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Enron Mail |
In the past few weeks, I have discussed this issue with Brent H., Mark T.
Chris G. and Mary C. Under the PPSA jurisdictions in Canada, which includes Alberta and Ontario among others, cash held on deposit as collateral is not clearly categorized as "money" but more likely an "account". Although certain categories of collateral can be perfected by possession, including "money", "intangibles", which includes "accounts", cannot be perfected by possession. The issue comes down to whether we will accept the risk that a wire transfer to an account designated by us constitutes "money". Although it is not clear, the better view is that "money" means cash in hand and not on deposit. The risk is that an unperfected security interest is subordinate to various parties, including a bankruptcy trustee and to subsequently taken but properly perfected security interests. I will admit, however, that this seems to be a risk that others in our market take (although likely unknowingly). Accordingly, to perfect the "account" a registration is likely required at the PPR, which is something we do not want to get into. Even then, as an "account" is an "intangible" certain conflicts rules for perfection by registration need to be considered, as the PPSA jurisdictions provide that perfection of an intangible is governed by the laws of the jurisdiction where the debtor is located, as determined by the location of its principal place of business or chief executive office. i.e. registration may be required in some other jurisdiction entirely. Further, an advance search would have to be done to see if there are competing prior registrations. Also, as the PPR is not a guaranteed title registry, registration priority does not necessarily guarantee security priority, and law firms will not typically give priority opinions under the PPSA. Lastly, if there is an insolvency and the deposit holding institution is also a creditor of the counterparty, there may be some argument that the deposit holding institution will assert rights of set off over the account. In terms of updating advice, the statutory provisions have not to my knowledge changed. I suppose there is some possibility that a court has recently determined that "money" includes deposits that we are not aware of, and I could ask outside counsel to research this issue. Peter. Carol St Clair 03/20/2001 07:45 AM To: Peter Keohane/CAL/ECT@ECT, Greg Johnston/CAL/ECT@ECT cc: Sara Shackleton/HOU/ECT@ECT, Mary Cook/HOU/ECT@ECT Subject: Cash Collateral In Canada Peter and Greg: One of our counterparties is questioning why we won't accept cash collateral in Canada. They claim that under the current state of the law, holding cash collateral is the method for perfecting. Please advise. Should we ask Stikeman to update their advice to us on this? Carol St. Clair EB 3889 713-853-3989 (Phone) 713-646-3393 (Fax) carol.st.clair@enron.com
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