Full force and effect

A handy little triplet to shove in for the peace of mind of nearby chicken-lickens when you are amending agreements. Fulfils two main objectives:

• States the bleeding obvious for those too timid to believe how hard it is hard to create positive legal obligations by implication;
• Confirms for the avoidance of doubt that, if your agreement had a security component of some kind, by amending you didn't inadvertently terminate and restart it, with all the attendant grief that such an action would bring about.

Stating the bleeding obvious

A deep self-doubt which begets inclusos and for the avoidance of doubts, is the lawyer’s reluctance to grasp a simple proposition: You don’t have say what you have not agreed to do in a contract. You don’t have to do anything you haven’t agreed to do. The same goes — a fortiori, even —for amendments.

Amending security interests

Security is deep Eagle lore. Even sensible, experienced, senior, inhouse lawyers will get the shivers whenever the topic of taking security comes up. From childhood they have been raised on gruesome stories of what happens to legal eaglets who are careless with security interests.

If you amend a document granting a security interest you risk someone trying to argue that you have terminated the old security interest and created a new one, thereby re-starting any voidable preference period, invalidating any previously registered charge, and of course relegating your interest behind those of anyone who has registered a security interest over the same assets in the mean time — the first security interest in time prevails.

Some of these risks have been de-complicated by the financial collateral regulations (insofar as they’ve done away with registration requirements, slavenburgs and so on for financial collateral arrangements), and while this is still a bit of a mine-field, basic common sense should avoid anyone but the most headless chicken-licken standing on any landmines.

For one thing, to run any risk you have to actually be amending the security interest itself, rather than other legal or economic terms that just happen to be in the same contract.

So, if you have — ooh, say a prime brokerage agreement which contains a charge but a lot of other stuff besides — you are (in the humble opinion of this bear of little brain) most likely to be amending other things and not the actual charge provision, which tends to be dull and workpersonlike. You may tweak rehypothecation limits, financing rates, transaction terms and so on — but the security package will remain intact.

In any case, the following magic words should help: “These amendments will not affect the effectiveness, time of original execution or priority of any security interests.”

See also

• Amendment
• Security interest