Resumen
1 Issues Arising When a Company is in Financial Difficulties 1.1 How does a creditor take security over assets in Brazil? 1.2 In what circumstances might transactions entered into whilst the company is in financial difficulties be vulnerable to attack? 1.3 What are the liabilities of directors (in particular civil, criminal or disqualification) for continuing to trade whilst a company is in financial difficulties in Brazil? 1.4 Is it common to achieve a restructuring outside a formal procedure in Brazil? In what circumstances might this be possible? 2 Formal Procedures 2.1 What are the main types of formal procedures available for companies in financial difficulties in Brazil? 2.2 What are the tests for insolvency in Brazil? 2.3 On what grounds can the company be placed into each procedure? 2.4 Please describe briefly how the company is placed into each procedure. 2.5 What notifications, meetings and publications are required after the company has been placed into each procedure? 3 Creditors 3.1 Are unsecured creditors free to enforce their rights in each procedure? 3.2 Can secured creditors enforce their security in each procedure? 3.3 Can creditors set off sums owed by them to the company against amounts owed by the company to them in each procedure? 4 Continuing the Business 4.1 Who controls the company in each procedure? In particular, please describe briefly the effect of the procedures on directors and shareholders. 4.2 How does the company finance these procedures? 4.3 What is the effect of each procedure on employees? 4.4 What effect does the commencement of any procedure have on contracts with the company and can the company terminate contracts during each procedure? 5 Claims 5.1 Broadly, how do creditors claim amounts owed to them in each procedure? 5.2 What is the ranking of claims in each procedure? In particular, do any specific types of claim have preferential status? 5.3 Are tax liabilities incurred during each procedure? 6 Ending the Formal Procedure 6.1 Is there a process for "cramming down" creditors who do not approve proposals put forward in these procedures? 6.2 What happens at the end of each procedure? 7 International 7.1 What would be the approach in Brazil to recognising a procedure started in another jurisdiction? TozziniFreire Advogados Fábio Rosas Marcelo Rodrigues TozziniFreire Advogados
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Extracto
Chapter 8 Brazil
1 Issues Arising When a Company is in Financial Difficulties
1.1 How does a creditor take security over assets in Brazil? The most common forms of security over assets in Brazil are: mortgages, pledges, and fiduciary transfers. Mortgage A mortgage is a security interest created mainly over real estate. The creation of a mortgage requires the registration of a Mortgage Deed with the competent Real Estate Registry Office. The Mortgage Deed must specify the secured obligation and the real estate to which it refers. Pledge A pledge is a security interest created over movable assets, including equipment, receivables, shares and other assets deemed movable under Brazilian law. Depending on the asset being pledged, the creation of the pledge will requires registration of a Pledge Agreement with either a Real Estate Registry Office, a Registry of Deeds and Documents or another type of registry (such as corporate books in a pledge of shares). The Pledge Agreement must specify the secured obligation and the assets to which it refers. If the pledge is created in the context of business transactions, possession of the pledged do not need to be transferred to the creditor. Fiduciary Transfer In a fiduciary transfer structure, assets are transferred to the creditor, on a fiduciary basis, to ensure payment of a given obligation. Upon full payment of the secured obligation, the debtor reacquires full title to the asset, thereby extinguishing the fiduciary own...Ver el contenido completo de este documento
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