New amendments to the Spanish Insolvency Law

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1 3 rd June 2015 New amendments to the Spanish Insolvency Law Ley 9/2015 Contents Summary 2 Refinancing agreements 2 The communication foreseen under Article 5bis of the insolvency Law 3 Ranking of creditors 3 Liquidation of insolvent debtors 4 Qualification phase 5 Other relevant matters 6 Key Contacts 7 Composition agreements 4 1

2 Summary Law 9/2015, dated 25 May, on urgent measures on insolvency matters (Ley 9/2015, de 25 de mayo, de medidas urgentes en material concursal) (Law 9/2015), was published in the Spanish Official Gazette on 26 May 2015 after being definitively passed by the Spanish Parliament on 14 May Law 9/2015 has its origin in Royal Decree-Law 11/2014, dated 5 September, on urgent measures on insolvency matters (RDL 11/2014), which was approved by the Spanish Government back in September, now being passed by the Spanish Parliament, which introduced further amendments to the same. The aim of Law 9/2015 is to consolidate the amendments that have been introduced by RDL 11/2014 but also to clarify the main controversial issues that have arisen when putting the reforms introduced by RDL 11/2014 into practice. Moreover, Law 9/2015 also attempts to refine the effects produced after a debtor filed the communication foreseen under Article 5bis of Law 22/2003, dated 9 July, on Insolvency (the Insolvency Law) and to clarify the interpretation of the 90% limitation on the recognition of special privilege (privilegio especial) to secured claims. Following our previous ebulletin on RDL 11/2014, the main amendments that are introduced by Law 9/2015 (in comparison to RDL 11/2014) are described in the following sections. Finally, the interpretation of some of the amendments that have been introduced by RDL 11/2014 and Law 9/2015 could be controversial and therefore shall need to be clarified by the Spanish Courts when putting them into practice. Refinancing agreements It is clarified that the rule with regard to syndicated facilities that provides that it is construed that 100% of the creditors (by value) support the refinancing agreement if at least 75% (by value) of the creditors under the syndicated facility support the same (unless the relevant facility provides a lower majority) also extends to the refinancing agreements foreseen under Article 71.bis 1. With regard to the so-called Spanish Schemes (homologación) foreseen under the Fourth Additional Provision, it is provided that, for the determination of the value of the secured financial liabilities affected by a refinancing agreement, no valuation reports shall be needed with regard to cash, bank accounts, electronic money or deposits. 1 This amendment is only applicable to those negotiations in place on 27 September in respect of which three months had not elapsed since the communication foreseen under Article 5bis of the Insolvency Law was filed with the Court. 2

3 New amendment to the Spanish Insolvency Law Law 9/2015 The communication foreseen under Article 5bis of the insolvency Law The debtor shall determine now in the 5bis communication the enforcement proceedings which are being conducted against his estate and which of them are against goods that are necessary for the continuation of its professional or business activity. That information will be included in the resolution from the Court Clerk (Secretario Judicial) by virtue of which the Court declares that the 5bis communication has been received. This will also impact the ability of secured creditors to pursue the enforcement of their security against the debtor, as only those enforcement proceedings against those goods which have been classified as necessary will be suspended. In case of dispute as to whether a good is necessary or not, the resolution from the Court Clerk can be challenged before the Court that will have jurisdiction to conduct the insolvency proceedings of the debtor. For the debtor to block the commencement of financial creditors, enforcement actions against the insolvent estate (either goods that are necessary or not), it will have to provide documentary evidence that at least 51% of the financial creditors (by value) agreed to start negotiating with the debtor in order to arrange a refinancing agreement, and have also agreed not to file or continue enforcement actions against the same while the debtor and its creditors are still negotiating 2. 2 This amendment is only applicable to those negotiations in place on 27 September in respect of which three months had not elapsed since the communication foreseen under Article 5bis of the Insolvency Law was filed with the Court. Ranking of creditors Law 9/2015 includes a new paragraph to Article 155 of the Insolvency Law (on the payment of secured creditors) in order to clarify that secured creditors will be entitled to receive the moneys obtained from the sale (either within the insolvency proceedings or pursuant to an enforcement proceeding of the corresponding security interest) of the secured assets (up to the maximum secured liabilities by the relevant security and the effective amount of the secured debt). As a consequence, the limitation of the special privilege of secured creditors to 90% of the fair value of the secured assets or rights will mainly have effects with regard to the composition phase (fase de convenio). Nevertheless, the 90% limitation will have some effect on the payment of secured claims if the insolvency administrator decides to pay claims with special privilege (créditos con privilegio especial) against the insolvency estate (con cargo a la masa), as the provision under Article of the Insolvency Law remains unchanged. As a consequence, if the insolvency administrator adopts such decision, it will immediately pay against the insolvency state all the amounts due and payable as principal and interests and, once they are due and payable, all future repayment instalments and interests that are accrued but up to the 90% limitation without selling the secured assets or rights. The deficient claim will be paid in 3

