We don’t know. Ortwin’s statement implies offers NO insight; only waffle words. e.g.
“Coutt’s security for our UK Tax Rebate advance”
“to obtain a regular advance against this rebate”
“This security does not affect our UK companies’ ownership and control of their assets”
“and even then the UK companies have ample assets to repay the loan, even in such an eventuality which is of course unthinkable”
For all intent and purposes, it could be for this year’s tax credit, next year, a number of years etc. Nobody knows.
That’s assuming he is telling the truth and that the loan was only toward a tax credit. It could possibly be just a loan, but for which the tax credits only form a part of the collateral. Which would actually explain the list of collateral the bank asked for.
There is a lot of complete nonsense being asserted in this thread, so I will try to set things straight:
software is intellectual property. Software is copyright protected: copyright does not need to be asserted or registered - it is automatically owned by the author.
In some countries, such as the U.S., that copyright is automatically owned by employers since employees don’t acquire any rights in work product for an employer. In other countries, such as Canada and the U.K., the employees will by default own the copyright to their work product, so it is important to have written employment contracts to assign those IP rights to the employer automatically (failure to do so is a common problem in M&A transactions in those countries).
whenever a software company is sold or enters into commercial transaction, the software and related rights are often described in great detail separately and not just lumped in with other “intellectual property” - but that’s just done for greater clarity given the importance of that asset and the nature of the company’s business: it does not mean that it would be excluded from a general reference to “intellectual property” owned by the company.
So, assuming you agree with what @Desslock wrote, does that mean Star Citizen is not owned by the bank under this agreement? Is it excluded as collateral in more than name only?
I guess what Derek means is that, without clear definitions, it’s in a limbo. On one hand, IP related to Star Citizen is excluded (and that might include code), but on the other hand, source code is explicitely named (programmes) in the collaterals list as included, so which one applies is open to interpretation. In other terms, if CIG defaults, they’ll likely only know how big the damage was after a lengthy legal battle, unless those things are very clearly defined elsewhere, in some document (that’s part of the loan agreement) that was not made public.
If one was to accept that Intellectual Property includes the code, and that “Excluded Collateral” includes all intellectual property with respect to Star Citizen, and that the Excluded Collateral is excluded in all cases from the collateral under the definition of “Collateral”, then I’m not sure how you could interpret the code for Star Citizen as being part of the collateral.
If you were to accept that IP includes the code, then it seems like all you’re left with is whether the agreement was made in good faith.
Not “might”. Does. All of the source and object code is intellectual property.
No, it is not open to interpretation.
There is always going to be overlap. That’s the point of defining the exclusion. You would never define stuff as excluded, which didn’t already fit within the set of what is included.
You define what’s included, and then you define what portion of that set of property is excluded. The final result is the set of property defined, minus anything the exclusion section.
Again, that’s how such exclusion clauses work. Always.
The idea that the exclusion section wouldn’t take precedence is nonsensical, as it would make the exclusion section literally pointless.
It’d be like you saying, “I’m going to sell you my house, and everything inside, except my clothes” and then me arguing that I get your clothes, because they are in the house, and that takes precedence over you saying “except my clothes”.
To be fair, the often frustratingly self-referential points being made above are more like, to use your example, selling your house but retaining your foundation. Their argument is that even if that is specified as such, it isn’t separable in practice.
And the bank doesn’t “own” anything. They have a “controlling interest” as per the charge. They will only own it if the loan defaults, and they succeed in securing the collateral through a court order.
Exactly. I’ve repeated this so many times, even used the word “ambiguous”. Instead, some people are trying to tell me - a 30 yr industry vet who has seen/signed his share of contracts - that “Intellectual Property” always or usually includes “source code” and “software”. This despite the fact the bank went to great lengths to itemized everything that could remotely be related to the Intellectual Property tied to Game (which we assumed to be SQ42).
My opinion remains that if this loan defaults, they are going to end up disputing whether or not the Star Citizen code, tech, assets etc which are used in SQ42, are part of that collateral, and whether or not that implies attachment to SC as well. Why? Because they didn’t clearly define what consists “Star Citizen” IP, as they did “Squadron 42”, the tax credits. etc. And that could be because the bank doesn’t really understand that SQ42 is built from SC. They think they are two separate games in name, code etc. They are not.
That’s why smart attorneys don’t “assume”. They list it clearly, without any ambiguity. IP related lawsuits have erupted over less. You know this I think.
I thought my response Desslock was clear and devoid of confusion. Here, let me quote his whole post again, this time highlight the point of contention and you - and some others - keep blissfully ignoring, despite many attempts by myself and one or two others to explain it.
There is a lot of complete nonsense being asserted in this thread, so I will try to set things straight:
software is intellectual property. Software is copyright protected: copyright does not need to be asserted or registered - >it is automatically owned by the author.
In some countries, such as the U.S., that copyright is automatically owned by employers since employees don’t acquire >any rights in work product for an employer. In other countries, such as Canada and the U.S., the employees will by >default own the copyright to their work product, so it is important to have written employment contracts to assign those >IP rights to the employer automatically (failure to do so is a common problem in M&A transactions in those countries). whenever a software company is sold or enters into commercial transaction, the software and related rights are often >described in great detail separately and not just lumped in with other “intellectual property” - but that’s just done for >greater clarity given the importance of that asset and the nature of the company’s business: it does not mean that it >would be excluded from a general reference to “intellectual property” owned by the company.
My commentary about SC being excluded because it is referenced as “Intellectual Property” is that it’s absolutely NOT the case. And that without such clarity, any dispute is going to end up in litigation. Why? Because by including source code, digital media and similar, to “include” in SQ42, automatically calls into question whether or not the code from SC - which SQ42 uses - is included or excluded.
And because SC wasn’t detailed in what was excluded, I maintain that they unwittingly included it by way of the fact that SQ42 is built from SC.
