Limited recourse
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Of a contract, that the obligor’s obligations under it are limited to a defined pool of assets. You see this a lot in repackagings, securitisations and other structured transactions involving espievies.
Limited recourse and investment funds
Investment funds tend to be single corporations which and issue shares or units to investors and use the issue proceeds to buy securities investments and enter swaps, loans and other transactions with brokers. Here the brokers, being creditors are structurally senior to the fund’s investors, who rank as equityholders. So the main reason for limiting the broker’s recourse to the SPV’s assets is to stop the broker putting the company into formal bankruptcy procedures once all its assets have been liquidated and distributed pari passu to creditors. Now, why would a broker want to put an empty SPV into liquidation? Search me. Why, on the other hand, would the directors of an empty SPV be anxious not to be pout into liquidation? Because it may bar them as acting as directors on companies in the future, and that is their day job. Unlike a normal commercial undertaking, an SPV runs on autopilot. The directors outsource executive and trading decisions to an investment manager. They are really nominal figures. You have them because you have to have them. Their main job is to ensure accounts are prepared and a return filed each year.
So all an investment fund’s limited recourse clause needs to say is:
- Our recourse against the Fund will be limited to its assets, rights and claims. One they have been finally realised and their net proceeds applied under the agreement, the Fund will owe us no further debt and we may not take any further steps against it to recover any further sum.
Repackagings and SPVs with contractually segregated pools
If the SPV has got segregated compartments in it (that is, it is issuing multiple series of securities, the limitation of a claim in this way goes hand-in-hand with a security interest over the defined pool of assets.
Security and limited recourse are fundamental structural aspects of contracts with special purpose vehicles and investment funds, so if you feel the urge to challenge these provisions, do yourself and everyone else on the deal a favour: save your breath. In the immortal words of the East Enders: “Leave it Phil! Leave it! He's not worth it.”
Formulations
The following, rendered in the linguistic mush you can expect from securities lawyers, are the sorts of things you can expect the limited recourse provision to say without material complaint:
- Recourse limited to segregated assets: your recourse against the SPV will be strictly limited to those assets that are ring-fenced for the particular deal you are trading against. This ring-fencing might take the form of:
- Security and limited recourse: security and contract (in an old-style repackaging with a regular LLC) — there there is a subtle trade off between security over your assets (preferring your claim against all other comers) and limitation of that claim to those secured assets; or
- Corporate structure: by means of a specialist corporate structure providing for segregation of the corporate personality into little cells which may[1] or may not[2] have their own legal personality (if the SPV is a segregated portfolio company or an incorporated cell company);
- No set-off or netting between cells: Netting and set-off will be limited to the specific cell you are facing: this means if your deal goes down, others issued from the same SPV can continue unaffected — boo — and vice versa — hooray.
- Extinction (or non-existence) of outstanding debt: Following total exhaustion of all assets after enforcement, appropriation, liquidation and distribution, and realisation of all claims subsequently arising form those assets, your outstanding unpaid debt will be “extinguished”.
- Here the intention is that you will never have legal grounds for seeking judgment, and thereafter commencing bankruptcy proceedings, for that unpaid amount once your own cell is fully unwound and its proceeds distributed.
- Pendantry alert: some sniff at this “extinction” language, fearing it implies that there was once upon a time, until extinction, a debt for an amount which the company was theoretically unable to pay — meaning that the company was, for that anxious moment in time, technically insolvent. These people — some hail from Linklaters — prefer to say “no debt is due” than “the debt shall be extinguished”.
- A proceedings covenant: You must solemnly promise never to set to put the SPV into insolvency proceedings. If you agree to all the foregoing, you should have concluded you have no literal right to do so, so this shouldn't tax your conscience too greatly.
See also
- ↑ such a company and incorporated cell company
- ↑ Such a company a [[segregated portfolio company