Brazil: The New Bankruptcy Law

Law nº 11101, of February 9, 2005, the New Bankruptcy Law, was finally enacted after eleven years of congressional action, and it is also known as the Corporate Recovery Law. This law prioritizes the recovery of companies rather than the bankruptcy, which may maintain job positions and safeguard the interests of creditors, by preserving the company, its social-interest role and encouraging economic activities, provided that the continuance of the debtor’s operations is viable.

The new law governs the recoveries in and out of court and the bankruptcy of the individual businessperson, of the business company, including the companies performing in the aeronautic industry, whose certificate of formation provides for the exploration of air services of any kind and of aeronautic infrastructure.

The new law will not apply to:

i. Governmental and public-private companies; and

ii. Financial institutions, whether public or private; credit cooperatives; layaway and pension fund companies; health care companies; insurance companies; capitalization and other companies that legally equalize to those companies.

2.1 The court-appointed trustee (administrador judicial)

According to article 21 of the new law, the court-appointed trustee will be appointed by the court and he/she must be an honest professional, preferably a lawyer, economist, business administrator or accountant.

The court-appointed trustee can be a specialized corporate entity with skills to handle the assignment, such as an accounting firm.

2.2 The judicial manager (gestor judicial)

The judicial manager is appointed by a General Meeting of Creditors where the debtor is removed from the company’s management.

The removal of the debtor from the management of the company will occur when:

(i) debtor has been convicted of crime during the judicial recovery or bankruptcy proceedings or convicted of larceny, crime against the welfare or the economic policy, as provided in the current law;

(ii) there is indisputable indication that debtor has committed fraud against creditors;

(iii) debtor has acted with malice, simulation or fraud against the creditors’ interests;

(iv) debtor has incurred in excessively and unequivocally high personal expenses;

(v) debtor has incurred in unreasonable expenses, as determined by their nature or amount, in relation to the capital, the flow of operations and other like circumstances;

(vi) debtor has caused unreasonable capital loss or engaged in transactions that jeopardized its regular operation;

(vii) debtor has simulated or concealed credits in the list of creditors;

(viii) debtor has denied providing information requested by the court-appointed trustee or other members of the Committee; and

(ix) debtor has his/her removal provided for in the judicial recovery plan.

2.3 General Meeting of Creditors

The General Meeting of Creditors will be called by the court, by way of notice to be published on the State Official Gazette and on mass circulation newspapers, and will convene with the creditors present at the place and time indicated on the notice.

The duties of a General Meeting of Creditors are the following:

In the judicial recovery: (i) the approval, refusal or amendment to the plan; (ii) the creation, selection and replacement of the members of the Creditors Committee, which has a supervisory role; (iii) approval of the request from debtor to disaffirm the judicial recovery plan; (iv) the appointment of the judicial manager; and (v) any other matter as it may impact the creditors’ interests; and

In bankruptcy: (i) the creation, selection and replacement of the members of the Creditors Committee; (ii) employment of methods to realize assets; and (iii) any other matter as it may impact the creditors’ interests.

2.4 Creditors Committee

The Creditors Committee will made of: (i) one representative designated by the labor creditors; (ii) one representative designated by the creditors with security interest and special privileged debt; and (iii) one representative designated by unsecured creditors and creditors with general privileges, all of them being entitle to designate two alternates.

Where one of the representatives fail to be designated, the Committee will not be precluded from operating with a lower number than the above.

The Committee will play a supervisory role, essentially, with respect to the court-appointed trustee’s and debtor’s actions, and will ensure the proper development of the judicial recovery plan.

3.1 The concept:

The judicial recovery, which replaces the preventive reorganization (concordata preventiva), is a modality that can be filed for by the debtor itself, the surviving spouse, the heirs, the estate administrator or surviving partner, and aims at rendering the economic-financial recovery possible and therefore avoids the adjudication of bankruptcy.

Judicial recovery may convert in bankruptcy, by the court, when: (i) a General Meeting of Creditors makes such a decision; (ii) the debtor fails to submit a recovery plan no by the deadline set in the law; (iii) the court does not approve the recovery plan submitted by the debtor; or (iv) the debtor fails to satisfy any of its obligation under recovery plan.

