Are Better: True Leases, Leases Intended as Security or Notes?,” Monitordaily (January 2009)
• “Implied Covenant of Good Faith and Fair Dealing,” Monitordaily (September 2008)
• “Friend and Foe: Liens which Survive Transfer of the Equipment,” Monitordaily (July 2008)
• “Refinancings, Consolidations and Renewals of Purchase-Money Security Interests under Revised Article 9,” Monitordaily (May 2008)
• “Guaranties: For your Consideration,” Monitordaily (March 2008)
• “More About Inventory,” Monitor (January 2008)
• “Be Very Wary About Relying on Certificates of Title When Your Leased Trucks Are Being Subleased,” Monitordaily (December 2007)
• “A Little Something About Liquidated Damages,” Monitordaily (November 2007)
• “A Little Something About Fraud and Identity Theft,” Monitordaily (September 2007)
• “A Little Something About EFA’s: What is an Equipment Finance Agreement?,” Monitordaily (July 2007)
• “Attempting to Avoid the Hell or High Water Clause by Alleging Fraudulent Inducement,” Monitordaily (January 2007)
• “The Increased Legal Risks of Leasing to Individuals, Sole-Proprietors,” Monitordaily (November 2006)
• “Unsafe at Any Speed: Dangerous Practices in Small-Ticket Leasing,” Monitordaily (July 2005)
• “The ‘Ins + Outs’ of UCC Finance Leases & Co-Lessee Issues,” Monitordaily (June 2005)
• “Important Provisions That Should Be In Every Lease,” Monitordaily (April 2005)
• “More About ‘Boilerplate’…Skip at Your Own Risk,” Monitordaily (March 2005)
• “Frequently Overlooked, Potentially Impactful: Hot Issues About ‘Boilerplate,” Monitordaily (February 2005)
• “Choosing Wisely: The Importance of Forum Selection Provisions,” Monitordaily (November 2004)
• “A Little Something About Breaching the Peace,” Monitordaily (July 2004)
• “More On Default & Enforcement Under Article 9 Of The Uniform Commercial Code,” Monitordaily (January 2004)
• “Taking  Assignment of Equipment Leases: An Analysis of an Acceptable Documentation Package,” LJN’s Equipment Leasing, Vol. 22, Number 11
• “Post-Filing Actions by Lessees that May Affect Your Security Interest”, 21 Journal of Equipment Lease Financing No. 1, 44
• “Lease Vs. Loan Analysis Under the Uniform Commercial Code,” Monitordaily (July 2003)
• “Taking Assignments of Leases: Precautionary Measures for Funders,” Monitordaily (June 2003)
• “Revised Article 9: What Will Cost you $500,” Monitordaily (April 2003)
• “Certificates of Acceptance, Purchase Money Security Interests and Partial Deliveries: Oh My!,” Monitordaily (February 2003)
• “E-Sign: a Necessary Element of E-Commerce Legislation Impacting the Leasing Industry,” Monitordaily (2002)
• Insurance and Proof of Coverage: Are Your Certificates of Insurance Worth Anything?, LJN’s Equipment Leasing, 2001