Security Over Collateral. CYPRUS Dr. K. Chrysostomides & Co.

Transcription

1 Security Over Collateral CYPRUS Dr. K. Chrysostomides & Co. CONTACT INFORMATION Chryso Pitsilli-Dekatris Dr. K. Chrysostomides & Co. 1 Lampousas Street Nicosia 1095 Cyprus cdekatris@chrysostomides.com.cy 1. Can assets be charged, liened and/or encumbered in your jurisdiction? Please insert any exemptions, if any. Generally, assets can be charged, liened and otherwise encumbered in the Republic of Cyprus. The security most commonly granted over immovable property is the mortgage. The types of security used over movables are normally the common law lien, the pledge, the fixed charge and the floating charge. The Transfer and Mortgage of Immovable Property Law, No. 9 of 1965 governs the registration of a mortgage over immovable property. The Companies Law, Cap 113 governs the procedure for the registration of charges created over the assets of a company. The Contract Law, Cap. 149 governs the procedure and requirements for the creation of liens generally and the pledge of share certificates in particular. 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?

2 There are no specific enactments which subject security arrangements to any particular choice of law and/or choice of forum clauses. The parties are generally free to agree upon and choose both the governing law and the forum. The choice of law The proper law of the contract is the law which the parties intend to apply thereto. Where the parties have expressly chosen the law by which they wish their contract to be governed, this will be the proper law. Where no express choice has been made, the intention is to be inferred from the terms of the contract and the surrounding circumstances. The choice of jurisdiction In situations which fall within the scope of Regulation 44/2001 on the Recognition and Enforcement of Foreign Judgments, the proceedings relating to rights in rem or tenancies of immovable property are within the exclusive jurisdiction of the courts of the EU member state in which the property is situated. Procedural requirements A charge created by any company, comprising of property situated outside Cyprus must be registered with the Registrar of Companies. The provisions with respect to the registration of charges and mortgages extend to charges and mortgages on property in Cyprus which are created or effected by a non- Cypriot company which has an established place of business in Cyprus. Requirements for the recognition and enforcement of foreign judgments No special procedure is required for the recognition of a judgment given in an EU member state. Recognition should only be refused in certain specified situations. Any judgment entitled to recognition and enforcement in the member state in which it was given, may, in principle be declared enforceable to any other member state. A judgment given in a jurisdiction which is not an EU member state will be recognised at common law if it can be shown that it is final and conclusive. Any bilateral treaty which may exist between Cyprus and another country may also be relevant. 3. In your jurisdiction, are floating charges or security over the overall assets of an entity accepted, and if so in what terms? Pursuant to Section 90 of the Companies Law, Cap. 113 it is possible to create floating charges over the overall assets of an entity in Cyprus. In order for the floating charge to be valid as against the liquidator or any creditor of the Company, it should be registered with the Registrar of Companies within the prescribed time period, details of which are discussed below. 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

3 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; and (p) Business as an ongoing concern. (a) Aircraft: A fixed charge may be created in relation to an aircraft. According to the Civil Aviation Law, No. 213 (I) of 2002 any charge over an aircraft is also registered in the Register of Aircrafts. (b) Bank Accounts may be pledged pursuant to a Pledge of Account Agreement. (c) Animals: Animals may be the subject matter of a floating charge if they are owned by a company. Crops and Timber: According to the Immovable Property Law, Cap. 224, these are considered to be part of the land where they are grown or found and any security interest on the land will be automatically considered a security interest on the crops or timber; thus it is possible to mortgage the land (on which see paragraph (j) below), but not the crops or timber separately, unless they are severed from the land on which they have grown and are stored separately. In the latter case, it is possible to register a floating charge over the crops and the timber. (d) Equipment: A fixed charge is the most common type of security which may be created in relation to equipment. (e) Intellectual Property rights may be assigned pursuant to an Assignment Agreement and may be pledged pursuant to a Pledge Agreement. (f) Inventory: A fixed charge may be created in relation to an inventory. (g) Leases: The rental income from the lease of immovable property may be assigned pursuant to an Assignment Agreement.

