When is an asset not just an asset? Always

When a deal lawyer sees an asset, they don’t just see an asset, they see real estate, an account receivable, equipment, inventory, a trademark, a general intangible, or one of many other classifications. This urge to categorize isn’t due to our compulsive tendencies as lawyers (mostly), but is instead due to the potentially significant legal and practical consequences of asset categorization. For example, transferring title to, or creating a security interest in, a parcel of real estate and an item of equipment requires different steps dictated by different bodies of law (real property law and the Uniform Commercial Code, respectively). Another example: a client whose ability to sell assets is restricted by a covenant in a bond indenture wants to take advantage of an exception in the covenant for sales of inventory in the ordinary course of business. In order to advise them properly, we need to be able to determine whether what they are proposing to sell is inventory, instead of equipment or some other category of asset.

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