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CVA" Stands for a Number of Things, Including "Cerebro

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CVA COMPANY VOLUNTARY ARRANGEMENTS Michael Howlin, Q.C. Hastie Stable, Edinburgh 1. Introduction 1.1 The abbreviation "CVA" stands for a number of things, including "cerebro- vascular accident" (i.e., a stroke), "Creative Video Associations" (a company which recycles videotape), an organisation called "Croydon Voluntary Action", "credit value adjustment" (or indeed "counterparty valuation adjustment") in the context of banking, and a device known as a "controlled valve actuator". It also stands for "company voluntary arrangement", which is the subject-matter of this talk. 1.2 Recent high-profile examples of CVAs include those proposed by (the late) JJB Sports (for the second time), Blacks, Clinton Cards, PT McWilliams (a Northern Ireland engineering company), Oddbins (no explanation needed), Carvill Group (a Northern Ireland construction company) and McTavish 2 Ramsay, the Dundee door manufacturers. Even more recently, we have had the failed Glasgow Rangers CVA and CVAs for Travelodge and Fitness First. 2. The General Statutory Background 2.1 CVAs were created by the Insolvency Act 1986, which devoted all of seven sections to them. Since 2003, they have been governed by slightly expanded primary statutory provisions1 and a new Schedule (Schedule A1) to which I shall return shortly. There are also provisions in Part I of the Insolvency (Scotland) Rules 1986, as amended. 2.2 Section 1(1) defines a voluntary arrangement simply as "a composition in satisfaction of [the company's] debts or a scheme of arrangement of its affairs2". In practice, a CVA is a very flexible affair, the details of which will vary from case to case. Examples of what can be achieved by a CVA include: (1) unconditional foregiveness of debts, or certain classes of debts; (2) pro rata reduction (or partial reduction) of liabilities, or certain classes of liabilities; (3) other variations of liabilities (e.g. reduction in the rate of interest); (4) rescheduling of liabilities; (5) debt-to-equity conversions. 1 Note that a CVA is an "insolvency proceeding" for the purposes of the EC Regulation on Insolvency Proceedings (Regulation (EC) No 1346/2000): see Article 2(a) and Annex A. References in the Regulation to a "liquidator" include the supervisor of a voluntary arrangement: see Article 2(b) and Annex C. 2 Not to be confused with a "compromise or arrangement" (generally called a scheme of arrangement) under Part 26 (sections 895 et seq.) of the Companies Act 2006. 3 Crucially, the approval of a CVA may be a condition precedent to a new (or existing) creditor’s providing new loan facilities, or new equity capital, to a company in difficulties. For example, in the recent Travelodge CVA the company’s three main creditors (Goldman Sachs and two New York hedge funds) agreed to write off £235 million in bank debt, cancel a £482 million Eurobond and inject £75 million of new capital. 2.3 Of course, a company can always, without the intervention of Parliament, enter into a voluntary arrangement with any creditors who are also willing to enter into the same arrangement. The attraction of the statutory CVA is that it enables dissenting creditors to be bound by the arrangement as well. From the directors' point of view, the attraction is that it leaves the directors at the helm of the company3 - though subject to control by the "nominee" (often called the "supervisor", which is the term used in individual voluntary arrangements or "IVAs"). 2.4 The mechanics of obtaining a CVA can be taken from the Act4. (1) A CVA may be proposed by: (i) the directors of a company (provided that the company is not in administration and not being wound up); (ii) the administrator, if the company is in administration; or 3 Note the similarity to Chapter 11 bankruptcy under the U.S. Bankruptcy Code. 4 I am giving a simplified account here. The drafting is rather more complex, as it is necessary to compare the substantive provisions of Chapter 1 of the Act with those of Schedule A1. 