4 (h) Mineral Interests: Mining interests or interests in extracted minerals may be subject to a floating charge. (i) Promissory Notes and Chattel Paper may in principle be subject to a floating charge. (j) Real Estate: A mortgage over land is the most common type of security that may be created over real estate in Cyprus. In order for a mortgage over land to have legal effect, it should be registered with the Land Registry in accordance with the provisions of the Transfer and Mortgage of Immovable Property Law, No. 9 of Registration fees equal to 1% of the secured amount are payable to the Land Registry. Additionally, a mortgage over land created by a company should be recorded with the Registrar of Companies. (k) Receivables may be assigned pursuant to an Assignment Agreement. (l) Rights under Contracts may be assigned pursuant to an Assignment Agreement. (m) Shares: Share certificates may be pledged pursuant to a Pledge Agreement in accordance with the provisions of the Contract Law, Cap (n) Vessels: According to the Merchant Shipping (Registration, Sales and Mortgages) Law, No. 45 of 1963 a registered ship or a share therein may be made the subject of security. The cost of registration will depend on the gross tonnage of the vessel. In addition, a charge on a ship or any share in a ship shall be registered with the Registrar of Companies as a charge over the assets of the vessel owner. (o) Vehicles: A pledge over a vehicle may be created pursuant to a Pledge Agreement and should be registered in accordance wit 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? It is generally possible for the relevant security agreement to be enforced judicially and a judgment for the sale of the secured assets to be obtained. It is generally possible to enforce a security governed by another jurisdiction. Most security agreements may be enforced extra-judicially. For example: Floating charge over all the assets of a company A receiver and manager may be appointed over the whole or any part of the assets and may take possession of the company s business and property, carry on its business and sell any of its assets. Pledge over share certificates

5 Subject to the provision of a notice the pledgee may put into effect the transfer of the relevant shares. Mortgage over immovable property A mortgagee may send a notice to the mortgagor, whose debt is outstanding for more than a month. If the mortgagor fails to comply with the notice the mortgagee may file an application with the Land Registry requesting the sale of the mortgaged plot b 6. Can a trustee or security agent be used in your jurisdiction, or must security be granted in favour of all lenders? Yes, it is possible for a trustee or a security agent to be used in Cyprus, whereby the relevant security may be granted to the trustee or security agent in favour of all or some of the lenders. The underlying Loan Agreement would usually specify the powers and obligations of the said trustee or security agent and each security agreement would normally specify such provisions in the Loan Agreement would be applicable to the security agreement as well. In these cases, it is common practice to register the relevant security agreement with the Registrar of Companies as a charge over the assets of the Cyprus company in favour of the trustee or the security agent only. 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? Any charge or mortgage made by a company unable to pay its debts as they become due from its own money, within 6 months before the commencement of its winding up, with a view of giving the relevant creditor a preference over the other creditors shall, in the winding up of the company be deemed a fraudulent preference of its creditors and be invalid. Where a company is being wound up, a floating charge created within 12 months of the commencement of the winding up shall, unless the company proves that immediately after the creation of the charge it was solvent, be invalid. In a winding up of a company the following payments are made in priority to all other debts, including the security granted to secured creditors: (a) all local rates, government taxes and duties which have become due within 12 months before the initiation of the winding up; and (b) any salary owed to an employee, any sum owed to a recognised union and certain other entitlements payable to the employees. 8. In your jurisdiction, can borrowers or guarantors subordinate their claims and if so in what terms?

6 In Cyprus, it is generally possible for borrowers or guarantors to subordinate their claims. There are no specific terms under which they may do so. 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.). If the terms of the underlying facility agreement, the relevant security agreement and the agreement for the transfer, assignment or novation of the underlying facility agreement to a new lender are clear as to their purposes, then it is generally possible in Cyprus for the relevant security to be automatically transferred to a new lender. On the other hand, it is advisable for the previous security agreement to be terminated and for a new security agreement to be entered into between the party providing the security and the new lender. The main argument in favour of a new security is to enable the new lender to have the relevant security registered as a charge over the assets of the party providing the security with the Registrar of Companies. It is not possible to register the relevant charge with the Registrar of Companies in favour of the new lender by automatically transferring the security. 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? From our experience, it is not common to have another layer on top of a particular security consisting of an assignment of the collateral concerned conditional upon default by the debtor. We believe that any such top and conditional collateral would not be capable of registration and would probably be quite complex to enforce through the courts. 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? Step-in rights are generally lawful in Cyprus and the creditors are not always required to go through a court process in order to take control of the relevant assets which are the subject matter of the security agreement. Examples of the relevant step-in mechanisms in relation to a floating charge over all the assets of a company, a pledge over shares and a mortgage over immovable property are provided in our reply to question 5 above.