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A Practical Guide To Asset-Based Lending and UCC Article 9

- Location -
Herrick, Feinstein LLP
2 Park Avenue
New York, NY 10016

3.5 Total Credits
3.0 credit hours in professional practice; 0.5 credit hour in skills
This program has been approved for MCLE credit by the State of New York for all attorneys,
including newly admitted (less than 24 months).

Description

Asset-based lending transactions often involve the creation, perfection and enforcement of security interests in a wide range of property, with related tax and bankruptcy issues.

This timely seminar will highlight the current state of the law governing secured transactions under UCC Article 9 and the broad scope of collateral and transactions subject to this article. Through a series of panel discussions and presentations, the speakers, knowledgeable of the complexities in this area of law, will offer practical guidance on Article 9’s many issues and procedures, especially how they may apply in today’s uncertain economic environment.

Given the broad applicability and reach of Article 9, virtually all commercial lawyers could be handling transactions governed or affected by it. This seminar will give you a solid grasp of Article 9’s operation today and in the months ahead to help you to better advise your clients, whether you represent debtors or creditors.

Program Agenda

8:30-9:00 a.m. REGISTRATION (outside meeting room)

 Welcome and Introduction of Panelists

9:00-9:20 I. INTRODUCTION AND OVERVIEW

                    A. What is Article 9?
                    B. Examples of Secured Financial Transactions subject to Article 9
                    C. “Attachment” and “Perfection” requirements
                    D. Why are we looking at Article 9 now?

9:20-9:45 II. PREPARATION AND FILING OF UCC FINANCING STATEMENTS

                    A. What is a UCC Financing Statement?
                    B. What is its purpose?
                    C. Indications of Collateral
                    D. Summary of where Financing Statements are filed

9:45-9:55 III. FOREIGN FILING SYSTEMS

9:55-10:20 IV. LOAN WORKOUTS AND RESTRUCTURING

                   A.  Loan File Review
                       1. Legal review of loan documents to assess rights to access collateral and credit 
                           enhancements, such as Letters of Credit
                       2. Identify any non-standard provisions that could impact workout negotiations
                       3. Review/update lien status and/or title searches
                   B. Financial Statements
                       1. Review borrower’s cash flows and projections efficiently
                       2. Review management compensation and/or management fees for reasonableness and 
                           determine if other fees are being paid by the borrowing entity
                   C. Management and Operations
                       1. Inspect property and/or collateral, such as accounts receivable records
                       2. Assess capabilities of management
                       3. Assess borrower's ability to compete in the market
                       4. Identify additional sources of financing, if any
                   D. Workout Plan
                       1. Review borrower's management plan for reasonableness starting point
                       2. Develop workout plan
                       3. Structure workout proposal and evaluate viability
                       4. Determine cost of workout to lender versus probable loss assuming bankruptcy
                       5. Identify exit strategy

10:20-10:45 V. DEPOSIT ACCOUNT AND SECURITIES ACCOUNT CONTROL AGREEMENTS

                    A. Business and Risk Issues
                    B. ABA Joint Task Force DACA and Inserts
                    C. Securities Accounts and Investment Sweeps

10:45-11:00 Coffee Break

11:00-11:25 VI. RECENT CASES UNDER ARTICLE 9 AND THEIR SIGNIFICANCE

                    A. National Case Law
                        1. Landmark Cases
                            * Commercial Money Center
                            * Highland Capital
                        2. Other Important Cases in the following areas
                            * Scope of Article 9 and Existence of a Secured Transaction
                            * Attachment
                            * Perfection
                            * Priority
                            * Default and Foreclosure
                     B.  New York Case Law

11:25-11:45 VII. ARTICLE 9 UPDATES

                     A. Introduction to Joint Review Committee for Article 9 of the UCC
                     B. Topics of Interest
                         1. Debtor Name
                         2. Definition of Authenticate; and possible change to UCC comments to provide an example of
                            what is sufficient for an email to be “authenticated”
                         3. Double debtors
                         4. Choice of Law (cross-reference to Article 1 update)

11:45-12:00 noon VIII. ARTICLE 1 UPDATE

                     A. General
                     B. What changes have been adopted
                     C. What proposed changes have not been adopted
                         1. National Status
                     D. Choice of Law / Choice of Forum
                         1. New York Law
                         2. US Virgin Islands adoption (only jurisdiction where adopted)
                         3. Status Update
                     E. Good Faith Provision

