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Global Restructuring The BOOK of JARGON ® Global Restructuring The Latham & Watkins Glossary of Global Restructuring Slang and Terminology First Edition 149 The definitions contained here are designed to provide an introduction to the applicable terms. The terms included herein raise complex legal issues on which specific legal advice will be required, and users rely onThe Book of Jargon Global Restructuring at their own risk. The terms are also subject to change as applicable laws and customary practice evolve. As a general matter, The Book of Jargon Global Restructuring is (as the name suggests) drafted from a global practice perspective but we confess to having liberally plagiarised where applicable from the original Book of Jargon, and from The Book of Jargon European Markets. Readers might also like to check out another publication in this series The Book of Jargon Project Finance – The Latham & Watkins Glossary of Project Development, Acquisition and Finance Slang and Terminology”. The information contained herein should not be construed as legal advice, and receipt or use of The Book of Jargon Global Restructuring shall not be deemed to create an attorney-client relationship with any user. If you have any suggestions for additional terms or expanded or clarified definitions for the current terms, please send an email to [email protected]. Latham & Watkins operates worldwide as a limited liability partnership organized under the laws of the State of Delaware (USA) with affiliated limited liability partnerships conducting the practice in the United Kingdom, France, Italy and Singapore and as affiliated partnerships conducting the practice in Hong Kong and Japan. The Law Office of Salman M. Al-Sudairi is Latham & Watkins associated office in the Kingdom of Saudi Arabia. In Qatar, Latham & Watkins LLP is licensed by the Qatar Financial Centre Authority. © Copyright 2015 Latham & Watkins. All Rights Reserved. Under New York’s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York’s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022-4834, Phone: +1.212.906.1200. 147 This publication follows in the footsteps of the already well-known and successful original Book of Jargon: The Book of Jargon, subtitled “The Latham & Watkins Glossary of Corporate and Bank Finance Slang and Terminology”. The purpose of the original book was to be a sort of “Berlitz Course” for recent law school and business school graduates seeking initiation into the world of Wall Street, and a desktop reference for not-so-recent graduates. The Book of Jargon Project Finance was published soon after and was followed by the popular and equally successful The Book of Jargon European Markets, subtitled “The Latham & Watkins Glossary of European Capital Markets and Bank Finance Slang and Terminology”. And now, we bring you this publication, which as with the other publications, is also available in the form a convenient app. Although by no means universal in scope, this publication is a glossary of terms and jargon commonly used in the global restructuring market. With major restructurings and insolvencies almost always having a cross- border dimension, we hope this glossary gives you some flavour of local insolvency laws and processes and demystifies some of the terms and jargon typically bandied around in those cases. Welcome to our world! 1 Acknowledgements Latham & Watkins would like to thank the following law firms for their kind assistance with the explanations of restructuring jargon in connection to the jurisdictions listed next to their names: Advokatfirmaet Thommessen AS (Norway) Arthur Cox (Ireland) BBA Legal (Iceland) Creel Garcia-Cuellar, Aiza y Enrequez S.C. (Mexico) Goodmans LLP (Canada) Kromann Reumert (Denmark) NautaDutilh (The Netherlands, Belgium and Luxembourg) Wistrand Advokatbyra (Sweden) 2 105 Injunction: an injunction — meaning an Order directing an entity to take a particular action or to refrain from taking a particular action — issued by a US Bankruptcy Court pursuant to Bankruptcy Code Section 105(a). Section 105(a) is a multi-purpose provision that allows a US Bankruptcy Court to “issue any order, process or judgment that is necessary or appropriate to carry out the provisions of” the Bankruptcy Code. Generally, a 105 Injunction extends the protection of the Automatic Stay to entities other than the Debtor in order to protect the Debtor. For example, a Debtor might seek a 105 Injunction to protect members of management from litigation that would consume their time and resources and prevent them from focusing on the restructuring of the Debtor. 1111(b) Election: an election made by a Class of Creditors under Bankruptcy Code Section 1111(b) that would allow a non-recourse Secured Creditor in the Class to be treated as a recourse Creditor with a Deficiency Claim. As stated in Bankruptcy Code Section 1111(b)(2), if the 1111(b) Election is made, “then notwithstanding section 506(a) of this title, such claim is a secured claim to the extent that such claim is allowed.” 