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USA - GEORGIA
Alston & Bird LLP
CONTACT INFORMATION
Barbara Bryant
Alston & Bird LLP
One Atlantic Center
1201 West Peachtree Street
Atlanta, GA 30309
1.404.881.7000
barbara.bryant@alston.com
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?
Under 11-1-105, the parties may choose the law of the jurisdiction by which they
desire their rights and duties to be governed as long as the transaction bears a reasonable
relation to a certain jurisdiction. Such choice of law would apply to the issues of
attachment, validity, characterization and enforcement of a security interest. The general
rule is that the local law of the jurisdiction where a debtor is located governs perfection,
the effect of perfection or nonperfection, and the priority of a security interest in
collateral. 11-9-301(1). However, the general rule is subject to several exceptions. For
example, a possessory security interest is perfected pursuant to the local laws of the
jurisdiction where collateral is located. 11-9-301(2). For farm products, while they are
located in a certain jurisdiction, perfection, the effect of perfection or nonperfection, and
priority of agricultural liens on the farm products is governed by the local law of the
jurisdiction in which such farm products are located. 11-9-302. For fixtures and
timber to be cut, the law of the jurisdiction in which such fixtures and timber to be cut
are located governs perfection and priority. 11-9-301(3). For a deposit account
maintained with a bank, the local law of that banks jurisdiction governs perfection, the
effect of perfection or nonperfection, and the priority of a security interest. 11-9304(a). However, the parties may choose the law of the jurisdiction by which they want
perfection and priority of security interests in deposit accounts to be governed, even if
that jurisdiction bears no relationships to the transactions or to the parties. 11-9304(b)(1). The parties may choose the law of other jurisdictions for other purposes, such
as enforcement of a security interest. For goods covered by a certificate of title,
perfection is governed by the local law of the jurisdiction under whose certificate of title
the goods are covered. 11-9-303.
3. In your jurisdiction, are floating charges or security over the overall assets of an
entity accepted, and if so in what terms?
As a general rule, a grant of a security interest in after acquired collateral (floating
lien) is permissible in Georgia. 11-9-204(a). A floating lien, however, is not
permissible to cover consumer goods, other than accessions, that are acquired more than
ten (10) days after the secured party gives value. 11-9-204(b)(1). Likewise, a floating
lien is not permissible to cover a commercial tort claim. 11-9-204(b)(2). It is
permissible for a secured party to have a blanket lien on all assets of the debtor. A
blanket lien is a type of lien that covers nearly all personal property of the debtor. The
description of collateral covered by a security interest is critical. The security agreement
must reasonably identify the collateral. 11-9-108(a). Using language such as all the
debtors personal property does not satisfy the requirement of reasonable identification
in a security agreement. 11-9-108(c). The collateral is reasonably identified if it is the
type or category of collateral defined in the UCC. On the other hand, a UCC-1 financing
statement sufficiently identifies the collateral that it covers simply by providing that it
covers all assets or personal property of the debtor. 11-9-504(b).
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;
Perfection of a security interest in aircraft, aircraft engines and certain aircraft
parts is governed by federal statutes that require recordation of a security interest
with the Federal Aviation Administration (FAA) in Oklahoma City,
Oklahoma. Aircraft must be registered with the FAA. The debtor must be the
registered owner of the aircraft and must be a US citizen. 49 U.S.C. 44102. A
secured party need not be a United States citizen, though it may not be the
owner of aircraft after foreclosure proceedings if it is not. FAA security
agreement requirements: a complete description of the aircraft; a statement that
the debtor is the registered owner; the debtors signature; in most cases, it must
be an original signed in ink; for a corporation, an individual signing must
indicate his title and be an officer, director, manager or attorney-in-fact; contain
conveyance of the security interest; definitions used therein and payment of a
filing fee. See The Federal Aviation Regulations 14 C.F.R. Parts 45, 47 and 49.
The United States is a party to the Cape Town Convention (Convention),
which requires filing of security interests in aircraft and aircraft engines with the
International Registry of Mobile Assets (Registry). Generally, the Convention
applies to an interest if the debtor relating to such interest is located in a
contracting state at the time of the creation of such interest and serves to provide
for internationally binding priority registrations. It is unclear whether
registration with the Registry precludes the necessity to file with the FAA. It is
recommended that a security interest be filed with both the FAA and the
Registry.
(b) Bank Accounts;
A security interest in a deposit account may be perfected by control. 11-9-314.
Control is the only method of perfecting a security interest in a deposit account
as original collateral. (Comment 5 to UCC 9-312). Control is achieved if the
secured party is the bank maintaining the deposit account; the debtor, the bank
and the secured party agreed that the secured party has the right to direct the
banks disposition of the funds without debtors consent; or the secured party
becomes the banks customer with respect to the deposit account. 11-9-104(a).
A security interest perfected by control remains perfected only while the secured
party retains control. 11-9-314(b). Filing of a UCC-1 financing statement is
not effective to perfect a security interest in deposit accounts, except with
respect to proceeds. See 315 (c)-(d). Unless the parties choose otherwise, the
local law of the banks jurisdiction governs perfection. 11-9-304(a). Priority of
conflicting security interests in the same deposit account is governed by 11-9327.
(c) Animals, Crops (in ground and severed) and Timber;
Goods means all things that are movable when a security interest attaches and
includes the unborn young of animals. 11-9-102(45). The same rules apply to
animals as to other goods in order for a security interest to attach. A security
copyright can be perfected by filing a UCC-1 financing statement with the Clerk
of Superior Court. It should be noted, however, that if a debtor subsequently
registers a copyright with the U.S. Copyright Office, a secured party must
perfect its security interest in the copyright with the U.S. Copyright Office.
