Читать книгу Retos y desafíos de las garantías reales - Abel B. Veiga Copo - Страница 42

Post-commencement finance (i.e., finance given after commencement of insolvency) is often a necessary requirement for the successful reorganization of a business. The new funds, which are often offered by the same lenders of the insolvent debtor, however, will typically not be available, unless they are protected by a security interest in the assets of the. In this regard, the question arises whether that security interest (or interests) created in already encumbered assets will be given priority over security interests in the same assets securing pre-commencement finance.

The Insolvency Guide recommends that insolvency law should, in principle, not give priority to security interests securing post-commencement finance, unless the insolvency administrator obtains the consent of existing secured creditors or the insolvency court approves it. For the insolvency court to approve it, against the will of existing secured creditors: (a) existing creditors must be given an opportunity to be heard; (b) the insolvent debtor must prove that it cannot obtain finance in any other way; and (c) the interests of existing secured creditors must be protected (through protection of the value of the encumbered assets from diminution and/or protection of the value of the secured claim24. Otherwise, the protection, for which the secured creditor has offered credit against a security interest in one or more assets of the debtor, will have little value, a result that is bound to have an adverse impact on the availability and the cost of credit.