Security over Collateral. NEW ZEALAND Simpson Grierson

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1 Security over Collateral NEW ZEALAND Simpson Grierson CONTACT INFORMATION Peter Eady Adam Jackson Simpson Grierson 195 Lambton Quay P O Box 2402 Wellington peter.eady@simpsongrierson.com / adam.jackson@simpsongrierson.com 1. Can assets be charged, liened and/or encumbered in your jurisdiction? Please insert any exemptions, if any. All assets can be charged, liened or otherwise encumbered in New Zealand. There is room for debate as to whether or not licences, the transferability of which are restricted by legislation, constitute property and therefore whether they can be subject to security. It at least seems clear that purely personal licences, such as a licence to practice law or medicine, are not property and so are not able to be the subject of a security interest. 2. In your jurisdiction, under what circumstances may security arrangements be subjected to choice of law and/or choice of forum clauses (does it matter, whether the security itself is located abroad and/or governed by foreign law [e.g. a pledged claim])? What is the market practice in your jurisdiction? Is there a treaty on this in your jurisdiction, whether bilateral or multi-lateral? Are there any requirements for enforcement in your jurisdiction? Many conflict of law rules in New Zealand are largely untested, or have only been tested in very old cases. Consequently, except to the extent that statutory provisions are referred to, the analysis below does not reflect a tested and certain legal position. Choice of Law Clauses

2 Choice of law clauses are not generally recognised in New Zealand to the extent that they relate to the actual creation, or effect, of security interests or other proprietary rights in property. However, section 26(1)(c) of the Personal Property Securities Act 1999 (PPSA) provides an exception to this general position. This section provides that a choice of law clause in a security agreement which specifies New Zealand law as the governing law will be effective to the extent that the security agreement relates to the "validity, perfection, and the effect of perfection or non-perfection of a security interest in goods or a possessory security interest in chattel paper, an investment security, money, a negotiable document of title, or a negotiable instrument". This position is not affected by the location of the relevant property or security agreement. Forum Clauses Choice of forum clauses are recognised in New Zealand, though they are not determinative of which jurisdiction the New Zealand courts consider to be the forum conveniens. This means that if proceedings are brought in New Zealand a stay may be granted despite a New Zealand forum clause if the court considers that another forum is clearly more appropriate. Similarly, a stay may be refused despite a forum clause specifying the exclusive jurisdiction of another country. However, although it is not determinative, a choice of forum clause will be given significant weight by a New Zealand court in determining the forum conveniens. This position is not affected by the location of the security agreement, but the location of the relevant property will be another factor in determining the forum conveniens, so may undermine the significance of a forum clause. This is particularly so for immoveable property. Treaties There are no treaties which affect which law will govern or whether the New Zealand courts will accept jurisdiction. Market Practice The market practice in New Zealand is to specify that security agreements in relation to property located in New Zealand are governed by New Zealand law and that the parties submit to the non-exclusive jurisdiction of the courts of New Zealand. 3. In your jurisdiction, are floating charges or security over the overall assets of an entity accepted, and if so in what terms? Security over the overall assets of an entity pursuant to a general security agreement is an accepted and common form of security in New Zealand. A general security agreement will create a security interest in respect of personal property (described in more detail below) which is within the scope of the PPSA and in addition usually creates an equitable fixed charge over property (such as land) which is not within the

3 scope of the PPSA. Where land is a key asset the general security agreement is often supplemented with a registered legal mortgage. 4. In relation to the following types of assets, please explain in your jurisdiction the types of security that can be created or granted, if the security requires any type of registration or perfection requirements, an estimate of cost (including applicable taxes and any other duties/ costs) and timing for granting such security, and any special considerations regarding the asset type: (a) Aircraft; (b) Bank Accounts; (c) Animals, Crops (in ground and severed) and Timber; (d) Equipment; (e) Intellectual Property; (f) Inventory; (g) Leases; (h) Mineral Interests, including Hydrocarbons; (i) Promissory Notes and Chattel Paper; (j) Real Estate; (k) Receivables (credit rights under contracts or invoices); (l) Rights under Contracts (excluding Receivables); (m)shares (in book-entry and certificate form and other securities); (n) Vessels; (o) Vehicles; (p) Business as an ongoing concern. General In New Zealand, security over personal property is, subject to limited exceptions, governed by the PPSA. The PPSA takes a substance over form approach to what constitutes security and defines a security interest as: "an interest in personal property created or provided for by a transaction that in substance secures payment or performance of an obligation, without regard to: (i) the form of the transaction; and (ii) the identity of the person who has title to the collateral." In addition, certain specified classes of transactions are deemed to be security interests regardless of whether or not they satisfy the above definition. This includes interests created or provided for by: a transfer of an account receivable or chattel paper; a lease for a term of more than one year; and a commercial consignment.

