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that the grantor may make withdrawals from the account in the absence of an event of default. The secured party will be able to allow this freedom knowing that the grantor having such a right of withdrawal will no longer undermine the essential validity of the basic security interest.


Perfection and registration The concept of perfection describes the measures that need to be taken in order to ensure that a security interest is valid against third parties (such as the Viscount, a liquidator and other creditors), and the new Law has two methods by which security agreements may be perfected. One is by the secured party having possession or control of the collateral as provided for by the Law. However, this is only appropriate for certain types of intangible property. The other method is by registering the security interest on a public register. Under the 1983 Law, there is no system of security registration. Under the new Law, it is possible to perfect


Under the new regime, the enforcement remedies available to a secured party will be significantly enhanced


all security interests by registration. It is likely that secured parties will look to register all security interests to avoid any doubt that the security is perfected. If security is registered under the new regime, then the security will become a matter of public record.


Enforcement


Under the new Law, the key ways in which a secured party may exercise its power of security enforcement are as follows: n by appropriating the collateral; n by selling the collateral; and n by taking certain ancillary actions in relation to the collateral (such as exercising any rights of the grantor in relation to the collateral).


Under the 1983 Law, the only remedy is to exercise a power of sale in relation to the collateral, while under the new regime, the enforcement remedies available to a secured party will be significantly enhanced. So what happens next? Banks will need to revise all standard form security agreements to accommodate the new regime, and may also want to ask existing customers to re-execute security when the new regime takes effect. In this way, banks will enjoy security under the new Law and will therefore benefit from the enhanced enforcement remedies which are available. n


MARK DUNLOP is a Partner in the Banking Group at Bedell Group


www.kendrickrose.com


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