Here those interested in termination would try to prove to the Court of the Mercantil that the debt overhang of the target company derived from the price to satisfy the sellers is a patent violation of its heritage and the payment of such price, the absence of compensation in favour of the target company or at least equivalent from the perspective of the integrity of the bankruptcy creditsIt harmed the active mass. The intent of those involved in the LBO would be completely irrelevant. Secondly, the challenge to the former LBO article 71.6 of the bankruptcy law, according to which the exercise of the rescisorias actions shall not preclude of other actions of challenges to acts of the debtor arising under law, which may be exercised before the judge of the competition. In case of recourse to This way, interested parties – now si – invocarian before the Juzgado de lo Mercantil infringement of the legal prohibition of financial assistance for acquisition of own shares/participations, null and void in accordance with article 6.3 of the Civil Code. Unlike the previous alternative, in this case the action wouldn’t subject to temporary limit any, since the action of nullity does not prescribe never.
Consequences of a successful challenge obviously, the consequences of the success of the contestation of the LBO would be traumatic both from the economic point of view as legal. As exercised action and the same object, could be declared ineffective one or more of the payments received in respect of price, which should therefore be reinstated by the sellers to the active mass. Especially complex would be the consequences of a declaration of invalidity of the entire operation of LBO: sellers would regain ownership of the target company, merging this with vehicle society would have rid for being part of an illegal and null operation, etc. It is more, sellers, as partners of the target company, in addition to restoring the price received based on the LBO could pass to be subordinated creditors of the bankrupt company target, go in them the legally established circumstances.