Bank finance and regulation. Multi-jurisdictional survey. Portugal. Enforcement of security interests in banking transactions. Tiago Ferreira de Lemos

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1 Part I types of security Bank finance and regulation Multi-jurisdictional survey Portugal Enforcement of security interests in banking transactions Tiago Ferreira de Lemos Plen Sociedade de Advogados, Lisbon tiago.lemos@plen.pt 1. What are the most common types of security in banking transactions in your jurisdiction (eg, standard security package)? Please provide a brief characteristic of each type of security. For the purposes of this question the expression security right shall correspond to the Portuguese concept of direito real de garantia, ie, a security right in rem granting, at least, the following two fundamental rights in rem to the secured party: (a) the right to pursue the secured asset, even if it is transferred to any third party; and (b) the right to be paid out of the proceeds of the sale of the secured asset with priority over any unsecured creditors. Under Portuguese law parties may establish different types of security rights on different types of assets, however it is not possible to grant or create security rights different from those categorically foreseen and regulated in the law, due to the fact that all rights in rem are subject to a numerus clausus. This being said, the most common types of security used in banking transactions in Portugal would be the following: (a) Mortgage hipoteca A mortgage is a type of security right in rem which entitles the creditor to be paid with priority over unsecured creditors, against the value of certain real estate (or of any assets considered by law as equivalent to real estate, such as vehicles, vessels, etc) owned by the debtor or by third parties. Mortgages may only be created over the following assets: (i) ownership rights over real estate; (ii) surface rights; (iii) rights resulting from the concession of assets of the public domain (iv); usufruct over any of the mentioned rights/assets; (v) any movable assets which may treated by law in the same manner as real estate, namely regarding registration procedures, etc. (excluding vehicles, ships, aircraft, etc). (b) Pledge penhor A pledge entitles the creditor to be paid, with priority over unsecured creditors, against the value of certain existing movable assets or rights, including not only credit rights but also other patrimonial rights which are not susceptible of being mortgaged (in order for a pledge to be valid the rights subject thereto have to be certain or, at least, definable). In practice, the pledge grants the creditor a priority right over the proceeds of the sale of the pledged asset or right, in relation to the remaining unsecured creditors.

2 (c) Assignment of credits in security cessão de créditos com escopo de garantia In general, Portuguese law does not foresee fiduciary ownership and usually security rights foreseen by Portuguese law do not allow for a transfer of ownership of the secured assets to the creditor. In addition, as a general rule [with the particular exception of the financial collateral regime established by Decree Law 105/2004 of 8 Mayj (the Collateral Decree ) which transposed Directive 2002/47/CE (the Collateral Directive ) to the Portuguese internal legal system] and for the generality of the security rights, the Portuguese Civil Code does not allow for the creditor to become, automatically, the owner of the secured assets in case of default by the debtor ( pacto comissório ). This means that enforcement of security rights must usually be carried out through the sale of the relevant assets to third parties. This being said, in the specific case of receivables and of other credit rights, namely those having a pecuniary value, Portuguese doctrine has come to accept as valid an assignment of such assets in favour of a creditor, such assignment being done for the purposes of security ( com escopo de garantia ). It is therefore common to find in banking documentation an assignment by the debtor of certain credits in favour of its creditors, particularly in relation to future credits (which can not be pledged). This system, however, has not been extended to bank accounts, which, in the opinion of the majority of the doctrine may be subject to a pledge (therefore, not requiring the use of the assignment in security concept). (d) Financial Security Without prejudice to (c) above, Portugal has transposed the Collateral Directive to the Portuguese internal legal system, through the Collateral Decree, which provides, in specific cases, for the possibility of fiduciary transfer of ownership as a security right and for the possibility of the creditor to become the owner of the secured assets in case of default by the debtor ( pacto comissório ). This regime is only applicable if the collateral to be posted consists of cash or financial instruments (ie, securities, money market instruments and credits or rights relating to any of the referred financial instruments). The Collateral Decree foresees two types of financial security agreements: (i) fiduciary transfer by way of security (in which title regarding the relevant collateral is effectively transferred by way of security to the transferee); and (ii) financial pledge [which does not imply the transfer of title on collateral to the secured party, but provides for the possibility of the creditor to become the owner of the secured assets in case of default by the debtor ( pacto comissório )]. The financial collateral regime applies only to financial security agreements in which either the provider of security or the beneficiary thereof is one of certain entities, such as a Bank/Credit institution. The financial obligations to be secured by means of a financial security agreement must consist of a transaction settled in cash or by means of the delivery of financial instruments. 2. In relation to the following types of assets, please provide the types of security that can be created or granted in your jurisdiction and give details of any registrations required: (a) Real estate: The concept of Real estate ( bens imóveis, literally translated as immovable property) includes land together with its permanently affixed fixtures/equipment. As referred above, whenever the asset on which the security is established is an immovable asset, the applicable type of security right shall be a mortgage. Contractual mortgages on real estate require the execution of a notarial deed and are subject to registration with the Land Registry Office. Without due registration the envisaged security is null and void. The priority granted by duly registered mortgages to the corresponding beneficiary ranks pursuant to the date of registration and, if registered