4 accordance with the classification established in the Insolvency Law. The ranking of claims under financial leases or purchase agreements with deferred consideration over the relevant property or asset is clarified. For these purposes it is explained that not only will instalments that have been accrued before the insolvency declaration rank as claims with special privilege (créditos con privilegio especial), but claims under the financial lease or purchase agreement will also receive the same ranking 3. 3 This amendment shall apply to those insolvency proceedings for which by 27 September the final list of creditors had not been filed. Composition agreements It is clarified that compositions may include, apart from a proposal for a write-off or a deferral of payments, alternative or additional proposals for all or some creditors or classes of creditors, with the exception of public creditors 4. With regard to the creditors meeting (junta de acreedores), according to the previous regime, the quorum for the constitution of the same was 50% of the ordinary creditors (by value). Now, it will also be construed that the meeting has been correctly convened when creditors representing at least 50% (by value) of the liabilities that could be affected by the eventual composition (excluding subordinated creditors) attend. As a consequence, apart from ordinary creditors, secured creditors can now be taken into account in order to appropriately hold the creditors' meeting if the composition can affect them. For the purposes of calculating whether the relevant thresholds 5 for the approval of a proposal for composition are met or not, creditors with privilege (acreedores privilegiados) that vote in favour of the composition shall be added to the ordinary creditors that have supported the proposal for composition. In the event that the applicable thresholds are not met, it shall be construed that creditors have dismissed the relevant proposal for composition 6. 4 This amendment shall apply to those insolvency proceedings for which by 27 September the final list of creditors had not been filed. 5 50% by value of all the debtor s ordinary unsecured liabilities for those compositions that provide write-offs up to 50% of the claims and/or deferrals up to five years (or the conversion of claims into profit participating loans for the same term) or 65% by value of all the ordinary unsecured creditors when the corresponding proposal foresees write-offs greater than 50% of the claims and/or deferrals of more than five but up to 10 years (or the conversion of claims into profit participating loans for the same term). 6 This amendment shall apply to those insolvency proceedings for which 27 September the final list of creditors had not been filed Liquidation of insolvent debtors With regard to the disposal of productive units (unidades productivas) of the insolvent debtor, apart from the new rules that were introduced by RDL 11/2014 and unless the eventual liquidation plan of the debtor provides for anything to the contrary, the sale shall be made through an auction unless the 4

