298. Defined terms

In these Regulations, unless otherwise defined in these Regulations or the context indicates otherwise, the defined terms listed below shall have the following meanings —

"administration application" has the meaning given in Section 8(1) (Administration application).

"administrative receiver" has the meaning given by Section 152 (Appointment and powers of receivers and administrative receivers).

"administrator" of a Company and "administrator" of a Deed of Company Arrangement have the respective meanings given by Section 1(1) (Administration) and, where the context requires, includes a reference to a former administrator and, unless the context otherwise requires, references to an "administrator" without further designation are to both kinds of administrator.

"Appointed Person" means in relation to a Company —

(a) a person qualified to act as an insolvency practitioner in relation to that person;

(b) a person who is experienced in insolvency matters who is —

(i) a partner in the Office-holder's firm;

(ii) an employee of the Office-holder;

(iii) an employee of Office-holder's firm; and

who is appointed in writing by an Office-holder.

"Articles" has the meaning given in the Companies Regulations 2015.

"Associate" has the meaning given to it by section 300 (Meaning of "Associate") of this Part 11 (General).

"attendance" at a meeting is to be interpreted in accordance with paragraph 2 (Attendance at meetings and proxies) of Part 1 (Meetings and time limits) of Schedule 1 (Meetings, Time Limits, Notices and Documents).

"authenticate" or "authenticated" means to authenticate in accordance with paragraph 6 (Authentication) of Part 2 (Form and content of documents) of Schedule 1 (Meetings, Time Limits, Notices and Documents).

"blank proxy" has the meaning given in paragraph 37 (Blank proxies) of Part 11 (Proxies and corporate representation) of Schedule 6 (Meetings and Correspondence).

"body corporate" has the meaning given to that term in the Companies Regulations 2015.

"books and papers" includes accounts, deeds, writing and documents.

"business day" means every day except Saturday, Sunday and public holidays in the United Arab Emirates.

"capital market arrangement" has the meaning given to it by section 301 (Meaning of "capital market arrangement") of this Part 11 (General).

"capital market investment" has the meaning given to it by section 302 (Meaning of "capital market investment") of this Part 11 (General).

"cash" means money in any currency, credited to an account, or a similar claim for repayment of money such as a money market deposit.

"Civil Procedure Rules" means any rules, procedures, practice or guidance relating to the Court that is issued by the Board from time to time.

"collateral" means any of the following —

(a) cash in any currency;

(b) securities of any kind, including (without limitation) debt and equity securities and sukuk, and any rights or claims associated with any such securities;

(d) any asset commonly used as collateral in the Abu Dhabi Global Market.

"collateral arrangement" means any margin, collateral or security arrangement or other credit enhancement related to or forming part of a netting agreement or one or more qualified financial contracts entered into thereunder or to which a netting agreement applies, including (without limitation) —

(a) a pledge, mortgage, charge or any other form of security in collateral, whether possessory or non possessory;

(b) a title transfer collateral arrangement; and

(c) any guarantee, letter of credit or reimbursement obligation by or to a party to one or more qualified financial contracts, in respect of one or more of those qualified financial contracts.

"Commencement of the winding-up" is deemed to occur —

(a) in the case of a voluntary winding-up, at the time of the passing of the resolution for voluntary winding-up;

(b) in the case of a winding-up order made by virtue of Section 18(1)(e) (Powers of Court), on the making of the order; or

"Commercial Licensing Regulations 2015" means the Commercial Licensing Regulations 2015, issued by the Board.

"Companies Regulations 2015" means the Companies Regulations 2015, issued by the Board.

"Company" has the meaning given in Section 1 (Companies) of the Companies Regulations 2015.

"Connected Person" means a person is connected with a Company if —

(a) he is a Director, officer or shadow director of the Company or he is an Associate of such a Director, officer or shadow director;

(b) he is an Associate of the Company;

(d) he is a trustee of a trust and the Company has an interest as beneficiary in the trust property or vice versa.

"contributory" means every person liable to contribute to the assets of a Company in the event of its being wound up.

