Legea nr. 85/2014 – Procedurile de prevenire a insolventei

TITLUL PRELIMINAR

CAPITOLUL I

Domeniul de reglementare

Art. 1. – Prezenta lege stabileste regulile in domeniul prevenirii insolventei si al insolventei.

Art. 2. – Scopul prezentei legi este instituirea unei proceduri colective pentru acoperirea pasivului debitorului, cu acordarea, atunci cand este posibil, a sansei de redresare a activitatii acestuia.

Art. 3. – (1) Procedurile prevazute de prezenta lege se aplica profesionistilor, astfel cum sunt definiti la art. 3 alin. (2) din Codul civil, cu exceptia celor care exercita profesii liberale, precum si a celor cu privire la care se prevad dispozitii speciale in ceea ce priveste regimul insolventei lor

(2) Procedura prevazuta de prezenta lege se aplica si regiilor autonome

(3) Procedura prevazuta de prezenta lege nu este aplicabila unitatilor si institutiilor de invatamant preuniversitar, universitar si entitatilor prevazute la art. 7 din Ordonanta Guvernului nr. 57/2002 privind cercetarea stiintifica si dezvoltarea tehnologica, aprobata cu modificari si completari prin Legea nr. 324/2003, cu modificarile si completarile ulterioare.

CAPITOLUL II

Principiile fundamentale ale procedurilor de prevenire a insolventei si de insolventa. Definitii

SECTIUNEA 1

Principii

Art. 4. – Prevederile prezentei legi se bazeaza pe urmatoarele principii:

  1. maximizarea gradului de valorificare a activelor si de recuperare a creantelor;
  2. acordarea unei sanse debitorilor de redresare eficienta si efectiva a afacerii, fie prin intermediul procedurilor de prevenire a insolventei, fie prin procedura de reorganizare judiciara;
  3. asigurarea unei proceduri eficiente, inclusiv prin mecanisme adecvate de comunicare si derulare a procedurii intr-un timp util si rezonabil, intr-o maniera obiectiva si impartiala, cu un minim de costuri;
  4. asigurarea unui tratament egal al creditorilor de acelasi rang;
  5. asigurarea unui grad ridicat de transparenta si previzibilitate in procedura;
  6. recunoasterea drepturilor existente ale creditorilor si respectarea ordinii de prioritate a creantelor, avand la baza un set de reguli clar determinate si uniform aplicabile;
  7. limitarea riscului de credit si a riscului sistemic asociat tranzactiilor cu instrumente financiare derivate prin recunoasterea compensarii cu exigibilitate imediata in cazul insolventei sau al unei proceduri de prevenire a insolventei unui cocontractant, avand ca efect reducerea riscului de credit la o suma neta datorata intre parti sau chiar la zero atunci cand, pentru acoperirea expunerii nete, au fost transferate garantii financiare;
  8. asigurarea accesului la surse de finantare in procedurile de prevenire a insolventei, in perioada de observatie si de reorganizare, cu crearea unui regim adecvat pentru protejarea acestor creante;
  9. fundamentarea votului pentru aprobarea planului de reorganizare pe criterii clare, cu asigurarea unui tratament egal intre creditorii de acelasi rang, a recunoasterii prioritatilor comparative si a acceptarii unei decizii a majoritatii, urmand sa se ofere celorlalti creditori plati egale sau mai mari decat ar primi in faliment;
  10. favorizarea, in procedurile de prevenire a insolventei, a negocierii/renegocierii amiabile a creantelor si a incheierii unui concordat preventiv;
  11. valorificarea in timp util si intr-o maniera cat mai eficienta a activelor;
  12. in cazul grupului de societati, coordonarea procedurilor de insolventa, in scopul abordarii integrate a acestora;
  13. administrarea procedurilor de prevenire a insolventei si de insolventa de catre practicieni in insolventa si desfasurarea acestora sub controlul instantei de judecata.

SECTIUNEA a 2-a

Definitii

Art. 5. – In intelesul prezentei legi, termenii si expresiile au urmatoarele semnificatii:

