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Secured Transactions 2017: What Lawyers Need to Know About UCC Article 9


Speaker(s): Darrell W. Pierce, Edwin E. Smith, Kenneth Chin, Kenneth J. Carl (Invited), Lynn A. Soukup, Penelope L. Christophorou, Sandra M. Rocks, Sandra S. Stern, Stephen D. Zide, Steven O. Weise, Tarik J. Haskins
Recorded on: Jan. 11, 2017
PLI Program #: 185950

Penelope L. Christophorou is counsel at Cleary Gottlieb Steen & Hamilton LLP, based in its New York office.  Ms. Christophorou’s practice focuses on commercial financing, including secured transactions and bankruptcy law, derivative products and structured finance.  She represents leading financial institutions, corporate borrowers, private investment funds and sovereign clients on these matters.

Ms. Christophorou is a frequent speaker or chairperson at leading conferences on matters involving commercial finance.

Ms. Christophorou is presently President of the American College of Commercial Finance Lawyers, a professional association of lawyers, jurists and academics in commercial finance law.

Ms. Christophorou is Secretary of the American Bar Association Business Law Section.  From 2009 to 2012, Ms. Christophorou was the chairperson of the Uniform Commercial Code Committee of the ABA’s Business Law Section.  She previously was chairperson of its Investment Securities Subcommittee. 

Ms. Christophorou served as chairperson from 2000 to 2003 of the Uniform State Laws Committee of The Association of the Bar of the City of New York. 

Ms. Christophorou is on the Board of Directors for the Citizens Union, a non-profit organization that works to enhance good governance in New York City and New York State.

Ms. Christophorou received a J.D. degree, magna cum laude, from Harvard Law School and an undergraduate degree, magna cum laude, from the Georgetown University School of Foreign Service. From 1994 through 1995, Ms. Christophorou served as law clerk to the Honorable Joanna Seybert in the U.S. District Court, Eastern District of New York.

Ms. Christophorou is a member of the Bar in New York. Ms. Christophorou’s native language is English, and she is fluent in modern Greek.


lynn.soukup@pillsburylaw.com

Lynn A. Soukup is a partner in the Finance Group at Pillsbury Winthrop Shaw Pittman LLP.  Her practice focuses on complex financing transactions, including secured lending, sports finance and structured finance, offerings of debt securities and default and insolvency-related matters.

Lynn chaired the ABA Business Law Section’s Commercial Finance Committee from 2007-2010, and was a member of the Drafting Committee that prepared the Section’s comment letter to FASB on legal isolation issues, the Section’s Working Group on SEC Asset Backed Securities Proposal and the Section’s Task Force on Deposit Account Control Agreements.  Lynn also served as chair of the Section’s Investment Securities Subcommittee (dealing with issues that affect financing transactions, including investment securities as collateral and mezzanine financing of real estate) and on the ALI-ABA Commercial Law Advisory Panel.

Lynn has served as the President and on the Executive Committee of the American College of Commercial Finance Lawyers, and is an ex officio member of the Board of Regents of the College.  Lynn is an emeritus member of The TriBar Opinion Committee and an elected member of the American Law Institute.

Additional information about Lynn’s speaking and writing can be found at http://www.pillsburylaw.com/lynn-soukup.


srocks@cgsh.com

Ms. Rocks' practice focuses on commercial financing, including secured transaction and bankruptcy law.  Ms. Rocks joined the firm in 1980 and became counsel in 1990.  She received a J.D. degree in 1979 from Columbia University, where she was a member of the Law Review.  She received an undergraduate degree, summa cum laude, from Susquehanna University in 1975.

