|
Administration - floating charge |
|
|
It will clearly be to L’s advantage to have a floating charge over the assets of a corporate T:
- if any creditor applies to the court for an administration order, then the copy of the petition must be served on any creditor who has a floating charge over the whole, or substantially the whole, of the company’s property (ie a ‘qualifying floating charge’);
- if the shareholders or directors want to appoint an administrator then they must give at least five business days prior notice to the holder of a qualifying floating charge. In effect, this will allow the holder of the floating charge to veto the choice of administrator (eg nominate a different administrator who will be more sympathetic to the floating charge holder’s proposals on, for instance, a pre-pack);
- the holder of a qualifying floating charge can appoint an administrator by filing a notice of the appointment at the court. This type of appointment can effectively trump the intended appointment of an administrator by other interested parties.
If L does not have a qualifying floating charge, the danger is that L will simply learn about the appointment when a notice to creditors is sent out within 14 days of the administrator’s appointment. Indeed, if no rent is outstanding, L will not even be a creditor and thus may not receive that notice. Accordingly, the best advice for L is to become a floating charge holder (eg if T is in rent arrears then it might be worth trying to negotiate a rent holiday in return for L being granted a floating charge).
|
|
April 2009 |