  1. acord de compensare bilaterala (netting) reprezinta:
  2. a) orice acord master de netting – orice intelegere sau clauza in cadrul unui contract financiar calificat dintre doua parti, prin care se prevede un netting al unor plati ori o indeplinire a unor obligatii sau o realizare a unor drepturi prezente ori viitoare rezultand din sau avand legatura cu unul ori mai multe contracte financiare calificate;
  3. b) orice acord master – master de netting – orice acord master de netting intre doua parti, prin care se prevede netting-ul intre doua sau mai multe acorduri master de netting;
  4. c) orice intelegere de garantare subsecventa ori in legatura cu unul sau mai multe acorduri master de netting;
  5. activitati curente reprezinta acele activitati de productie, comert sau prestari de servicii si operatiuni financiare, propuse a fi efectuate de debitor in perioada de observatie si in perioada de reorganizare, in cursul normal al activitatii sale, cum ar fi:
  6. a) continuarea activitatilor contractate si incheierea de noi contracte, conform obiectului de activitate;
  7. b) efectuarea operatiunilor de incasari si plati aferente acestora;
  8. c) asigurarea finantarii capitalului de lucru in limite curente;
  9. administrator interimar este persoana fizica sau juridica desemnata de Banca Nationala a Romaniei, iar, in cazul cooperativelor de credit, si comitetul de administrare speciala desemnat de casa centrala a cooperativelor de credit, abilitata sa ia masuri de conservare, in scopul prevenirii diminuarii activului si a cresterii pasivului institutiei de credit, de la momentul depunerii unei cereri de deschidere a procedurii falimentului si pana la data numirii lichidatorului judiciar, in procedura falimentului institutiilor de credit;
  10. administrator special este persoana fizica sau juridica desemnata de adunarea generala a actionarilor/asociatilor/membrilor debitorului, imputernicita sa le reprezinte interesele in procedura si, atunci cand debitorului i se permite sa isi administreze activitatea, sa efectueze, in numele si pe contul acestuia, actele de administrare necesare;
  11. averea debitorului reprezinta totalitatea bunurilor si drepturilor sale patrimoniale, inclusiv cele dobandite in cursul procedurii insolventei, care pot face obiectul executarii silite potrivit Codului de procedura civila;
  12. Buletinul procedurilor de insolventa, denumit in continuare BPI, este publicatia editata de Oficiul National al Registrului Comertului, care are drept scop publicarea citatiilor, convocarilor, notificarilor si comunicarilor actelor de procedura efectuate de instantele judecatoresti, administratorul judiciar/lichidatorul judiciar dupa deschiderea procedurii de insolventa prevazute de prezenta lege, precum si a altor acte care, potrivit legii, trebuie publicate;
  13. centrul principalelor interese ale debitorului, in situatia procedurii de insolventa cu element de extraneitate, este, pana la proba contrarie, dupa caz:
  14. a) sediul social al persoanei juridice;
  15. b) sediul profesional al persoanei fizice care exercita o activitate economica sau o profesie independenta;
  16. c) domiciliul persoanei fizice care nu exercita o activitate economica sau o profesie independenta;
  17. cererea comuna de deschidere a procedurii insolventei este cererea formulata de debitor sau creditor, avand drept scop deschiderea procedurii insolventei in mod concomitent impotriva a 2 sau a mai multor membri ai grupului de societati, in cadrul unor dosare separate, repartizate spre solutionare aceluiasi judecator-sindic;
  18. controlul este capacitatea de a determina sau influenta in mod dominant, direct ori indirect, politica financiara si operationala a unei societati sau deciziile la nivelul organelor societare. O persoana va fi considerata ca detinand controlul atunci cand:
  19. a) detine in mod direct sau indirect o participatie calificata de cel putin 40% din drepturile de vot ale respectivei societati si niciun alt asociat sau actionar nu detine in mod direct ori indirect un procentaj superior al drepturilor de vot;
  20. b) detine in mod direct sau indirect majoritatea drepturilor de vot in adunarea generala a societatii respective;
  21. c) in calitate de asociat sau actionar al respectivei societati dispune de puterea de a numi sau de a revoca majoritatea membrilor organelor de administratie, conducere sau supraveghere;
  22. consumator captiv este consumatorul care, din considerente tehnice, economice sau de reglementare, nu poate alege furnizorul;
  23. contractul financiar calificat este:
  24. a) orice contract avand ca obiect operatiuni cu instrumente financiare derivate;
  25. b) orice acord repo si acord reverse repo;
  26. c) orice contract buy-sellback si sell-buyback; precum si
  27. d) orice contract avand ca obiect operatiuni de imprumut de valori mobiliare, realizate pe pietele reglementate, pietele asimilate sau pietele la buna intelegere, astfel cum sunt acestea reglementate;
  28. contract de compensare bilaterala reprezinta oricare dintre urmatoarele:
  29. orice contract sau clauza cuprinsa intr-un contract incheiat intre institutia de credit debitoare si orice alta entitate, inclusiv persoane fizice, avand ca obiect operatiuni cu instrumente financiare derivate realizate pe pietele reglementate, pietele asimilate ori pe pietele la buna intelegere, prin care se stipuleaza compensarea unor obligatii de plata sau obligatii de a face, prezente ori viitoare, decurgand din sau avand legatura cu unul ori mai multe astfel de contracte, inclusiv orice garantie accesorie ori avand legatura cu acestea; sau
  30. orice contract sau clauza, de natura celor prevazute la lit.A, prin care se stipuleaza compensarea unor obligatii de plata sau obligatii de a face, prezente ori viitoare, decurgand din unul sau mai multe contracte de compensare bilaterala, inclusiv orice garantie accesorie ori avand legatura cu acestea, in temeiul carora compensarea bilaterala contractuala se poate realiza prin una sau mai multe dintre urmatoarele modalitati:
  31. a) stingerea si/sau devansarea scadentei oricarei obligatii de plata ori obligatii de a face decurgand din unul sau mai multe contracte din categoria celor prevazute mai sus;
  32. b) calcularea sau estimarea unei valori de compensare, valori de piata, valori de lichidare ori valori de inlocuire a oricarei obligatii care a fost stinsa sau a carei scadenta a fost devansata potrivit prevederilor lit. a);
  33. c) conversia intr-o singura moneda a oricarei valori calculate potrivit prevederilor lit. b);
  34. d) compensarea, pana la obtinerea unei sume nete, a oricaror valori calculate potrivit prevederilor lit. b), asa cum au fost convertite potrivit prevederilor lit. c);
  35. e) lichidarea bunurilor si drepturilor din averea institutiei de credit debitoare;
  36. coordonarea procedurala reprezinta setul de masuri menite sa coreleze procedurile de insolventa deschise impotriva membrilor unui grup de societati, cu scopul de a asigura celeritatea si armonizarea procedurilor, precum si minimizarea costurilor;
  37. creante bugetare reprezinta creantele constand in impozite, taxe, contributii, amenzi si alte venituri bugetare, precum si accesoriile acestora. isi pastreaza aceasta natura si creantele bugetare care nu sunt acoperite in totalitate de valoarea privilegiilor, ipotecilor sau a gajurilor detinute, pentru partea de creanta neacoperita;
  38. creante care beneficiaza de o cauza de preferinta sunt acele creante care sunt insotite de un privilegiu si/sau de un drept de ipoteca si/sau de drepturi asimilate ipotecii, potrivit art. 2.347 din Codul civil, si/sau de un drept de gaj asupra bunurilor din patrimoniul debitorului, indiferent daca acesta este debitor principal sau tert garant fata de persoanele beneficiare ale cauzelor de preferinta. in cazul in care debitorul este tert garant, creditorul care beneficiaza de o cauza de preferinta va exercita drepturile corelative numai in ceea ce priveste bunul sau dreptul respectiv. Aceste cauze de preferinta au intelesul dat lor de Codul civil, daca prin lege speciala nu se prevede altfel;
