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JOIN THE COMMERCIAL FINANCE COMMITTEE ONLINE!
FREE FOR ALL BUSINESS LAW MEMBERS
JOIN THE UNIFORM COMMERCIAL CODE COMMITTEE ONLINE!
FREE FOR ALL BUSINESS LAW MEMBERS
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Messages from the Chairs
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Committee on Uniform Commercial Code
Stephen L. Sepinuck, Chair, Gonzaga University School of Law
The UCC Committee is continually striving to provide its members on a
timely basis with important information about developments in commercial law and
commercial practice. Anyone with a suggestion for a project the Committee should
undertake or with an idea about how the Committee can better fulfill its mission
should contact me.
Legislative Update
Secured Transactions
The Joint Review Committee for Article 9 of the Uniform Commercial Code met
at the Hilton Portland and Executive Tower in Portland, Oregon on February 6-8, 2009. The meeting
was open to all those interested. The Joint Review Committee will also meet March 6-8 in Chicago.
For those who cannot attend the meetings, a report on the Joint Review Committee's
deliberations and tentative decisions will be available on the UCC Committee's web page.
More...
Committee on Commercial Finance
Lynn Soukup, Chair, Pillsbury Winthrop Shaw Pittman LLP
Spring Ahead!
The Spring Meeting will be held April 16-18, 2009 in Vancouver, BC. As
usual, we'll have a full schedule of CLE programs and subcommittee and
task force meetings beginning on the morning of Thursday April 16th and
ending on the afternoon of Saturday April 18th. The
planned schedule is attached and a final schedule will be distributed closer in time
to the meeting date.
More...
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Mark Your Calendars
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February 25, 2009 - Loan Restructuring: Let's Make a (New) Deal
This program focuses on pre-bankruptcy and workout due diligence, issues
surrounding the explosion of second lien financings and current
issues in securing cash collateral and/or DIP financing. Details and
registration information are available
here.
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March 6-8, 2009 - Joint Review Committee for Article 9 Meeting -
Chicago, Illinois
The Joint Review Committee for Article 9 of the Uniform Commercial Code's
next meeting has been scheduled for March 6-8 in Chicago. Additional
information will be available on the UCC Committee's
website.
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March 16, 2009 - Healthcare and Government Receivables - New York, New
York
Led by moderator Ellen Levine, this evening meeting of the Association of Commercial Finance Attorneys will begin with a
networking cocktail party and be followed by a CLE presentation from 5:45
pm to 7:00 pm at the 101 Club, 101 Park Avenue, New York, New York.
Additional information is available
here.
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March 25, 2009 - Nightmare on Main Street - What Keeps Lenders up at
Night?
Details of the CLE "Nightmare on
Main Street - What Keeps Lenders up at Night?", presented by ComFin, will be available
here soon.
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April 16-18, 2009 - Section of Business Law Spring Meeting - Vancouver,
British Columbia
Please join ComFin in Vancouver for CLE programs, subcommittee and taskforce meetings and
our committee dinner on Thursday April 16th. Our CLE programs will cover the syndicated
loan market, cross-border insolvency laws affecting transaction planning and the annual review
of commercial law developments, each with a Canadian law component. Registration and hotel
information is available on the ABA Section of Business Law's 2009 Spring Meeting
website and
the dinner reservation form can be accessed here.
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May 4 -5, 2009 - Commercial Loan Workouts: Where Credit Meets the Law -
Las Vegas, Nevada
Former ComFin Committee Chair Bob Zadek will present a hands-on, in-depth
commercial loan workout conference. Additional information is available
here.
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June 10-12, 2009 - Global Business Law Forum - Hong Kong, China
The theme for the 2nd Annual Global Business Law Forum will be
"legal developments impacting companies doing business in Asia and
the Pacific Rim." More information is available
here.
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June 29-30, 2009 - Commercial Loan Workouts: Where Credit Meets the Law
- Chicago, Illinois
In case you missed this CLE in May, former ComFin Committee Chair Bob Zadek
will present an encore of his hands-on, in-depth commercial loan workout
conference. Additional information is available
here.
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July 30, 2009 - ABA Annual Meeting - Chicago, Illinois
The 2009 ABA Annual Meeting will be held in the "Windy City."
Consistent with previous years, we expect a number of exciting CLE
programs, committee and subcommittee meetings and social events.
Registration and other information will be announced soon. Please contact
your subcommittee or task force chairs to get involved.
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Featured Articles
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Manhattan Federal Court Enforces 'Clear' Terms of Credit Default Swap Contract
Rick B. Antonoff, Edward Flanders, William C.F. Kurz, David M. Lindley and James G. Wheaton, Pillsbury Winthrop Shaw Pittman LLP
On November 5, 2008, Judge Barbara Jones of the Southern District of New
York issued an important decision in a case involving a credit default swap
(CDS), finding that Citibank N.A. (Citibank)—the credit protection
buyer under the CDS—was entitled to certain payments from the credit
protection seller, VCG Special Opportunities Master Fund Limited (VCG), and
granting Citibank judgment on the pleadings. The decision in VCG Special
Opportunities Fund v. Citibank, N.A., Docket No. 08-CV-01563, reinforces
the likelihood that courts will strictly construe CDS agreements and uphold
them as a matter of law.
More...
Warrants: Key Issues and Current Practice
Michael D. Schiffer and Robert S. Fraley, Venable LLP
Due to senior lenders tightening the credit market over the past year,
junior capital is playing an increasing role in the capital structure.
With the increased need for junior capital and the increased risk to be
borne by junior lenders, warrants are again becoming a common component of
mezzanine financing transactions. We, therefore, thought this to be an
appropriate time to review some of the key issues related to warrants -
namely dilution protection and put rights, change of control rights and the
original issue discount.