Ms. Rocks currently serves on the TriBar Committee on Legal Opinions and participated in the preparation of TriBar’s original and updated reports on security interest opinions under Article 9 of the Uniform Commercial Code (“UCC”).  She is the ABA Advisor to the Drafting Committee for the Article 8 Companion Act to the Uniform Regulation of Virtual-Currency Businesses Act drafted by the National Conference of  Commissioners on Uniform State Laws.  Ms. Rocks previously served as Chair of the Task Force on Cleared Swaps of the ABA Business Law Section UCC Committee, as Co-chair of the Investment Securities Sub-Committee of the UCC Committee and as Chair of the International Commercial Law Subcommittee of the UCC Committee.  From 2005 through 2008 she served as ABA Liaison-Advisor to the Permanent Editorial Board of the Uniform Commercial Code.  Ms. Rocks also served on the Subcommittee on Investment Securities’ Task Force on Proposed Treasury Regulations Governing Book-Entry Securities.  She served as a member of the Securities and Exchange Commission's Market Transactions Advisory Committee, established to advise ways in which to reduce risk in the efficient clearance and settlement of market transactions, which issued its final report in 1997. 

Ms. Rocks participated on behalf of EMTA (formerly the Emerging Markets Traders Association) in UNIDROIT projects to create Netting Principles and the Convention On Substantive Rules For Intermediated Securities and in the development by The Hague Conference on Private International Law of the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with Intermediaries.  She served on the Subcommittee on Legal Issues of the Group of 30 Global Monitoring Committee (2005) and participated as an industry expert in connection with the United Nations Convention on the Assignment of Receivables in International Trade.

Ms. Rocks is co-author of The ABC's of the UCC, Article 8: Investment Securities, Second Edition. She is a frequent speaker on Articles 8 and 9 of the UCC and related international initiatives.

Ms. Rocks is a member of the American Law Institute and a member of the American College of Commercial Finance Lawyers.   She is a member of the Bar in New York.


Darrell Pierce is a member of Dykema’s Corporate Finance group.  He focuses his practice in the areas of commercial and corporate finance law, handling debt finance transactions, restructurings and workouts.  He is a member of the group’s opinion committee, a co-leader of the firm's Lending Team, and supervises the firm’s UCC Filing Team.  He served as a member of the Article 9 Study Committee, as Chair of the Article 9 Filing Project and as a consultant to the International Association of Commercial Administrators in connection with the development of their Model Administrative Rules for Article 9 filing offices.  He serves as Co-Chair of the ABA’s Filing Office Operations and Search Logic Task Force and as Chair of the Uniform Commercial Code Committee for the Business Law Section of the State Bar of Michigan.  Darrell is a member of the American Law Institute and a Regent of the American College of Commercial Finance Lawyers. 


Edwin E. Smith is a partner in the New York City and Boston offices of Morgan, Lewis & Bockius LLP.  He concentrates his practice in general commercial and insolvency law.  He has been a member of the teaching faculty at the Morin Center for Banking Law Studies at Boston University Law School, where he has taught secured transactions and transnational lending and trade finance.  He has also served as a lecturer on secured transactions at Northeastern University Law School of Law, Harvard Law School and Suffolk Law School. As a Uniform Law Commissioner for the Commonwealth of Massachusetts, he has served as a member of the drafting committees for the 1995 revisions of Article 5 (letters of credit) and the 1999 revisions of Article 9 (secured transactions) of the Uniform Commercial Code and as the chair of the drafting committees that formulated the 2002 amendments to Articles 3 (negotiable instruments) and 4 (bank deposits and collections) of the Uniform Commercial Code, the 2010 amendments to Article 9 (secured transactions) of the Uniform Commercial Code,  the 2014 amendments to the Uniform Voidable Transactions Act (formerly the Uniform Fraudulent Transfer Act) and the 2018 Amendments to Articles 1, 3, 8 and 9 of the Uniform Commercial Code to address electronic mortgage notes secured by residential real property and registered in a federal registry. 