  39. categoria de creante defavorizate este considerata a fi categoria de creante pentru care planul de reorganizare prevede cel putin una dintre modificarile urmatoare pentru creantele categoriei respective:
  40. a) o reducere a cuantumului creantei si/sau a accesoriilor acesteia la care creditorul este indreptatit potrivit prezentei legi;
  41. b) o reducere a garantiilor ori reesalonarea platilor in defavoarea creditorului, fara acordul expres al acestuia;
  42. concordat preventiv este un contract incheiat intre debitorul in dificultate financiara, pe de o parte, si creditorii care detin cel putin 75% din valoarea creantelor acceptate si necontestate, pe de alta parte, omologat de judecatorul-sindic, contract prin care debitorul propune un plan de redresare si de realizare a creantelor acestor creditori, iar creditorii accepta sa sprijine eforturile debitorului de depasire a dificultatii in care se afla;
  43. creante salariale sunt creantele ce izvorasc din raporturi de munca si raporturi asimilate intre debitor si angajatii acestuia. Aceste creante sunt inregistrate din oficiu in tabelul de creante de catre administratorul judiciar/lichidatorul judiciar;
  44. creditor indreptatit sa participe la procedura este acel titular al unui drept de creanta asupra averii debitorului, care a inregistrat o cerere de inscriere a creantei, in urma admiterii careia acesta dobandeste drepturile si obligatiile reglementate de prezenta lege pentru fiecare stadiu al procedurii. Calitatea de creditor inceteaza ca urmare a neinscrierii sau a inlaturarii din tabelele creditorilor intocmite succesiv in procedura, precum si prin inchiderea procedurii; au calitatea de creditor, fara a depune personal declaratiile de creanta, salariatii debitorului;
  45. creditor indreptatit sa solicite deschiderea procedurii insolventei este creditorul a carui creanta asupra patrimoniului debitorului este certa, lichida si exigibila de mai mult de 60 de zile. Prin creanta certa, in sensul prezentei legi, se intelege acea creanta a carei existenta rezulta din insusi actul de creanta sau si din alte acte, chiar neautentice, emanate de la debitor sau recunoscute de dansul. Creditorii vor putea solicita deschiderea procedurii insolventei doar in cazul in care, dupa compensarea datoriilor reciproce, de orice natura, suma datorata acestora va depasi suma prevazuta la pct. 72;
  46. creditor cu creante curente sau creditor curent este acel creditor ce detine creante certe, lichide si exigibile, nascute in timpul procedurii de insolventa, si care are dreptul de a i se achita cu prioritate creanta, conform documentelor din care rezulta;
  47. creditori chirografari sunt creditorii debitorului inscrisi in tabelele de creante care nu beneficiaza de o cauza de preferinta. Sunt creditori chirografari si creditorii care beneficiaza de cauze de preferinta, ale caror creante nu sunt acoperite in totalitate de valoarea privilegiilor, a ipotecilor sau a gajurilor detinute, pentru partea de creanta neacoperita. Simpla inscriere in Arhiva Electronica de Garantii Reale Mobiliare a unei creante nu determina transformarea acesteia in creanta care beneficiaza de o cauza de preferinta;
  48. creditori indispensabili sunt creditorii chirografari care furnizeaza servicii, materii prime, materiale sau utilitati fara de care activitatea debitorului nu se poate desfasura si care nu pot fi inlocuiti de niciun alt furnizor care ofera servicii, materii prime, materiale sau utilitati de acelasi fel, in aceleasi conditii financiare;
  49. creditor strain este creditorul al carui domiciliu sau, dupa caz, sediu este stabilit intr-un stat strain;
  50. data deschiderii procedurii reprezinta:
  51. a) in cazul cererii debitorului de deschidere a procedurii, data pronuntarii incheierii judecatorului-sindic, prevazuta la art. 71;
  52. b) in cazul cererii creditorului de deschidere a procedurii, data pronuntarii sentintei judecatorului-sindic, prevazuta la art. 72;
  53. c) in cazul insolventei transfrontaliere, momentul la care hotararea de deschidere a procedurii produce efecte, chiar daca aceasta nu are caracter definitiv;
  54. debitor este persoana fizica sau juridica care poate fi subiect al unei proceduri prevazute de prezenta lege;
  55. debitor in dificultate financiara este debitorul care, desi executa sau este capabil sa execute obligatiile exigibile, are un grad de lichiditate pe termen scurt redus si/sau un grad de indatorare pe termen lung ridicat, ce pot afecta indeplinirea obligatiilor contractuale in raport cu resursele generate din activitatea operationala sau cu resursele atrase prin activitatea financiara;
  56. extras al raportului de activitate reprezinta un rezumat al masurilor luate de administratorul judiciar/lichidatorul judiciar. Mentionarea urmatoarelor elemente este obligatorie:
  57. a) persoanele de specialitate desemnate potrivit prevederilor art. 61, precum si onorariul acestora;
  58. b) actele de dispozitie asupra averii debitorului si documentele incheiate in acest sens, inclusiv procesul-verbal de adjudecare sau contractul de vanzare, dupa caz;
  59. c) incheierea, modificarea sau incetarea unor contracte la care debitorul este parte;
  60. d) situatia incasarilor si platilor, in sinteza;
  61. e) promovarea unor actiuni prevazute la art. 117-122 sau la art. 169;
  62. f) masuri privind acordarea unei protectii corespunzatoare creditorului care beneficiaza de o cauza de preferinta;
  63. g) stadiul efectuarii inventarierii, daca este cazul;
  64. insolventa este acea stare a patrimoniului debitorului care se caracterizeaza prin insuficienta fondurilor banesti disponibile pentru plata datoriilor certe, lichide si exigibile, astfel:
  65. a) insolventa debitorului se prezuma atunci cand acesta, dupa 60 de zile de la scadenta, nu a platit datoria sa fata de creditor; prezumtia este relativa;
  66. b) insolventa este iminenta atunci cand se dovedeste ca debitorul nu va putea plati la scadenta datoriile exigibile angajate, cu fondurile banesti disponibile la data scadentei;
  67. insolventa institutiei de credit este acea stare a institutiei de credit aflate in una dintre urmatoarele situatii:
  68. a) incapacitatea vadita de plata a datoriilor exigibile cu disponibilitatile banesti;
  69. b) scaderea sub 2% a indicatorului de solvabilitate a institutiei de credit;
  70. c) retragerea autorizatiei de functionare a institutiei de credit, potrivit prevederilor legale, ca urmare a imposibilitatii de redresare financiara a unei institutii de credit;
  71. insolventa societatii de asigurare/reasigurare este acea stare a societatii de asigurare/reasigurare caracterizata prin una dintre urmatoarele situatii:
  72. a) incapacitatea vadita de plata a datoriilor exigibile cu disponibilitatile banesti;
  73. b) scaderea valorii marjei de solvabilitate disponibile sub jumatate din limita minima prevazuta de reglementarile legale in vigoare pentru fondul de siguranta;
  74. c) imposibilitatea restabilirii situatiei financiare a societatii de asigurare/reasigurare in cadrul procedurii de redresare financiara;
  75. instanta straina este autoritatea judecatoreasca sau orice alta autoritate competenta potrivit legii statului de origine, abilitata sa deschida si sa controleze sau sa supravegheze o procedura straina ori sa adopte hotarari in cursul derularii unei asemenea proceduri;