3 on the same day, equally. The mortgagee/creditor does not have the right to automatically take possession of the property in the event of default of the secured obligation, the latter must seek judicial sale of the property and be paid out of the proceeds of such sale. (b) Charging assets (inventory, stocks etc): The establishment of floating charges or the creation of security on a whole pool of assets owned by an entity by way of the execution of one general instrument or contract is not admitted under Portuguese law as a valid form of establishment of security rights. Pursuant to Portuguese law, any creditor envisaging to expand its security rights so as to cover any new assets meanwhile acquired by the debtor must always establish new security rights over such new assets. In Portugal, there is no concept of automatic seizure of new security rights to rights established on asset(s) existing prior to subsequent acquisitions, hence, due to the numerus clausus feature of Portuguese rights in rem, a contractual provision in this respect would be regarded as null and void. Furthermore, it is not possible to grant security over an uncertain asset. For the security to be to be valid and existing it has to be established over a certain asset and in the case of an inventory, each of the assets comprising such inventory shall be regarded as a movable asset. Accordingly, please see (c) below in respect of the establishment of security rights over movables. (c) Movables: Security rights may be established over movable assets by way of a pledge, which may be formalised by way of a private written agreement. As a matter of principle, the perfection of a pledge over movable assets requires that the creditor takes possession of the pledged assets until full discharge of the debt. However, and as an exception to the aforementioned principle, Portuguese banking law (Decree-Law of 17 August, 1939) foresees that a pledge established to secure credits of duly authorised banking institutions produces its effects (between the parties to the credit agreement and as well as in respect of third parties), regardless of the delivery of the asset/dispossession or of the document attesting the right. This means that, exceptionally, in the case of a pledge granted in favour of banking institutions, the debtor may keep possession of the relevant pledged assets (this type of pledge requires that signatures on the security document must be authenticated by a lawyer or notary public). In this case, the debtor shall be considered as a holder on behalf of a third party. Should the debtor dispose of, modify or destroy the object of the pledge without the creditor s prior consent, the former shall be subject to criminal liability. (d) Shares: (i) Pledge over shares of private limited companies ( sociedades por quotas ): The shares ( quotas ) representing the share capital of private limited companies are not materialised in certificates, consisting of a simple registration in favour of the respective holder, in the commercial registry. Accordingly, the creation of a pledge over shares of this type of companies is subject to the execution of a private written document (containing the terms and conditions under which the pledge is granted, in favour of whom the pledge is granted and the rights which are to be secured). The said private document must subsequently be registered with the Commercial Registry Office, in order for the pledge to be effective to third parties (erga omnes). (ii) Pledge over shares of joint stock companies ( sociedades anónimas or SA ): Pledges over shares of joint stock companies are established by way of a private written document (containing the terms and conditions under which the pledge is granted, in

