By Indira Birkwood and Michelle Frett-Mathavious
Financings involving BCs are now embedded within the global financial landscape given the popularity of these entities. The cross-border nature of such transactions often generates questions relating to the registration of security interests and this article addresses the most common issues relating to security granted by BCs over their assets.
Creating security over its assets
Subject to its constitutional documents, a BC may create security over its assets, wherever located. Save for where the security is governed by the laws of the BVI, the BVI Business Companies Act (as amended) (the BCA) prescribes no specific form for such security and the efficacy of the security will depend upon its governing law requirements.
Parties may select a governing law that works for them, having regard to the situs of the secured assets. BVI law is quite flexible in this regard.
Registration of security
Where a BC creates security over its assets, two separate and distinct registrations must be considered:
- a public registration in the register of registered charges maintained by the Registrar of Corporate Affairs (the Registrar) under section 163 of the BCA; and
- a private registration in the register of charges maintained by the BC (or its registered agent) at its registered office under section 162 of the BCA.
Neither registration affects validity of the security. Public registration determines priority of the security as against potential competing security created over the same assets as a matter of BVI law while private registration is mandatory. A BC’s failure to comply with the private registration will expose it to a fine of US$5000.
Public registration is made by submitting an application in the approved form to the Registrar. There is no requirement for the actual security document to be filed and entries on the register of registered charges take the form of extracts of the relevant security document, containing details that would permit a reasonable understanding of certain contents of it.
In the case of the private registration, the BC is required to enter particulars of the security document on the register of charges kept at its registered office or at the office of its registered agent.
Public registrations are made by the BC or the person to whom the security interest is granted (or their agents, acting on their behalf) by submitting particulars in a format acceptable to the Registrar together with the applicable filing fee.
Once approved, the Registrar stamps the filed particulars and issues a Certificate of Registration of Charge that confirms the date and time the security was registered. The Registrar typically forwards a copy of the Certificate of Registration of Charge to both the BC and the secured party as proof that the registration has been done.
Effect of non-registration of the security document in the BVI
As mentioned above, only the private registration is mandatory under BVI law and a failure by a BC to make such filing could expose it to a penalty.
While neither mandatory nor necessary for validity or enforceability, public registration should be made in order to protect the priority position of a secured party. There is no statutory or other timeframe for filings to be made but as priority is determined by the date (and time) of filing, best practice is for filings to be made as soon as possible following entry into the security document.
Where there is a gap between entry into the security document and the public filing, a public search against the BC would reveal whether any filings were made in the interim that would take priority.
Priority
Public registration ensures priority over (i) security interests subsequently publicly registered against the BC and (ii) all unregistered security interests created by the BC after the “commencement date” (i.e. either the date upon which a BC was formerly registered under older BVI companies’ legislation or was formally re-registered as a BC under the BCA). Specific rules apply to security interests created prior to the commencement date and given their complexity, you should speak to your usual Harneys contact for further advice on this area.
Of note, priority of security interests can be varied with the consent of the holders and the priority of a registered floating charge is postponed to a subsequently registered fixed charge (but not an unregistered fixed charge) unless the floating charge contains a restriction on the power of the BC to create future security ranking in priority to, or equally with, the floating charge.
Variation of Security
Where security has been registered and the parties agree to vary the terms of the underlying finance/security documentation in a manner that would materially change the filed security, a variation may be filed to take into account the relevant changes.
The filing is made by the BC, its registered agent or a BVI legal practitioner acting on behalf of the BC or the secured party by submitting the variation particulars in a format acceptable to the Registrar and payment of the relevant fee. Once completed, the Registrar issues a Certificate of Variation that confirms the date and time of filing of the particulars.
Release of Security
Where security over the assets of a BC have been released, a notice of satisfaction or release (either in whole or in part) should be filed with the Registrar in order to de-register the filed security particulars on the public register.
The application is made by BVI legal practitioners on behalf of the relevant secured party or the BC or by the BC’s registered agent, typically submitted based on documentary evidence of the release of the security interests.
Neither the registered agent nor the BVI legal practitioner acting for the BC should amend the BC’s records to de-register security without proof of the secured party’s release being given to the Registrar. The notice therefore must be signed by the secured party or supported by a statutory declaration given by the BC verifying matters stated in the notice. The registered agent should also update the BC’s private register of charges.
Once the notice of satisfaction or release has been filed, a Certificate of Release or Certificate of Satisfaction is issued by the Registrar.
About the Authors
Indira Birkwood leads Harneys’ BVI Banking and Finance practice in the EMEA region, based out of the firm’s London office. She advises leading onshore law firms, major international financial institutions, multinational corporations and real estate investment companies and specialises in all aspects of financing. Her particular areas of expertise include cross-border structured finance, real estate finance, emerging market debt, structured debt, asset finance, project finance, capital markets, Islamic finance and acquisition finance transactions.
Michelle Frett-Mathavious is a partner in Harneys’ Banking and Finance practice group. She advises clients such as onshore law firms, banks and other financial institutions, funds and corporations on finance and corporate matters related to BVI and Anguilla law. She has experience in syndicated finance, structured debt, asset finance, bond and note issuances, project finance, property finance transactions, insolvency, receivership and Islamic finance. She has worked on a number of complex and high profile finance transactions and has extensive expertise in property and project finance transactions in Asia and Europe.
