Security over Collateral. USA - NEBRASKA Baird Holm LLP

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1 Security over Collateral USA - NEBRASKA Baird Holm LLP CONTACT INFORMATION Steven C. Turner, Esq. Brandon R. Tomjack, Esq. Baird Holm LLP 1500 Woodmen Tower Omaha, Nebraska Can assets be charged, liened and/or encumbered in your jurisdiction? Please insert any exemptions, if any. With respect to non-consumer transactions, the Nebraska Uniform Commercial Code provides that the following assets can be charged, liened and/or encumbered: accounts, chattel paper, commercial tort claims, non-consumer deposit accounts, documents, equipment, extracted minerals and hydrocarbons, farm products, fixtures, general intangibles, goods, inventory, investment property, letter-of-credit rights, negotiable instruments, and software. In addition to the assets governed by the Uniform Commercial Code, real estate may also be granted as collateral, as described in more detail below. 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? Generally speaking, choice of law and choice of forum clauses will be enforced by Nebraska courts. However, there may be instances where Nebraska courts will not enforce such clauses if public policy dictates the application of Nebraska law. Moreover, the Nebraska Uniform Commercial Code provides that when a transaction

2 bears a reasonable relation to Nebraska and to another state or nation, the parties may agree that the law either of Nebraska or the other state or nation shall govern their rights and duties. However, despite the general rule that parties can contractually agree to the choice of law and choice of forum, the Nebraska Uniform Commercial Code provides rules that determine the law governing the perfection of security interests, the effect of perfection or nonperfection, and the priority of security interests, and these rules cannot be changed by contract between the parties. Generally, when the debtor is located in a jurisdiction, the local law of that jurisdiction governs perfection, the effect of perfection or nonperfection, and the priority of security interests. Generally, the local law of the jurisdiction where the collateral is located governs perfection, the effect of perfection or nonperfection, and the priority of a possessory security interest in the collateral. Generally, the local law of the jurisdiction where negotiable documents, goods, instruments, money, or tangible chattel paper are located governs perfection of a security interest in the goods by filing a fixture filing, perfection of a security interest in timber to be cut, and the effect of perfection or nonperfection and the priority of a nonpossessory security interest in the collateral. Nebraska entities will generally request that Nebraska law applies to the transaction. There are no treaties on this matter in Nebraska. Also, there are no particular requirements to ensure that such provisions are enforceable in Nebraska. 3. In your jurisdiction, are floating charges or security over the overall assets of an entity accepted, and if so in what terms? Secured parties may have liens over most assets of an entity, and can obtain a lien on after-acquired assets by using language such as "all equipment now owned and hereafter acquired" in the security agreement. However, there may be some after-acquired assets, such as after-acquired patents and after-acquired commercial tort claims, that a secured party cannot obtain a floating lien on. 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: As this is a survey of Nebraska law, except as noted below, the answers below assume that the debtor is located in Nebraska. (a) Aircraft; Security interest is granted upon the execution of a security agreement, and the creation of the security interest is governed by Nebraska state law. The security interest is perfected by recording the security instrument with the Federal Aviation Administration Aircraft Registry, and the perfection of a security interest is governed by United States Federal law. The security instrument must specifically describe the aircraft and each engine or propeller. There is a $5.00 recording fee for each aircraft and each engine or propeller.

3 In addition, the Cape Town Convention on International Interests in Mobile Equipment and the Aircraft Protocol (the "Convention") recently became effective. The Convention applies transactions involving aircraft meeting certain specifications (for example, aircraft certificated for at least eight seats and engines rated at least 550 horsepower). The Convention requires additional filings and procedures for recording security interests in aircraft. Aircraft subject to the Convention will still need to be registered with the FAA, and will also need to be registered at an International Registry created by the Convention. (b) Bank Accounts; With respect to non-consumer bank accounts, a security interest may be granted upon the execution of a security agreement, and security interest is perfected upon the execution of a deposit account control agreement. A control agreement is an agreement whereby the financial institution in which the account is located acknowledges the secured party's security interest and agrees to be governed by the restrictions set forth in the security agreement. Consumer bank accounts are explicitly excluded from the provisions of the Nebraska Uniform Commercial Code. (c) Animals, Crops (in ground and severed) and Timber; Security interest in animals and crops may be granted and perfected upon the execution of a security agreement and the filing of a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. When farm products are involved, the Food Security Act ("FSA"), a United States Federal law, provides that buyers of farm products take free of security interests in such products, even though the security interest is properly perfected under state law and even though the buyer knows of the security interest. However, pursuant to the FSA, a secured party will maintain its security interest in farm products if it has (1) provided direct notice to the buyer of its security interest, or (2) filed an Effective Financing Statement. Under the direct notice exception, the buyer of farm products takes such products subject to the secured interest of the seller's creditor if the creditor has sent the buyer written notice within one year before the sale. The notice must contain (1) the secured creditor's name and address, (2) the debtor's name and address, (3) the debtor's social security number or taxpayer identification number, (4) a description of the farm products covered by the security interest and a description of the property, and (5) any payment obligations conditioning the release of the security interest. Under the central filing exception, the buyer of farm products takes such products subject to the secured interest of the seller's creditor if the creditor has filed an effective financing statement (EFS) in the state's central filing system. A central filing system is simply a system administered by the Nebraska Secretary of State to provide a means to file EFSs. The EFS filed by the secured creditor must contain the same information required in the direct written notice.