4 A security interest over collateral will automatically extend to its proceeds (that is, personal property that derives from a dealing with that collateral). As a general rule, perfection under PPSA is achieved once the security interest has both: "attached" - requiring value to have been given by the secured party, the debtor to have rights in the collateral and for either the secured party to have possession of the collateral or for the debtor to have signed or assented to a security agreement which describes the collateral; and a financing statement has been registered in respect of the security interest or, alternatively, the secured party has possession of the collateral. Priority is usually achieved by being the first to register a financing statement or take possession of collateral. However, there are exceptions to this rule. There are also some special rules that apply to certain types of collateral. Non-personal property (land) is outside PPSA and may be subject to equitable charges under documents manifesting the requisite intention or legal mortgages registered against the certificate of title for the relevant land. The costs and time involved in establishing security over different classes of assets will depend on the particular circumstances. However, as a general rule, the documentation is reasonably standardised and the registration process is electronic and instantaneous and so timing and costs are often not material. There are no taxes or stamp duties which apply. (a) Aircraft; (iv) Special considerations Aircraft are an example of "serial numbered goods" (the only other example being motor vehicles). As such, in order to achieve perfection, additional information in relation to the aircraft is required to be recorded on any financing statement. This additional information includes the year of manufacture, make or name of the manufacturer, model of the aircraft, aircraft class, any registration and nationality marks and any manufacturer's serial number. (b) Bank Accounts;

5 (iv) Special considerations A bank account is a form of account receivable and comments on "Receivables" below apply here also. PPSA gives statutory validity to security over bank accounts therefore effectively over-rules, for New Zealand purposes, the Chargecard decision in the UK. (c) Animals, Crops (in ground and severed) and Timber; (i) Type of Security - PPSA for all except trees in ground, which are treated as part of the land in which they are planted. The remainder of this section excludes trees in ground, as they are subject to the rules for "Real Estate" below (iv) Special considerations For animals, the PPSA specifically excludes their progeny from constituting proceeds and so a security interest will not automatically extend to the progeny. For crops, there is room for ambiguity (as yet untested in the courts) as to the priority position between a security interest in crops and a mortgagee or purchaser of the land in which the crops are growing. (d) Equipment; (iv) Special considerations A description of collateral in a security agreement as "equipment" without further reference to the item or kind of collateral is inadequate to achieve attachment. (e) Intellectual Property; (iv) Special considerations It is also possible to note security interests over patents and trademarks in the registers of patents and trademarks maintained by the Patent Office. Such noting is a mechanism for giving notice of security interests, but does not create a security interest or affect the priority of the security interest noted.

6 (f) Inventory; (g) Leases; (ii) Perfection Requirements - PPSA (iv) Special considerations A description of collateral in a security agreement as "inventory" is adequate for attachment purposes only while it is held by the debtor as inventory. Security over inventory ranks behind preferential creditors in a liquidation of the debtor. where the leasehold property is personal property and mortgages and equitable charges where the leasehold property is land (ii) Perfection Requirements - PPSA where the leasehold property is personal property Mortgages are perfected by registration against the relevant certificate of title issued in respect of the leasehold interest. Where no certificate of title has been issued in respect of the leasehold interest the charge will be equitable only. Equitable charges are, by their nature, unperfected. (iv) Special considerations Under the PPSA, a person with a leasehold interest in personal property may grant a security interest in the actual property (as opposed to the granting a security interest in his/her rights under the lease). This is because the PPSA implicitly provides that a leaseholder has sufficient rights in the leased personal property to grant a security interest in that personal property. In many situations, the conceptual difference between granting a security interest in the property and granting a security interest in the rights under the lease will not lead to any practical difference, because the security holder s rights will be subordinate to the rights of the owner of the property. However, in some situations, the owner s rights may constitute a mere security interest for the purposes of the PPSA either because it satisfies the requirements of the definition referred to above or because the owner's rights are deemed to be a security interest as they are provided for under "a lease for a term of more than one year". In these situations, priority is prescribed by the PPSA and it is possible for a person granted security by a leaseholder to defeat the interest of the owner. (h) Mineral Interests, including Hydrocarbons;

7 (iv) Special considerations Security interests in minerals and in accounts receivable resulting from the sale of minerals at the minehead/wellhead are governed by the law of the jurisdiction where the minehead/wellhead are located if the relevant security agreement is signed before the minerals are extracted and attach to the minerals on extraction or attaches to accounts receivable on the sale of the minerals. (i) Promissory Notes and Chattel Paper; (iv) Special considerations Note that transfers of chattel paper are deemed security interests. Note also that negotiable instruments (such as promissory notes) and chattel paper (such as hire purchase contracts) are subject to special rules under PPSA that in certain circumstances will give priority to a person who acquires a later interest in the collateral provided that person takes possession. The rights of a secured party in respect of chattel paper are subject to the terms of the contract between the account debtor and the assignor and any defense or claim arising from the contract or a closely connected contract and any other defense or claim of the account debtor against the assignor (including a defense by way of set-off that accrues before the account debtor acquires knowledge of the assignment). (j) Real Estate; (i) Type of Security Legal mortgages and equitable charges (ii) Perfection Requirements Legal mortgages are perfected by registration against the relevant certificate of title. Most mortgages are now registered electronically without any need for a paper mortgage (iv) Special considerations Equitable charges are not recorded on any public register. (k) Receivables (credit rights under contracts or invoices);