"convener" means in respect of any meeting, the person who summons the meeting.

"corporation" has the meaning given to that term in the Companies Regulations 2015.

"correspondence" includes correspondence by telephonic or other electronic means.

"creditors' voluntary winding-up" means a voluntary winding-up other than a members' voluntary winding-up.

"debt" means —

(a) in relation to the winding-up of a Company, any of the following —

(i) any debt or liability to which the Company is subject —

(1) in the case of a winding-up which was not immediately preceded by an administration on the date on which the Company went into liquidation;

(2) in the case of a winding-up which was immediately preceded by an administration, at the date on which the Company entered administration;

(ii) any debt or liability to which the Company may become subject after that date by reason of any obligation incurred before that date; and

(iii) any interest provable as mentioned in paragraph 28 (Interest) of Part 3 (Creditors' claims) of Schedule 5 (Proofs and Distribution); and

(b) in relation to the administration of a Company, any of the following —

(i) any debt or liability to which the Company is subject on the date on which the Company went into administration;

(ii) any debt or liability to which the Company may become subject after that date by reason of any obligation incurred before that date; and

(iii) any interest provable as mentioned in paragraph 28 (Interest) of Part 3 (Creditors' claims) of Schedule 5 (Proofs and Distribution); and

(c) for the purposes of a reference in any provision of these Regulations about winding-up or administration to a debt or liability, it is immaterial whether the debt or liability is present or future, whether it is certain or contingent or whether its amount is fixed or liquidated, or is capable of being ascertained by fixed rules or as a matter of opinion; and references in any such provision to owing a debt are to be read accordingly.

"Deed of Company Arrangement" means a deed of company arrangement between a Company, all or some of its creditors and the administrator of the deed which complies with the requirements of Chapter 8 (Deed of Company Arrangement) of Part 1 (Administration) of these Regulations.

"deliver" and "delivery" are to be interpreted in accordance with Part 8 (Delivery of documents and opting out) of Schedule 1 (Meetings, Time Limits, Notices and Documents) except in respect of the Registrar where "deliver" and "delivery" are to be interpreted in accordance with the Regulations.

"Director" has the meaning given in the Companies Regulations 2015 and includes any person occupying the position of Director, by whatever name called.

"document" includes a written notice or statement or anything else in writing capable of being delivered to a recipient.

"electronic means" in relation to delivery or other correspondence includes fax and "electronic address" includes a fax number.

"equivalent collateral" means —

(a) in relation to securities, securities of the same issuer or debtor, forming part of the same issue or class and (except in the case of shares of a Company) the same nominal amounts and the same currency and description, or such other assets as may be permitted by the relevant collateral arrangement; and

(b) in relation to cash, a payment of the same amount and in the same currency,

and includes the original collateral provided under the arrangement.

"file with the Court" means deliver to the Court for filing.

"file with the Registrar" means deliver to the Registrar for filing.

"financed project" has the meaning given to it by section 305 (Meaning of "financed project") of this Part 11 (General).

"Financial Market Regulations" means the Abu Dhabi Global Market Regulations governing the financial markets issued from time to time by the Board.

"Fines Schedule" means Schedule 9 (Contraventions), as such Schedule may be amended, replaced or supplemented from time to time.

"floating charge" means a charge which is a floating charge on its creation.

"foreign main proceeding" means a foreign proceeding taking place in a jurisdiction other than the Abu Dhabi Global Market where the debtor has the centre of its main interests.

"foreign proceeding" has the meaning given in Schedule 10 (Application of UNCITRAL Model Law).

"foreign representative" has the meaning given in Schedule 10 (Application of UNCITRAL Model Law).

"general meeting" means a meeting of members of a Company.

"hire-purchase agreement" includes a conditional sale agreement, a chattel leasing agreement and a retention of title agreement,

"holder of a qualifying charge" in respect of a Company's property has the meaning given in Section 21 (Power to appoint).

"in administration" has the meaning given by Section 1(2)(a) (Administration).