He has also served on the drafting committees for the Uniform Certificate of Title Act (2005), the Uniform Assignment of Rents Act (2005), the Uniform Manufactured Housing Act (2012), the Uniform Limited Liability Company Protected Series Act (2017), the Uniform Regulation of Virtual-Currency Businesses Act (2017), and the Uniform Supplemental Commercial Law for the Uniform Regulation of Virtual-Currency Businesses Act (2018). 

Mr. Smith is currently serving as the chair of the Permanent Editorial Board for the Uniform Commercial Code. He is a past Chair of the Uniform Commercial Code Committee of the Business Law Section of the American Bar Association and a past member of the Council for the Business Law Section.  He also served as a U.S. delegate on the United Nations Convention on the Assignment of Receivables in International Trade and as a U.S. delegate to the United Nations Commission on International Trade Law (UNCITRAL) working group on creating a secured transactions guide for legislation in United Nations member countries.  He is a member of the American Law Institute, the National Bankruptcy Conference (for which he serves on the executive committee), the American College of Bankruptcy (for which he recently served as a member on the board of directors and as chair of the Policy Committee) and the International Insolvency Institute and is a past President of the American College of Commercial Finance Lawyers. 

He is a graduate of Yale University and Harvard Law School.


Stephen D. Zide represents a diverse range of clients in Chapter 11 bankruptcy cases and out-of-court corporate restructuring matters. Stephen has been involved in many of the most high-profile restructurings over the past ten years. His clients include both official and ad hoc creditor and equity committees, debtors, bondholders, investors, and secured lenders.

On the creditor side, Stephen’s work includes investigating, litigating and settling fraudulent conveyance, breach of fiduciary duty, valuation and other disputes; drafting, negotiating and litigating Chapter 11 plans; analyzing, negotiating and litigating intercreditor disputes; negotiating and litigating cash collateral orders, debtor-in-possession/exit financing and equity commitment agreements; and developing, negotiating and implementing rights offerings. Stephen also advises funds on investments in distressed and bankrupt companies with complex corporate and capital structures, including credit and indenture analysis.

Stephen’s recent creditor work includes representing the Official Committee of Unsecured Creditors in the bankruptcy cases of Toys “R” Us; funds holding more than $1.6 billion of unsecured notes in the bankruptcy of Peabody Energy Corp., the world’s largest private-sector coal company; noteholders of MBIA Insurance Corp. in connection with the issuance of $328 million of new secured notes; Luxor Capital Group LP, as the largest unsecured creditor in the bankruptcy case of RCS Capital Corp.; funds holding $120 million of municipal bonds in connection with the bankruptcy of the Revel Resort and Casino in Atlantic City; the Official Committee of Unsecured Creditors in the bankruptcy of NII Holdings Inc.

Stephen’s creditor practice is complemented by his experience representing distressed companies. Stephen’s recent debtor work includes representing Genco Shipping & Trading in its prepackaged Chapter 11 bankruptcy, which restructured approximately $1.4 billion of Genco’s debt; and General Maritime in its Chapter 11 bankruptcy filing that enabled it to emerge from bankruptcy in less than six months and eliminate $600 million of financial debt.

Stephen was named an Outstanding Young Restructuring Lawyer (one of 12) by Turnarounds & Workouts in 2015, one of M&A Advisor’s 40 Under 40 in the Legal Advisor category for 2015, one of seven Law360 Rising Stars in 2016 in the field of bankruptcy law and a Super Lawyer Rising Star for 2014 – 2017.


Tarik J. Haskins is a partner in the Commercial Law Counseling Group. His practice covers a range of commercial transactions including mergers and acquisitions, secured financings, joint ventures, securitizations, and business counseling.

Tarik also focuses on organizational and operational issues related to limited liability companies, limited partnerships and statutory trusts. He also regularly represents sponsors and conflicts committees of master limited partnerships. He is involved in the preparation of third-party legal opinions in connection with a range of transactional matters, and he regularly counsels other attorneys domestically and internationally on matters relating to Delaware partnerships, limited liability companies and statutory trusts. Tarik also serves on the Firm’s Executive Committee and Diversity Committee.