8 (iv) Special considerations Note that transfers of accounts receivable (e.g. factoring) constitute deemed security interests. Note also that the interests of secured parties in the account receivable are subject to the equities between the obligor and the assignor. The rights of an assignee/secured party of an account receivable are subject to the terms of the contract between the account debtor and the assignor and any defense or claim arising from the contract or a closely connected contract and any other defense or claim of the account debtor against the assignor (including a defense by way of set-off that accrues before the account debtor acquires knowledge of the assignment). Except for limited exceptions protecting factors, security over accounts receivable ranks behind preferential creditors in a liquidation of the debtor. Certain types of assignments of receivables are specifically excluded from the ambit of the PPSA. (l) Rights under Contracts (excluding Receivables); unless specifically excluded from the Act (iv) Special considerations Dependent on the particular rights. (m) Shares (in book-entry and certificate form and other securities); (iii) Costs and timing estimate See above (iv) Special considerations Note that investment securities are subject to special rules under PPSA which in certain circumstances give priority to a person who acquires a later interest in, and takes possession of, the investment securities. Possession can be physical possession of certificates, a note on the records of the relevant clearing house or securities depository or of the issuer or nominee. (n) Vessels; and/or Ship Registration Act 1992 or recording in the Ships Register

9 (iv) Special considerations PPSA does not apply to a mortgage of a ship, or share in a ship, exceeding 24 metres registered length. Security over such ships are subject to the Ship Registration Act and mortgages are noted on the register maintained under that Act. Recent case law has suggested that the Ship Registration Act also applies to security over ships of less than 24 metres in length as there was no express repeal of its application on the introduction of PPSA. There is therefore potential for conflict between the two Acts in relation to security over such ships. (o) Vehicles; (iv) Special considerations Motor vehicles are an example of "serial numbered goods" (the only other example being aircraft). As such, in order to achieve perfection, additional information in relation to the motor vehicle is required to be recorded on any financing statement. This additional information includes the year of manufacture, make or name of the manufacturer, model of the motor vehicle, any registration number and vehicle identification number of chassis number. (p) Business as an ongoing concern. (iv) Special considerations A general security agreement may create a security interest over all present and after acquired personal property and an equitable charge over non-personal property. Any land could be made subject to a legal mortgage also. 5. Please explain briefly for each type of assets the procedure for enforcement (judicial and extra-judicial). Is it possible to enforce security governed by another jurisdiction? If yes, what is the procedure? Personal Property PPSA provides rules in relation to enforcement of a security interest against personal property. The PPSA enforcement remedies are only available to the secured party with first priority. That person may apply collateral (in the case of accounts receivable, investment securities, money or negotiable instruments) to satisfy the obligation secured or take possession and sell collateral or simply retain the collateral (in the absence of objection from other interested parties). Prior to doing so, notice must be given to specified persons, such as the debtor and other secured parties. PPSA enforcement provisions do not apply to consumer goods, which have their own

10 similar legislative procedure to follow under the Credit (Repossession) Act In addition, where the security agreement provides for such, receivers may be appointed, in which case the Receiverships Act 1993 will be the relevant legislation. Non-Personal Property Enforcement against land is regulated by the Property Law Act 1952 and Land Transfer Act The Property Law Act provides for 4 weeks' notice to the mortgagor (and to any guarantors and other encumbrancers) before any sale, giving the mortgagor time to remedy the default. A sale can be achieved through the Registrar of the High Court by auction (by filing of prescribed documentation) or by private sale (by auction or private treaty). The mortgagee is required to take reasonable steps to obtain the best price reasonably obtainable at the time. A security governed by another jurisdiction s laws in respect of property in New Zealand can be enforced by proceedings in New Zealand. However, if proceedings are to be served on a defendant that is outside New Zealand, a New Zealand court will only grant leave for such service if the plaintiff satisfies the court that New Zealand is the forum conveniens. Similarly, if proceedings have been served in New Zealand, a defendant may obtain a stay of such proceedings from the court on the basis that New Zealand is forum non conveniens. The court would take into account a number of factors in determining issues of forum conveniens including the location of the relevant assets and, as noted above, any forum clauses in the relevant security agreement. 6. Can a trustee or security agent be used in your jurisdiction, or must security be granted in favour of all lenders? A trustee or security agent may be, and commonly is, used to hold security on behalf of lenders. 7. In bankruptcy or insolvency scenarios, what are the suspect periods, is clawback possible, and what other types of rights (tax debts, employees, etc.) have preference over security granted? Clawback of transactions and charges being declared void is possible on the application of a company's liquidator if the transaction was made or charge granted when the company was unable to pay its due debts and within the specified period (the two years prior to appointment of the liquidator) and, for clawbacks, enabled another person to receive more towards satisfaction of a debt than they otherwise would have received. Transactions in the six months prior to liquidation are presumed to be made when the company was unable to pay its due debts. From 1 November 2007 (when the Companies Amendment Act 2006 comes into force), where transactions which are within the two year period are an integral part of a continuing business relationship under which the level of indebtedness is increased and reduced, all such transactions will be considered together in assessing whether the transaction is voidable. Charges given in substitution for existing charges cannot be challenged if the existing charge was given more than two years earlier, and charges cannot be challenged to the extent that they secure new indebtedness. Liquidators may also recover amounts from a person which received value from a company, under a transaction in an amount which exceeded the value the company received, where the transaction occurred within the specified period and while the