"insolvency law of the Abu Dhabi Global Market" means these Regulations as extended or applied by or under any other enactment, regulations or rules (excluding these Regulations).

"insolvency practitioner" has the meaning given under Section 290 (Qualification and registration of insolvency practitioners).

"Insolvency Proceedings" means, as the context requires, any of the following procedures or proceedings —

(a) under these Regulations —

(i) winding-up;

(ii) provisional liquidation;

(iii) administrative receivership;

(iv) receivership;

(iv) administration or, in the case of Part 7 (Financial Markets and Netting), the making of an interim order on an administration application or out of Court administration interim period; and

(v) a Deed of Company Arrangement being in force; and

(b) for the purposes of Part 7 (Financial Markets and Netting) of the Regulations only, any of the procedures or proceedings described in paragraph (a) and any other procedure or proceeding under any provision of law relating to liquidation, reorganisation, bankruptcy, composition with creditors, receivership or any other similar procedures or proceedings.

"insolvent estate" means the Company's property.

"insolvent party" is the party in relation to which an Insolvency Proceeding under the laws of the Abu Dhabi Global Market has been instituted.

"Interpretation Regulations 2015" means the Interpretation Regulations 2015, as enacted by the Board.

"last date for proving" has the meaning given in paragraph 32 (Content of notice) of Part 4 (Distributions to creditors) of Schedule 5 (Proofs and Distribution).

"legislation" includes regulations or rules made under legislation.

"level" when used to describe the quantum of any fine imposed under these Regulations is a reference to the fine levels set out in Schedule 9 (Contraventions) by reference to any standard fines schedule or scale set out in an enactment or in subordinate legislation.

"liability" has the meaning given in Section 299 (Meaning of "liability", "into liquidation" and "into insolvent liquidation" and "in administration", "enters administration" and "enters insolvent administration") of this Part 11 (General).

"Limited Liability Partnership" means a limited liability partnership, as regulated by rules and regulations adopted by the Board.

"Limited Liability Partnership Agreement" means the incorporation document as defined in the Limited Liability Partnerships Regulations or any other agreement among the members of a Limited Liability Partnership.

"Limited Liability Partnerships Regulations" means any rules and regulations issued from time to time by the Board regulating limited liability partnerships.

"Liquidation Committee" means a creditors' committee appointed in accordance with Section 230 (Liquidation committee).

"liquidator" includes, where the context allows, a liquidator appointed provisionally.

"market value" means the amount which would be realised on a sale of property in the open market by a willing vendor.

"member", in respect of a Company, has the meaning given in the Companies Regulations 2015.

"members' voluntary winding-up" means a winding-up in which a Director's declaration has been made in accordance with Section 175 (Declaration of solvency).

"netting" means the occurrence of any or all of the following —

(a) the termination, liquidation or acceleration of any payment or delivery obligations or entitlements or obligations or entitlements to make, receive or require payments or deliveries, under one or more qualified financial contracts entered into under a netting agreement or to which a netting agreement applies;

(b) the calculation or estimation of a close-out value, market value, liquidation value, replacement value or other relevant value (whether at the time of or following the relevant termination, liquidation and/or acceleration) in respect of each obligation or entitlement or group of obligations or entitlements terminated, liquidated or accelerated under sub-paragraph (a) of this definition;

(c) the conversion of any values calculated or estimated under sub-paragraph (b) of this definition into a single currency;

(d) the determination of the net balance of the values calculated under paragraph (b) of this definition, as converted under sub-paragraph (c) of this definition, whether by operation of set off or otherwise; and

(e) entry by the parties into a transaction pursuant to or by virtue of which such a net balance becomes payable directly or as part of the consideration for an asset or the provision for the payment of damages related to any non-performance of any such transaction.

"netting agreement" means (a) any agreement between two parties that provides for netting of present or future payment or delivery obligations or entitlements arising under or in connection with one or more qualified financial contracts entered into under the agreement, or to which the agreement applies, by the parties to the agreement (a "master netting agreement"), (b) any master agreement between two parties that provides for netting of the amounts due under two or more master netting agreements (a "master-master netting agreement") and (c) any collateral arrangement related to or forming part of one or more of the foregoing.

