Personal Property Securities Reform are you PPS ready?

Transcription

1 Personal Property Securities Reform are you PPS ready? Chair: Vincent Bull Speakers: Karla Fraser, Sarah Kuman & Steve Pemberton Port Moresby, March 2014 Allens is an independent partnership operating in alliance with Linklaters LLP. 1

2 Introduction: does this matter? Supplier Supplies widgets on ROT terms Bank Manufacturer All assets charge Widgets: who has priority? Old law owner has the best title (nemo dat quod non habet) New law ROT and charge are both security interests PPSA priority rules apply Registration; PMSIs 2

3 Overview 1. Objectives and status 2. Introduction to PPS concepts 3. How will this affect your industry sector? 4. Using the registry 5. What do you need to do to be PPS ready? 3

4 1. Objectives and status Objectives Explanatory memorandum: to promote commerce Codify and simplify law Single straightforward registration of security instruments Consistent in substance approach regardless of form Consistency with US, Canada, Australia, NZ and others 4

5 Status February 2014 Legislation Personal Property Security Act 2011 enacted but not yet commenced Registry Registry provider selected User testing in progress Regulations Draft to be released for public comment shortly Commencement Treasury has flagged intent to commence in June 2014 May be delayed Transition Existing security interests six month transition period to register New security interests registration to commence straight away 5

6 2. Introduction to PPS concepts new terminology personal property and security interests security agreements perfection PMSIs 6

7 Key concepts new terminology Debtor Security Interest (in a Security Agreement ) over the Collateral Secured Party Attachment 1. Value is given, and 2. Debtor has rights in collateral, and 3. One of possession, control, or signed security agreement Perfection 1. Attachment, and 2. One of possession, control, or registration 7

8 Key concepts personal property and security interests Personal property definition: goods, chattel paper, investment property, a document of title, an instrument, money or an intangible generally, this means everything except land mining tenements and oil & gas licences also excluded Security interests two types in substance a legal interest in personal property that secures payment or performance of an obligation deemed o o o transfer of account or chattel paper (debt factoring, securitisation) commercial consignments lease for a term of more than one year 8

9 Key concepts security agreements Security agreement is needed for attachment, unless you have possession or control Requirements: Must be signed physical signature, or other process with intent to adopt or accept Must provide description of collateral o o o described in manner that enables collateral to be identified, or all present and after-acquired property, or AllPAP except Limited ability to contract out of obligations No need to lodge for registration notice only 9

10 Key concepts perfection Three ways to perfect Possession Control (only for deposit accounts and investment property) Registration Three main consequences if you don t Taking free transferee for value without knowledge may take free of unperfected SI Priority unperfected SI ranks after perfected SI Liquidation unperfected SI is subordinate to the interest of a liquidator or trustee in bankruptcy 10

11 Key concepts PMSIs PMSI purchase-money security interest security interest to secure purchase price (eg ROT) security interest given to person who provides value to enable collateral to be acquired (eg acquisition financier) lessor lease for term of one year or more consignor commercial consignment Generally, first ranking priority But, for inventory, only if perfected when debtor receives possession, or within 7 days after 11

12 3. How will this affect your industry sector? Banks and other finance companies Equipment lessors Manufacturers and suppliers Construction Mining, oil & gas 12

13 Secured lending and leasing Banks and other finance companies Traditional securities (charges, mortgages) need to be registered Other non-traditional securities o Trade finance, turnover trusts, etc Documentary impacts High volume of transactions, need for systems Risk issue: exposed customers Equipment leasing Leases for more than one year need to be registered, to preserve benefits that currently flow from ownership 13

14 Manufacturers and suppliers Supply of goods Supplier (secured party) Supply agreement Customer (grantor) Obligation to pay title does not pass until payment received Test for security interest Legal interest in personal property? o Yes, Supplier retains an interest, ie ownership, in goods supplied Does it secure payment or performance of an obligation? o Yes, it secures the payment obligation for the goods supplied under the contract Registration required to perfect security interest Risk-based analysis is legal protection worth the time/cost? Documentary requirements signed security agreement 14

15 Construction Guarantees, performance bonds, letters of credit No: no interest in personal property contractual only Retention amounts Probably not, unless there is identifiable collateral Equipment leased by contractors Yes: NZ portaloo case lease for a term of more than one year Step-in rights: principal taking over equipment Yes: NZ Mainzeal case 15

16 Mining, oil & gas cross charge Participant 1 purchase option Participant 2 dilution Joint venture agreement Obligation to pay called sums, secured by cross charge, dilution and purchase option Manager Cross charge is certainly a security interest Are the purchase option and dilution rights security interests? Legal interest in personal property? o Perhaps Do they secure payment or performance of an obligation? o Yes, they secure the obligation to pay called sums Where registration made for cross charge, should also cover the other rights 16

17 4. Using the registry Register of notices, not security agreements Details required by the PPSA Debtor identity physical address Secured Party identity physical address Description of collateral described in manner that enables collateral to be identified, or all present and after-acquired property, or AllPAP except Additional optional details Vehicle serial number Real property identification number One notice can relate to one or more security interests Debtor authorisation Registration must be authorised by debtor (before or after registration) Signing security agreement is taken to constitute authorisation Timing: best before signing, or at least before debtor draws down or takes possession of financed equipment Term of registration Initial term designated by person registering Subsequent extensions are 5 years 17

18 What the registry might look like an example from Tonga The following records in the Kingdom of Tonga Personal Property Securities Registry Office were identified in a search on: Search Date/Time: 20/02/ :41 AM Company Name: TONGA A***S LIMITED Notice of Security Interest *** Five year registration term Initial Registration Number *** Registration Date/Time 01/11/ :00 Expiration Date 01/11/2015 Brief Debtor details Debtors Party Type Name Number Address Company Tonga A***s Limited Nuku'alofa, Tongatapu, Tonga Secured Parties Name Address *** Bank Limited P.O. Box **, *** Road, Nuku'alofa, Tonga Brief Secured Party details Collateral description (note: shouldn t be necessary to identify the document) Collateral Description Registered mortgage debenture over Tonga A***s Limited. The Mortgage Debenture creates a charge over collateral being all of the debtor's undertakings, property, assets and rights whatsoever and wheresoever both present and future, and all proceeds. 18

19 5. What do you need to do to be PPS ready? Scoping Existing security interests New security interests Documentation Scoping Understand PPSA Determine impact on business 19

20 Dealing with security interests Existing security interests Identify existing security interests Obtain the details to complete registrations Registrations to be completed within 6 month transition period New security interests Identify the transactions in your business that will give rise to security interests Implement policies and procedures for registrations Must be ready to go from commencement of Act 20

21 Dealing with documents Documentation Ensure you have written security agreements where required, eg ROT terms Identify standard security agreements in your business, and update Charges should cover assets in which the debtor has rights Authority to register, contracting out of PPSA obligations, perhaps some terminology changes Remember old documents may still work to attach security interests, but you now need perfection! 21

22 Allens is an independent partnership operating in alliance with Linklaters LLP. 22