12:00-12:05 Wrap-Up and Conclusion

12:05-12:35 Questions and Answers Period

12:35  Adjournment
 
Program Faculty

Shephard W. Melzer, Esq.,  Chair and Moderator, is a partner in the Corporate Department of Herrick, Feinstein LLP. He focuses on asset-based financing and equipment leasing, atop a corporate, finance and commercial law practice. He is an internationally recognized authority on revolving credit and term loan facilities, commercial loan facilities, secured transactions, letters of credit and operating, finance, leveraged and single investor equipment leases. He represents major domestic and foreign financial institutions, lessors, lessees, owners and operators, advising them in structuring and negotiating complex loan, letter of credit, commercial paper, cross-border and other financing facilities. His practice also includes restructurings, workouts and dispute resolution.

Cris T. Kako, Esq., Speaker, is a Senior Vice President and Associate General Counsel at JPMorgan Chase & Co.  His current responsibilities include managing line of business legal support for segments of JPMC’s Commercial Bank and deposit account control agreement policies and forms.  He has held similar positions, as well as other credit-related supervisory positions, in the predecessor banks for over 18 years.  Prior to becoming an in-house attorney, Mr. Kako spent over 11 years at Davis Polk & Wardwell and Skadden, Arps, Slate, Meagher & Flom practicing corporate law.

Bruce P. Levine, Esq., Speaker, is a partner in the Corporate Department of Herrick, Feinstein LLP. He represents lenders and borrowers in domestic and international financing transactions involving all types of secured and unsecured loans in a variety of industries.  His work includes revolving and term loan facilities, asset-based financings, cash flow and subordinated debt financings, leveraged acquisitions, letter of credit facilities and interest rate swaps.  He has extensive experience representing agent banks and syndicate banks in multiple lender credit facilities and advising on complex intercreditor and collateral arrangements.  He also represents lenders and borrowers in mezzanine and second lien lending transactions and structuring cross-border transactions involving multi-currency commitments.  He also advises clients dealing with troubled loans involving work outs, restructurings and bankruptcies, and in connection with debtor-in-possession and exit financings.

Stephen B. Selbst, Esq., Speaker, is a partner in the Bankruptcy Department of Herrick, Feinstein LLP.  He has more than 25 years of experience in all phases of asset-based lending, including loan origination, workouts and bankruptcy.  On the origination side, he has represented lenders in more than $3 billion in loan fundings.  In bankruptcies and workout, he has represented borrowers on more than $2.5 billion in asset-based loans, and on behalf of creditors, more than $4 billion in secured loans.  His experience includes loans and restructurings in such diverse industries as commercial and residential real estate, hospitality, airlines, technology and telecommunications, hospitals, steel, retail, textiles and garment companies, and manufacturing. 

Paul M. Shupack, Esq., Speaker, is Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. For almost 20 years, Professor Shupack has worked extensively on revisions to the Uniform Commercial Code, making contributions to each of its articles. His most extensive work is with Article 9, beginning as a member of the Study Committee. He continued his work on Article 9 as a participant in the drafting process, serving as the co-reporter of the ABA Securitized Asset Task Force. He was the consultant to the New York Law Revision Commission for Article 9 and became the principal drafter of New York's non-uniform provisions of Article 9 governing financing of cooperative apartments. He was on the drafting committee that proposed amendments to UCC Articles 3, 4, and 4A. He is an official observer to the present redrafting of Article 9. He is the co-author of Simon's Guide to Cooperative Organizations under Article 9.

**Please note:  Registrations will not be accepted after 3:00 p.m.

The last day to pre-register online was December 10, 2008.

Members, please login to get member discounts.

Seminar
A Practical Guide To Asset-Based Lending and UCC Article 9	$165.00

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A Practical Guide To Asset-Based Lending and UCC Article 9	$250.00

Seminar
A Practical Guide To Asset-Based Lending and UCC Article 9	$60.00

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NYSBA welcomes participation by individuals with disabilities. NYSBA is committed to complying with all applicable laws that prohibit discrimination against individuals on the basis of disability in the full and equal enjoyment of its goods, services, programs, activities, facilities, privileges, advantages, or accommodations. To request auxiliary aids or services or if you have any questions regarding accessibility, please contact Cindy O'Brien at 800-582-2452 or cobrien@nysba.org.