Voidable preference

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Far from Void, Michael Dunaj


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Voidable preference /ˈvɔɪdəbl ˈprɛfərəns/ (n.)

What happens if you suddenly, apropos nothing, create a security interest in favour of your buddy, or generally prefer one creditor to others and then go tetas arriba within a short period.

Depending on where you are from, the insolvency laws of your land may set aside any such preference, at the petition of your administrator, if it supposes that in creating, it you acted with base motives: preferring one of your buddies, over your legion of other creditors, when the writing was already on the wall.

Most sophisticated jurisdictions have some kind of “anti-deprivation” principle in their insolvency regime which stops a struggling company from preferring some of its creditors over others. There is usually an exception for desperate rearguard actions taken in good faith with a genuine aspiration to stave off calamity, notwithstanding that they might have inadvertently caused it.

In the UK, it is section 239 of the Insolvency Act 1986, and it goes something like this:

For the purposes of this section and section 241, a company enters into a transaction with a person at an undervalue if—

(a) the company makes a gift to that person or otherwise enters into a transaction with that person on terms that provide for the company to receive no consideration, or
(b) the company enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the company.

This gives an insolvency administrator a wide discretion, and should give those extending credit to struggling companies pause for thought.

But it is a well understood part of the corporate credit landscape. Except when it comes to special purpose vehicles.

Limited recourse and voidable preferences

Now elsewhere, in the wonderful world of structured finance, is a sort of anti-preference gambit: the secured limited recourse espievie.

Where there are multi-issuance repackaging SPVs, secured limited recourse obligations are de rigueur. They save the cost of creating a whole new vehicle for each trade, and really only do by contract what establishing a brand new espievie each time would do through the exigencies of corporation law and the corporate veil.

With secured, limited recourse obligations there is a quid pro quo: all creditors are known; they are yoked to the same ladder of priorities; they all have agreed to limit their claims to the liquidated value of the secured assets underlying the deal. In return, the espievie grants them a first-ranking security over those assets — mediated between them by the agreed priority structure — and this stopping any interloper happening by and getting its mitts on the espievie’s assets.

The key point to absorb here: this is not a material economic modification to the deal. The line it draws, it draws around all the assets underlying the deal: the underlying securities, cashflows deriving from them, the espievie’s rights against custodians and bankers holding them, and its rights against the swap counterparty — everything, tangible or otherwise, of financial value in the transaction is locked down and pledged to secured parties, and the intercreditor arrangements, too, are fully mapped out. This kind of limited recourse, in fact, doesn’t limit recourse: it maps practical recourse, exactly to the totality of assets that the issuer has available for the purpose: all it saves is the unnecessary process of bankrupting a shell company with nothing left in it in any case. Secured limited recourse is like a nomological machine; a model; it is a simplified account where everything works as it should do, there are no unforeseen contingencies, and all outcomes are planned.

Why mention this in an article about voidable preferences? Well, as long as you are doing secured, single-issuance deals where every creditor is represented by the security trustee and has a place reserved at La Restaurant Cascade de Sécurité, no reason at all.

But limited recourse has slipped its moorings and drifted into the shipping lanes and intercontinental canals[1] through which ordinary, unsecured asset management vehicles make their stately passage. Hedge funds. UCITS. SICAVs. An investment fund espievie doesn’t usually grant security interests over its assets at all, and it has a much more dispersed, antagonistic bunch of creditors, who are assuredly not on the same page as each other, and, usually, equity holders too.

There’s a weak justification to have limited recourse here: — to preserve the livelihoods of espievie directors who might otherwise be barred from holding directorships if companies they manage go βυζιά πάνω — but this is a weak reason, and removing it might incentivise the fund’s director to, you know, do their jobs and properly supervise the company’s agents to make sure they are conducting themselves with probity.

All this might seem a rather arid, even petulant objection, but repackaging vehicles are a rather special case, and it doesn’t really do to confuse them with regular fund vehicles, which are a lot more like normal companies.

By resisting limited recourse creditors, who might otherwise be at each others’ throats, are protected from each other should the company go into receivership. Insolvency rules, such as those against voidable preferences a company grants to its favourite creditors just before it goes seins en l’air, ensure fair treatment for everyone.

Could such a preference happen with a harmless, peace-loving espievie? Well, imagine a fund that has put on aggressively levered positions with several brokers, without telling any of them that it has doubled down on the trade elsewhere. And imagine that trade suddenly goes, tango uniform, prompting a margin call bonanza and sending the cream of each broker’s legal eaglery scurrying for their close-out manuals. But — oh! — too late. They all try to sell the same stocks at once, into a market which suddenly has zero appetite for that stock, except not “suddenly”, really, since the only person who ever had the appetite for the stock is the one whose udders are currently pointing skyward, and they are pointing that way precisely because of his ravenous appetite for a crappy stock. Stock falls through the floor, and that of several apartments below.

If it then transpires that our now titten hoch espievie got together with one of its brokers last week, to close out its positions while all the other brokers were being good eggs and holding off in the vain hope of an orderly unwind, then what? Well, suddenly those voidable preference rules start to look quite appealing to disappointed brokers.

Which means that a “limited recourse” contractual provision, by which those brokers kindly agreed not to put the espievie into bankruptcy should it go tette in alto, for the sake of its poor little directors, looks like quite the unfortunate legal term.

At the moment limited recourse is almost de rigueur. It remains to be seen whether it stays that way, or whether some kind of evolution of the clause to allow voidable preference claims to be made even without an actual insolvency.

See also

References

  1. I am going to resist the temptation to make an Ever Given Suez Canal gag here. Mainly because I can’t think of one.