4 (iii) the liquidator, if the company is being wound up5. (2) Every CVA must have a "nominee", who is "to act in relation to the voluntary arrangement either as trustee or otherwise for the purpose of supervising its implementation6". The nominee must be a licensed insolvency practitioner7. (3) The terms of the CVA must be put to a meeting of the company and a meeting of the creditors for their approval8. The precise mechanics of summoning the meetings vary according to whether the company is or is not already in administration or liquidation and, where it is not, whether the directors propose to apply for a moratorium (as to which more later). If the outcome of the two meetings differs, then the decision of the creditors' meeting prevails, but this is subject to the right of any member of the company to apply to the court in such a case9. On such an application, the court may order that the scheme as approved by the company shall take effect instead of that approved by the creditors, or make such other order as it thinks fit. (4) The persons to be summoned to a creditors' meeting are "every creditor of the company of whose claim and address the person summoning the 5 Sections 1(1) and 1(2). 6 Section 1(2). 7 Section 1(2). 8 The meetings must be held within five business days of each other: Insolvency (Scotland) Rules 1986, R. 1.14(3). 9 Section 4A(2), (3) and (4). 5 meeting is aware10." The mechanics of summoning and conducting the meeting are set out in detail in Part 1 of the Insolvency (Scotland) Rules 1986. (5) The requisite majority for approving the CVA at the company meeting is one half by value of the members present in person or by proxy and voting at the meeting11 - but this is subject to any express provisions in the company's articles of association. (6) The requisite majority at the creditors' meeting is three quarters in value of the creditors present and voting in person or by proxy12. (7) The chairman of the meetings must report their results to the court. 3. Crucial Questions in a CVA 3.1 Who is bound by the CVA? A CVA binds every person who in accordance with the rules (a) was entitled to vote at the creditors' meeting (whether or not he was present or represented at it) or (b) would have been entitled to vote if he had had notice of the meeting13. So you need to consider the Insolvency (Scotland) Rules 1986 to determine who is entitled to vote. Rule 1.15A(1) provides that every creditor who has notice of the creditors' meeting is entitled to vote but this is subject to Rule 1.15A(4), which provides that a creditor is entitled to vote at 10 Section 3(3). 11 Insolvency (Scotland) Rules 1986, Rule 1.16B(1). The value of a member is determined by the number of votes conferred on him by the articles (Rule 1.16B(2)). 12 Rule 1.16A(2). 13 Section 5(2)(b). 6 any meeting if the creditor, either at the meeting or before it, has submitted a claim to the responsible insolvency practitioner and the creditor's claim has been admitted in whole or in part. The procedure for the admission of claims for voting purposes is set out in Rule 1.15B (which inter alia provides a mechanism for appealing against the chairman's decision and a time-limit for bringing the appeal). 3.2 What restrictions are there on the terms of a CVA? (1) The CVA cannot affect the rights of a secured creditor to enforce his security, unless that creditor agrees14. (2) The CVA: (i) cannot alter the priority of preferential creditors; and (ii) must provide for all the preferential debts which are not paid in full to be paid pari passu, unless the preferential creditors agree otherwise15. 3.3 How can the CVA be challenged? (1) A CVA can be challenged (in an application to the court) on the ground that: (i) it unfairly prejudices the interests of a creditor, member or contributory of the company; or 14 Section 4(3). 15 Section 4(4). I have paraphrased the section. 7 (ii) there has been some material irregularity at or in relation to either of the meetings16. In practice, a challenge based on unfair prejudice is very often coupled with a challenge based on material irregularity and the same allegations are relied upon in support of both challenges. (2) The challenge may be brought by: (i) a person entitled to vote at either of the meetings; (ii) a person who would have been entitled to vote at the creditors' meeting if he had had notice of it; (iii) the nominee; or (iv) the administrator or liquidator, if the company is in administration or liquidation17. (3) If the challenge is upheld, the court may revoke or suspend the decision approving the CVA and/or direct further meetings to be summoned18. 3.4 When does the CVA end? There is no statutory answer to this question. It depends on the (express or implied) terms of the CVA. See the cases discussed below. 16 Section 6(1). 17 Section 6(2). There are also special provisions for challenges in the case of energy companies: see section 6(2A). 18 Section 6(4). 8 3.5 Is there a moratorium? (1) If the company is in liquidation, no moratorium is necessary and if it is in administration it already has a moratorium. (2) Where the CVA is proposed by the directors themselves, there is no automatic moratorium: the directors must apply for a moratorium if they want one.
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