4 A security interest in timber may be granted upon the execution of a security agreement, and the security interest is perfected upon the filing of a fixture financing statement in the office of the Register of Deeds in the applicable County. The cost to record a document is $5.00 per page, and $0.50 per lot or section of real property. The security interest can be granted and perfected at any time. (d) Equipment; Security Interest may be granted and perfected upon the execution of a security agreement and the filing of a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. (e) Intellectual Property; Patents: Security interest may be granted upon the execution of a security agreement. Security interest may be perfected upon the filing of a financing statement with the Nebraska Secretary of State's office. As a result of inconsistent court cases relating to bona fide purchasers and the ability to enforce patent rights, it is also advisable to record the security interest in the United States Patent and Trademark Office (USPTO). Trademarks: Security interest may be granted upon the execution of a security agreement. Security interest may be perfected upon the filing of a financing statement with the Nebraska Secretary of State's office. Current case law suggests that recordation of the security interest in the USPTO is not necessary for trademarks; however, since the federal trademark statute is similar to the federal patent statute, it is also advisable to record the security interest in the United States Patent and Trademark Office (USPTO). Copyrights: Security interest may be granted upon the execution of a security agreement. There is disagreement among some United States courts in regard to how security interests in copyrights are perfected. Some court cases suggest that copyrighted work is perfected by recording the security interests at the Copyright Office. Some court cases suggest that copyrightable work is perfected by the filing of a financing statement with the Secretary of State. Some court cases suggest that royalties from copyrighted work can be pledged separately as a general intangible, and are therefore perfected by filing a financing statement with the Secretary of State. As a result of the differing court cases, it is advisable to perfect a security interest in copyrights by recording the security interest at the Copyright Office and by filing a financing statement in the office of the Nebraska Secretary of State. Other forms of intellectual property, including trade secrets, are generally classified as general intangibles, and security interests are therefore perfected by filing a financing statement with the Nebraska Secretary of State's office. (f) Inventory; Security interest may be granted and perfected upon the execution of a security agreement and the filing of a financing statement with the Nebraska Secretary of State's

5 office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. (g) Leases; A security interest in real estate lease payments or rents is granted upon the execution and delivery of an assignment instrument. The assignment instrument will commonly be an assignment of rents provision in a Mortgage or Deed of Trust. The security interest is perfected when the assignment instrument is recorded with the Register of Deeds office in the applicable County. The cost to record a document is $5.00 per page, and $0.50 per lot or section of real property. The security interest can be granted and perfected at any time. (h) Mineral Interests, including Hydrocarbons; Before they are extracted, a security interest in oil, gas, and other minerals may be granted upon the execution of a security agreement, and will often be included in a real estate Mortgage or Deed of Trust. The security interest is perfected upon the filing of a fixture financing statement in the office of the Register of Deeds in the applicable County. The cost to record a document is $5.00 per page, and $0.50 per lot or section of real property. The security interest can be granted and perfected at any time. Once the minerals are extracted, they become "goods" pursuant to the Uniform Commercial Code, and the security interest must be perfected by filing a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. (i) Promissory Notes and Chattel Paper; Security interest may be granted upon the execution of a security agreement. Security interest may be perfected by taking possession or by the filing of a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. (j) Real Estate; Lien may be granted by the execution of a Deed of Trust or Mortgage. The Deed of Trust or Mortgage must be recorded with the Register of Deeds office in the applicable County in order for the lien to be properly perfected. The cost to record a document is $5.00 per page, and $0.50 per lot or section of real property. The lien can be granted and perfected at any time. (k) Receivables (credit rights under contracts or invoices); Security interest may be granted and perfected upon the execution of a security agreement and the filing of a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time.