  76. instrumente financiare sunt valori mobiliare, titluri de participare ale organismelor de plasament colectiv, instrumente ale pietei monetare, contracte futures, inclusiv contracte care implica plata unor diferente in numerar, contracte forward pe rata dobanzii, swap-uri pe rata dobanzii, cursul de schimb si actiuni, optiuni pe orice instrument financiar prevazut in aceste categorii, inclusiv contracte care implica plata unor diferente in numerar, precum si optiuni pe cursul de schimb, rata dobanzii si instrumente financiare derivate pe marfuri si orice alt instrument admis la tranzactionare pe o piata reglementata intr-un stat membru sau pentru care s-a facut o cerere de admitere la tranzactionare pe o astfel de piata;
  77. intelegere de garantare este orice contract/instrument de garantare a unui acord de netting sau a unor contracte financiare calificate, incluzand: gajuri, scrisori de garantie, garantii personale si altele asemenea;
  78. grup de societati inseamna doua sau mai multe societati interconectate prin control si/sau detinerea participatiilor calificate;
  79. mandat ad-hoc este o procedura confidentiala, declansata la cererea debitorului in dificultate financiara, prin care un mandatar ad-hoc, desemnat de instanta, negociaza cu creditorii in scopul realizarii unei intelegeri intre unul sau mai multi dintre acestia si debitor, in vederea depasirii starii de dificultate in care se afla;
  80. membru al grupului poate fi oricare din societatile grupului, indiferent daca este societatea-mama sau un membru controlat al grupului;
  81. membru controlat al grupului este acea societate controlata de societatea-mama;
  82. obligatie de cooperare reprezinta indatorirea instantelor si a practicienilor in insolventa de a asigura coordonarea procedurala prin urmatoarele mijloace:
  83. a) schimbul de informatii cu privire la procedura, in special in privinta creantelor, activelor si masurilor luate de administratorul judiciar/lichidatorul judiciar;
  84. b) deschiderea concomitenta a procedurilor de insolventa a membrilor grupului, la cererea debitorilor sau a creditorilor;
  85. c) fixarea corelata a termenelor procedurale, precum si a sedintelor adunarii creditorilor;
  86. d) in cazul in care nu a fost desemnat acelasi practician in insolventa pentru fiecare membru al grupului, coordonarea comunicarii intre practicienii in insolventa de catre practicianul desemnat in dosarul privind societatea-mama sau, dupa caz, societatea cu cea mai mare cifra de afaceri conform ultimei situatii financiare anuale publicate;
  87. operatiunea de compensare bilaterala (netting) presupune realizarea, in legatura cu unul sau mai multe contracte financiare calificate, a uneia sau a mai multora dintre urmatoarele operatiuni:
  88. a) incetarea unui contract financiar calificat si/sau accelerarea oricarei plati sau indepliniri a unei obligatii ori realizari a unui drept in baza unuia sau a mai multor contracte financiare calificate avand ca temei un acord de compensare bilaterala (netting);
  89. b) calcularea sau estimarea unei valori de compensare, valori de piata, valori de lichidare ori valori de inlocuire a oricareia dintre obligatiile sau drepturile la care se refera lit. a);
  90. c) conversia intr-o singura moneda a oricarei valori, calculata potrivit lit. b);
  91. d) compensarea, pana la obtinerea unei sume nete (off-set), a oricaror valori calculate potrivit lit. b) si convertite potrivit prevederilor lit. c);
  92. participatie calificata inseamna fractiunea de capital cuprinsa intre 20% si 50% detinuta de catre o persoana in alta societate;
  93. perioada de observatie este perioada cuprinsa intre data deschiderii procedurii insolventei si data confirmarii planului de reorganizare sau, dupa caz, a intrarii in faliment;
  94. piata reglementata este sistemul de tranzactionare prevazut de art. 125 din Legea nr. 297/2004 privind piata de capital, cu modificarile si completarile ulterioare;
  95. procedura colectiva este procedura in care creditorii participa impreuna la urmarirea si recuperarea creantelor lor, in modalitatile prevazute de prezenta lege;
  96. procedura falimentului este procedura de insolventa, concursuala, colectiva si egalitara, care se aplica debitorului in vederea lichidarii averii acestuia pentru acoperirea pasivului, urmata de radierea debitorului din registrul in care este inmatriculat;
  97. procedura generala reprezinta procedura de insolventa prevazuta de prezenta lege, prin care un debitor care indeplineste conditiile prevazute la art. 38 alin. (1), fara a le indeplini simultan si pe cele de la art. 38 alin. (2), intra, dupa perioada de observatie, succesiv, in procedura de reorganizare judiciara si in procedura falimentului sau, separat, numai in reorganizare judiciara ori doar in procedura falimentului;
  98. procedura simplificata reprezinta procedura de insolventa prevazuta de prezenta lege, prin care debitorul care indeplineste conditiile prevazute la art. 38 alin. (2) intra direct in procedura falimentului, fie odata cu deschiderea procedurii insolventei, fie dupa o perioada de observatie de maximum 20 de zile, perioada in care vor fi analizate elementele prevazute la art. 38 alin. (2) lit. c) si d);
  99. procedura romana de insolventa este orice procedura reglementata de prezenta lege, cu exceptia procedurilor de prevenire a insolventei;
  100. procedura straina este procedura colectiva, publica, judiciara sau administrativa, care se desfasoara in conformitate cu legislatia in materie de insolventa a unui stat strain, inclusiv procedura provizorie, in care bunurile si activitatea debitorului sunt supuse controlului sau supravegherii unei instante straine, in scopul reorganizarii sau lichidarii activitatii acelui debitor;
  101. procedura straina principala este procedura straina de insolventa care se desfasoara in statul in care se situeaza centrul principalelor interese ale debitorului;
  102. procedura straina secundara este procedura straina de insolventa, alta decat cea principala, care se desfasoara in statul in care debitorul isi are stabilit un sediu;
  103. profesia liberala este profesia exercitata in baza unei calificari profesionale, cu titlu personal, pe propria raspundere si in mod independent, implicand activitati de natura intelectuala in interesul clientului si servind interesul public. Caracteristice pentru aceste profesii sunt: existenta unui cod de etica, pregatirea profesionala continua si confidentialitatea relatiilor cu clientul;
  104. programul de plata a creantelor este graficul de achitare a acestora mentionat in planul de reorganizare care include:
  105. a) cuantumul sumelor pe care debitorul se obliga sa le plateasca creditorilor, dar nu mai mult decat sumele datorate conform tabelului definitiv de creante; in cazul creditorilor beneficiari ai unei cauze de preferinta sumele vor putea include si dobanzile;
  106. b) termenele la care debitorul urmeaza sa plateasca aceste sume;
  107. reorganizare judiciara este procedura ce se aplica debitorului in insolventa, persoana juridica, in vederea achitarii datoriilor acestuia, conform programului de plata a creantelor. Procedura de reorganizare presupune intocmirea, aprobarea, confirmarea, implementarea si respectarea unui plan, numit plan de reorganizare, care poate sa prevada, nelimitativ, impreuna sau separat:
  108. a) restructurarea operationala si/sau financiara a debitorului;
  109. b) restructurarea corporativa prin modificarea structurii de capital social;
  110. c) restrangerea activitatii prin lichidarea partiala sau totala a activului din averea debitorului;
  111. reprezentant roman este practicianul in insolventa desemnat ca administrator sau lichidator judiciar ori administrator concordatar, in cadrul unei proceduri romane de insolventa sau de prevenire a insolventei potrivit prevederilor prezentei legi;
  112. reprezentant strain este persoana fizica sau juridica, incluzand persoanele desemnate cu titlu provizoriu, autorizate, in cadrul unei proceduri straine sa administreze reorganizarea sau lichidarea bunurilor si a activitatii debitorului sau sa actioneze ca reprezentant al unei proceduri straine;
