Finally, it is important to highlight that the exit right, which in principle grants certain secured creditors greater protection in the context of restructuring plans, can imply a potential negative impact. Article 651.2 of the Insolvency Act contemplates the possibility of anticipating the potential exercise and monetization of this right in the restructuring plan. This implies that the plan can neutralize the creditor ' s right by paying instead the amount of the value assigned to the collateral, 9 thus preventing the creditor from requesting the enforcement of the encumbered asset or right.
This ability to neutralize the creditor ' s right once again highlights the manifest importance of the valuation of collateral in the context of restructuring plans. It is also important to note that this ability could pave the way for the creation of restructuring plans with ad hoc provisions that allow neutralizing those secured creditors that may be considered an obstacle in the restructuring process, potentially even considering the possibility of using the asset or right that has been removed from their power of enforcement to secure new financing.
2. Determining the value of collateral. Legal criteria and precedents
Given that the valuation of collateral is key, it is worth analyzing how this should be done to avoid it being the basis for a future challenge to the plan( e. g., by invoking the defective formation of classes, which, if accepted, would
Insolvencias & Reestructuraciones, No. 7, 2022, p. 77.
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Although the provision indicates that“ the plan may provide for replacing this right by the option to collect in cash, within a period not exceeding 120 days, the part of the credit covered by the value of the guarantee”(“ el plan podrá prever la sustitución de este derecho por la opción de cobrar en efectivo, en un plazo no superior a ciento veinte días, la parte del crédito cubierta por el valor de la garantía”), waiving the creditor ' s exit right in exchange for its monetization as optional for the creditor has not been supported( see, among others, SENDRA ALBIÑANA, A., ' Artículo 651 ' in Comentarios al articulado del Libro Segundo del Texto Refundido de la Ley Concursal, Sepín, 2023, p. 555). However, it is not a question free from debate that could offer the courts a wide margin of interpretation. imply the ineffectiveness of the plan under art. 661.2 of the Insolvency Act).
Thus, as indicated above, resulting from integrating the underlying legal and economic realities of secured credits in the context of restructuring plans, article 617.5 of the Insolvency Act establishes that only the part of the secured obligation covered by the value of the collateral will be considered as secured credit.
The valuation of collateral for these purposes is governed by arts. 273 to 279 of the Insolvency Act. According to the applicable valuation criteria, the valuation process can be summarized in two phases.
1.3. Determining the fair value of the asset on which the collateral is based
Under article 273 of the Insolvency Act, the following valuation methods can be distinguished based on the nature of the asset or right:
( a) In the case of real estate, the value resulting from the report issued by an approved appraisal company registered in the special Register of the Bank of Spain will be taken.
( b) In the case of securities listed on a regulated market, the fair value will correspond to the weighted average price at which they were traded in the last quarter, 10 in accordance with a certification issued by the market governing company.
( c) In the case of other assets or rights, the fair value will be determined by an independent expert in accordance with the generally recognized valuation principles and standards
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The regulation does not specify which quarter should be taken as the“ last quarter” for valuation purposes in the context of restructuring plans, as it only addresses this time period within the framework of an insolvency process, linking it to the quarter prior to the declaration of insolvency. However, it is reasonable to assume that, in a pre-insolvency context, the reference quarter should be the one prior to the issuance of the certification itself, which, in turn, should be issued within a timeframe reasonably close to the date of sanction of the restructuring plan( see this argument continued in the next footnote). continued on page 34
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