Security Interests in Limited Liability Company Membership Interests: Foreclosure Considerations

An investor or lender to an operating or real estate limited liability company may obtain a security interest in the membership interests in the LLC. The lender may have security interests in the assets of the LLC, and the security interest in the membership interests may be viewed as additional collateral. Alternatively, when the lender is a junior or mezzanine lender, it may have no security interests in the assets of the LLC, and its collateral may be limited to the pledge by the LLC’s owner of the membership interests in the LLC. In either case, if the lender must exercise its power of sale with respect the membership interests, the unique nature of the collateral requires careful planning and implementation of the sale.

Section 9-610(a) of the Uniform Commercial Code (UCC) generally permits a secured lender, after default, to “sell, lease, license, or otherwise dispose of any or all of the collateral . . . .”[1] UCC § 9-610(b) further provides, “[i]f commercially reasonable, a secured party may dispose of collateral by public or private proceedings . . . .” However, UCC § 9-610(c) imposes a significant limitation if the secured lender seeks to purchase the collateral itself:

(c) A secured party may purchase collateral:

(1) at a public disposition; or

(2) at a private disposition if the collateral is of a kind that is customarily sold on a recognized market or the subject of widely distributed standard price quotations.

Few closely held LLCs will qualify under UCC § 9-610(c)(2), meaning that the only way a lender whose loan is secured by membership interests in a closely held LLC can purchase the collateral at the foreclosure sale is if the foreclosure sale is a “public disposition.”

The rub is that membership interests in LLCs may be viewed as securities under state and federal law, and their sale may be subject to registration of such securities, or compliance with an applicable exemption from registration.

The commentary to the UCC acknowledges this issue:

8. Investment Property. Dispositions of investment property may be regulated by the federal securities laws. Although a “public” disposition of securities under this Article may implicate the registration requirements of the Securities Act of 1933, it need not do so. A disposition that qualifies for a “private placement” exemption under the Securities Act of 1933 nevertheless may constitute a “public” disposition within the meaning of this section. Moreover, the “commercially reasonable” requirements of subsection (b) need not prevent a secured party from conducting a foreclosure sale without the issuer’s compliance with federal registration requirements.

Unfortunately, the UCC commentary is not law and certainly does not override federal securities laws, rules, or regulations. Further, there is no specific federal exemption from securities registration for the conduct of a creditor sale under the UCC.

Nevertheless, precedent exists for conducting a sale that qualifies as a “public disposition” under the UCC while steering clear of federal registration requirements. The Securities Exchange Commission has issued no-action letters that permit UCC sales without registration.[2] The factors that typically have existed or been cited by the SEC in providing no-action letters include:

• the pledged securities will be sold only as a block to a single purchaser, and will not be split up or broken down;
• the purchaser must represent that the securities will be purchased with investment intent for the purchaser’s own account, and not with a view toward sale or distribution of such securities;
• the securities will be subject to transfer restrictions prohibiting sale or transfer without registration or a valid exemption;
• the seller will provide on request to any prospective purchaser the information that seller has regarding the issuer of the securities;
• the public auction of the securities would be conducted in accordance with the UCC;
• the lender believed that the loan would be repaid in accordance with the loan documents, and there would be no need to foreclose on the collateral (including the securities);
• the lender is not an affiliate of the pledgor or issuer of the securities, but was merely an arms-length lender;
• notice of the sale would be given to every person required by law and would be published in one or more newspapers, and where applicable trade journals;
• the lender is likely to be the purchaser of the pledged securities at the foreclosure sale; and
• no public market exists for the securities.

Other factors should be considered to maximize the prospect that the sale is found to be commercially reasonable under the UCC and to minimize the prospect that the sale is challenged as a violation of securities laws:

• limiting the sale to purchasers who would qualify for an exemption in connection with the private sale of securities (commonly referred to as “accredited investors”);
• demanding from the borrower/pledgor and the LLC all relevant information and documentation regarding the LLC, its assets, liabilities, and operations;[3]
• preparing a data room containing all relevant information and documentation that is available to the lender;
• engaging a qualified auctioneer (depending on the scope of the auctioneer’s role, the lender should consider engaging an auctioneer who is registered as a securities broker/dealer);[4]
• engaging a qualified broker to market the assets;
• Establishing a marketing plan that appropriately balances the exigencies of the LLC’s business and the time needed to maximize the sale price;
• Advertising the sale in a manner that maximizes the prospect of a meaningful sale;[5] and
• preparing and disseminating to all qualified buyers an information packet (akin to a private placement memorandum) regarding the LLC, its assets, liabilities, and operations.

In sum, a lender can foreclose on LLC membership interests, but the lender should understand that care is required to avoid pitfalls, and that a foreclosure on such interests can be more costly and time-consuming than a foreclosure on other, more conventional forms of collateral. Subsequent installments will address other issues arising in connection with security interests in LLC membership interests.

[1] This article refers to the UCC. The specific implementation of the UCC in the state or jurisdiction whose law governs should be reviewed.

[2] See, e.g., Telehub Tech. Corp., Terabridge Tech. Corp., 2000 SEC No-Act. LEXIS 842 (Sept. 11, 2000); Face Int’l Corp., 1999 SEC No-Act. LEXIS 772 (Sept. 21, 1999); General Elec. Capital Corp., 1998 SEC No-Act. LEXIS 928 (Oct. 19, 1998); Gaoming Int’l Ltd., 1999 SEC No-Act. LEXIS 370 (Mar. 31, 1999); Capitol Meat Co., 1996 SEC No-Act. LEXIS 446 (Apr. 25, 1996); Citizens Bank, Kilgore, Texas, 1990 SEC NO-Act. LEXIS 668 (Apr. 13, 1990). SEC no-action letters are not binding precedent.

[3] Even if the borrower or the LLC fails to provide the requested information, the lender’s effort to obtain such information may prove valuable to rebut arguments by the borrower or its affiliates that the lender failed to provide sufficient information to prospective purchasers, thus chilling the sale.

[4] The SEC has issued a no-action letter relating to broker-dealer regulation in connection with the sale of control of an operating business. See M&A Brokerage Activities, 2014 SEC No-Act. LEXIS 92 (Jan. 31, 2014). The SEC opined that registration under the Financial Industry Regulatory Authority (FINRA) would not be required if the transaction, and the broker, complied with conditions set forth in the no-action letter.

[5] If the assets of the LLC are real estate, the lender would be well served by advertising, at a minimum, in the manner prescribed by local law for foreclosure on real estate.