  113. sediul este orice punct de lucru in care debitorul exercita, cu mijloace umane si materiale si cu caracter netranzitoriu, o activitate economica sau o profesie independenta;
  114. sediul principal este, in situatia procedurii de insolventa cu element de extraneitate, locul in care se afla, intr-un mod verificabil de catre terti, centrul principal de conducere, supraveghere si gestiune a activitatii statutare a persoanei juridice, chiar daca hotararile organului de conducere respectiv sunt adoptate potrivit directivelor transmise de membri, actionari sau asociati din alte state;
  115. sediul profesional este locul in care functioneaza, intr-un mod verificabil de catre terti, conducerea activitatii economice ori a exercitarii profesiei independente a persoanei fizice;
  116. sistemul alternativ de tranzactionare este sistemul de tranzactionare prevazut la art. 2 alin. (1) pct. 26 din Legea nr. 297/2004, cu modificarile si completarile ulterioare;
  117. societate inseamna orice entitate de drept privat constituita in temeiul Legii societatilor nr. 31/1990, republicata, cu modificarile si completarile ulterioare;
  118. societate-mama este societatea care exercita controlul sau influenta dominanta asupra celorlalte societati din grup;
  119. societate de asigurare/reasigurare este asiguratorul si/sau reasiguratorul, astfel cum sunt definiti la art. 2 din Legea nr. 32/2000 privind activitatea de asigurare si supravegherea asigurarilor, cu modificarile si completarile ulterioare;
  120. statul in care se gaseste un bun este:
  121. a) pentru bunurile corporale – statul pe teritoriul caruia este situat bunul;
  122. b) pentru bunurile si drepturile pe care proprietarul sau titularul trebuie sa le inscrie intr-un registru public – statul sub a carui autoritate este pastrat registrul;
  123. c) pentru creante – statul pe teritoriul caruia se afla centrul principalelor interese ale debitorului creantei, astfel cum este determinat la pct. 7;
  124. subansamblul functional reprezinta un grup de bunuri ale debitorului care asigura realizarea unui produs finit, de sine statator, sau permite desfasurarea unei afaceri independente;
  125. supravegherea exercitata de administratorul judiciar, in conditiile in care nu s-a ridicat dreptul de administrare al debitorului, consta in analiza permanenta a activitatii acestuia si avizarea prealabila atat a masurilor care implica patrimonial debitorul, cat si a celor menite sa conduca la restructurarea/reorganizarea acesteia; avizarea se efectueaza avand la baza o raportare intocmita de catre administratorul special, care mentioneaza si faptul ca au fost verificate si ca sunt indeplinite conditiile privind realitatea si oportunitatea operatiunilor juridice supuse avizarii. Supravegherea operatiunilor de gestionare a patrimoniului debitorului se face prin avizul prealabil acordat cel putin cu privire la urmatoarele operatiuni:
  126. a) platile, atat prin contul bancar, cat si prin casierie; aceasta se poate realiza fie prin avizarea fiecarei plati, fie prin instructiuni generale cu privire la efectuarea platilor;
  127. b) incheierea contractelor in perioada de observatie si in perioada de reorganizare;
  128. c) operatiunile juridice in litigiile in care este implicat debitorul, avizarea masurilor propuse privind recuperarea creantelor;
  129. d) operatiunile care implica diminuarea patrimoniului, precum casari, reevaluari etc.;
  130. e) tranzactiile propuse de catre debitor;
  131. f) situatiile financiare si raportul de activitate atasat acestora;
  132. g) masurile de restructurare sau modificarile contractului colectiv de munca;
  133. h) mandatele pentru adunarile si comitetele creditorilor ale societatilor aflate in insolventa la care societatea debitoare detine calitatea de creditor, precum si in adunarile generale ale actionarilor la societatile la care debitorul detine participatii;
  134. i) instrainarea de active imobilizate din patrimoniul societatii la care debitorul detine participatii sau grevarea de sarcini ale acestora, este necesara, pe langa avizul administratorului judiciar, si parcurgerea procedurii prevazute de art. 87 alin. (2) si (3);
  135. tabel definitiv de creante este tabelul care cuprinde toate creantele asupra averii debitorului la data deschiderii procedurii, acceptate in tabelul preliminar si impotriva carora nu s-au formulat contestatii, precum si creantele admise in urma solutionarii contestatiilor sau cele admise provizoriu de catre judecatorul-sindic. in cazul procedurii simplificate, tabelul definitiv de creante cuprinde, pe langa creantele nascute anterior deschiderii procedurii, si creantele nascute in perioada de observatie, ce au fost admise la masa credala. in acest tabel se arata suma solicitata, suma admisa si rangul de prioritate al creantei potrivit prevederilor art. 159 si 161;
  136. tabelul definitiv consolidat de creante cuprinde totalitatea creantelor care figureaza ca admise in tabelul definitiv de creante si cele din tabelul suplimentar necontestate, precum si cele rezultate in urma solutionarii contestatiilor la tabelul suplimentar. in situatia in care s-a dispus intrarea in faliment dupa confirmarea unui plan de reorganizare, tabelul definitiv consolidat va cuprinde: totalitatea creantelor ce figureaza ca admise in tabelul definitiv de creante, cele din tabelul suplimentar necontestate, cele rezultate in urma solutionarii contestatiilor la tabelul suplimentar, din care se vor deduce sumele achitate pe parcursul derularii planului de reorganizare;
  137. tabelul preliminar de creante cuprinde toate creantele scadente sau nescadente, sub conditie sau in litigiu, nascute inainte de data deschiderii procedurii, acceptate de catre administratorul judiciar in urma verificarii acestora. in tabel vor fi mentionate atat suma solicitata de catre creditor, cat si suma acceptata si rangul de prioritate, iar in situatia creditorului aflat in procedura insolventei se va arata si administratorul judiciar/lichidatorul judiciar desemnat. in cazul procedurii simplificate, in acest tabel se vor inregistra si creantele nascute dupa deschiderea procedurii si pana la momentul intrarii in faliment;
  138. tabelul suplimentar cuprinde toate creantele nascute dupa data deschiderii procedurii generale si pana la data inceperii procedurii falimentului, acceptate de catre lichidatorul judiciar in urma verificarii acestora. in tabel vor fi mentionate atat suma solicitata de catre creditor, cat si suma acceptata si rangul de preferinta;
  139. testul creditorului privat reprezinta analiza comparativa a gradului de indestulare a creantei bugetare prin raportare la un creditor privat diligent, in cadrul unei proceduri de prevenire a insolventei sau reorganizare, comparativ cu o procedura de faliment. Analiza are la baza un raport de evaluare intocmit de catre un evaluator autorizat membru ANEVAR, desemnat de creditorul bugetar si se raporteaza inclusiv la durata unei proceduri de faliment comparativ cu programul de plati propus. Nu constituie ajutor de stat situatia in care testul creditorului privat atesta faptul ca distributiile pe care le-ar primi creditorul bugetar in cazul unei proceduri de prevenire a insolventei sau reorganizare sunt superioare celor pe care le-ar primi intr-o procedura de faliment;
  140. valoarea-prag reprezinta cuantumul minim al creantei, pentru a putea fi introdusa cererea de deschidere a procedurii de insolventa. Valoarea-prag este de 40.000 lei atat pentru creditori, cat si pentru debitor, inclusiv pentru cererile formulate de lichidatorul numit in procedura de lichidare prevazuta de Legea nr. 31/1990, republicata, cu modificarile si completarile ulterioare, pentru creante de alta natura decat cele salariale, iar pentru salariati este de 6 salarii medii brute pe economie/salariat.