"non-cellular assets" has the meaning given in the Companies Regulations 2015.

"non-Abu Dhabi Global Market Company" means a company incorporated or formed outside the Abu Dhabi Global Market, whether under the federal or local laws of the United Arab Emirates, or the law of any other country or territory.

"non-insolvent party" is the party other than the insolvent party.

"Office-holder" means a receiver, administrative receiver, administrator of a Company, administrator of a Deed of Company Arrangement, a liquidator or a provisional liquidator, as the case may be.

"officer" means, in relation to a Company —

(a) a Director, manager or secretary; or

(b) an Office-holder appointed to the Company or its property.

"official exchange rate" is the foreign exchange rate prescribed in paragraph 26 (Debt in foreign currency) of Part 3 (Creditors' claims) of Schedule 5 (Proofs and Distribution).

"official interest rate" means the rate of interest specified in the provisions of the Civil Procedure Rules relating to general rules about costs.

"official liquidator" has the meaning given in Section 290 (Qualification and registration of insolvency practitioners).

"opted-out creditor" means a creditor of a Company who in accordance with the Regulations has elected (or is deemed to have elected) to be (and not ceased to be) an opted-out creditor in relation to an Office-holder of that Company.

"party" means for the purposes of Part 7 (Financial Markets and Netting) of these Regulations a person constituting one of the parties to a netting agreement.

"permission" of the Court is to be read as referring to "leave of the Court" in these Regulations.

"petitioner", when referred to in the context of a winding-up, includes any person who has been substituted as such, or has been given carriage of the petition.

"Preferential Debts" means the debts referred to in Section 227 (Preferential Debts).

"Privileged Communication" means a communication attracting a privilege arising from the provision of professional legal advice or from the relationship of lawyer and client or other equivalent relationship, but does not include a general duty of confidentiality.

"project company" has the meaning given to it by section 303 (Meaning of "project company") of this Part 11 (General).

"property" has the meaning given in Section 215(2) (Property of the Company).

"proof" and "proving" has the meaning given in paragraph 4 (Proving a debt) of Part 3 (Creditors' claims) of Schedule 5 (Proofs and Distribution).

"Protected Cell Company" has the meaning given in the Companies Regulations 2015.

"proxy" has the meaning given in paragraph 2 (Attendance at meetings and proxies) of Part 1 (Meeting and time limits) of Schedule 1 (Meetings, Time Limits, Notices and Documents).

"published in the Abu Dhabi Global Market" means publication —

(a) in an English language newspaper distributed in the United Arab Emirates and available in the Abu Dhabi Global Market; and

(b) on the website of the Company to which such notice relates.

"qualified financial contract" means any financial agreement, contract or transaction, including any terms and conditions incorporated by reference in any such financial agreement, contract or transaction, pursuant to which payment or delivery obligations are due to be performed or title to commodities or assets is to be transferred for consideration at a certain time or within a certain period of time and whether or not subject to any condition or contingency or pursuant to which obligations to make payments or deliveries, or to transfer title to commodities or assets, in either case, for consideration at a certain time or within a certain period of time and whether or not subject to any condition or contingency are to be entered into or incurred. Qualified financial contracts include (without limitation) —

(a) a currency, cross-currency, interest rate swap or profit rate swap;

(b) a basis swap;

(d) a cap, collar or floor transaction;

(e) a commodity swap;

(f) a forward rate agreement;

(g) a currency, interest rate or profit rate future;

(h) a currency, interest rate option or profit rate;

(i) an equity derivative, such as an equity or equity index swap, equity forward, equity option or equity index option;

(j) a derivative relating to bonds or other debt securities or to a bond or debt security index, such as a total return swap, index swap, forward, option or index option;

(k) a credit derivative, such as a credit default swap, credit default basket swap, total return swap or credit default option;

(l) an energy derivative, such as an electricity derivative, oil derivative, coal derivative or gas derivative;

