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对于陷入困境的企业,可以通过与债权人之间以协议的方式,对企业进行债务调整和资产重构,以实现企业复兴和债务清偿。而债务重组中债权人最关注的即是如何有效地实现债权退出,不同类型的债权人、不同的债权情况所涉的债权人诉求均可能存在差异,提供多样化的债权退出路径可以更有效地促进困境企业债务重组成功。根据实践经验,我们总结出多种卓有成效的债权退出路径,包括但不限于直接参与留债重组、债权转股权、债权转让、资产证券化等等。

一、直接参与留债重组

对于债务人陷入流动性危机,但本身资质良好,给予一定的时间可度过困境恢复清偿能力的,债权人往往愿意与债务人就还款金额、还款方式、还款时间等债权债务问题达成新的协议,通过优化该类企业的资产负债结构、盘活企业不良资产,帮助企业渡过财务危机,最终实现债权受偿。

在留债重组的方式下,债权人亦可以有多种具体的债权退出路径,包括但不限于资产出售及资产盘活偿债、以资产或信托受益权等财产权抵债、以企业经营收益现金受偿、企业恢复良性负债率后融资还债等等。特殊情况下,如相关债权涉及企业继续经营所必需,还可以采取“类共益债”的形式,由全体债权人表决引入投资人协助原债权人退出。

(一)以部分资产出售偿债退出

Over the past several years, unitranche facilities have become increasingly prevalent. This growth has been driven by the ever-growing class of private credit and direct lenders who initially developed the unitranche facility structure, along with traditional bank lenders now joining this market. The unitranche structure has several advantages, including typically quicker execution for the parties involved and in some cases a lower cost of capital to the borrower.

Bed Bath & Beyond, the home goods retailer, has filed bankruptcy under Chapter 11 and plans to conduct liquidation sales and close all of its brick-and-mortar stores by June 30, as reported by The New York Times. The retailer points to an inability to adjust to the growth of online shopping as a reason for its downfall.

On February 13, 2023, Ultra Petroleum Corporation (“Ultra”) filed a petition for a writ of certiorari with the US Supreme Court seeking review of the Fifth Circuit’s October 2022 ruling that, in solvent-debtor cases, debtors must pay unsecured creditors applicable contractual make-whole premiums and postpetition interest at contractual default rates in order for such unsecured creditors to be considered unimpaired.

What’s an ABC? If you ask ChatGPT, “ABC” is an acronym that can have multiple meanings, depending on the context—for example, referring to the alphabet. But here we are talking about a type of business liquidation process in the United States known as an Assignment for the Benefit of Creditors (“ABC”). An ABC is governed by state law and has long been viewed as an alternative to a liquidation under Chapter 7 of the US Bankruptcy Code.

In a decision likely to have significant impact on certain types of bankruptcy filings going forward, this morning, the Third Circuit Court of Appeals ordered the dismissal of the Chapter 11 bankruptcy case filed by Johnson & Johnson affiliate LTL Management LLC.

On October 19th, the Wall Street Journal reported that the electric vehicle startup Mullen Automotive Inc., gained court approval to buy an Indiana manufacturing plant and assets from Electric Last Mile Solutions for $92 million. Such deal, which boosted Mullen’s share prices by 64%, includes Electric Last Mile Solutions’ manufacturing plant in Mishawaka, Indiana and its inventory and intellectual property.

"Credito Real is attempting to bypass Mexican and US insolvency laws and deploy a corporate liquidation statute with almost no protections for creditors.

In a recent opinion arising from the Chapter 11 proceedings of Arcapita Bank, Judge Alvin Hellerstein of the US District Court for the Southern District of New York affirmed a bankruptcy court decision denying safe-harbor protection to Shari’a-compliant Murabaha investment agreements.1 Specifically, the district court held that the Murabaha agreemen