The debtor may drop the judicial recovery, provided that General Meeting of Creditors so approves.

3.2 Requirements:

For a debtor, individual business or business company (micro- and small-sized companies) to be eligible for judicial recovery, the following conditions apply:

(i) operations have been ongoing for over two years;

(ii) it is not bankrupt and, if bankrupt, a valid and final court ruling exists ceasing all the liabilities resulting from such a condition;

(iii) no judicial recovery benefit has been granted within the preceding five years;

(iv) has not been convicted or has no officer or controlling partner that has been convicted of any of the crimes provided in the new Law;and

(v) no judicial recovery benefit has been granted under a special plan allowed for micro- and small-sized companies over the preceding eight years.

3.3 Ways to Recover in Court

Alternatives to recover in Court provided in the new law are:

(i) allow reasonable time and special conditions to satisfy obligations overdue or to become due;

(ii) spin off, merger, consolidation or conversion of company, establishment of a wholly-owned subsidiary, or assignment of quotas or shares, due respect being given to the rights of the partners;

(iii) change of shareholding control;

(iv) replacement of all or some of members of the debtor’s top management or change of their administrative bodies;

(v) granting to the creditors of right to separately appoint members of the management and power to veto certain matters in the plan;

(vi) increase of capital;

(vii) conveyance or lease of establishment, even to company organized by the employees themselves;

(viii) salary reduction, compensation or reduction of working hours by way of collective agreement;

(ix) make payment or seek novation using debts items in the liabilities, with or without posting security of their own or of third parties;

(x) organization of a creditors partnership;

(xi) partial sale of assets;

(xii) equalization of financial charges related to debits of any kind, whose initial term coincides with the date the judicial recovery is filed, which will also apply to the rural credit agreements, without prejudice of the provisions in specific laws and regulations;

(xiii) company usufruct;

(xiv) shared management;

(xv) issue of securities; and

(xvi) organization of a specific purpose company in order to transfer, as payment of the obligations, debtor’s assets.

3.4 Deadline for submission of plan and procedure

The recovery plan must be submitted to the court within no later than 60 days of the date the decision approving the recovery is published, and must include the following: (i) detailed description of the recovery actions proposed; (ii) confirmation of the economic feasibility of the plan; (iii) submission of a economic-finance report certified by legally accredited professional or specialized company; and (iv) appraisal of the debtor’s assets.

After submission of the plan, the court will determine the publication of announcement, affording the creditors the opportunity to file whatever objections they may have, in which case, the court will call a General Meeting of Creditors for deliberation.

If the plan is approved, the court will grant the debtor the benefit of judicial recovery, any creditor or the Public Prosecution Office being allowed to file interlocutory appeal from decision authorizing the processing of the recovery.

Failure to adhere to the plan will cause the court to convert the judicial recovery into bankruptcy.

Bankrupt debtors that for no reasonable reason fail to satisfy as they fall due any specific obligation represented by protested execution instrument(s), whose total equals to 40 minimum wages as of the date bankruptcy is filed.

Creditors taking interest in filing for bankruptcy of a debtor but hold insufficient claim to be eligible to do so, may pool their claims to the extent necessary to make 40 minimum wages (floor amount to be eligible to file for someone else’s bankruptcy).

If, after the debt being called in, the debtor fails to pay, deposit or designate sufficient assets for attachment and guarantee of the debt may have its bankruptcy filed for by others.

The new law provides for other situations where debtors can have their bankruptcy filed for in the following events:

(i) early liquidation of assets or destructive or fraudulent way of making payments;

(ii) simulated deal or alienation of all or substantially all assets to third party, creditor or otherwise, attempted or effectively performed;

(iii) transfer of establishment to others, creditor or otherwise, without the consent of all other creditors and without keeping sufficient assets to satisfy the liabilities;

(iv) simulated transfer of main establishment with a view to dodging laws and regulations or inspections or even harming creditors;

(v) posting or reinforcement of guarantee to creditor with respect to past obligation, without keeping sufficient free and clear assets to satisfy the liabilities;

(vi) absence without leaving a qualified representative and sufficient funds to pay creditors, abandonment of establishment or attempt to hide away from domicile, head office or principal place of business; and

(vii) failure to fulfill within fixed time obligation assumed under the judicial recovery plan.

