Secured Lending to Foreign Borrowers: UCC Perfection, Enforcement Risks, and Conflict-of-Laws Issues

Recording of a 90-minute premium CLE webinar with Q&A


Conducted on Wednesday, October 14, 2020

Recorded event now available

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Program Materials

This CLE webinar will analyze the Uniform Commercial Code (UCC) provisions applicable to cross-border financing transactions and discuss some of the enforcement and conflict-of-laws challenges lenders and finance counsel should understand when structuring a secured transaction involving a foreign obligor or foreign collateral.

Description

Cross-border lending activity is on the rise, with an increase in both the number of loans made to foreign borrowers, or to U.S. borrowers with foreign guarantors and often secured by foreign collateral. A secured lender in the United States entering into a transaction with one or more foreign obligors must comply with the provisions of the UCC in order to perfect its security interests in the assets of foreign obligors.

UCC Section 9-307 sets out the rules for determining the "location" of U.S. and foreign obligors based on entity type, the jurisdiction of formation, and place of business. U.S. secured creditors typically file UCC financing statements in the formation state of domestic obligors, but Section 9-307(c) provides an exception to the general rule for certain foreign obligors. A foreign obligor whose place of business or chief executive office is located in a jurisdiction with a UCC-style public recordation system is deemed to be "located" in Washington, D.C.

In addition to the UCC analysis regarding rules for perfecting security interests in foreign obligors' assets, secured lenders in cross-border transactions should also consider potential enforcement risks and conflict-of-laws issues. A U.S. secured lender cannot assume that a foreign court would recognize the attachment, perfection, or priority of a security interest created under the UCC. Under applicable conflict-of-laws principles for most tangible collateral, the "location of the debtor" rule only governs perfection and not the effect of perfection or non-perfection, or the priority of security interests.

Listen as our authoritative panel discusses the nuances of UCC perfection in cross-border transactions. The panel will also discuss the application of the UCC in foreign jurisdictions, including conflict-of-laws and enforcement issues to consider.

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Outline

  1. Creating and perfecting a security interest under the UCC: applicability across borders generally
  2. UCC Section 9-307 (b) and (e): general rules for determining the "location" of the obligor
  3. UCC Section 9-307(c): foreign obligors
  4. Application of UCC location rules in hypotheticals
  5. Enforcement risks and conflict-of-laws issues in cross-border transactions

Benefits

The panel will review these and other essential questions:

  • How is the "location" of a U.S. borrower generally determined for filing purposes under the UCC?
  • How do the location and perfection and priority rules vary for foreign borrowers?
  • Can UCC security interests be enforced in foreign jurisdictions? How should conflict-of-laws issues be addressed?

Faculty

Bouslog, Matthew
Matthew G. Bouslog

Attorney
Gibson, Dunn & Crutcher

Mr. Bouslog practices in the firm’s Business Restructuring and Reorganization Practice Group.  He...  |  Read More

Smith, Edwin
Edwin E. Smith

Partner
Morgan, Lewis & Bockius

Mr. Smith concentrates his practice in commercial law, debt financings, structured financings, workouts, bankruptcies,...  |  Read More

Weise, Steven
Steven O. Weise

Partner
Proskauer Rose

Mr. Weise practices in all areas of commercial law and has extensive experience in financing, especially in those...  |  Read More

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