The second modification to the Insolvency Act this year was passed on 6th September, following the modifications passed previously on 7th March 2014.

MAIN DEVELOPMENTS:

a) Credits with special privileges:

This category of credits shall only apply to amounts which do not exceed the value of the respective guarantee; the value of the guarantee shall be calculated using a new evaluation criteria, thus deducing pending debts secured by this asset from its “reasonable value”.

b) Persons especially related to the insolvency proceedings.

The following shall be considered as such:

    • Natural persons especially related to the natural persons who are shareholders or partners of the insolvent debtor, who may be personally and unlimitedly responsible for company debts.
    • In the absence of evidence to the contrary, creditors who have signed refinancing agreements arising from the obligations assumed by the insolvent debtor in relation to a viability plan shall not be considered directors de facto.

c) Creditors’ agreement.

    • Proposals may exceed half of the amount of the credits and a stay of payment of 5 years.
    • Offers to buy production units shall be allowed, which would be transferred without previously contracted payment obligations.

d) Subordination of credit claims (receivable) with a general or special privilege.

    • When a certain type of creditor approves a creditors’ agreement, the creditors with privileged credit claims shall become subject to the agreement. However, for this to happen, majorities of the same class of creditor superior to 60% or 75% depending on the case, shall be necessary.
    • In such cases, and in the event of a breach of the agreement, the especially privileged creditors may initiate or resume the separate enforcement of the guarantee.

e) The right to vote in the creditors’ meeting.

    • Hereinafter, those creditors who may have acquired credits following the declaration of the insolvency proceedings, shall have the right to vote (only with the exception of those considered as “especially related persons”).

f) Winding up of an insolvent business.

    • In the event of the sale of a unit of production, the purchaser shall automatically subrogate in the contractual position of the insolvent debtor, including licenses and administrative authorisations, without the need for consent from the other party. This shall take place unless the purchaser indicates otherwise.
    • In general, the purchaser shall not assume any already existing unpaid credit, whether it be an insolvency claim or a claim against the insolvency assets.
    • The winding-up plan may provide for the payment of credits via the assignment of assets and rights affected by a guarantee, with certain limitations.
    • Hereinafter, the court may retain up to 10% of the aggregate assets in a court bank account for the payment of certain creditors, according to court judgements relating to appeals regarding winding-up proceedings.

g) Sale of assets of companies in liquidation.

    • A web portal shall be created, which shall figure a list of companies in liquidation and information necessary for the sale thereof.

h) Modification of creditors’ agreements.

The modification of already approved creditors’ agreements shall be allowed, which shall require a qualified majority and measures to guarantee the viability of the insolvent debtor / company in liquidation.

 

 

Eduardo Vilá

Vilá Abogados

 

For more information, please contact:

va@vila.es

 

12th September 2014