Part XVIII

Floating Charges and Receivers (Scotland)
Chapter I

Floating Charges

Alteration of floating charges.
466
1
The instrument creating a floating charge under section 462 or any ancillary document may be altered by the execution of an instrument of alteration by the company, the holder of the charge and the holder of any other charge (including a fixed security) which would be adversely affected by the alteration.
2
Without prejudice to any enactment or rule of law regarding the execution of documents, such an instrument of alteration is validly executed if it is executed—
a. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b
where trustees for debenture-holders are acting under and in accordance with a trust deed, by those trustees ; or
c
where, in the case of a series of secured debentures, no such trustees are acting, by or on behalf of—
i
a majority in nominal value of those present or represented by proxy and voting at a meeting of debenture-holders at which the holders of at least one-third in nominal value of the outstanding debentures of the series are present or so represented; or
ii
where no such meeting is held, the holders of at least one-half in nominal value of the outstanding debentures of the series; . . .
3
Section 464 applies to an instrument of alteration under this section as it applies to an instrument creating a floating charge.
4
Subsection (4A) applies to an alteration of a floating charge, where the alteration is one which—
a
prohibits or restricts the creation of any fixed security or any other floating charge having priority over, or ranking pari passu with, the floating charge; or
b
varies, or otherwise regulates the order of, the ranking of the floating charge in relation to fixed securities or to other floating charges; or
c
releases property from the floating charge; or
d
increases the amount secured by the floating charge.
4A
Every alteration to a floating charge created by a company is, so far as any security on the company’s property or any part of it is conferred by the alteration, void against the liquidator or administrator and any creditor of the company, unless the documents referred to in subsection (4B) are delivered to the registrar for registration by the company or any person interested in the charge before the end of the relevant period allowed for delivery.
4B
The documents referred to in subsection (4A) are—
a
a certified copy of the instrument of alteration, and
b
a statement of particulars including—
i
the registered name and number of the company;
ii
the date of creation of the charge;
iii
a description of the instrument (if any) by which the charge was created or evidenced;
iv
short particulars of the property or undertaking charged as set out when the charge was registered;
v
date(s) of execution of the instrument of alteration;
vi
names and address(es) of the persons who have executed the instrument of alteration.
4C
In subsection (4A) “the relevant period allowed for delivery” is—
a
the period of 21 days beginning with the day after the date of execution of the instrument of alteration, or
b
if an order under section 859F(3) of the Companies Act 2006 (as applied by subsection (4E)) has been made, the period allowed by the order.
4D
Subsection (4A) is without prejudice to any contract or obligation for repayment of the money secured by the alteration to the charge; and when an alteration becomes void under subsection (4A) the money secured by it immediately becomes payable.
4E
Sections 859F, 859G, 859I, 859M and 859N of the Companies Act 2006 apply to an alteration to a floating charge to which subsection (4A) applies as they apply to a charge.
4F
As applied by subsection (4E), those sections apply as if—
a
references to the documents required or delivered under section 859A or 859B were to the documents referred to in subsection (4B);
b
references to the period allowed for delivery under the section concerned were to the period referred to in subsection (4C)(a);
c
references to the delivery of a certified copy of an instrument to the registrar for the purposes of Chapter A1 of Part 25 of the Companies Act 2006 were to the delivery of a certified copy of an instrument of alteration to the registrar for the purposes of this section;
d
references to registration in accordance with a provision of Chapter A1 of Part 25 of the Companies Act 2006 were to registration in accordance with this section;
e
references to a section 859D statement of particulars were to the statement of particulars referred to in subsection (4B)(b);
f
references to registration under section 859A or 859B were to registration under this section;
g
references to a statement or notice delivered to the registrar in accordance with Chapter A1 of Part 25 of the Companies Act 2006 were to a statement delivered to the registrar in accordance with subsection (4A).
5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
6
Any reference (however expressed) in any enactment, including this Act, to a floating charge is, for the purposes of this section and unless the context otherwise requires, to be construed as including a reference to the floating charge as altered by an alteration falling under subsection (4) of this section.
Pt. XVIII (ss. 462–487) extended (with modifications) by S.I. 1989/638, regs. 18, 21, Sch. 4 para. 13
S. 466 applied (with modifications) (6.4.2001) by S.I. 2001/1090, reg. 4, Sch. 2 Pt. I
S. 466(1)-(3)(6) applied (with modifications) (6.4.2001) by S.S.I. 2001/128, reg. 3, Sch. 1
Words inserted by Companies Act 1989 (c. 40, SIF 27), ss. 130(7), 213(2), Sch. 17 para. 9(a)
S. 466(2)(1.10.1990) repealed by Companies Act 1989 (c. 40, SIF 27), ss. 130(7), 212, 213(2), Sch. 17 para. 9(b), Sch. 24
Word inserted by Companies Act 1989 (c. 40, SIF 27), ss. 130(7), 213(2), Sch. 17 para. 9(c)
S. 466(2)(d) and the word “or" preceding it repealed by Companies Act 1989 (c. 40, SIF 27), ss. 130(7), 212, 213(2), Sch. 17 para. 9(d), Sch. 24
S. 466(4)(5) repealed (prosp.) by Companies Act 1989 (c. 40, SIF 27), ss. 140(8), 212, 213(2), 215(2), Sch. 24
Words repealed (prosp.) by Companies Act 1989 (c. 40, SIF 27), ss. 140(8), 212, 213(2), 215(2), Sch. 24
Words in s. 466(6) substituted (6.4.2013) by The Companies Act 2006 (Amendment of Part 25) Regulations 2013 (S.I. 2013/600), reg. 1, Sch. 2 para. 1(5) (with reg. 6)
S. 466(4A)-(4F) inserted (6.4.2013) by The Companies Act 2006 (Amendment of Part 25) Regulations 2013 (S.I. 2013/600), reg. 1, Sch. 2 para. 1(3) (with reg. 6)
S. 466(4C)(a) modified (temp.) (27.6.2020) by The Companies etc. (Filing Requirements) (Temporary Modifications) Regulations 2020 (S.I. 2020/645), regs. 2, 38(1) (with reg. 38(2))
Pt. 18 Ch. 1 applied (with modifications) (26.3.2015) by The Financial Services (Banking Reform) Act 2013 (Commencement (No. 8) and Consequential Provisions) Order 2015 (S.I. 2015/428), art. 4, Sch. 1 (with art. 5) (as amended by S.I. 2016/679, art. 7(a))
S. 466(5) omitted (6.4.2013) by virtue of The Companies Act 2006 (Amendment of Part 25) Regulations 2013 (S.I. 2013/600), reg. 1, Sch. 2 para. 1(4) (with reg. 6)
Words in s. 466(4) substituted (6.4.2013) by The Companies Act 2006 (Amendment of Part 25) Regulations 2013 (S.I. 2013/600), reg. 1, Sch. 2 para. 1(2) (with reg. 6)
S. 466: power to modify conferred (temp.) (26.6.2020) by Corporate Insolvency and Governance Act 2020 (2020 c. 12), ss. 39(1), 40(b), 49(1) (with ss. 2(2), 5(2), 39(8)(9))