4 favour of whom the pledge is granted and the rights which are to be secured). Perfection of pledges over the different types of shares of SA companies is achieved as follows: (1) Book entry shares: the pledge must be registered in the account in which the shares are registered; (2) Nominative certified shares: the pledge must be registered with the respective issuer (through the filing of an application signed by the pledgor) joint stock companies must have a share registration book, which must be kept in their registered office and which shall contain all records regarding the ownership and encumbrances created over the shares. The new owners of nominative shares or the pledgees of such type of shares must request the company s management to record their title in the mentioned share registration book (further to a declaration of pledge recorded in the certificate itself, signed by the owner of the share to be pledged); (3) Bearer certified shares: dispossession, ie, delivery of the share certificates to the pledgee. (e) Rights under contracts (receivables): As mentioned above, one may establish security over credit rights by way of a pledge, whenever the object underlying such rights is a movable asset (eg, cash or any other movable assets) capable of being transferred. The rule is that the creditor must take possession of any documents evidencing the debt, and the debtor owing the corresponding debt must be notified by the pledgor of the establishment of the relevant security right (or accept it) in order for the pledge to be effective vis a vis the said debtor. It is also usual in Portugal, as an alternative or complementary to a pledge, to grant an assignment in security over the receivables, as described in 1(d) above. The formalities required in this regard are similar to those described in the foregoing for pledges over credit rights (eg, notification of the debtor is crucial). (f) Bank accounts: Bank accounts may be subject to pledges, which may be formalised by way of a private document, subject to registration with the relevant credit institution, ie, in order for the security right to be perfect, such credit institution must always be notified or accept the pledge (please see 2(d) above). Besides these mandatory requirements, parties are free to agree on the specific terms/mechanics of the pledge. Usually, bank deposits are specifically allocated to the satisfaction of certain obligations. Hence, the pledgor/debtor would normally be prevented from using such deposit while its debt remains outstanding. Typically the pledge allows the credit institution, on the due date, to be paid by debiting such account, ie, to set-off its credit against the balance of the account. It is also usual to create the pledge over the balance of the account, thereby allowing the debtor to operate the account before the maturity date. It is also possible for parties to implement financial pledges or fiduciary transfers by way of security (ie, financial security agreements) over bank deposits provided the requirements foreseen in the Collateral Decree are duly satisfied (eg, one of the parties is a financial institution and the secured obligations consist of a transaction settled in cash or by means of the delivery of financial instruments). In terms of formalities, the financial security agreement must allow for the identification of the collateral provided, as follows: (i) financial pledge on cash collateral - Registration in the account of the collateral provider; (ii) fiduciary transfer by way of security of cash collateral - Registration of the credit in the account of the beneficiary/creditor. (g) Financial instruments (eg, securities): As a matter of rule, security rights over securities and similar financial instruments are created by way of a pledge, following the formalities described in (d) above. It is also possible to implement financial security agreements over bank securities provided the requirements foreseen in the Collateral Decree are duly satisfied. As referred in 2(e) above, the financial security agreement

5 must allow for the identification of the collateral provided, as follows: (i) financial pledge on dematerialised (book-entry) securities registration in the account of the owner or in the account of the beneficiary/creditor; (ii) fiduciary transfer by way of security of dematerialised (book-entry) securities registration of the fiduciary acquisition in the name of the beneficiary/creditor. (h) Intellectual property: Portuguese law divides the concept of intellectual property in two separate concepts, ruled by two different codes. The Industrial Property Code regulates the legal regime applicable to trademarks and patents while the Copyright and Connected Rights Code concerns to copyrights and similar rights. Trademarks, patents and copyrights can be posted as security by way of the creation of pledges. The creation of pledges over trademarks and patents is subject to the execution of a written document which must be registered with the Industrial Property National Institute ( Instituto Nacional de Propriedade Industrial known as INPI ). This registration is a condition of effectiveness erga omnes. Copyrights are regarded as subjective rights, which grant the respective holder the possibility to directly exercise them or and the possibility to require compliance with that right from any third parties. It is viewed as an exclusive temporary right. Copyrights include personal (or moral) and financial elements. Only the financial elements of a copyright can be subject to pledge, as follows: (i) pledges established over a part of the financial elements of a copyright may be formalised by a private written document with notarial certification of the respective signatures; and (ii) pledges established over the whole financial elements, must be formalised by way of a notarial deed. No registrations are required in relation to security over copyrights. (i) Plant and machinery: Please refer to 2(c) above. In this respect, please bear in mind the particularities and exceptions concerning dispossession. (j) Other assets: Parties may establish mortgages over the following assets: (i) vessels - by way of the execution a notarial deed. Mortgages over commercial vessels are subject to registration with the Commercial Registry Office. Mortgages over pleasure yachts are subject to registration with the competent port authority; (ii) vehicles (ie, movable assets subject to registration which, like vessels, follow the legal regime applicable to mortgages) by way of a private written document which must be registered with the Vehicles Registry Office; (iii) aircraft by way of a private written document which must be registered with the National Civil Aviation Institute ( Instituto Nacional da Aviação Civil also known as INAC). Animals, harvests and timber are regarded as movable assets, therefore it is possible to create pledges thereover in accordance with the formalities and with the restrictions described in 2(b) and 2(c) above. 3. Can a trustee or security agent be used in your jurisdiction, or must security be granted in favour of all lenders? Is the parallel debt clause concept recognised in your jurisdiction? As referred above, as a matter of rule, Portuguese law does not foresee any type fiduciary ownership. Trusts are not recognised in this jurisdiction, except in the limited context of the legislation of Madeira Free Trade Zone. Accordingly, even if finance documents establish that the security agent holds both the secured obligations and the security for the benefit of the members of a lending syndicate, unless all members of the syndicate are described in the documents as legal creditors/beneficiaries of such secured obligations, the security agent shall appear as the sole beneficiary of the