Education

  • J.D., 2003, University of Cincinnati College of Law
    • University of Cincinnati Law Review, Editor-in-Chief
  • B.A., 1998, Clark-Atlanta University

Clerkships

Law Clerk to the Honorable E. Norman Veasey, Chief Justice, Delaware Supreme Court, 2003-2004

Admissions to Practice: Delaware, 2003; Pennsylvania, 2004

Professional Activities

  • American Bar Association (Business Law Section; Chair of the Secured Lending Subcommittee of the Commercial Finance Committee, Managing Editor, Business Law Today, Committee on Mergers and Acquisitions, Revised Model Asset Purchase Agreement Task Force, Joint Task Force on Security Interest in LLC and Other Unincorporated Entity Interest)
  • American Bar Foundation (Fellow)
  • Delaware State Bar Association (Statutory Trust Committee and Uniform Commercial Code Subcommittee)

Community Activities

Delaware Council of Development Finance


Admitted: Massachusetts; Minnesota; New York; U.S. District Court, District of Minnesota; U.S. Court of Appeals, Eighth Circuit

Law School: Harvard Law School, LL.B.
College: Goucher College, B.A., highest honors.

                                                                                                                            
In private practice since 1994, concentrating in commercial finance, including secured transactions and letters of credit. Ms. Stern counsels commercial banks and nonbank lenders as well as corporate borrowers.

Previously: Senior Vice President and General Counsel, Banco Santander, 1993-1994. First Vice President and Deputy General Counsel, Republic National Bank of New York, 1980-1993.

Author: “Structuring and Drafting Commercial Loan Agreements” LexisNexis; “Structuring Loan Participations,” A.S. Pratt.

Appointments: Commissioner, Uniform Law Commission, 1992, elected Life Member, 2012; Drafting Committee to Revise Uniform Commercial Code Article 5, Letters of Credit, 1993-; Drafting Committee to Revise Uniform Commercial Code Article 7, Documents of Title, 2000-; Drafting Committee to Revise Uniform Commercial Code Article 9, Secured Transactions, 1994-; Committee to Revise Articles 1,3, and 9 (present);  Drafting Committee on Uniform Money Services Act, 1996-1999; Chair, Study Committee on Payment Systems, 2006-; Uniform Commercial Code Committee, 2010-.

Expert Witness testimony in: Subaru Distributors Corp. v. Subaru of America, Inc., United States District Court, Southern District of New York, 98 Civ. 5566, 2002 Westlaw 413808, March 18, 2002 and In re CRIIMI MAE INC., et. al., United States Bankruptcy Court, District of Maryland, Bankruptcy Case No. 98-2-3115-DK.

Fellow: American College of Commercial Finance Lawyers, 1995-.

Member: The Association of the Bar of the City of New York (Member, Committee on Uniform State Laws, 1999-2005); New York State Bar Association (Chair, Business Law Section, 1998-1999; Chair, Banking Law Committee of Business Law Section, 1990-1994); New York County Lawyers' Association (Chair, Banking Law Committee, 1986-1989); New York State Bankers Association (Member, Lawyers Advisory Committee on Legislation and Regulation, 1990-1993).


Kenneth Chin counsels and represents lenders and borrowers in connection with corporate and financing transactions.

For over 30 years, Mr. Chin has provided legal and transactional advice to a diverse group of clients, including many of the world’s leading commercial banks; investment banks; debt fund affiliates of major hedge funds and private equity firms; other alternative lenders; and borrowers, in large complex transactions such as leveraged financings, leveraged buyouts, recapitalizations, acquisitions, refinancings, debtor-in-possession financings, workouts and foreclosures.  Mr. Chin’s work on behalf of these clients includes:  secured credit facilities for cash flow loans, asset-based loans and reserve-based loans; bridge loan facilities; second lien facilities; high-yield bond offerings; convertible bond offerings; securitization facilities; insurance premium finance facilities; debtor-in-possession facilities; and mezzanine facilities.