TITLUL I

Proceduri de prevenire a insolventei

CAPITOLUL I

Dispozitii generale

Art. 6. – Prezentul titlu se aplica debitorilor aflati in dificultate financiara.

Art. 7. – (1) Organele care aplica procedurile prevazute de prezentul titlu sunt: instantele judecatoresti, prin presedintele tribunalului sau, dupa caz, prin judecatorul-sindic, mandatarul ad-hoc, respectiv administratorul concordatar

(2) Creditorii participa la procedura in mod individual, in masura permisa de drepturile aferente creantei lor, precum si in mod colectiv, potrivit prezentei legi, prin adunarea creditorilor si reprezentantul creditorilor

(3) Debitorul participa la procedura prin reprezentantii sai legali sau conventionali.

Art. 8. – (1) Tribunalul in a carui circumscriptie se afla sediul principal sau sediul profesional al debitorului este competent sa solutioneze cererile la care se refera prezentul titlu

(2) Cererile si pricinile referitoare la concordatul preventiv sunt de competenta judecatorului-sindic, desemnat potrivit prevederilor Legii nr. 304/2004 privind organizarea judiciara, republicata, cu modificarile si completarile ulterioare

(3) Hotararile pronuntate de presedintele tribunalului sau de judecatorul-sindic, in aplicarea prezentului titlu, sunt executorii

(4) Hotararile presedintelui tribunalului sau ale judecatorului-sindic pot fi atacate de parti numai cu apel, in termen de 7 zile, care se calculeaza de la comunicare, pentru absenti, si de la pronuntare, pentru cei prezenti

(5) Apelul nu este suspensiv de executare.

Art. 9. – Curtea de apel este instanta de apel pentru hotararile pronuntate de presedintele tribunalului sau de judecatorul-sindic, dupa caz. Hotararile curtii de apel sunt definitive.

 

CAPITOLUL II

Mandatul ad-hoc

Art. 10. – (1) Un debitor poate adresa presedintelui tribunalului o cerere de numire a unui mandatar ad-hoc. Prin cererea sa, debitorul propune un mandatar ad-hoc dintre practicienii in insolventa, autorizati potrivit legii

(2) Cererea trebuie sa cuprinda o descriere detaliata a motivelor care fac necesara numirea unui mandatar ad-hoc.

Art. 11. – Cererea este depusa la cabinetul presedintelui tribunalului si se inregistreaza intr-un registru special.

Art. 12. – (1) Dupa primirea cererii, presedintele tribunalului dispune citarea, in termen de 5 zile, prin agent procedural, a debitorului si a mandatarului ad-hoc propus

(2) Procedura se desfasoara in camera de consiliu si se mentine confidentiala pe toata durata sa

(3) Confidentialitatea procedurii este obligatorie pentru toate persoanele si institutiile care iau parte sau sunt implicate in aceasta.

Art. 13. – (1) Dupa ascultarea debitorului, daca se constata ca dificultatile financiare ale acestuia sunt reale, iar persoana propusa ca mandatar ad-hoc intruneste conditiile legii pentru exercitarea acestei calitati, presedintele tribunalului desemneaza, prin incheiere executorie, mandatarul ad-hoc propus

(2) Obiectivul mandatarului ad-hoc va fi acela de a realiza, in termen de 90 de zile de la desemnare, o intelegere intre debitor si unul sau mai multi creditori ai sai, in vederea depasirii starii de dificultate financiara in care se afla debitorul, a salvgardarii acestuia, pastrarii locurilor de munca si acoperirii creantelor asupra debitorului

(3) in scopul realizarii obiectivului mandatului, mandatarul ad-hoc va putea propune remiteri, reesalonari sau reduceri partiale de datorii, continuarea sau incetarea unor contracte in curs, reduceri de personal, precum si orice alte masuri considerate a fi necesare.

Art. 14. – Onorariul mandatarului ad-hoc va fi stabilit provizoriu de catre presedintele tribunalului, la propunerea debitorului si cu acordul mandatarului ad-hoc, sub forma unui onorariu fix sau a unui onorariu lunar. Acesta va putea fi modificat ulterior, la cererea mandatarului ad-hoc, cu acordul debitorului.

Art. 15. – (1) Mandatul ad-hoc inceteaza:

  1. a) prin denuntarea unilaterala a mandatului de catre debitor sau de catre mandatarul ad-hoc;
  2. b) prin incheierea intelegerii prevazute la art. 13 alin. (2);
  3. c) daca, in termenul prevazut la art. 13 alin. (2), mandatarul nu a reusit sa intermedieze incheierea unei intelegeri intre debitor si creditorii sai

(2) La cererea debitorului sau a mandatarului ad-hoc,

presedintele tribunalului va constata incetarea mandatului ad-hoc, prin incheiere definitiva.

 

CAPITOLUL III

Concordatul preventiv

SECTIUNEA 1

Beneficiarii procedurii. Organele care aplica procedura

Art. 16. – Poate recurge la procedura de concordat preventiv orice debitor in dificultate financiara, cu urmatoarele exceptii:

  1. a) daca in cei 3 ani anteriori ofertei de concordat preventiv debitorul a mai beneficiat de un concordat preventiv care a esuat;
  2. b) daca debitorul si/sau actionarii/asociatii/asociatii comanditari care detin controlul debitorului sau administratorii/directorii acestuia au fost condamnati definitiv pentru savarsirea unei infractiuni intentionate contra patrimoniului, de coruptie si de serviciu, de fals, precum si pentru infractiunile prevazute de Legea nr. 22/1969 privind angajarea gestionarilor, constituirea de garantii si raspunderea in legatura cu gestionarea bunurilor agentilor economici, autoritatilor sau institutiilor publice, cu modificarile ulterioare, Legea nr. 31/1990, republicata, cu modificarile si completarile ulterioare, Legea contabilitatii nr. 82/1991, republicata, cu modificarile si completarile ulterioare, Legea concurentei nr. 21/1996, republicata, Legea nr. 78/2000 pentru prevenirea, descoperirea si sanctionarea faptelor de coruptie, cu modificarile si completarile ulterioare, Legea nr. 656/2002 pentru prevenirea si sanctionarea spalarii banilor, precum si pentru instituirea unor masuri de prevenire si combatere a finantarii actelor de terorism, republicata, cu modificarile ulterioare, Legea nr. 571/2003 privind Codul fiscal, cu modificarile si completarile ulterioare, Legea nr. 241/2005 pentru prevenirea si combaterea evaziunii fiscale, cu modificarile ulterioare, si infractiunile prevazute de prezenta lege, in ultimii 5 ani anterior deschiderii procedurii prevazute de prezenta lege. Aceasta prevedere nu se aplica titularilor actiunilor la purtator;
  3. c) daca s-a dispus suportarea unei parti a pasivului debitorului de catre membrii organelor de conducere si/sau supraveghere ale debitorului, potrivit prevederilor art. 169 si urmatoarele sau prevederilor unor legi speciale, pentru ajungerea acestuia in stare de insolventa; prevederile lit. b) raman aplicabile.

Art. 17. – Judecatorul-sindic are urmatoarele atributii in procedura concordatului preventiv:

  1. a) sa numeasca administratorul concordatar provizoriu;
  2. b) sa omologheze, la cererea administratorului concordatar, concordatul preventiv;
  3. c) sa constate, la cererea oricarui creditor nesemnatar al concordatului preventiv, indeplinirea conditiilor cerute pentru a fi inscris pe lista creditorilor ce au aderat la concordatul preventiv;
  4. d) sa dispuna prin incheiere, potrivit prevederilor art. 18, suspendarea provizorie a executarilor silite contra debitorului, in baza ofertei de concordat preventiv formulate de debitor si transmise creditorilor;
  5. e) sa judece actiunile in nulitate si in rezolutiune a concordatului preventiv.

Art. 18. – (1) Cererile formulate in temeiul prezentului titlu se judeca in camera de consiliu, de urgenta si cu precadere, partile fiind citate in termen de 48 de ore de la primirea cererii

(2) Partile cu sediul in strainatate sunt citate prin mijloace rapide de comunicare, la sediul sau, dupa caz, la domiciliul ori resedinta cunoscut/cunoscuta al/a acestora; in lipsa, citarea se face prin afisare la usa instantei.

