Voidable preference

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Voidable preference
/ˈvɔɪdəbl/ /ˈprɛfərəns/ (n.)

What happens if you create a security interest over existing indebtedness, or generally prefer one creditor to others and then go tetas arriba within a short period — usually specified by statute; 6 months of thereabouts). The insolvency laws of the land will set aside such a preference, at the petition of your administrator, if it supposes that, in creating it a debtor was acting with base motives: preferring one of his buddies, to whom he owed money, over his legion other creditors, when the writing on the wall or his solvency made itself suddenly all too painfully clear.

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 other ones. There is usually an excpetion 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 is wide and loose, and gives an insolvency administrator power to stop companies preferring, you know, the director’s brother in law’s firm which supplied the copier paper. It shoujld give those extending credit to struggling companies pause for thought, at any rate. But it goes wider than just setting aside security interests. If you have five trade creditors and you pay off one of them a week before you go insolvent, expect the administrator to have a good hard look at that payment.

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.

Secured, limited recourse obligations are de rigueur for multi-issue repackaging SPVs. 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. The point is to completely isolate each set of Noteholders from each other. This is a surprisingly narrow point, as we will see, so we should not get carried away for the formalities of security.

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.

We shouldn’t get too hung up about the whys and wherefores of the security structure of a repackaging as long as it is there, it covers all the rights and assets it is meant to cover, and all necessary perfections and execution formalities are observed. For in a repackaging, the security just sits there and will almost certainly never be exercised.

All that tedious business about automatically releasing it to make payments, powers to appointing receivers, calling and collecting in, the trustee’s rights and obligations under the Law of Property Act 1925 and so on — look it is all good stuff; let your trustee lawyer have his day — but as long as it is there, none of it really matters.

Why? Because — unless you have negligently buggered up your ring-fencing and your Trustee has let you: both of these are quite hard to do — the SPV cannot go insolvent. Any repack redemption will be triggered by an external event: a non-payment on an underlying asset or by a failing counterparty or agent. None relate to the solvency or ability to meet its debts of the Issuer itself.

That being the case, once it exists, the security package will never actually do anything: any diminution in value to of the secured assets — will happen regardless of how strong the security is. The security is a formal belt and brace there to fully isolate from each other the noteholders of different series, and even that only matters only when the SPV is bankrupt. Which is, never.

The limited purpose of the security package in a repackaging is widely misunderstood – all it does is defend against unexpected holes in the ring-fencing.

This is why it is de rigueur to accelerate, liquidate and distribute the proceeds of a repackaged note without enforcement of the security.

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 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

• bankruptcy
• Carve-in
• Slavenburg