Titan Europe 2007-1 (NHP) Limited - Irish Stock Exchange

ather than their date of execution. There is no equivalent in Scotland to the priority period system which
operates in relation to registered land in England and Wales.
Standard securities created by companies incorporated in Scotland or England (or by a foreign incorporated
company having a place of business in Scotland) must in addition be registered at the Companies Registry, and
failure to do so will result in the security being unenforceable against a liquidator, administrator or creditor of
the grantor company.
Security over Rent
Fixed security may be created over the rents payable under any lease or sub-lease of a property in Scotland
by means of an assignation in security (a “Rent Assignation”). Rent Assignations will not take effect until
formal notification thereof (“intimation”) is made to the tenant under the relevant lease or sub-lease. Priority as
between competing Rent Assignations is determined by their date of intimation rather than their date of
execution.
The requirements noted above under “—Standard Securities” in relation to registration in the Companies
Registry apply equally to Rent Assignations.
Floating Charge
Under Scots law, a floating charge may be granted by any incorporated company or Limited Liability
Partnership (but not by an individual or any other category of partnership) over all or any specified existing and
future assets. In general, the features of and limitations on floating charges noted under “—Certain Matters of
English Law—Floating Charge” in relation to English law apply equally in Scotland, except that under Scots
law a floating charge will only crystallise on the appointment of a receiver thereunder or on the winding-up of
the relevant chargor.
Limitations on taking Security
Registration. A fixed charge over property in Scotland created by a company incorporated in Scotland or
England (or a foreign-incorporated company which has a place of business in Scotland) which has been
registered at the Companies Registry within 21 days of the creation of such charge and, if it is secured over land,
at the Land Register or Sasine Register (as applicable) will take priority over subsequent fixed charges, any
floating charges and all unsecured creditors, including preferred creditors and, in the event of a liquidation, will
also take priority over the liquidator’s costs. The holder of a floating charge will take priority over unsecured
creditors, but will rank behind all prior and subsequent fixed charges, the preferential creditors and the
unsecured creditors’ fund (as described under “—Certain Matters of English Law—Floating Charge”). In
addition, a floating charge which has been registered at Companies House within 21 days of its execution will
take priority over subsequent floating charges and all unsecured creditors (other than preferential creditors and
the unsecured creditors’ fund).
As Scots law allows 21 days from the date of creation of a charge for it to be registered at Companies
House, there always remains a possibility that at the time of creation of a charge a prior charge may be in
existence which has not been registered (although in the case of a fixed charge over land such prior charge will
be disclosed by the Land Register or (as applicable) Sasine Register). If such a prior unregistered charge is
registered at Companies House within its 21-day period it will take priority over the subsequent charge even if
the subsequent charge has been registered first.
Intimation. As noted above under “—Security over Rent” the relative priority of competing Rent
Assignations will be determined by reference to the date on which intimation is given to the relevant tenant.
Hence a Rent Assignation which has been intimated to the relevant tenant will take priority over another Rent
Assignation which has not been intimated even if the non-intimated Rent Assignation was executed prior to the
intimated one.
Set-off. In addition to the above, Rent Assignations are subject to rights of set-off between the relevant
tenant and the Assignor. Although intimation of the Rent Assignation to the relevant tenant stops most new
rights of set-off from accruing, rights of set-off which came into existence prior to intimation being made will
take effective priority over the interests of the assignee. In addition, certain rights of set-off which are
fundamental to the lease or sub-lease between the tenant and the assignor will continue to accrue even after
intimation has been made.
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