6 (l) Rights under Contracts (excluding Receivables); Some contract rights may be considered "accounts" under the Uniform Commercial Code, while other contract rights may be considered "general intangibles". In either event, a security interest may be granted and perfected upon the execution of a security agreement and the filing of a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. (m)shares (in book-entry and certificate form and other securities); With respect to certificated securities, security interest may be granted upon the execution of a security agreement, and security interest is perfected by the secured party taking delivery of certificated securities. With respect to shares of stock where there are no certificates (uncertificated securities), the security interest is perfected by the secured party taking control of the securities by virtue of an agreement with the debtor. (n) Vessels; With respect to personal, consumer watercraft not traveling on navigable waters, a security interest may be granted upon the execution of a security agreement, and the security interest is perfected once the lien is noted on the vessel's certificate of title. The cost of noting a lien is $7.00, and the security interest can be granted and perfected at any time. (o) Vehicles; Security interest may be granted upon the execution of a security agreement, and the security interest is perfected once the lien is noted on the vehicle's certificate of title. The cost of noting a lien is $7.00, and the security interest can be granted and perfected at any time. If the vehicles are being held by the debtor as inventory, the security interest is perfected by filing a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. (p) Business as an ongoing concern. An ongoing business's "goodwill" is considered a general intangible, and a security interest may be granted and perfected upon the execution of a security agreement and the filing of a financing statement with the Nebraska Secretary of State's office. The cost of filing a financing statement is $8.00, and the security interest can be granted and perfected at any time. Generally speaking, "goodwill" is a difficult asset to sell, and may have minimal collateral value. 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? After a default, the secured party may enforce its security agreement by taking possession of the collateral or, without taking possession, rendering the collateral

7 unusable. The secured party may then sell, lease, license, or otherwise dispose of the collateral in a commercially reasonable manner. The secured party may dispose of the collateral by a public or private proceeding, by one or more contracts, as a unit or in parcels, and at any time and place and on any terms. The secured party may repossess and dispose of the collateral with the aid of judicial process or without judicial process if it proceeds without breach of the peace. Before disposing of the collateral, the secured party must send the debtor, any secondary obligors, and any junior lienholders a notice. A notice sent after default and 10 days or more before the earliest time of disposition will be considered timely. Generally, the notice shall contain the following information: (1) the debtor and the secured party; (2) a description of the collateral; (3) the method of the intended disposition; (4) the time and place of a public disposition or the time after which any other disposition is to be made; and (5) a statement that the debtor is entitled to an accounting of the unpaid indebtedness and a statement of the charge, if any, for an accounting. In a consumer-goods transaction, and in addition to the information described above, the notice must also contain the following information: (1) a description of any liability for a deficiency of the person to which the notice is sent; (2) a telephone number from which the amount that must be paid to the secured party to redeem the collateral is available; and (3) a telephone number or mailing address from which additional information concerning the disposition of collateral and obligation secured is available. If the secured party has a security interest in accounts receivable, after a default by the debtor, the secured party may notify account debtors to make payment directly to the secured party. If the secured party holds a security interest in a deposit account perfected by a deposit account control agreement, the secured party may apply the balance of the deposit account to the secured obligation. The debtor, any secondary obligor, or any junior lienholder may redeem collateral at any time before the secured party has collected collateral, disposed of the collateral or entered into a contract for its disposition, or accepted the collateral in full satisfaction of the obligation. To redeem the collateral, the person must fulfill all obligations secured by the collateral and must also pay the reasonable expenses and attorney's fees incurred by the secured party in connection with the disposition of the collateral. If the secured party has a security interest in real estate by virtue of a Deed of Trust, Nebraska law provides for non-judicial foreclosure. The non-judicial foreclosure consists of recording a notice of default, providing the debtor a 30-day notice to cure, publishing a notice of sale once a week for five consecutive weeks, and concluding with a trustee's sale. A Deed of Trust may also be foreclosed judicially in a foreclosure lawsuit. A Mortgage must be foreclosed judicially. 6. Can a trustee or security agent be used in your jurisdiction, or must security be granted in favor of all lenders? Yes, a trustee or security agent may be used in Nebraska.

8 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? Bankruptcy matters are governed by Federal law, and are beyond the scope of this survey. With regard to state law, certain transfers by an insolvent debtor may be voided or reversed if they occurred during four year period before the initiation of the insolvency action. Real estate taxes and personal property taxes generally take priority over all other liens, security interests, and other encumbrances. 8. In your jurisdiction, can borrowers or guarantors subordinate their claims and if so in what terms? Borrowers and guarantors can subordinate their claims by signing a subordination agreement. 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.) When the underlying debt obligations are assigned (such as the assignment of a promissory note), the security interests should also be assigned, and pre-existing financing statements should be amended to indicate the new secured party. With respect to debt secured by real property, if the debt is transferred to a new borrower, the security instrument (the Deed of Trust or Mortgage) should also be assigned and should be assumed by the new borrower. 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 These are uncommon in Nebraska. 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? As described in more detail above in the Answer to #5, the secured party may repossess and dispose of the collateral without judicial process if it proceeds without breach of the peace.

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