6 security rights and shall be the only entity with full authority to file enforcement procedures in relation thereto. In summary, in order to have a fully valid and enforceable security right in rem in Portugal, the rule is that the beneficiary of the security needs to hold a valid underlying right/claim (a security right is regarded as accessory to the secured right). To the best of our knowledge, up to the present date, Portuguese courts have not addressed the validity of parallel debt structures, pursuant to which the debtor undertakes, by way of parallel debt, to pay amounts equal to amounts owed by the latter to the secured parties, to a security trustee thereby creating a direct claim of the security trustee against the debtor. In order to try to overcome the legal uncertainty connected with the use of parallel debt structures tout court, a number of Portuguese practitioners have come to the understanding that the best procedure to adopt, where security is given to a financial institution, would be to include a specific provision in the security documents stating that for the purposes of enforcement in Portugal, the security agent shall be considered the joint and several creditor (credor solidário) in accordance with, inter alia, articles 528 et seq. of the Portuguese Civil Code, reciprocally with each other secured party, in relation to any and all liabilities to such other secured party. This means that it is crucial that the security agent also be a lender at all times so that the latter is able to claim the whole debt in its own name. Given the fact that the security is granted in the sole name of the security agent and not in the name of all the lenders and the security agent acts as an attorney, there is a risk that if the security agent tries to claim the whole amount in his own name (indeed the security agent would have to do that as sole beneficiary) while not being a lender, the borrower could oppose by alleging that the security is granted only to the security agent, and if, for instance, the latter is entitled to no amounts as lender (if, for instance, the security agent has been fully paid as lender or has no outstanding claim on a particular date), it has no title to claim the whole amount. 4. Please explain the latest amendments to the law governing secured transactions in your jurisdiction. Are there any amendments which will be introduced in the near future (within one to two years) which might have an impact on the legal framework of secured transactions? Please also explain recent practical developments regarding secured transactions in your jurisdiction. Our replies to 1, 2 and 3 above already take into account the most recent amendments and interpretations to the law governing secured transactions in Portugal. We are not aware of any amendments which will be introduced in the near future (within 1-2 years) which might have an impact on the legal framework of secured transactions. Part II enforcement of security 1. Please explain briefly general rules of enforcement of security indicated in answer to the Question 1 in Part I above (excluding rules in a bankruptcy or insolvency proceeding see Question 3 below). In your answer please explain whether specific security may be enforced only through judicial proceedings or whether extra-judicial methods are also available. Furthermore, please provide estimate of costs (if they create significant obstacle in enforcement, including applicable taxes and any other duties/ costs) and timing for enforcing such security. Please also explain degree of difficulty (eg, burdensome formalities, whether enforcement requires actions of a state body) in