(m) a weather derivative, such as a weather swap or weather option;

(n) a bandwidth derivative;

(o) a freight derivative;

(p) an emissions derivative, such as an emissions allowance or emissions reduction transaction;

(q) an economic statistics derivative, such as an inflation derivative;

(r) a property index derivative;

(s) a spot, future, forward or other securities or commodities transaction;

(t) a securities contract, including a margin loan and an agreement to buy, sell, borrow or lend securities, such as a securities repurchase or reverse repurchase agreement, a securities lending agreement or a securities buy/sell-back agreement, including any such contract or agreement relating to mortgage loans, interests in mortgage loans or mortgage-related securities;

(u) a commodities contract, including an agreement to buy, sell, borrow or lend commodities, such as a commodities repurchase or reverse repurchase agreement, a commodities lending agreement or a commodities buy/sell-back agreement;

(v) a collateral arrangement;

(w) an agreement to clear or settle securities transactions or to act as a depository for securities;

(x) any other agreement, contract or transaction similar to any agreement, contract or transaction referred to in paragraphs (a) to (w) with respect to one or more reference items or indices relating to (without limitation) interest rates, currencies, commodities, energy products, electricity, equities, weather, bonds and other debt instruments, precious metals, quantitative measures associated with an occurrence, extent of an occurrence, or contingency associated with a financial, commercial or economic consequence, or economic or financial indices or measures of economic or financial risk or value;

(y) any swap, forward, option, contract for differences or other derivative in respect of, or combination of, one or more agreements or contracts referred to in paragraphs (a) to (x) or (z) or (aa) below;

(z) any Sharia'a compliant contract or undertaking (including a murabaha, musawama or wa'ad) which individually or together with any other such contract or undertaking has or is entered into with a view to having an economic effect similar to any instrument of a kind described in any of paragraphs (a) to (y) above or paragraph (aa) below; and

(aa) any agreement, contract or transaction designated as such by the Board by published notice, such designation being revocable by further published notice.

"Real Property Regulations 2015" means the Real Property Regulations 2015, issued by the Board.

"receiver" has the meaning given in Section 152(1) (Appointment and powers of receivers and administrative receivers) and includes, where the context allows, an administrative receiver but does not include any Court-appointed receiver appointed under the Civil Procedure Rules.

"registered company auditor" means a person who is appointed as an auditor in accordance with Part 35 (Auditors) of the Companies Regulations 2015.

"Registrar" means the Abu Dhabi Global Market's Registration Bureau established by Article 10 of the ADGM Founding Law and governed by Article 11 of that law.

"these Regulations" means the Insolvency Regulations 2015, issued by the Board.

"relevant obligations" means the obligations which are incurred under, secured or otherwise covered by a netting agreement and such obligations may consist of or include —

(a) present or future, actual or contingent or prospective obligations (including such obligations arising under a master agreement or similar arrangement);

(b) obligations owed to the collateral-taker, by a person other than the collateral-provider; or

"residential address" means the current residential address of a person or, if that is not known, the last known residential address.

"retention of title agreement" means an agreement —

(a) which does not constitute a charge on the goods, but

(b) under which, if the seller is not paid and the Company is wound up, the seller will have priority over all other creditors of the Company in respect of the goods or any property representing the goods.

"Ruler" means the ruler of the Emirate of Abu Dhabi.

"seal" or "sealed" shall mean the seal provided for, or a document having been sealed in accordance with the requirements of, the Civil Procedure Rules.

"secured creditor" of a Company means a creditor of a Company who holds security in respect of his debt over property of the Company.

"security" means any mortgage, charge (including floating charge), pledge, lien or other security.

"service" means for both Court documents and other documents, service in accordance with the Civil Procedure Rules with such modifications as the Court may direct; however, the provisions of the Civil Procedure Rules relating to service of documents do not apply to the service of a written demand on a Company in accordance with Section 200(1)(a) (Definition of inability to pay debts).

