DEBT/EQUITY SWAP IN PRE-BANCRUPCY SETTLEMENT USING THE MEZZANINE DEBT

Abstract

At first glance, mezzanine debt should be classified as an economic area of research. However, in recent years, this instrument has often appeared in the Croatian legal system as a model of attempts to rehabilitate failed companies in pre-bankruptcy proceedings. Domestic legal doctrine has so far not devoted itself to the instrument of mezzanine debt, even though the very fact of the application of conceptually questionable (e.g. senior debt) and regulatory unknown recovery  mechanisms of debtor companies in pre-bankruptcy proceedings indicates the existence of a need for a more detailed analysis of this issue. The main observed  dispute relates to cases of conversion of mezzanine debt of creditors who are not credit institutions or funds authorized for lending into a business share of the debtor’s company. The aim of this paper is to analyze the position of mezzanine debt in domestic legal transactions and to analyze it as a mechanism for settling creditors in pre-bankruptcy proceedings, as well as the justification of the consequent conversion of the claim into a business share without the creditor’s consent. An attempt will also be made to answer the question, whether it is a legitimate legal means of creditor settlement or an anomaly whose practical application should be reconsidered. The paper will present the conclusions about the institute of mezzanine debt in relation to the observed controversies and point out the necessary caution when implementing this instrument in pre-bankruptcy procedures pro futuro.