The following are eligible to file for bankruptcy: (i) the debtor itself, by submitting sufficient evidence of its insolvency; (ii) the surviving spouse; (iii) any of debtor’s heirs; (iv) the executor of the will; (v) quotaholder or shareholder of debtor as provided in the law or certificate of formation; and (v) any creditor holding credits exceeding 40 minimum wages.

4.1 The effects of bankruptcy: rights and obligations of the bankrupt

4.1.1 The rights

The bankrupt is entitled to inspect the conduction of the bankruptcy process, ask for the necessary steps to protect its rights or assets, as well as interfere in the cases to which the bankrupt estate is a party.

4.1.2 The Obligations

Upon adjudication of bankruptcy or attachment of assets, bankrupt may not perform its business activities or dispose of or management its own assets to the date its obligations are discharged by court ruling.

It is additionally incumbent on the debtor to disclose the causes of its bankruptcy; make a list of: property, movable or immovable, which are not at the company’s installations, bank accounts, investments, collection instruments and lawsuits to which the bankrupt is a party; be involved in all acts in the bankruptcy, by itself or by a legal representative, where its involvement is not excusable.

The adjudication of bankruptcy is binding upon all the creditors, which may only exercise they rights to the bankrupt’s and unlimitedly liable partner’s estate after the liquidation of the bankrupt’s assets.

The adjudication of bankruptcy stops: (i) the exercise of bankrupt’s right to keep the assets subject to pooling, which must be made available to the court-appointed trustee; and (ii) right to redeem or receive the value of quotas or shares held by the bankrupt’s partners.

Bilateral agreements will not automatically terminate upon adjudication of bankruptcy. The court-appointed trustee will review these agreements and determine whether they jeopardize the bankrupt estate’s liabilities and whether or not they can contribute with the bankrupt to keep its assets. O court-appointed trustee, upon authorization from the Creditors Committee, may carry on bilateral agreements.

With respect to unilateral agreements (mortgage, usufruct, etc.), the court-appointed trustee, upon authorization from the Creditors Committee, may satisfy them provided that they reduce or avoid an increase of liabilities.

The court-appointed trustee, after signing the proper document, will pool the assets and records of the bankrupt and examine them, separately or otherwise, wherever they may be located, and will motion to the court for the necessary measures. Such assets will be in custody of the court-appointed trustee or other designee, which may be the bankrupt itself of any of its representatives.

The custodian of pooled assets will be a trustee, meaning that should he/she fail to fulfill his/her obligation, sanctions such as imprisonment can be imposed. On the other hand, the trustee will be reimbursed for the expenses incurred with the custody of said assets.

The realization of assets means the disposal of bankrupt’s assets. Said disposal may be accomplished by way of: auction, open outcry; sealed envelopes; and floor trading.

The court may approve, provided that prior approval of the General Meeting of Creditors is secured, other ways to realize assets, including the organization of creditors or former debtor’s employees partnerships, with the involvement, if required, ot the current partners or third parties.

If the debtor’s employees organize a partnership, they may use the labor credits to acquire or lease the company and will then manage and ensure continued operations.

Pursuant to Article 140 of the new Law, assets will be realized in accordance with the preference order, that is: (i) disposal of the company, by selling pre-determined blocks of assets; (ii) disposal of the company, by selling branches or production units separately; (iii) disposal of pre-determined blocks of assets of each of the debtor’s establishments; and (iv) disposal of assets considered on a case-by-case basis.

Legal measure seeking the removal from the bankrupt’s pooled assets those of doubtful ownership, that is, those assets whose actual owners cannot be reasonably identified.

Motions for return may be filed for assets sold on credit and received by debtor or for assets subject matter of leasing agreements, to say a few.

Usually, where the court rules favorably in respect of the motion for return the asset itself is returned, whenever possible, or there is money refund.

In this sense, the new Law makes the following provisions on cash returns:

(i) if the property no longer exists at the time of the motion, in which case the applicant will be receive the appraised value of the property, or, in the case of property sold, the price, in any event the amount will be indexed;

(ii) the amount received by the debtor, in national currency, as a result of prepayment of exchange contracts for exportation²; and

(iii) the amounts received by the debtor from bona fide party, in the event of contractual termination or ineffectiveness.

