Everything You Need to Know about Security Agreements

Why Businesses Enter into Security Agreements

Secured transactions are vital to growing a business. Nearly all individuals and organizations need to take on debt at some point, but getting creditors onboard can be a struggle. Security interest provides reassurance to the creditor, who is then more likely to provide much-needed funding for a given debtor. Additionally, the debtor is more likely to obtain a low interest rate if some form of collateral is available to the creditor. Security agreements play a central role in this arrangement by outlining the terms under which debt can be secured, and what will happen if the debtor defaults.

Article 9 of the UCC: Governing Security Agreements

Security interest is largely regulated via Article 9 of the Uniform Commercial Code (UCC). This legislation provides uniformity across the lending industry while alerting both debtors and creditors to their rights. Over the years, Article 9 has become one of the code's most important elements. It applies to all transactions that create security interest in personal property.

Drafting a Security Agreement

At a minimum, a valid security agreement consists of a description of the collateral, a statement of the intention of providing security interest, and signatures from all parties involved. Most security agreements, however, go beyond these basic requirements. Many include covenants (or obligations of the debtor) and warranties (guarantees). Examples of covenants or warranties could include the following:

• The property to be used as collateral is currently free of outside liens.
• The debtor must notify the secured party immediately about changes in address.
• The debtor must notify the secured party if the property's value decreases or the property is somehow damaged.
• The property should not be wasted by the debtor.
• The debtor must keep the property in excellent condition.
• The property cannot be used in violation of any federal, state, or local laws, or in violation of an associated insurance policy.

Once the security agreement is created, it should be attached. To be deemed 'secured,' the agreement should be perfected. These terms are outlined in detail below. Additionally, the agreement should be authenticated, ideally before a notary or witness (or both).

Describing Collateral

As mentioned earlier, a security agreement cannot be deemed valid if collateral is not adequately described. Specifically, descriptions of collateral should not be overly broad or generic. An overly broad description might involve a blanket description or invoke 'all assets' owned by the debtor.

In general, descriptions of collateral should "reasonably [identify] what is described.” In the UCC, examples of a reasonable description include:

• specific listings,
• quantity of collateral,
• categories of collateral, and
• description by type.

The UCC acknowledges that description by type is not sufficient for commercial tort claims, commodity accounts, security entitlements, or consumer transactions.

Types of Collateral

A variety of tangible and intangible goods can be used as collateral. These include the following goods:

• Inventory (raw materials held by a business for sale or lease)
• Farm products (livestock, crops, or other goods produced via farming operations)
• Fixtures (items such as windows or doors that, if removed from real property, would require extensive reconstruction)
• Equipment (any goods other than inventory, consumer goods, or farm products)
• Accession (defined as any good so united with previously mentioned goods that the identity would be lost upon removal)
• Accounts (such as accounts receivable, promissory notes, or insurance policy proceeds)
• General intangibles (including some software rights)

Some security agreements include a middle ground of sorts: indispensable paper. Not exactly tangible or intangible, this involves any paper that is absolutely necessary for securing the value of tangible goods.

Floating liens may also appear in security agreements. This type of security interest may not be in the debtor's possession at the time of the security agreement's creation. A floating lien may involve after-acquired property, proceeds from the collateral's disposition, or future advances.

Attachment of a Security Interest

Attachment is a critical process for completing security agreements and obtaining security interest. Only upon fulfilling attachment requirements does the creditor become a secured party. To achieve attachment, the following obligations must be met:

• An exchange of value must occur. For example, a bank could exchange value with a debtor by providing a loan in conjunction with the security agreement.
• The debtor enjoys rights to the collateral. This could involve ownership of the collateral before the secured transaction or, in some cases, purchase of the collateral as part of the transaction. Often, a business will purchase inventory or equipment on credit and then use that same property as collateral.
• The debtor must authenticate the security agreement by signing a statement that announces the intention to grant a security interest in the property specifically outlined in the security agreement.

Perfecting a Security Interest

A commonly confused term, 'perfect' in the context of a security agreement does not mean that the document is free from errors. Rather, a 'perfected' security agreement ensures that a secured party can claim promised collateral in the event that the debtor declares bankruptcy.

The process of perfection is not required by law, but it remains an important step for those with security interest. Without perfection, it is impossible for secured parties to truly feel confident that the debtor's collateral is safe from other creditors.

How to Perfect a Security Interest

Several methods can be used to perfect a security interest. Most debtors and creditors file financing statements, but some pursue alternatives. The main options for perfecting a security interest are outlined below.

Establishing Priority

Often, a secured party's primary desire in filing a UCC-1 financing statement is to establish priority over other secured parties. Without a financing statement, perfection of a secured interest does not necessarily grant the perfected party priority over other third parties. If proper perfection is not achieved, the creditor may be given the status of 'unsecured creditor' in the event of bankruptcy.

Generally, priority is granted to the first secured party to successfully file a financing statement. After this, other parties could be referred to as the "second secured party" or "third secured party."

While priority can typically be achieved by filing a financing statement before other parties, exceptions exist. These include statutory liens, federal tax liens, and prior filings. Hence, even with perfection via financing statement, it is possible that competing claims could take priority.

Conditions of Default

Security agreements may outline the conditions under which a loan is considered in default. Typically, default occurs when the debtor fails to make agreed-upon payments on time. However, other conditions may also be instated, such as the following:

• The theft, improper use of, or substantial damage to the collateral
• The failure to abide by other covenants, warranties, or obligations outlined in the security agreement
• Evidence that covenants, warranties, or descriptions of collateral were false
• The issuance of garnishments, levies, or seizures with respect to the collateral
• Unapproved mergers or consolidations made by the debtor

Remedies for Defaults on Secured Loans

Article 9 of the UCC provides a variety of remedies for creditors attempting to recover losses from defaulted loans or other transactions, including the following:

How to Create a Security Agreement

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