"shadow director", in relation to a Company, means a person in accordance with whose directions or instructions the Directors of the Company are accustomed to act (but so that a person is not deemed a shadow director by reason only that the Directors act on advice given by him in a professional capacity).

"Special Resolution" has the meaning given in the Companies Regulations 2015.

"Schedule" means a schedule to these Regulations.

"standard contents" means —

(a) for a notice to be published in the Abu Dhabi Global Market, the standard contents set out in Part 3 (Standard contents of notices to be published in the Abu Dhabi Global Market) of Schedule 1 (Meetings, Time Limits, Notices and Documents);

(b) for notices to be advertised other than by way of being published in the Abu Dhabi Global Market, the standard contents set out in Part 4 (Standard contents of notices advertised in such manner as the Office-holder thinks fit) of Schedule 1 (Meetings, Time Limits, Notices and Documents);

(c) for a notice to be delivered to the Registrar, the standard contents set out in Part 5 (Standard contents of notices to be delivered to the Registrar etc.) of Schedule 1 (Meetings, Time Limits, Notices and Documents);

(d) for a notice to be delivered to other persons, the standard contents set out in Part 6 (Standard contents of notices to be delivered to other persons etc.) of Schedule 1 (Meetings, Time Limits, Notices and Documents);

(e) for applications to the Court the standard contents set out in Part 7 (Applications to the Court) of Schedule 1 (Meetings, Time Limits, Notices and Documents).

"Statement of Affairs" means a statement of a Company's affairs prepared in accordance with these Regulations in relation to an administration, administrative receivership or a winding-up as the context requires, and containing the particulars as prescribed by these Regulations or otherwise by the Registrar.

"statement of concurrence" means a statement made by a relevant person in the prescribed form stating that he concurs in the statement of affairs as detailed in Section 52 (Verification and filing).

"statement of proposals" means a statement made by an administrator under Section 56 (Administrator's proposals) setting out proposals for achieving the purpose of administration.

"statement of truth" means a statement of truth made in accordance with the Civil Procedure Rules.

"statutory demand" means a demand served by a creditor on the Company, as further described in Section 201 (The statutory demand).

"step-in rights" has the meaning given to it by section 304 (Meaning of "step-in rights") of Part 11 (General).

"subsidiary" has the meaning given in the Companies Regulations 2015.

"the purpose of administration" means an objective specified in Section 2(1) (Purpose of administration).

"title transfer collateral arrangement" means a margin, collateral or security arrangement related to a netting agreement based on the transfer of title to collateral, whether by outright sale or by way of security, including (without limitation) a sale and repurchase agreement, securities lending agreement, securities buy/sell-back agreement or an irregular pledge.

"unable to pay its debts" has the meaning given by Section 200 (Definition of inability to pay debts).

"UNCITRAL Model Law" means the Model Law on cross-border insolvency as adopted by the United Nations Commission on International Trade Law on 30th May 1997.

"unregistered company" has the meaning given in Section 265 (Application of this Part to "unregistered company").

References to the "venue" for any proceeding or attendance before the Court or for a meeting are to —

(a) the time, date and place for the proceeding, attendance or meeting; or

(b) the time and date for a meeting which is held in accordance with paragraph 18 (Remote attendance at meetings) of Part 6 (Constitution of meetings) of Schedule 6 (Meetings and Correspondence) or paragraph 19 (Remote attendance at meetings of creditors' committees) of Part 4 (Meetings of committee) of Schedule 7 (Creditors' Committees) without any place being specified for it.

"voluntary winding-up" means a members' voluntary winding-up and a creditor's voluntary winding-up.

"winding-up by the Court" means a winding-up under Sections 199 (Circumstances in which a Company may be wound up by the Court), 203 (Petition for winding-up by the Financial Services Regulator) and 266 (Winding-up of unregistered Companies) of these Regulations.

"winding-up proceedings" means —

(a) a winding-up by the Court; or

(b) a voluntary winding-up.

"witness statement" means a witness statement verified by a statement of truth in accordance with the Civil Procedure Rules.