Critérios jurídicos de orientação ao credor financiador nas operações DIP financing à luz do art. 69-A da Lei n. 11.101/2005

Abstract

Law No. 14,112, of 2020, promoted some innovations regarding financing for the Debtor, or the Debtor Group, during judicial reorganization, with the introduction of arts. 69-A, et seq., in Law No. 11,101, of 2005, known as the Corporate Reorganization and Bankruptcy Law (LREF), by establishing legal criteria for analysis and guidance to the financing creditor Dip Financing in financing operations for companies under judicial reorganization, in order to promote the restructuring and uplift of the company in crisis. The general objective of the research was to verify what are the legal criteria and parameters to be determined in the structuring of the available guarantees and their developments that allow the raising of funds to the reorganization company with greater legal certainty. Specifically, to bring a practical and professional analysis and approach to financing operations for companies in crisis situations already carried out in the financial market; propose best practices for mitigating future risks; recommend contractual protection mechanisms to the financing creditor; discuss the relevance of financing companies under judicial reorganization as a mechanism to overcome the crisis. In the methodology used, a review of legal literature, research of jurisprudence, laws, collection of journalistic articles and reading of articles related to the theme, exploration and studies of concrete cases based on information collected both in legal proceedings and cited in legal works on the subject were carried out. The concentration and development of the preponderant research project took place in the exploratory model based on studies and analysis of concrete cases of DIP financing carried out in Brazil. The results brought criticism regarding the absence of more legal incentives to the financing creditor in view of the fact that such operations have a high risk associated with the possibility of financial default and the lack of legal uncertainty. In addition, it was possible to assess some weaknesses in its most diverse aspects: encumbrance of guarantees, legal and temporal extra-bankruptcy, financial and legal risks, convertibility of capital into equity, unsecured operations, supervision and inspection mechanisms, among others. There is no intention in this work to exhaust the subject, and its focus is mainly intended for the analysis of DIP Financing operations in the light of article 69-A to article 69-F of the LREF. It is concluded that it will be necessary to mature in the formation of judicial precedents in this regard, which generate significant demands, and it is not possible to state what will be the path to be followed by the national jurisprudence in the interpretation of these intricate legal transactions and the behavior of the financial market in support of this type of operation.