According to PWC, a Receivership is a remedy available to secured creditors to recover amounts outstanding under a secured loan in the event the company defaults on its loan payments. A Receiver may also be appointed in a shareholder dispute to complete a project, liquidate assets or sell a business.
In Kenya, the Central Bank of Kenya (CBK) has previously put over 3 banks under the Kenya Deposit Insurance Corporation (KDIC) receivership which include the recently troubled Imperial Bank, Dubai Bank and now recently Chase Bank.
Typically, the process begins with the appointment of a Receiver either by the secured creditor under a security agreement (“Privately Appointed Receivership”) or by the Court on behalf of a secured creditor (“Court Appointed Receivership”). Only a licensed Trustee in Bankruptcy can act as a Receiver.
Privately Appointed Receivers will generally only act on behalf of the secured creditor that appointed them and will realize on the assets specifically covered by the loan agreement. Court Appointed Receivers however, are officers of the Court and act on behalf of all creditors. The powers and rights of Court Appointed Receivers are included in the Court order that appointed them.
The Receiver is appointed to take possession of and sell or liquidate the assets secured by the security agreement in order to repay the outstanding debt.
In a Receivership, a secured creditor or the Court may also appoint a Receiver-Manager to operate and manage the business until it is sold as a going concern.
The Receiver’s duties also include notifying creditors of the receivership and regular reporting to the Official Receiver (a representative of the Office of the Superintendent of Bankruptcy) and/or the Court on the status of the receivership.
Receivership and bankruptcy are not mutually exclusive, they can occur at the same time or a receivership can occur without a company being bankrupt. The same firm may act as Trustee in Bankruptcy and Receiver, but often different firms are appointed to these roles.
The Receiver is tasked with selling the assets secured under the security agreement and after deducting the receivership’s fees and expenses, distributing the proceeds from the sale to creditors on a priority basis. In situations where the proceeds from the sale of assets are not sufficient to fully repay the liabilities of the secured creditor, no realizations will be available for distribution to the unsecured creditors.