Mário Conforti
Lawyer at Marcos Martins Advogados
Camila Asha Champam de Lacerda
Lawyer at Marcos Martins Advogados
Recently, Law No. 11.101/05, which deals with Bankruptcy, Judicial Reorganization and Out-of-Court Reorganization, was reformed by Law No. 14.122/20, bringing relevant changes regarding the sale of Isolated Production Units (“UPIs”), a procedure frequently used in Judicial Reorganization proceedings due to the benefits brought to the debtor and creditors.
Conceptually, the “UPIs” are sets of physical assets (real estate and equipment, for example), or intangible assets (trademarks and patents), which can be sold to other companies, generating funds that can be injected into the company undergoing reorganization, both as working capital and for paying creditors and fulfilling obligations assumed in the Judicial Reorganization Plan.
Within the scope of Judicial Recovery, article 60, sole paragraph, of Law 11.101/05, establishes that the acquirer of Isolated Production Units will not succeed to the obligations of the Recovering Company of any nature, including those of an environmental, regulatory, administrative, criminal, tax and labor nature. This provides the necessary security so that there is interest in investing in the acquisition of IPUs without assuming the risks of the previous operation borne by the reorganized company.
With the recent reform of the Law, article 60-A was introduced, stating that the sale of an Isolated Production Unit “[…] may include goods, rights or assets of any nature, tangible or intangible, alone or together, including shareholdings of the partners”.
It so happens that, although the law provides for the possibility of “UPIs” being sold by companies undergoing Extrajudicial Reorganization, there is no express rule on the non-occurrence of succession of the debtor’s obligations by the purchaser, although article 166, which provides for sale in the Extrajudicial modality, refers to article 142, both of Law 11.101/05.
In this context, it can be seen that the gap in the law still generates a great deal of legal uncertainty in the market, leading to a lack of interest in acquiring UPIs in Out-of-Court Reorganization , since there are still no guarantees that the assets acquired from the Recovering Company will be free of obligations subject to succession.
It can be said that the sale of assets through Isolated Production Units is one of the most widely used methods by companies currently undergoing Judicial Reorganization, given the mutual benefits for the debtor, creditors and acquirer, so that limiting this possibility in the case of Out-of-Court Reorganization means discouraging the option of restructuring many companies in this extrajudicial way.
The non-occurrence of succession of obligations is one of the essential points for the sale of “UPIs” to take place, since only in this case will there be interest in the acquisition by third parties. Therefore, interpreting the law teleologically in conjunction with the guiding principles of the reorganization procedure, the non-occurrence of succession of debts and obligations must be included in the acquisition of UPIs in the context of Extrajudicial Reorganization.
Marcos Martins Advogados is aware of this issue and is prepared to provide qualified legal advice to its clients.