Art. 19. – Atributiile administratorului concordatar sunt urmatoarele:

  1. a) intocmeste tabelul creditorilor, care include si creditorii contestati sau ale caror creante sunt in litigiu, si tabelul creditorilor concordatari; o creanta a unui creditor cu mai multi debitori solidari aflati in procedura de concordat va fi inscrisa in toate tablourile creditorilor cu valoarea nominala a creantei detinute pana ce aceasta va fi complet acoperita;
  2. b) elaboreaza, impreuna cu debitorul, oferta de concordat, cu elementele componente ale acesteia, respectiv proiectul de concordat si planul de redresare;
  3. c) face demersuri pentru solutionarea pe cale amiabila a oricarei dispute intre debitor si creditori ori intre creditori;
  4. d) solicita judecatorului-sindic omologarea concordatului preventiv;
  5. e) supravegheaza indeplinirea obligatiilor asumate de catre debitor prin concordatul preventiv;
  6. f) informeaza, de urgenta, adunarea creditorilor concordatari asupra neindeplinirii sau indeplinirii necorespunzatoare de catre debitor a obligatiilor sale;
  7. g) intocmeste si transmite adunarii creditorilor concordatari rapoarte lunare sau trimestriale asupra activitatii sale si a debitorului; raportul administratorului concordatar va contine si opinia acestuia privind existenta sau, dupa caz, inexistenta unor motive de rezolutiune a concordatului preventiv;
  8. h) convoaca adunarea creditorilor concordatari;
  9. i) cere instantei inchiderea procedurii concordatului preventiv;
  10. j) indeplineste orice alte atributii prevazute de prezentul capitol, instituite prin concordatul preventiv ori stabilite de judecatorul-sindic.

Art. 20. – (1) Onorariul administratorului concordatar se propune prin proiectul de concordat si se stabileste prin concordatul preventiv; acesta va fi suportat din averea debitorului

(2) Onorariul administratorului concordatar va consta, in functie de natura obligatiilor acestuia, intr-o suma fixa, un onorariu lunar si/sau un onorariu de succes; la stabilirea cuantumului onorariului se vor avea in vedere natura activitatii desfasurate de catre debitor, precum si complexitatea planului de redresare.

Art. 21. – (1) Adunarea creditorilor concordatari are urmatoarele atributii:

  1. a) aproba rapoartele administratorului concordatar privitoare la activitatea debitorului si la indeplinirea obligatiilor asumate prin concordat;
  2. b) desemneaza reprezentantul creditorilor;
  3. c) este titularul actiunii in rezolutiune a concordatului preventiv

(2) in cursul derularii procedurii, adunarea creditorilor concordatari poate fi convocata de administratorul concordatar, din oficiu sau la cererea creditorilor reprezentand cel putin 10% din valoarea totala a creantelor concordatare

(3) Adunarea creditorilor concordatari adopta hotarari cu majoritatea de voturi stabilita prin raportare la valoarea creantelor creditorilor concordatari prezenti.

Art. 22. – (1) Votul creditorilor concordatari poate fi exercitat si prin corespondenta

(2) sedinta adunarii creditorilor concordatari va fi organizata si prezidata de administratorul concordatar

(3) La adunarile creditorilor concordatari va fi invitat si debitorul.

Art. 23. – (1) Orice debitor aflat in dificultate financiara, mai putin cei exclusi conform prevederilor art. 16, poate introduce la tribunalul competent o cerere de deschidere a procedurii de concordat preventiv. Prin cererea sa, debitorul propune un administrator concordatar provizoriu dintre practicienii in insolventa autorizati potrivit legii

(2) Judecatorul-sindic numeste administratorul concordatar provizoriu prin incheiere executorie

(3) in termen de 30 de zile de la numirea sa, administratorul concordatar elaboreaza, impreuna cu debitorul, lista creditorilor si oferta de concordat preventiv

(4) Oferta de concordat preventiv se notifica de catre administratorul concordatar provizoriu creditorilor prin mijloace de comunicare rapida si care asigura posibilitatea confirmarii primirii acesteia

(5) Oferta de concordat preventiv va fi depusa in dosarul deschis potrivit alin. (1) si, pentru opozabilitate fata de terti, se depune la grefa tribunalului, unde va fi inregistrata intr-un registru special. Despre depunerea si notificarea acesteia se face mentiune in registrul in care este inregistrat debitorul

(6) Oferta de concordat preventiv va cuprinde si proiectul de concordat preventiv, la care se vor anexa declaratia debitorului privind starea de dificultate financiara in care se afla, precum si lista creditorilor cunoscuti, inclusiv cei ale caror creante sunt contestate integral sau partial, cu precizarea cuantumului si a cauzelor de preferinta acceptate de debitor.

Art. 24. – (1) Proiectul de concordat preventiv trebuie sa prezinte, in mod detaliat:

  1. a) situatia analitica a activului si a pasivului debitorului, certificata de un expert contabil sau, dupa caz, auditata de un auditor autorizat potrivit legii;
  2. b) cauzele starii de dificultate financiara si, daca este cazul, masurile luate de debitor pentru depasirea acesteia pana la depunerea ofertei de concordat preventiv;
  3. c) proiectia evolutiei financiar-contabile pe urmatoarele 24de luni

(2) Proiectul de concordat preventiv trebuie sa includa un plan de redresare, care prevede cel putin urmatoarele masuri:

  1. a) reorganizarea activitatii debitorului, prin masuri precum: restructurarea conducerii debitorului, modificarea structurii functionale, reducerea personalului sau orice alte masuri considerate a fi necesare;
  2. b) modalitatile prin care debitorul intelege sa depaseasca starea de dificultate financiara, precum: majorarea capitalului social, conversia unor creante in actiuni/parti sociale, imprumut bancar, obligational sau de alta natura, inclusiv imprumuturi ale asociatilor/actionarilor, infiintarea ori desfiintarea unor sucursale sau puncte de lucru, vanzarea de active, constituirea de cauze de preferinta; in cazul acordarii de noi finantari in perioada de concordat, se va prevedea prioritatea la distribuire a acestor sume, dupa plata cheltuielilor de procedura

(3) in cazul contractelor a caror scadenta depaseste termenul de 24 de luni prevazut pentru realizarea concordatului sau al celor pentru care se propun esalonari de plata in afara acestei perioade, dupa inchiderea procedurii de concordat, aceste plati vor continua conform contractelor din care rezulta

(4) Termenul pentru satisfacerea creantelor stabilite prin concordat este de 24 de luni de la data omologarii acestuia prin hotarare executorie, cu posibilitatea de prelungire cu 12 luni. in primul an este obligatorie plata a minimum 20% din valoarea creantelor stabilite prin concordat

(5) in cazul in care prin proiectul de concordat se propun reduceri ale creantelor bugetare, este obligatorie prezentarea rezultatelor testului creditorului privat

(6) Prin proiectul de concordat preventiv, supus aprobarii creditorilor, debitorul propune, de asemenea, confirmarea administratorului concordatar provizoriu, precum si onorariul acestuia pentru perioada ulterioara datei incheierii concordatului.

