过去数年,打包重组(Repackaging)结构盛行,中资金融机构寻求使用其作为便利进入市场的工具,并为客户提供创新的融资方案。
中国房地产行业是最广泛使用该结构的行业之一,该行业在2021年高开低走、大起大跌,并于最后一季急挫。市场预期房地产行业在2022年仍将困难重重。
在此背景下,我们察觉到安排人(Arranger)、中国房地产企业及投资者正在寻求对现有的打包重组交易进行结构调整(restructure)的机会(包括提前终止、展期、增加额外增信措施、置换等安排)。此外,我们还观察到,市场对与中国非房地产行业主体(如融资租赁公司、金融科技公司)相关的资产支持交易的兴趣有所增加。
我们将于本文探讨部分有关修订或提前终止打包重组交易的主要问题,并且概述我们在市场中观察到的典型案例和未来趋势。
温故知新:打包重组交易的基本结构
许多较为简单的打包重组交易的结构一般具有下列特点:
On March 27, 2021, President Biden signed into law the COVID-19 Bankruptcy Relief Extension Act (the Extension Act). The Extension Act temporarily extends certain COVID-19 bankruptcy relief provisions enacted as part of the Coronavirus Aid, Relief, and Economic Security Act (the CARES Act), which were further amended and/or extended as part of the Consolidated Appropriations Act (the CAA). Certain of the amendments included in the CAA and the Extension Act are highlighted below:
Debtors and Paycheck Protection Program Loans
Introduction
The Coronavirus Aid, Relief, and Economic Security Act (CARES Act) established the Paycheck Protection Program (PPP), a lending program for small businesses pursuant to which up to 100 percent of the principal loan amount is forgivable. While the PPP program has been a boon to business struggling in light of the ongoing pandemic, the SBA has sought to limit access by bankrupt borrowers, eliminating a significant number of otherwise eligible businesses and creating significant legal questions and issues.
On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief, and Economic Security Act, Public Law No. 116-136 (the “CARES Act” or the “Act”), the stimulus package designed to mitigate the widespread economic impacts of the coronavirus (“COVID-19”). The Act includes important temporary modifications [1] to Subchapter V of the Bankruptcy Code (the “Code”), applicable to small -business debtor reorganizations.
Temporary Increase in Debt Limit
On August 1, 2019 the U.S. Senate passed the Family Farmer Relief Act of 2019, which more than doubled the debt limit for “family farmers” qualifying for relief under Chapter 12 of the U.S. Bankruptcy Code to $10,000,000. The House of Representatives previously passed the same legislation on July 29, 2019; the legislation will now proceed to the White House for the President’s signature.
In a recent opinion, the Second Circuit Court of Appeals held that a seller licensed under the Perishable Agricultural Commodities Act (“PACA”) could not entirely setoff payables owed to a bankrupt PACA merchant against receivables owed by the debtor. The ruling is a reminder to PACA-regulated parties that otherwise common operational practices such as setoffs may not be recognized and enforceable in bankruptcy or in PACA-regulated transactions.
The U.S. Bankruptcy Court for the District of Delaware recently granted in part and denied in part dismissal in favor of the defendant car manufacturer in a fraudulent transfer adversary proceeding brought by the Chapter 11 trustee in Emerald Capital Advisors Corp. ex rel. FAH Liquidating Trust v.