Otherwise, another party that records its interest, and, hence, perfects it with the
U.S. Copyright Office will take priority interest over the prior secured party.
Patents: To perfect a security interest in patents, a secured party must file a
UCC-1 financing statement with the Clerk of Superior Court. A secured party
may also file its security interest with the United States Patent and Trademark
Office, but such filing is discretionary. Failure to file a UCC-1 financing
statement at the state level, however, will leave the security interest unperfected.
Trademarks: To perfect a security interest in trademarks, a secured party must
file a UCC-1 financing statement with the Clerk of Superior Court. It is
recommended, however, that a secured party file with both the Clerk of Superior
Court and the United States Patent and Trademark Office. Moreover, it should
be noted that for a security interest in trademarks to have any value, a secured
party must also acquire a security interest in the goodwill and assets necessary to
produce the product the trademark represents.
(f) Inventory;
Inventory is a type of goods under the UCC. Hence, the same rules apply for
attachment, perfection and enforcement of a security interest in inventory as for
other types of goods. See Animals above.
(g) Leases;
Leases can be assigned by collateral assignment or by absolute assignment, with
revocable license back to debtor to exercise rights and collect rents, until default
under the secured debt. If debtor's interest is under a ground lease, a leasehold
deed to secure debt would be used (see Real Estate below). An assignment of
leases should be recorded in the real property records of the Clerk of Superior
Court of the county where the relevant real property is located, to establish
priority relative to any other assignees. Nominal per page recording fees will be
payable, but no taxes are imposed on recordation.
(h) Mineral Interests, including Hydrocarbons;
Mineral interests would fall under the definition of as-extracted collateral in
11-9-102(6). See Animals above for requirements of attachment and
enforceability of a security interest. The law that governs perfection and priority
in as-extracted collateral is that of the jurisdiction in which the wellhead or
minehead is located. 11-9-301(4). Security interests in minerals that are asextracted collateral are perfected by filing in the office designated for the filing
or recording of a mortgage on the real property. (Comment 5(d) to UCC 9301). In Georgia, such office is the Clerk of Superior Court at the county level
where the collateral is located.
Outside of bankruptcy, while states laws are different, creditors typically have four (4)
years to bring a fraudulent transfer action. In the bankruptcy context, a trustee may
avoid a transfer that is either actually or constructively fraudulent that occurred within
two (2) years before the petition date, Bankruptcy Code 548, but may also bring an
action pursuant to state law, which can extend the look-back period. Additionally, the
Bankruptcy Code provides that payments made to creditors within ninety (90) days
prior to the petition date are presumed preferential and subject to avoidance by a debtor
or trustee (the look-back period for insiders of the debtor is one (1) year). Bankruptcy
Code 547. Claw-back agreements are generally enforceable to reduce a creditors
preference exposure. Claims secured by liens on property generally have priority over
all other claims, with the lone exception being tax liens in some jurisdictions.
8. In your jurisdiction, can borrowers or guarantors subordinate their claims and
if so in what terms?
Subordination agreements are enforceable in bankruptcy to the same extent they are
enforceable under applicable nonbankruptcy law. Bankruptcy Code 510(a).
Accordingly, borrowers and guarantors are generally bound by prepetition
subordination agreements in bankruptcy. Additionally, a debtor or trustee can
subordinate claims arising from the purchase or sale of a security (or from the rescission
of such a purchase or sale). Bankruptcy Code 510(b). Such claims are subordinated to
all claims or interests that are senior or equal to the claim or interest represented by the
subject security. The exception is that if the subject security is common stock, the claim
has the same priority as common stock. Also, the court may invoke the principles of
equitable subordination to subordinate part or all of an allowed claim or interest.
Bankruptcy Code 510(c).
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.)
A secondary obligor acquires the rights and becomes obligated to perform the duties of
the secured party after the secondary obligor receives from the secured party an
assignment of a secured obligation, receives a transfer of collateral from the secured
party and agrees to accept the secured partys rights and assume its duties, and is
subrogated to the secured partys rights with respect to collateral. Such assignment,
transfer, or subrogation is not a disposition of collateral after default and relieves the
secured party of further duties. 11-9-618(a)-(b). New security is unnecessary upon
assignment. Rather, an assignment of rights and sometimes delegations of duties occurs.
A filing of an assignment is not required to ensure the perfected status of the security
interest against creditors and transferees of the original debtor. But failure to file keeps
the assignor as the secured party of record authorized to file effective amendments to
financing statements. 11-9-514.
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 permissible to have a first and a second security interest or lien on the same
collateral. The secured party that is first to record and perfect its security interest in
accordance with the applicable rules discussed above has priority over the other secured
partys security interest. Equal priority is governed by agreement of the parties.
(Comment 6 to UCC 9-610).
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?
A court process is not required for the secured party to take control of the collateral
upon default as long as the secured party does so without breach of the peace. 11-9609(b). After the debtor defaults, a secured party may take possession of the collateral.
11-9-609(a)(1). In the case of equipment that would not be reasonable to remove, the
secured party may render the equipment unusable and dispose of such in accordance
with applicable rules on a debtors premises. 11-9-609(a)(2). Further, if the debtor and
the secured party agree, and in any case following default, the debtor is obligated to
assemble the collateral and deliver it to the secured party at the agreed place which is
reasonably convenient to both parties. 11-9-609(c). Please also see responses to
Question 5.