5 New amendment to the Spanish Insolvency Law: Royal Decree-Law 11/2014 insolvency court orders it to be made through a specialised entity or through a direct sale 7. As a consequence of the new rules introduced by RDL 11/2014, the insolvency court, upon its own decision or following a request from any of the parties within the proceedings, could put into escrow in the Court bank account funds iamounting to of up to 10% of the total value of the insolvent estate (masa activa), in order that the said amount were available to discharge any sums eventually ruled to be payable to creditors as a result of claims and appeals filed by those creditors against individual acts or steps taken in the liquidation phase. Law 9/2015 shifts the 10% of the total value of the insolvent estate that could be put into escrow to 15% of the total amount that is obtained from each disposal of assets or rights comprising the insolvent estate or the payments in cash to be made against the same 8. Once the liquidation plan of a debtor is passed, the insolvency administrator shall submit to the Spanish Insolvency Registry all the necessary information to facilitate the sale of the insolvent estate. In particular, the insolvency administrator shall submit information, among other things, on the sector and area in which the debtor operates, the time for which it has been operating, its revenues, number of employees, main assets, volume of assets and liabilities, agreements in force with third parties, licences and authorisations in force, litigation proceedings and main labour issues. With regard to the sale of establishments and productive units, Law 9/2015 includes a rule by virtue of which the insolvency court can award the same to a bidder when it considers that it further ensures the continuity of the company, productive units or jobs as well as a better satisfaction of creditors claims, provided that the offer of such bidder is at least equal to or more than 85% of the highest bid placed. Nevertheless, such rule shall only be applied in the event that the liquidation plan provides for nothing to the contrary. RDL 11/2014 provided that, with regard to secured assets and rights, where they form part of premises or a business unit or division of the insolvent debtor and where the same is sold to a third party and the said assets or rights are transferred subject to the relevant security, the eventual purchaser shall be subrogated to the debtor s obligations to the secured creditor. In this respect, Law 9/2015 has clarified that the purchaser shall not be subrogated to claims in favour of the Tax or Labour Authorities. 7 This amendment shall apply to those insolvency proceedings for which 27 September the final list of creditors had not been filed. 8 This amendment shall apply to those insolvency proceedings for which 27 September the final list of creditors had not been filed. Qualification phase Law 9/2015 maintains unchanged the rebuttable presumptions that were included in the Insolvency Law for the qualification phase (fase de calificación) of the insolvency proceedings. Although these presumptions were set in order to construe that the debtor (or its directors, general attorneys or liquidators) had acted in bad faith or with wilful misconduct, they are now turned into rebuttable presumptions that the insolvency is culpable (concurso culpable) as a clarification of the previous regime. The rebuttable presumption that the insolvency is culpable if the debtor did not appear at the creditors meeting shall only be applied if the appearance of the debtor at that meeting was essential for the approval of the composition. 5

6 Other relevant matters It is clarified that the insolvency administrator shall send via to the creditors whose addresses he possesses, the following documents: (1) the draft insolvency administrator s report; (2) a list of the requests for clarification or correction of the draft insolvency administrator s report that may have been submitted; (3) the insolvency administrator s report; (4) the final lists of creditors and assets which shall also include: (i) a description of the differences between the amounts that were set out in the provisional lists of creditors and assets and the final lists of creditors and assets; and (ii) a description of the claims against the insolvency estate that have been accrued, paid and pending to be paid together with their due dates; (5) a list of the challenges that have been filed against the insolvency administrator s report together with the pleadings included in those challenges; (6) the eventual reports assessing any proposals for composition (propuesta de convenio) that may be filed (if any); (7) the insolvency administrator s accountability report (informe de rendición de cuentas); (8) the quarterly reports on the developments of the liquidation phase; (9) the final liquidation report that shall be submitted to the insolvency court within the following month after liquidation is concluded or, if the qualification phase is still being conducted, within the following month after the ruling on the qualification of the proceedings is served. In addition, the documents referred to in (1) to (3) and (5) above shall also be submitted to the Spanish Insolvency Registry (Registro Público Concursal) (nevertheless, with regard to the insolvency administrator s report only the filing of the report with the Court shall be published in the Spanish Insolvency Registry). 6

7 Key Contacts We will be pleased to discuss with you any information or further clarification which may arise in connection with any of the matters included in this Bulletin. Antonio Vázquez-Guillén Partner, Madrid Litigation Tel Borja Fernández de Trocóniz Partner, Madrid Litigation Tel Javier Castresana Senior Associate, Madrid Litigation Tel

8 Allen & Overy Pedro de Valdivia 10, Madrid, Spain Tel Fax Allen & Overy maintains a database of business contact details in order to develop and improve its services to its clients. The information is not traded with any external bodies or organisations. If any of your details are incorrect or you no longer wish to receive publications from Allen & Overy please In this document, Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP s affiliated undertakings. Allen & Overy LLP or an affiliated undertaking has an office in each of: Abu Dhabi, Amsterdam, Antwerp, Athens (representative office), Bangkok, Barcelona, Beijing, Belfast, Bratislava, Brussels, Bucharest (associated office), Budapest, Casablanca, Doha, Dubai, Düsseldorf, Frankfurt, Hamburg, Hanoi, Ho Chi Minh City, Hong Kong, Istanbul, Jakarta (associated office), London, Luxembourg, Madrid, Mannheim, Milan, Moscow, Munich, New York, Paris, Perth, Prague, Riyadh (associated office), Rome, São Paulo, Shanghai, Singapore, Sydney, Tokyo, Warsaw, Washington D.C., Yangon. Allen & Overy LLP This document is for general guidance only and does not constitute definitive advice. MD-# v2. 8

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