In the event of cash return, the first credits to be settled will be labor credits, of a salary nature, falling overdue in the three months preceding the date of adjudication of bankruptcy, up to five minimum wages per worker, that is, R$ 1.300,00.

In the event of return property, the winner bidder will be entitled to reimbursement of expenses incurred by the bankrupt estate or whoever may have incurred any expense in the custody of the asset(s).

The creditor who has been denied a return by court ruling, as the case may be, will be included in the general list of creditors.

9. Tax and labor succession

In any joint or individual alienation of assets, the creditor preference order will always be observed.

The new Law innovates also in that the bankrupt’s assets, either entirely liquidated or not, will be discharged of labor, occupational accident related and tax obligations. This is because the acquisition is not of the bankrupt legal entity’s liabilities but of the set of certain assets required for the production operations, which may include the transfer of certain specific agreements.

An important consideration is that the labor laws and regulations deal specifically with the labor succession issues (articles 10 and 448) of the Consolidation of Labor Laws, and therefore hold the successor (buyer of the whole or part of the bankrupt’s assets) liable for the labor debt assumed by the predecessor company. Therefore, it is possible to say that these specific laws and regulations may render unfeasible the reform intended with the new Bankruptcy Law, because it will be up to the Labor Courts to judge the matter.

The above-mentioned benefits are inapplicable where the buyer is: a partner of the bankrupt or company controlled by the bankrupt; direct or indirect family up to forth degree, whether consanguineous or the like, of the bankrupt or of partner of the bankrupt; or identified as agent for the bankrupt with a view to defraud the succession.

Once reimbursements are made, the credits not includable the composition with creditors³ are paid and the general list of creditors is finished, the proceeds of the realization of assets will be used to repay creditors.

Credits will be repaid according to the following order:

1 labor credits, up to 150 minimum wages per employee, and occupational accident related credits;

2 credits with in rem guarantees up to the value of encumbered property, which value will be the proceeds of sale or, in the case of block disposal, the appraised value of the assets taken separately;

3 tax credits, irrespective of their nature and date of creation, except tax penalties;

4 credits with special privileges as provided in Article 964 of the Civil Code⁴, credits so defined under other civil and commercial laws, except as otherwise provided in this Law; and credits to whose holders law may confer retention rights over the property given as guarantee;

5 credits with general privileges as provided in Article 965, of the Civil Code⁵, credits resulting from obligation undertaken by debtor during the judicial recovery process, including those in connection with expenses incurred with goods suppliers and services providers and loan agreements, will be considered not includable in the composition with creditors, in the case of adjudication of bankruptcy, in that order, where applicable;

6 unsecured credits, that is, balance of credits not secured by the proceeds of disposal of assets associated to their payment, balance of credits deriving from labor laws and regulations exceeding the pre-fixed limit of R$ 39,000.00 per worker/creditor, labor credits assigned to third parties and other credits not referred to in this ranking;

7 contractual fines and money penalties for violation of criminal or administrative laws, including tax fines; and

8 subordinated credits, that is, those provided under the law or contract, credits held by partners and officers with no employment relationship with the debtor.

Once all the debts are settled, including the remaining creditors’ credits (that is, those recording their claims outside the time fixed by the court) and any balance will be reverted to the bankrupt.

Once the realization of assets is completed and creditors are repaid, the court-appointed trustee shall render accounts to the court within 30 days. Once the accounts are approved, the court will rule the bankruptcy closed. Should the court disapprove the court-appointed trustee accounts, it may determine that the court-appointed trustee’s assets are frozen or seized until the bankrupt estate is properly reimbursed.

The bankrupt’s obligations shall cease upon: (i) settlement of credits; (ii) payment of over 50% of the unsecured credits; (iii) expiration of five-year time of the closing of bankruptcy, if the bankrupt has not been convicted of bankruptcy crime; or (iv) expiration of a ten-year time if the bankrupt has been convicted of bankruptcy crime.

Both in the judicial recovery and bankruptcy processes the debtor may not be required to fulfill free obligations assumed prior to the adjudication of bankruptcy or approval of the judicial recovery, such as donations. Expenses incurred by creditors in order to participate in the judicial recovery or bankruptcy proceeding are also unrecoverable except court fees resulting from litigation against the debtor.