7 enforcing security. Also please explain whether taking security by an entity from other jurisdiction influences possibility of establishing security and its enforcement. The rules of enforcement of the security interests described in the foregoing depend, to a great extent, on the type of security to be enforced. Concerning the enforcement of mortgages, the normal procedure is the enforcement of the security by means of seizure (known as penhora ), ie, the judicial apprehension of the asset posted as collateral in security of an obligation. Such procedure aims at preventing the debtor from continuing to use the seized assets. Currently, the application for seizure of a given asset is made via internet to the competent court and is implemented by an enforcement agent ( agente de execução ) by way of an electronic communication to the competent Registry Office. This procedure is equivalent to a formal application for registration and the assets are delivered to a custodian, normally the enforcement agent. Seizure grants the creditor the right to be paid out of the proceeds of the sale of such assets, with priority over the remaining common unsecured creditors, provided that there is no prior or privileged security in rem over the seized assets. In the case of a pledge of movable assets, the creditor, from the moment the debt falls due, has the right to apply for enforcement/seizure and as a result, to be paid, with priority in relation to the remaining creditors, out of the proceeds of their sale. If the parties have so agreed in writing (eg, in the security documents), the sale of the pledged assets may be made out of court or be allocated to the creditor for the price established by the court. Judicial enforcement involves seizure of the pledged assets as described above and, whenever the seizure relates to movable assets not subject to registration, it is implemented through the actual apprehension thereof, promoted by the enforcement agent. Concerning pledges of rights, the procedures established for the enforcement of pledges over movable assets apply mutatis mutandis. In practice, the enforcement agent or the court notify the debtor of the pledged right that the pledge has been enforced and that all subsequent payments should henceforth be made to the order of the creditor. We should, nonetheless, point out that Portugal is known for the complexity of its judicial system and the length of court actions, including enforcement proceedings. In this respect, it should also be noted, in relation to all types of security rights in rem, that Portuguese law grants certain credits a priority right even against other secured creditors. The following types of credits have a direct legal priority, in the following order: employees holding rights against their employer arising from their employment contacts; the State and Municipalities in relation to certain taxes (eg, property taxes relating to a property); and social security authorities concerning outstanding contributions. In addition, it should be noted that retention rights ( direito de retenção ) over real estate have priority over mortgages, even if such mortgages have been previously registered (article 759 of the Portuguese Civil Code). 2. Please explain briefly specific features (if any) of enforcement of security established over following types of assets: (a) Real estate;

8 (b) Charging assets (inventory, stocks etc); (c) Fixed charge over movables; (d) Shares; (e) Rights under contracts (receivables); (f) Bank accounts; (g) Financial instruments (eg, securities); (h) Intellectual property; (i) Plant and machinery; (j) Other assets. Please see 1. above. 3. How does a commencement of bankruptcy or insolvency proceeding influence the rights of the security holder to enforce its rights? In bankruptcy or insolvency proceedings, what are the suspect periods, is claw-back possible, and what other types of rights (tax debts, employees, etc) have preference over security granted? Please explain briefly specific features (if any) of enforcement of security established over following types of assets in a bankruptcy or insolvency proceeding: (a) Real estate; (b) Charging assets (inventory, stocks etc); (c) Fixed charge over movables; (d) Shares; (e) Rights under contracts (receivables); (f) Bank accounts; (g) Financial instruments (eg, securities); (h) Intellectual property; (i) Plant and machinery; (j) Other assets. In principle a security right which is legitimately established to secure legitimate credits (and not just to suppress or diminish the guarantees of the remaining creditors) may not become invalid at a later stage (ignoring for this purpose issues such as valid consent, etc). However, it should be noted that the Portuguese Insolvency and Recovery Code (approved by Decree Law 53/2004 of 18 March, as amended) establishes a presumption (for the purpose of termination and of paulian action impugnação pauliana ) of bad faith between debtor and creditor, which does not admit evidence to the contrary, in respect of the following situations: (i) security right in rem created after the existence of the secured obligations or other obligations replacing the former, within six months prior to the beginning of an insolvency proceeding; (ii) security right in rem created simultaneously with the secured obligations with sixty days prior to the beginning of an insolvency proceeding; and (iii) security right in personam granted within six months prior to the beginning of an insolvency proceeding, provided such security has been granted in respect of business which have no serious interest for the debtor. As a general rule, acts which reduce, frustrate, difficult, endanger or delay satisfaction of the insolvency credits, performed by the debtor within four years prior to the beginning of the insolvency proceedings may be terminated by the insolvency administrator if entered into in bad faith by debtor and creditor. The declaration of insolvency implies the termination of the security rights in rem over assets subject to registration which have not yet been registered. Also, security rights in rem over assets included in the insolvent estate securing subordinated credits are terminated upon the declaration of insolvency.

9 4. Are there any specific features or problems of enforcement proceedings if the security is granted to a trustee or security agent or the parallel debt structure is used? Please see Part I Section 3 above. 5. Please explain the latest amendments to the law governing secured transaction in your jurisdiction in relation to a bankruptcy or insolvency proceeding. Are there any amendments which will be introduced in the near future (within 1-2 years) which might have impact on the legal framework of the enforcement of secured transactions in the light of insolvency law? Please also explain recent practical developments regarding secured transactions in your jurisdiction in relation to insolvency law. Our replies above already take into account the most recent amendments and interpretations to the law governing secured transactions in Portugal. We are not aware of any amendments which will be introduced in the near future which might have an impact on the legal framework of secured transactions.