In November, Land Securities and British Land, high street landlords to Blacks Leisure, backed the struggling retailer’s rescue plan by voting to accept a CVA. This corporate restructuring tool is not widely used, yet more than 97% of Blacks’ creditors agreed to the proposal, a move that prevented the leisure retail group from going into administration and saved thousands of jobs.

Industry experts say the arrangement will accelerate the group’s turnaround strategy, allowing it to close down 101 loss-making stores in order to focus on its core business.

In cases where a CVA is utilised, which requires approval by at least 75% of creditors, businesses burdened with debt can continue to trade and pay creditors a proportion of what is owed to them out of future profits. Typically, a business will pay a fixed monthly sum into the arrangement for a period of three to five years, monies that are subsequently distributed to creditors. This can be an attractive proposition for creditors if the alternative is liquidation, where they stand to receive virtually no recovery on their debts.

In certain circumstances whilst the proposal is being formulated, a moratorium can be put in place that prevents creditors from bringing proceedings against the insolvent company. A licensed insolvency practitioner will assist with the proposal and, once approved by creditors, will oversee its implementation.

CVAs have not been widely used since their introduction in 1986, and historically have had a high failure rate.  But last year a number of successful high profile cases, such as retailers JJB Sports and Discover Leisure have demonstrated that they offer a genuine alternative to the administration process.

CVAs offer a number of advantages over other formal processes: 

• They are flexible and can be tailored to the specific circumstances of the company
• They enable owner-managers to retain control of their businesses
• The business is able to emerge from the process intact
• They are transparent and inclusive
• Creditors can approve or reject the proposals, or put forward amendments.

The Government is currently considering legislative changes to the procedure to further encourage corporate rescue. These proposals include the expansion of the moratorium process and giving super-priority to lenders to promote the availability of rescue finance to companies in CVAs. 

In light of these changes, it is likely that CVAs will become more popular with troubled businesses of all types in the year ahead.

For more guidance on debt restructuring, contact Andrew Duncan at Bridge Business Recovery, an owner-managed firm specialising in business reviews, corporate restructuring, funding and insolvency, on 0207 025 6130.

Economists and politicians may talk positively about ‘green shoots of recovery’ but the latest analysis from PricewaterhouseCoopers (PwC) shows the downturn is showing ‘no signs of abating’ with 5,483 firms becoming insolvent in the first quarter of 2009, up 57% on the same period last year.

Businesses going into some form of insolvency are very much a reality of today’s Britain. And while Insolvency Practitioners are duty bound to realise the assets of a company and distribute them in accordance with the law, this still leaves unsecured creditors at the back of the queue, often receiving little or no recovery on their debts.

However, rather than sit waiting around for a meagre dividend from a liquidation process, there are positive steps you can advise your customers to take to protect themselves against bad debts.

Much will depend on the nature of the terms and conditions of trade: make sure these incorporate a robust retention of title clause and remember that they will always be easier to enforce if there is an explicit acknowledgement of them by the debtor. Any new customer should be required to sign and date a copy of the terms and conditions, before agreeing to do business with them and commence supplying goods or services. While a new customer can equal more profits for a firm, it can also spell disaster if they turn out to be a poor credit risk.

Companies should also consider what credit limit is realistic, and stick to it.  If they are dealing with a new or unknown customer, they should always get a report from a credit agency. Another approach is to request a deposit or even stage payments.  If there’s doubt about payment, they should consider obtaining a guarantee from a parent company, if applicable.

Other techniques include a requirement that contract funds be protected by use of a trust account. Additionally, it may be possible to negotiate step in rights, particularly if they’re a stakeholder in on a project involving sub-contractors.

A robust credit control function is also essential; all debts must be collected on time, any issues should be dealt with immediately and if payment is not forthcoming, tell clients not be afraid to withdraw services. They should also monitor payment performance closely and follow up if promises are not kept.

If a customer is facing financial difficulty, and your client has already obtained a judgement against a debtor they may be able to seize goods in lieu of the debt due, prior to a formal insolvency.

And if they are supplying a service or goods to a business which goes into an insolvency process, the Insolvency Practitioner may need to enhance the realisations into the estate and it may be possible to contract directly with them to continue services or complete a specific task and so reduce potential losses.

Of course, the most obvious solution is simply not to allow any business to become so exposed to a single trading partner that their failure could threaten the future security of your client’s enterprise.  Sadly, with insolvencies at record levels, this problem is becoming far harder to avoid than ever before.

Submitted by Andrew Duncan - Partner, Bridge Recovery

andrew.duncan@bridgebr.co.uk

The views contained in this article are solely those of the author and do not necessarily represent the views of the Commercial Finance People