Civil Code

Posted by marmara on May 27, 2017

The filter that justifies the protection afforded by the standard is given, exclusively, by the necessity that the agreement responds to a viability plan that will allow the continuity of the activity of the debtor in the short and medium term. The DA4 seems to set up agreements for refinancing as a type of agreement framework, which then loss in various legal businesses that are instrumentarian in separate documents. Perhaps that is why paragraph 2 of the DA4 separates refinance business, acts and payments agreements, and collateral security provided in implementation of such agreements. If expected requirements, businesses, events, payments and constituted guarantees are met in execution of such agreements are not subject to the action of rescission. The protection that dispenses the DA4 is only with respect to the actions of termination bankruptcy (leaving open the possibility of attacking these agreements by way of articles 1111 or 1291 of the Civil Code). This result became visible in the review of the approval of the RD-L by the Council of Ministers, which had indicated that, with regard to refinancing agreements, were focused on the rescindibilidad of non-fraudulent operations arising from these agreements. The reference to not fraudulent operations undoubtedly enabled record of rescisorias shares by fraud of the Civil Code. Requirements for its refinancing agreement implementation shall be protected if and when the following requirements are met: (a) be signed by creditors representing at least three fifths of the liabilities of the debtor; (b) to respond to a viability plan (endorsed by an independent expert) to allow the continuation of the activity of the debtor in the short and medium term; and (c) formalize in a public deed. Requirement consisting in the approval of the agreement by creditors whose credits represent at least three-fifths of the liabilities of the debtor at the time of the refinancing agreement seems reasonable: it is getting a substantial approval of creditors, without reaching or approaching unanimity (which would make the measure in practice unworkable).

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