Among his most notable work, Mr. Chin represented the agent and arranger in connection with a $1.5 billion credit facility to a financial institution and $1.1 billion in term and revolving loan facilities to a group of manufacturing companies. He also represented Alvogen and its affiliates in connection with approximately $900 million of credit facilities and Gener8 Maritime in connection with over $2 billion of vessel financings.

Mr. Chin is a regent and fellow of the American College of Commercial Finance Lawyers.  Chambers USA has also recognized him in the areas of banking and finance, lauding him as a lawyer who, according to clients, is “very knowledgeable” and “very creative … in finding solutions,” and who “takes very good care of clients” (Chambers USA 2014).  He was named one of 50 Outstanding Asian Americans in Business by the Asian American Business Development Center.


Steven Weise practices in all areas of commercial law, with an emphasis on financings.  Steve is a member of the Permanent Editorial Board for the Uniform Commercial Code and a member of the Council of the American Law Institute.  He is a member of the current UCC Articles 1, 3, 9 + Electronic Registry for Mortgage Notes Drafting Committee.  He was a member of the Drafting Committee on Amendments to Uniform Commercial Code Article 9 (2010) and was the American Bar Association’s Advisor to the Uniform Commercial Code Article 9 Drafting Committee (1993 – 1999).  He is the American Bar Association’s Representative to the United Nations Commission on International Trade Law’s Working Group on Security Interests and was the Reporter for National Conference of Commissioners on Uniform State Laws – American Law Institute Drafting Committee to Harmonize North American Law with Regard to the Assignment of Receivables in International Trade Convention.  He was a member of the U.S. Delegation to the UNIDROIT Model Law on Leasing project.

He was the Chair of the Business Law Section of the American Bar Association. Steve is a past chair of its Committee on Personal Property Secured Financing and a past chair of its Committee on Legal Opinions.  He is also a member of the New York TriBar Opinion Committee.  He was the Reporter for the TriBar Report on UCC Security Interest Opinions, the TriBar Report on Opinions on Secondary Sales of Securities (UCC Article 8), and the American Bar Association’s Legal Opinion Principles and Guidelines for the Preparation of Closing Opinions.  He is the former chair of the Executive Committee of the Business Law Section of the California State Bar and is the past Chair of its Committee on the Uniform Commercial Code.  He is the author of extensive Annual Updates on Commercial Law published by the American Bar Association and the State Bar of California. He also publishes articles on personal property secured transactions in the American Bar Association publication The Business Lawyer and lectures widely on commercial law topics, contract drafting (including use of “plain English”), and legal opinion letters.

Steve has received Lifetime Achievement Awards from the American College of Commercial Finance Lawyers, the American Bar Association (Uniform Commercial Code Committee of the Business Law Section), and the Business Law Section of the State Bar of California.

Education

Yale University (B.A., 1971); University of California, Berkeley, Boalt Hall School of Law (J.D., 1974).


Mr. Carl focuses on lender and borrower representation in financing transactions (both secured and unsecured), real property acquisitions, loan workouts, and bankruptcy. For the past 32 years, he has worked on financings and acquisitions in dollar amounts ranging from $1 million to over $4 billion involving entities in various industries, including aerospace, engineering, hospitality, gaming, food distribution, retail, entertainment, electronics, agriculture, homebuilding, and self-storage. He is the Co-Chairman of the State Bar of California Opinions Committee and a member of its Steering Committee, has extensive experience in bank regulatory matters, and frequently advises clients regarding California's usury prohibitions (and exemptions).

Mr. Carl received his J.D. from Harvard Law School in 1985. In 1982, he received his A.M. and A.B. (with honors), both in Economics, from the University of Chicago. He is a member of Phi Beta Kappa and is admitted to practice in California, New York, and Illinois.

E-MAIL:   kcarl@sheppardmullin.com