The Section 185 Re-Test
If the transferor had advanced a loan to a director or a person in whom a director is interested, the scheme transfers the loan to the transferee. The transferee must determine whether the loan is permitted under Section 185. If the loan was compliant for the transferor, it may not be compliant for the transferee, because the “person interested” analysis depends on the transferee’s directors. The transferee should obtain a legal opinion and, where necessary, regularise the loan through the Section 185(2) special resolution.
The Section 186 Aggregate
The transferor’s loans, guarantees, securities, and investments are added to the transferee’s aggregate for the Section 186 limit. The transferee must recompute the 60%/100% limit against its own paid-up capital, free reserves, and securities premium, and determine whether the combined exposure crosses the threshold. If it does, a special resolution is required before the effective date or immediately thereafter.
The Practical Timing
The Section 185 and 186 analysis should be completed in the scheme’s due diligence, not after the effective date. The scheme’s financial projections should reflect the combined exposure, and the board resolution approving the scheme should record the compliance position.
Call to Action: For post-scheme Section 185/186 compliance review, aggregate limit computation, or special resolution drafting, contact office@anujdesaiassociates.com or 9619456656. Website: https://anujdesaiassociates.com. LinkedIn: linkedin.com/in/ca-anuj-desai-122547230.
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