Business (Insolvency) Flashcards
What is Corporate Insolvency?
Insolvency is where a court can make a winding up order in respect of a company (IA s.86).
One circumstance is where a company is unable to pay its debts (s.122(1)(f) IA).
s.123 IA describes four tests for when a company is deemed unable to pay debts:
- Cash Flow Test: The company is unable to pay debts as they fall due
- Balance Sheet Test: The company has greater liabilities than its assets
- The company does not comply with a statutory demand for a debt over £750; or
- The company has failed to pay a creditor to satisfy enforcement of a judgment debt
What are a director’s obligations in periods of financial difficulty?
Directors must continually review the financial performance and recognize when the company faces difficulty, such as unpaid creditors, overdraft issues, or liabilities exceeding assets.
Directors must take action to minimize creditors’ losses under IA 1986.
What could a company do during financial difficulty?
The company could…
- take no action
- attempt informal or formal debt rescheduling
- appoint an administrator
- request the appointment of a receiver
- place the company into liquidation.
What is an informal arrangement?
An informal arrangement involves negotiating with creditors to reschedule debts without formal insolvency procedures, and although contractually binding, it is not regulated by IA 1986 or CIGA 2020.
What must the company do to obtain creditor agreement?
The company may need to grant new security, replace directors or senior staff, sell assets, reduce costs, or issue new shares to creditors.
What is a Standstill Agreement?
A Standstill Agreement is where creditors agree not to enforce their rights for a specified period during informal negotiations.
When do companies use the pre-insolvency moratorium?
CIGA introduced the moratorium for struggling companies to buy time before entering formal insolvency.
It halts creditor action, including enforcement of security and legal proceedings, allowing companies time to reach an informal agreement.
How to obtain the moratorium?
The company must file a statement at court stating it is unable to pay debts and submit a statement from a licensed insolvency practitioner (Monitor) that the moratorium will likely result in the rescue of the company.
It lasts 20 business days but can be extended for up to one year.
What are Pre-Moratorium Debts?
Pre-moratorium debts, such as the Monitor’s fees, wages, or loans under financial services contracts, must still be paid during the moratorium.
What are Moratorium Debts?
Moratorium debts are debts incurred during or after the moratorium that must be paid.
These debts arise from obligations incurred while under the moratorium.
Why use a formal arrangement?
A formal arrangement, such as a CVA or Restructuring Plan, if the requisite majorities of creditors vote in favour of it, are legally binding on all unsecured creditors, even if some of them voted against it or did not vote at all
What are the types of formal arrangements?
Two types of formal arrangements are
* Company Voluntary Agreements (CVA)
* Restructuring Plans under CIGA
What is a CVA?
A Company Voluntary Agreement (CVA) is a compromise between a company and creditors where creditors agree to part payment or new repayment terms.
How to set up a CVA?
- Directors draft a CVA proposal
- Appoint a nominee (insolvency practitioner).
- Submit the proposal and a statement of company affairs to the Nominee
- The Nominee within 28 days must report to court on whether the creditors and shareholders should be asked to vote on a CVA proposal
- The Nominee must allow 14 days for the creditors to vote on the CVC proposal.
- A meeting of shareholders must take place within 5 days of creditors decision
- The nominee reports to the court the CVA is approved. The Nominee becomes supervisor and implements the CVA
How to vote on a CVA?
- At least 75% in value of voting creditors must agree. The CVA is binding on all unsecured creditors, even if they did not vote or voted against it; and
- A simple majority (over 50%) of shareholders vote in favour
What is the effect of a CVA?
A CVA is binding on all unsecured creditors, but secured and preferential creditors are only bound if they consent unanimously.
Can creditors challenge the CVA?
Yes, creditors can challenge the CVA within 28 days on the grounds of unfair prejudice, but it becomes binding after 28 days if no challenge is made.
What are the advantages of a CVA?
The director remains in control, and the company continues to trade under the terms of the CVA.
What are the disadvantages of a CVA?
A CVA cannot bind secured or preferential creditors without their consent.
What is a Restructuring Plan?
A Restructuring Plan is a formal arrangement between a company and its creditors and shareholders to restructure liabilities and return to solvency.
How does a Restructuring Plan differ from a CVA?
It is a hybrid between a CVA and a Scheme of Arrangement, and it can only be used by companies in financial difficulty.
How can a Restructuring Plan be used?
The court must approve the plan, and it must be approved by at least 75% in value of creditors and shareholders in each class.
Who can initiate a Restructuring Plan?
A company, creditor, member, liquidator, or administrator can initiate a Restructuring Plan.
When does a Restructuring Plan bind?
A Restructuring Plan binds creditors and shareholders only when the court sanctions it.
What is a cross-class cram down?
A cross-class cram down allows a court to sanction a plan even if one or more classes of creditors or shareholders have voted against it, provided certain conditions are met.
What is administration?
Administration is a collective insolvency process where administrators act in the interest of all creditors to rescue the company or achieve a better result than liquidation.
Who can be an administrator?
Licensed insolvency practitioners can be appointed as administrators.
What are the statutory objectives of administration?
The objectives are:
(1) rescue the company as a going concern, (2) achieve a better result for creditors than liquidation
(3) realise company assets for the benefit of secured or preferential creditors.
What is the role of an administrator?
An administrator acts in the interest of creditors to achieve the objectives of administration, managing the company’s business, assets, and liabilities.
How to appoint an administrator using Route 1: Court Appointment?
The court appoints an administrator when the company is unable to pay its debts, based on the application of the company, directors, creditors, or liquidator.
It triggers a temporary moratorium on creditor actions.
How to appoint an administrator using Route 2: Out of Court Appointment?
Directors, the company, or a holder of a Qualifying Floating Charge (QFC) can appoint an administrator. The appointment is filed at court after a notice of intention to appoint.
- If the appointment is by directors, they must file a notice of intention to appoint at court and, no less than 10 business days later, file a notice of appointment at court.
- If the company has granted a QFC, when the directors file a NOI, the QFC then has 5 business days to appoint its own choice of administrator. If it does not, the director can file the noice of appointment as usual.
What is the Administrative Moratorium?
During administration, a full moratorium is in effect, preventing creditor action, including enforcement of security and legal proceedings, without consent from the administrator or court.
What powers do administrators have under IA 1986?
Administrators can manage the company, remove and appoint directors, dispose of property, and bring proceedings against directors for wrongful trading.
What is Pre-Packaged Administration?
In a Pre-Packaged Administration, assets and business are sold to a selected buyer before administration begins, typically to preserve goodwill and business continuity.
What is receivership?
Receivership is an enforcement procedure in the interest of secured creditors, with three types:
* Administrative Receivers
* Fixed Charge Receivers
* Court-Appointed Receivers.
What is an Administrative Receiver?
An Administrative Receiver is appointed by a creditor with fixed and floating charges, takes control of assets, sells them, and repays the creditor.
ARs may only be appointed by QFC holders where the floating charge must have been created before 15 September 2003
What is a Fixed Charge Receiver?
A Fixed Charge Receiver is appointed by a fixed charge holder to enforce the security over specific assets, manage and sell them to repay the debt.
What are Court-Appointed Receivers?
Court-Appointed Receivers are appointed by the court to manage the company’s assets, often in cases of shareholder disputes or corporate crime investigations.
What is liquidation?
Liquidation is the process by which a company’s assets are sold, creditors are paid, and any remaining funds are distributed to shareholders. It can be compulsory or voluntary.