11 company was unable to pay its due debts. Where the person is a director or associated to a director or is a related company, the specified period is three years. Securities granted in favour of such persons may also be set aside if the Court considers it "just and equitable" to do so. Preferential creditors enjoy priority over security interests granted by company debtors in relation to inventory and, subject to limited exceptions protecting factors, accounts receivable. Preferential debts include specified amounts owing to employees, the Inland Revenue Department and certain lien holders. Similarly for individuals, clawback of transactions and charges being declared void is possible on the Official Assignee's initiative. From 3 December 2007 (when the relevant part of the Insolvency Act 2006 comes into force), such initiative will be possible where the transaction was made or charge granted when the individual was unable to pay their due debts and within the specified period (the two years prior to the adjudication of bankruptcy) and, for clawbacks, enabled another person to receive more towards satisfaction of a debt than they otherwise would have received. Transactions in the six months prior to the adjudication of bankruptcy are presumed to be made when the individual was unable to pay their due debts. Where transactions are within the two year period and are an integral part of a continuing business relationship under which the level of indebtedness is increased and reduced, all such transactions will be considered together in assessing whether the transaction is voidable. Charges given in substitution for existing charges cannot be challenged if the existing charge was given more than two years earlier, and charges cannot be challenged to the extent that they secure new indebtedness. Gifts by bankrupts may be cancelled on the Official Assignee's initiative if made within five years of adjudication of bankruptcy if the bankrupt was unable to pay his or her debts immediately after the gift. 8. In your jurisdiction, can borrowers or guarantors subordinate their claims and if so in what terms? As a general rule, unsecured claims, which are not preferential claims, rank equally amongst themselves in the liquidation of the debtor. However, subordination is permitted, and enforceable, in New Zealand where a creditor, before the commencement of a debtor company's liquidation, agrees to accept a lower priority in respect of a debt than would otherwise be the case. 9. What are the consequences of a transfer, assignment or novation of an underlying credit in your jurisdiction (is new security necessary, is the security automatically transferred, etc.) PPSA security (and the financing statements which perfect such) may be transferred, assigned or novated when the underlying loan is dealt with. This will not occur automatically but should be done in conjunction with the transfer of the underlying loan. The contractual terms of the security will need to be reviewed to ensure the security captures the correct debt. Non-PPSA security can similarly be dealt with. However the Land Transfer Act raises difficulties when transferring legal mortgages over land such that it is prudent to discharge the existing mortgage and to take a new mortgage.

12 10. Can you have on top of a security in your jurisdiction, another layer consisting of an assignment of the collateral concerned conditional upon default by the debtor? It is possible to have an arrangement which consists of an assignment of collateral if there is a default by the debtor. However, this is likely to be characterised as a security interest under PPSA, meaning that the purported transfer of title will only be effective to the extent that the arrangement has priority under PPSA rules. It is also likely that restrictions on enforcement under PPSA will apply, such as the rule that collateral can only be taken as satisfaction of a debt with the consent of certain other interested parties (such as the other secured creditors). Consequently, there is no real advantage in structuring an arrangement this way when compared with simply taking a security interest in the relevant property. 11. Are step-in rights lawful in your jurisdiction or does any action to take control require the creditors to go through a court process? Contractual step-in rights are lawful and often used by financiers in project financing arrangements. These usually take the form of tripartite agreements between the financier, debtor and the counterparty to the contract which the financier wishes to step in to in the place of the debtor. Disclaimer The answers to the above questions are, by necessity, general in nature. There are many other rules and exceptions to the rules which may apply in any given circumstances, but which are outside the scope of this paper. The answers should not be seen as a substitute for legal advice.