[BANKRUPTCY, INSOLVENCY & REHABILITATION PROCEEDINGS IN SPAIN] 91
Once the liquidation has been completed, the Receiver must submit a final report with the result of the liquidation and a rendering account of its actuations, together with a request for the termination of the insolvency proceeding. If the rendering accounts of the Receiver are approved, the judge will issue an order terminating the insolvency proceedings. II.3 Pre-bankruptcy law. The Restructuring Plan. The way that the TRLC contemplates to save the insolvency without the need to file for insolvency lawsuit consists of reaching and approving a Debt Restructuring Plan. This may or may not be preceded by a communication to the Court of the commencement of negotiations with the creditors. From the moment this communication is made, which may be reserved, two effects will take place: - The period of three months to try to reach the restructuring plan will begin; - During the same period, no execution may be initiated or continued on the assets and rights necessary for the continuity of the debtor's activity. If such an agreement is not reached, the debtor must file for insolvency proceeding within the following month. Focusing on the Restructuring Plan, its essential notes are the following: - Its purpose is to modify the composition of the debtor's assets and liabilities or equity; - It contemplates the possibility of appointing a restructuring expert;
- Extends its affectations to creditors who do not vote in favor of the plan; - It may affect any type of credit, although with special provisions with respect to public law and secured claims; - The credits will be grouped by classes according to their insolvency rank and specific characteristics; - The Plan will be considered approved if more than two thirds of the credits corresponding to each class of credits vote in favor of the Plan; The Plan must be judicially approved if it is intended to extend its effects to creditors who have not voted in its favor; if it is intended to terminate contracts in the interest of restructuring; or if it is intended to protect any transaction carried out under the Plan (financing granted, etc.) from possible rescission. II.4. The qualification section. The purpose of the qualification section is to determine whether the insolvency situation was generated or aggravated by the willful or culpable conduct of its directors, ghost directors or general directors The qualification phase will be opened at the end of the common phase. For an insolvency to be classified as guilty, the Spanish Insolvency Law (LC) requires that there has been an aggravation of the willful and / or culpable insolvency of the Debtor, establishing two types of factual assumptions: (i) assumptions that, if concur, determine guilt of the bankruptcy without the need to prove that insolvency was caused or aggravated as a result (called “iure et de iure” assumption) where no proof to the contrary is admissible); (ii) and assumptions
ILN Restructuring & Insolvency Group – Bankruptcy, Insolvency & Rehabilitation Series
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