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United States Finance Handbook 2011 Country Q&A United States George E Zobitz, Paul H Zumbro and Christopher J Kelly www.practicallaw.com/9-501-2871 Cravath, Swaine & Moore LLP OVERVIEW OF THE LENDING MARKET In a minority of states, however, a mortgage transfers title to the lender until the secured obligations are met. 1. Please give a brief overview of the main trends and important Deeds of trust. A deed of trust is a variant of the mortgage and developments in the lending market in your jurisdiction in is used in many states in its place. It usually involves a convey- the last 12 months. ance of the real property by the borrower to a third party, who holds it in trust for the lender as security for the debt. The US loan market has experienced some volatility over the past Leasehold mortgages/leasehold deeds of trust. A leasehold 12 months, being marked by rapid swings in market demand for mortgage or deed of trust enables a lender to take a security in- new loans. At the beginning of 2010, much of the loan market ac- terest in the borrower’s interest as a tenant under a lease. Upon tivity focused on extending the maturity of existing loan facilities an event of default, the lender can foreclose on its leasehold through amend and extend transactions, as few investors were mortgage and become the tenant under the lease, or transfer the willing to make new money loans. As the year has progressed, tenancy to another entity. Leases often prohibit such mortgages new syndicated loan financings have become more prevalent, in- or deeds of trust, or require the landlord’s consent. cluding those concerning acquisition transactions. The size of the Assignments of leases and rents. An assignment of leases deals that banks are willing to underwrite has increased. and rents grants the lender a security interest over the rents received from the real property. This grant is contained in Increased competition among lending institutions and investors most commercial mortgages, though it can also be a grant means that financing terms are more favourable to borrowers than in its own right. Usually an assignment provides the lender those available at the beginning of 2010, with some deals done with the right to collect rents directly from tenants following on terms similar to deals completed during the boom years preced- an event of default, but many states require the lender to ing the global financial crisis. However, banks are more focused on either take possession of the property, or appoint a receiver Country Q&A downside protection for borrower defaults on loan facilities, and are to exercise its rights under the assignment. increasingly concerned with collateral coverage for leveraged loans. Formalities SECURITY: REAL ESTATE Creation or attachment is the process by which a lender obtains a legally enforceable security interest in a borrower’s asset. Perfec- 2. Please briefly state what is considered real estate in your tion is the process by which the lender ensures that its security jurisdiction. What are the most common forms of security interest remains effective: granted over it? How are they created and perfected (that is, In bankruptcy, against a bankruptcy trustee. made valid and enforceable)? Outside bankruptcy, against certain other creditors and third parties. Real estate In all states, each security instrument granted Real estate consists of an ownership or leasehold interest in Creation/attachment. over real property must be in writing and executed by the borrower. land or tenements (real property). Real property law is governed The borrower must be the legal owner of the real property or, in the by the law of the state where the real property is located. This case of a leasehold mortgage, the tenant under the lease. Each state chapter considers the general rules that apply in most states, has its own signature requirements. Generally, the lender does not with particular reference to the state of New York. need to sign the security instruments, and all signatures required Common forms of security must be notarised to record the document in the real estate records. Some states require multiple signatories and witnesses. Each state has its own form of real property security instrument. The most common are: Perfection. In most states, the security instrument must be Mortgages. The mortgage grants the lender a lien (in the US recorded in the applicable real estate records to perfect the the term lien is often used synonymously with security inter- lender’s security interest in the real estate. These records are est or charge) on the real property (and any personal property usually located in the county where the property is located. A that constitutes fixtures) as security for the payment and per- legal description of the real property must be attached to the formance of certain obligations. The lender does not gain title security instrument so that it is accurately indexed in the records. to the real property unless there has been a valid foreclosure. © This article was first published in thePLC Cross-border Finance Handbook 2011 and is reproduced with the permission of the publisher, Practical Law Company. Finance Handbook 2011 Country Q&A SECURITY: TANGIBLE MOVABLE PROPERTY assets” or “all personal property” description is not sufficient for a security agreement. 3. Please briefly state what is considered tangible movable Once attachment of a security interest in an asset occurs, certain relat- property in your jurisdiction, for example, machinery, trading ed assets are also automatically attached to the security. For example: stock (inventory), aircraft and ships? What are the most common forms of security granted over it? How are they Supporting obligations (secondary obligations that support created and perfected? payment or performance). Identifiable proceeds of any secured asset. Tangible movable property The Uniform Commercial Code (UCC) (a form of which has been Principal methods of perfecting security interests. The principal enacted in each state) defines goods to include most forms of tangible methods of perfecting security interests in personal property and movable property with respect to which a lien is granted in the United fixtures are as follows: States. Goods are all assets that are movable when a security interest Filing a financing statement in the office of the Secretary (see Common forms of security) attaches, such as equipment, of State (or alternative state-designated central office) of inventory, farm products (including crops) and fixtures. The UCC the state under whose laws the borrower is organised. The defines fixtures as goods that have become so related to particular financing statement must include: real property that an interest in them arises under real property law. the borrower’s name and type (for example, a corpora- Common forms of security tion), address, jurisdiction of organisation and (depend- ing on the state law of the jurisdiction of organisation) A security interest (that is, an interest in personal property or fixtures organisational identification number; that secures payment or performance of an obligation) is the only form of security that is contemplated under the UCC. While the terms lien the lender’s name and address; and and pledge are often used in legal documentation, they are not UCC a description of the secured asset. In contrast to the terms. A pledge is usually used to refer to the granting of a security position with a security agreement, it is sufficient to interest in equity interests. A lien is often used to refer to general indicate secured assets as all assets or all personal security interests, as well as related concepts such as title retention property (when all assets that can be secured under the agreements and, with respect to securities, a purchase option, call or UCC have been granted as security). similar third-party rights relating to those securities (see Question 7). Possession or delivery of the secured asset. Formalities Obtaining control of the secured asset. Attachment of security interests. A security interest in personal property and fixtures must attach to become valid and enforce- Some types of assets can be perfected by only one of the three able against the borrower. The security interest only attaches if all principal methods, while others can be perfected by more than the following criteria are met: one. The federal and state law of each state governing any aspect of a particular transaction must be reviewed to determine the Value has been given by the secured creditor to the borrower (for example, the borrower has received the proceeds of the precise rules (see below, Special rules). loans under the credit facility). Security interest in proceeds. If a security interest over an asset Country Q&A The borrower has the right to transfer rights in the asset (the is perfected, then a security interest in the proceeds of that asset security interest will attach only to the rights that the bor- automatically remains perfected for 20 days after the borrower rower has in the asset, for example the borrower’s ownership receives those proceeds. After that the security interest in the right, or leasehold right). proceeds becomes unperfected unless one of the following applies: There is a security agreement, and an evidentiary require- A financing statement was filed to perfect the security ment is satisfied, for example: interest in the original asset and the proceeds are: authentication (for example, the borrower has signed assets over which a security interest can be perfected the security agreement); by filing a financing statement in the office where the original financing statement was filed; and possession (for example, collateral, other than certifi- cated securities, is in the possession of the secured not acquired with cash proceeds.
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