More...
Recent Trends in Second Lien Loans
Dana S. Armagno, Marie H. Godush, Kathryn L. Stevens and Michael M. Eidelman, Vedder Price P.C.
Over the past several years, lenders have offered borrowers many
alternative financing vehicles as options for financing their acquisitions,
corporate restructurings or operations. The creative and complex financing
structures that resulted gave rise to many different classes and types of
lien priorities. As senior debt became more affordable due to a prolonged
period of low interest rates and as traditional banks and other
nontraditional investors, such as private equity sponsors, hedge funds, and
distressed debt funds, competed to provide these various layers of
structured financing, the result was a marked increase in junior debt
secured by a second lien.
More...
NCCUSL Proposes Revisions to Uniform Common Interest Ownership Act
Kathleen J. Hopkins, Real Property Law Group, PLLC
At the February 16, 2009 meeting of the ABA House of Delegates NCCUSL is
presenting Resolution 102D - which seeks to revise the Uniform Common
Interest Ownership Act. (UCIOA). NCCUSL resolutions are up/down votes and
amendments are not made on the floor of the house. This article discusses
the resolution and identifies an area where there would be an impact on
real estate finance lawyers and their clients. Many of the changes
proposed by NCCUSL to UCIOA address aspects of owner association
governance, including the association's relationship with individual
members, foreclosures, election and recall of officers and treatment of
records.
More...
An Update on the FATF Guidance for Legal Professionals and Development of Good Practice Guidelines
Kathleen J. Hopkins, Real Property Law Group, PLLC
In 1989 the G-7 ministers issued an Economic Declaration covering numerous
issues concerning international monetary developments. In connection with
this declaration, the leaders agreed to the creation of the Financial
Action Task Force on Money Laundering ("FATF") which was tasked
with coordinating efforts to prevent money laundering in both domestic and
international arenas. The FATF has 34 members: 32 countries and
territories and 2 regional organizations. At the 1999 meeting of the G-8
finance ministers, they coined the term "gatekeeper" in their
communiqué calling for countries to consider various means to address money
laundering through the efforts of professional gatekeepers of the
international financial system, including lawyers, accountants, company
formation agents, notaries and others.
More...
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New! Synergy Group Report
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The Commercial Finance Committee, acting on behalf of the Section of
Business Law, has joined the "Synergy Group," a collection of
various professional groups in the finance and real estate disciplines.
Neal Kling, one of ComFin's Vice Chairs, and Kathleen Hopkins, Chair of
ComFin's Real Estate Financing Subcommittee, are the ComFin representatives
of the Group. The Group recently met in San Francisco, California on
Wednesday, October 22, 2008. The next meeting will be held in Chicago,
Illinois, in conjunction with the 2009 ABA Annual Meeting.
The Group is presently working to develop good practices guidance for
transactional lawyers as a follow-up to the lawyer guidance recently issued
by the Financial Action Task Force (FATF). Kathleen Hopkins is leading
ComFin's efforts with respect to this project.
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Committee on Uniform Commercial Code: Spotlight
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January 2009
Stephen L. Sepinuck, UCC Committee Chair
Kristen Adams, Chair, Subcommittee on General Provisions & Relations to Other Law
The purpose of this column is to identify some of the most disconcerting judicial
decisions interpreting the Uniform Commercial Code or related commercial laws.
The purpose of the column is not to be mean. It is not to get judges recalled, law
clerks fired, or litigators disciplined for incompetence. Instead, it is to shine a
spotlight on analytical errors, and thereby provide practitioners and judges with
reason to disregard the opinion.
Bank of Dawson v. Worth Gin Co.,
2008 WL 5049950 (Ga. Ct. App. 2008)
The case involved a dispute between Bank of Dawson, which made a loan to a cotton farmer
secured by the farmer's crop, and Worth Gin Company, which purchased the crop. Worth Gin made
its check for the crop payable jointly to both the debtor and the Bank, but in doing so it deducted
amounts that the debtor owed to both Worth Gin and a separate farm supply company controlled by
the same person. The Bank sued Worth Gin in conversion for the amount deducted.
More...
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Committee on Uniform Commercial Code: Subcommittee Reports and
Task Force Reports
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Committee on Commercial Finance: Subcommittee and Task Force Reports
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Joint Subcommittee and Task Force Reports
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Useful Links and Websites
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Compiled by Carol Nulty Doody, Uniform Commercial Code Committee Editor
Please find below a list of electronic links that our members may find useful:
Pace University's database of CISG United Nations Convention on Contracts for the International Sale of Goods
decisions can be accessed at
http://cisgw3.law.pace.edu. The International Association of Commercial Administrators (IACA) maintains links to state model
administrative rules (MARS) and contact information for state level UCC administrators. That information
can be accessed at http://www.iaca.org.
The Uniform Law Commissioners maintains information regarding legislative reports and information
regarding upcoming meetings, including Joint Review Committee for Uniform Commercial Code Article 9.
You can access this information at http://www.nccusl.org/Update/.
In addition, the Commercial Finance Committee's Task Force on Surveys of State Commercial Laws
website links to surveys
of the law of all 50 states (except Connecticut, DC and Puerto Rico).
With your help, our list of electronic resources will continue to grow. Please feel free to forward other electronic resources
you would like to see included in future editions of the Commercial Law Newsletter, by sending them to either Christine Gould Hamm,
the Commercial Finance Editor, or Carol Nulty Doody, the Uniform Commercial Code Editor.
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Committee Leadership Rosters
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