The Consolidated Appropriations Act of 2021 (the CAA), which President Trump signed into law on December 27, 2020, amends several provisions of the Bankruptcy Code. While a number of the amendments are applicable only to small businesses (e.g., businesses eligible to file under the new small-business subchapter of the Bankruptcy Code and/or businesses eligible to receive PPP loans), several others have more general application, as discussed below.
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Amendments of More General Application
In the United States, in a typical plain vanilla lending arrangement, if a counterparty files for bankruptcy, an automatic stay of enforcement actions is imposed that would prevent a lender from (i) foreclosing on the property of the debtor, (ii) terminating contracts with the debtor, (iii) commencing or continuing certain enforcement actions against the debtor or its property and/or (iv) setting off amounts owed under such arrangements (in each case unless a motion is filed and granted in the related bankruptcy case).
近年来，我国宏观经济增长放缓，国家调整产业和信贷政策，并逐渐加强金融监管，商业银行的资产质量压力有所增加，十亿甚至百亿级别的债务逾期或潜在违约浮出水面。这些巨无霸级别的潜在不良贷款风险，迫切要求商业银行审查并改善贷前贷后管理中的遗漏和问题，也对商业银行的危机处理能力提出了更高的挑战。
大敌当前，痛定思痛，当危机来临时，商业银行的管理层和执行层需要的是冷静的思考、周密的策划，以及必要时刻壮士断腕的决策力。从本团队近期参与处理的几项复杂的债务逾期及潜在违约案例来看，危机的表象多种多样，除了资金周转困难带来直接的偿付危机；有的则是债务人控制人挪用公司资金投入股市炒股，有的是公司实际控制人陷入刑事调查和指控，也有的则更为隐蔽，债务人关联主体在境外受到他国政府的调查等等。这些危机虽然不一定直接表现为到期不付，但可能已经导致债务人违反融资文件的陈述、承诺条款，甚至通过交叉违约触发了违约事件或潜在违约事件。
本文旨在梳理危机处理的思路，通盘策划全面追索资产的策略，为贷款管理工作层面制定一份简介易行的“工作方案”，以便为后续的债务重组和清偿争取宝贵的时间，避免弯路：
一、梳理融资文件
As the Chinese economy enters the “new normal”, the Chinese government has been adjusting its industrial and credit-related policies and strengthening regulation of Chinese financial institutions. A large number of non-performing loans (NPLs) as well as actual loan defaults have started to surface. The risks associated with rising levels of NPLs require Chinese banks to enhance their ex ante and ex post credit risk management practices.
In In re KB Toys Inc.,1 the US Court of Appeals for the Third Circuit affirmed the holdings of the lower courts that claims subject to disallowance under Section 502(d) of the Bankruptcy Code are “similarly disallowable in the hands of the subsequent transferee.” According to the Third Circuit, when a creditor owes property to the estate, until that property is returned to the estate, that creditor’s claim, regardless of who holds it, is impaired, and the subsequent sale of that c
On May 4, 2012, the Delaware bankruptcy court inIn re KB Toys, Inc., et al. (KB Toys), handed down a thoughtful decision addressing the issue of whether impairments attach to a claim or remain with its seller. The KB Toys court held that “a claim in the hands of a transferee has the same rights and disabilities as the claim had in the hands of the original claimant. Disabilities attach to and travel with the claim.”