1145: reference to Bankruptcy Code Section 1145, which exempts the offer or sale of securities under a Plan of Reorganisation from registration under Section 5 of the Securities Act and state laws if three principal requirements are satisfied: (i) the securities must be issued “under a plan” by the Debtor, by the Debtor’s successor under a plan or by an affiliate participating in a joint plan with the Debtor; (ii) the recipients of the securities must hold a Pre-petition Claim or Administrative Expense Claim against the Debtor or an Interest in the Debtor and (iii) the securities must be issued entirely in exchange for the recipient’s Claim against or Interest in the Debtor, or “principally” in such exchange and “partly” for cash or property. 2004 Exam: an examination of and production of documents by any entity pursuant to Bankruptcy Rule 2004, relating to the acts, conduct, property or liabilities and financial condition of the Debtor, or to any matter that might affect the administration of the Estate, or to the Debtor’s right to a Discharge. The right to take a 2004 Exam is generally obtained by Order pursuant to a Motion filed by any Party in Interest, but applicable Local Rules may dictate particular requirements or procedures. 2019 Statement: a reference to Bankruptcy Rule 2019, which requires that in a case under Chapter 9 or Chapter 11, “any entity or committee representing more than one creditor or equity security holder…” file a statement providing, inter alia, who that entity or Committee represents, the Claims or Interests held by the Creditors or Equity Security Holders, and certain other information. Failure to file a 2019 Statement can result in serious sanctions as detailed in Bankruptcy Rule 2019. 1 If the country of origin of a given term is not identified, the country of origin is the US. 3 21 Day Rule: a German Insolvency rule that also translates into English as “everybody panic”. Management of a German company must file for Insolvency no later than three weeks after the company becomes Insolvent and face criminal sanctions and personal liability if they fail to do so. In a restructuring there are often ways found to address the state of Insolvency and thus avoid the need to file. Not to be confused with Day 21, which has its own separate meaning under the City Code on Takeovers and Mergers. 3(a)(10): a provision of the US securities laws that allows for a quiet, flexible and relatively inexpensive exchange offer without registration with the Securities and Exchange Commission and is often tax free. 341 Meeting: a meeting of Creditors convened by the United States Trustee as required by Bankruptcy Code Section 341(a) or a meeting of Equity Security Holders if optionally convened by the United States Trustee under Bankruptcy Code Section 341(b). Under Bankruptcy Code Section 343, a Debtor is required to appear at a meeting of Creditors and submit to examination by Creditors, any Indenture Trustee, any Trustee or Examiner or the United States Trustee. 363 Sale: a sale of the Debtors’ assets Outside the Ordinary Course of Business pursuant to Bankruptcy Code Section 363(b), subject to notice and a hearing. 365(n): provision of the Bankruptcy Code that allows the non-Debtor licensor to avoid the effect of a Rejection of a license of intellectual property (as defined in the Bankruptcy Code) by paying the applicable royalties and continuing to use the intellectual property notwithstanding a Rejection of the license by the Debtor. 382: section of the Internal Revenue Code (26 U.S.C. § 382(a)) that imposes “limitations on using the purchase of a company as the basis for deducting the company’s net operating losses from the purchaser’s taxable income.” In re South Beach Securities, Inc., 606 F.3d 366, 374 (7th Cir. 2010). 502(b)(6) Cap: a Cap imposed by a provision of the Bankruptcy Code on Claims by Creditors for damages resulting from termination of a lease of real property; the cap is equal to the greater of the rent under the lease without acceleration or 15 per cent, not to exceed three years, of the remaining term of the lease following the earlier of the Petition Date or the date the lease was repossessed or surrendered. 503(b)(9) Claim: an Administrative Claim for the value of goods received by the Debtor within 20 days before the Petition Date and sold to the Debtor in the Ordinary Course of Business. Also referred to as a Twenty- day Goods Claim. 506(c) Surcharge: situation in which Administrative Claims incurred in preserving or disposing of a Secured Creditor’s Collateral are paid from the value of that Collateral to the extent they benefit the Secured Creditor.
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