The adjudication of bankruptcy or approval of the judicial recovery shall stop the counting of time for statute of limitation purposes and for actions to which the debtor is a defendant, for an inextendable 180 days, including actions brought by the creditors of the general partner only. An exception in this case is the tax foreclosures, which shall carry on even where the judicial recovery is approved, unless a tax payment schedule is approved. Once expired the 180 days, the lawsuits stayed theretofore shall restart processing.

Extra-judicial recovery is an agreement proposed by debtor to its creditors that may be submitted to a court for confirmation (homologação). Such legal provision is an encouragement for creditors and debtors to negotiate with a minimum interference of the courts. A new trend is arising that will keep way from the Courts, at least initially, pre-litigation situations which can be settled by the parties involved.

The extra-judicial recovery plan can be confirmed by the court or by over 3/5 of the all the creditors of each class included in the plan.

In order to be eligible to extra-judicial recovery, the debtor needs to meet the same requirements as the judicial recovery.

It is important to point out that the following are not eligible for extra-judicial recovery plans:

(i) tax credits, deriving from labor laws and regulations or from occupational accidents;

(ii) credits whose holder is in a fiduciary owner of movable or immovable property, lessor, owner or committed seller of real property whose respective agreements include irrevocability or irreversibility clauses, including real estate mergers, or owner of sale with title retention. Thus, just like with judicial recoveries, capital goods critical to the continuation of the business activities located in the debtor’s installations may not be removed for a 180 day-period of the stay of lawsuits and foreclosures;

(iii) credits transferred over to debtor in national currency, resulting from prepayment of exchange contract for export; and

(iv) contractual fines and penalties arising out of criminal administrative and tax violations.

Debtors pending review of their Judicial recovery requests or in favor of whom judicial recovery has been approved or another extra-judicial recovery plan has been confirmed within the precedent 2 years, may not request a confirmation of a new extra-judicial recovery plan.

VI – Final considerations

Said law will not apply to on-going processes, with bankruptcy already adjudicated by court or to concordatas (court-approved rehabilitations) filed for prior to its effective date, which shall carry through according to the terms of the Decree-law nº 7661, of June 21, 1945.

However, so long as the debtor has fulfilled all its obligations assumed during the concordata, irrespective of any concordata approved prior to the effectiveness of the new Law, the debtor may submit a special judicial recovery plan. In this case, the concordata will cease and its credits will be recorded in the judicial recovery at their original value, any payments made by the insolvent company excluded. Such a benefit does not apply to micro- and small-sized businesses.

This law will benefit businesses in the aeronautic industry, and under no circumstance the judicial recovery or bankruptcy will not stop the exercise of rights deriving from leasing agreements or of their parties.

A long expected effect of the new Law is its future impact on the interest and costs of loans from financial institutions. As the new rules start to be applied by the courts and the financial institutions are convinced that the credits will be more easily and safely recovered, interest rates and costs involving bank loans may reduced proportionally.

Another important aspect of the new Law is about the holders of credits denominated in foreign currency (FX-denominated credits) during judicial or extra-judicial recoveries.

In judicial recoveries, for the sole purpose of voting in General Meeting of Creditors, FX-denominated credits will be converted into national currency at the exchange rate published on the date immediately preceding the date of the meeting.

In extra-judicial recoveries, the FX-denominated credits will be converted into national currency at the exchange rate published on the date immediately preceding the date of signature of the plan, for the sole purpose of calculating the pre-determined percentage to be confirmed by the court and which is binding upon all the creditors.

Both in the judicial and extra-judicial recoveries, the exchange variance will be used to index the corresponding obligation and will only be replaced should the holder of the respective FX-denominated credit expressly approves otherwise in the recovery plan.

In the case of bankruptcy, the FX-denominated credits deriving from debt existing as of the date of adjudication of bankruptcy will be converted into national currency at the exchange rate published on the date of the court ruling the debtor’s the bankruptcy. The way we see it, this rule does not cover bilateral agreements, which may be performed by the court-appointed trustee, to the extent that such performance by the trustee can reduce or avoid increase in the bankrupt estate liabilities or should the need exists to maintain and preserve the debtor’s assets, upon authorization from the Creditors Committee.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.