The attested recovery plan is the restructuring instrument provided by Article 56 CCII that allows a company to overcome distress out of court, without the intervention of the Court. Its strength lies in the independent professional’s attestation and in the consequent exemption from clawback.
The attested plan is a private deed, drafted by the entrepreneur in agreement with the creditors involved, which identifies the initiatives suitable for the recovery of the exposure and for the rebalancing of the financial position. Unlike restructuring agreements and preventive composition with creditors, it does not require Court homologation nor the consent of a qualified majority of creditors.
The plan must be adequate to enable the recovery of the exposure and to ensure the financial equilibrium of the company. Its actual feasibility is attested by an independent professional who assesses the truthfulness of the company’s data and the internal coherence of the plan.
The instrument is ideal when the position is still manageable and confidentiality has strategic value: the absence of judicial publicity prevents the distress signal from propagating to the market.
Acts, payments and guarantees made in execution of an attested plan — where the plan is published in the business register and adequate — are not subject to insolvency clawback under Article 166, paragraph 3, letter d, CCII. The protection covers operations that, in other conditions, would be exposed to the risk of being declared ineffective if judicial liquidation were subsequently opened.
The exemption operates save for cases of fraud or bad faith on the part of the third party: the genuineness of the plan and the truthfulness of the attested data remain the substantive prerequisites of the protection. Incomplete documentation or a superficial attestation expose the operations to the risk of ineffectiveness in insolvency proceedings.
The firm assists the entrepreneur in building the plan, in dealings with creditors and in coordination with the attesting professional, through to publication in the business register.
A confidential conversation to assess the actual position and the instruments still available.
Start a confidential conversationWhen the company intends to restructure its position out of court, preserving confidentiality, with an exposure that can be managed through bilateral agreements with the main creditors. It requires reasonable recovery prospects.
The professional attests the truthfulness of the company’s data and the feasibility of the plan. The attestation is the prerequisite of the exemption from clawback and of the other protections provided by the CCII for acts, payments and guarantees made in execution of the plan.
Acts, payments and guarantees made in execution of an attested plan that is published and adequate are not subject to insolvency clawback (Article 166, paragraph 3, letter d, CCII), save for cases of fraud or bad faith on the part of the third party.