Art. 25. – (1) in baza ofertei de concordat preventiv, debitorul poate cere judecatorului-sindic suspendarea provizorie a urmaririlor silite, potrivit prevederilor art. 996 si 999 din Codul de procedura civila

(2) Cererea se judeca in camera de consiliu, de urgenta si cu precadere, fara citarea partilor

(3) Suspendarea provizorie a urmaririlor silite individuale se mentine pana la pronuntarea unei hotarari executorii de omologare a concordatului sau pana la respingerea ofertei de concordat prin vot de catre creditorii ale caror creante necontestate compun masa credala, conform legii.

 

SECTIUNEA a 2-a

Incheierea si omologarea concordatului preventiv

Art. 26. – (1) in vederea exercitarii votului creditorilor asupra proiectului de concordat preventiv, debitorul poate organiza una sau mai multe sedinte, colective ori individuale, de negociere cu creditorii, in prezenta administratorului concordatar propus de debitor

(2) Initiativa negocierii poate apartine si unuia sau mai multor creditori, precum si actionarilor sau asociatilor debitorului care detin controlul

(3) Perioada in care se desfasoara negocierile asupra proiectului de concordat preventiv nu poate depasi 60 de zile calendaristice.

Art. 27. – (1) Asupra ofertei de concordat preventiv, cu eventualele amendamente rezultate in urma negocierilor, creditorii voteaza, in principiu, prin corespondenta

(2) Votul creditorilor se trimite prin mijloace de comunicare rapida pe adresa debitorului, in termen de maximum 60 de zile calendaristice calculate de la data primirii ofertei de concordat preventiv. Votul favorabil neconditionat asupra concordatului preventiv are valoare de acceptare a concordatului. Orice conditionare a votului este considerata vot negativ

(3) in cazuri exceptionale, administratorul concordatar poate convoca o adunare a tuturor creditorilor

(4) Daca in termenul prevazut la alin. (2) unul sau mai multi creditori detinand cel putin 10% din valoarea totala a creantelor solicita convocarea adunarii tuturor creditorilor, administratorul concordatar este obligat sa o convoace in termen de maximum 5 zile de la data primirii cererii. Convocarea este transmisa creditorilor prin mijloace de comunicare rapida si care asigura confirmarea primirii acesteia

(5) Concordatul preventiv se considera aprobat de creditori daca sunt intrunite voturile creditorilor care reprezinta cel putin 75% din valoarea creantelor acceptate si necontestate

(6) Creditorii care, direct sau indirect, controleaza, sunt controlati ori se afla sub control comun cu debitorul pot participa la sedinta, dar pot vota cu privire la concordat doar in cazul in care acesta le acorda mai putin decat ar primi in cazul falimentului.

Art. 28. – (1) Dupa aprobarea concordatului de catre creditori, administratorul concordatar solicita judecatorului-sindic sa omologheze concordatul preventiv. Pentru omologare, judecatorul-sindic verifica indeplinirea cumulativa a urmatoarelor conditii:

  1. a) valoarea creantelor contestate si/sau in litigiu nu depaseste 25% din masa credala;
  2. b) concordatul preventiv a fost aprobat de creditorii care reprezinta cel putin 75% din valoarea creantelor acceptate si necontestate

(2) Judecatorul-sindic omologheaza concordatul preventiv prin incheiere pronuntata in camera de consiliu, de urgenta si cu precadere, dupa citarea si ascultarea administratorului concordatar. Cererea de omologare a concordatului preventiv poate fi respinsa exclusiv pentru motive de legalitate

(3) Concordatul preventiv, aprobat de creditori si omologat de judecatorul-sindic prin incheiere, se comunica creditorilor, prin intermediul administratorului concordatar, si se mentioneaza in registrul in care este inregistrat debitorul.

Art. 29. – (1) De la data comunicarii hotararii de omologare a concordatului preventiv se suspenda de drept urmaririle individuale ale creditorilor semnatari asupra debitorului si curgerea prescriptiei dreptului de a cere executarea silita a creantelor acestora contra debitorului

(2) Curgerea dobanzilor, a penalitatilor si a oricaror altor cheltuieli aferente creantelor nu se suspenda fata de creditorii semnatari, cu exceptia situatiei in care acestia isi exprima expres, in scris, acordul in sens contrar, acord ce va fi mentionat in proiectul de concordat.

Art. 30. – (1) Dispunand omologarea, judecatorul-sindic suspenda toate procedurile de executare silita

(2) La cererea administratorului concordatar, sub conditia acordarii de garantii creditorilor de catre debitor, judecatorul-sindic poate impune creditorilor nesemnatari ai concordatului preventiv un termen de maximum 18 luni de amanare a scadentei creantei lor, perioada in care nu vor curge dobanzi, penalitati, precum si orice alte cheltuieli aferente creantelor. Prevederile referitoare la amanarea scadentei creantei nu sunt aplicabile in privinta contractelor financiare calificate si a operatiunilor de compensare bilaterala in baza unui contract financiar calificat sau a unui acord de compensare bilaterala

(3) Concordatul va fi opozabil creditorilor bugetari, cu conditia respectarii prevederilor legale cu privire la ajutorul de stat din legislatia interna si europeana, potrivit prevederilor art. 24 alin. (5).

Art. 31. – in perioada concordatului preventiv omologat nu se poate deschide procedura insolventei fata de debitor.

Art. 32. – (1) Orice creditor care obtine un titlu executoriu asupra debitorului in cursul procedurii poate formula cerere de aderare la concordat sau poate sa isi recupereze creanta prin orice alte modalitati prevazute de lege

(2) Cererea de aderare se depune la administratorul concordatar, care o include in tabelul creditorilor concordatari.

Art. 33. – (1) in cursul procedurii, debitorul isi desfasoara activitatea in limitele afacerii sale obisnuite, in conditiile concordatului preventiv, sub supravegherea administratorului concordatar

(2) Masurile cuprinse in concordatul preventiv, inclusiv modificarile creantelor, profita si codebitorilor, fidejusorilor si tertilor garanti.

 

SECTIUNEA a 3-a

Inchiderea procedurii concordatului preventiv

Art. 34. – (1) Creditorii care au votat impotriva concordatului preventiv pot cere anularea acestuia, in termen de 15 zile de la data omologarii a cestuia

(2) Cand se invoca motive de nulitate absoluta, dreptul de a cere constatarea nulitatii se prescrie in termen de 6 luni de la data omologarii concordatului

(3) Judecatorul-sindic, la cererea reclamantului, poate dispune, pe cale de ordonanta presedintiala, suspendarea concordatului preventiv.

Art. 35. – (1) In situatia in care se constata incalcarea grava de catre debitor a obligatiilor asumate prin concordatul preventiv, adunarea creditorilor concordatari poate hotari introducerea actiunii in rezolutiune a concordatului preventiv. Asupra acestui aspect adunarea poate delibera chiar daca nu a fost inscris pe ordinea de zi. De asemenea, poate introduce aceasta actiune, in aceleasi conditii, creditorul care detine mai mult de 50% din valoarea creantelor acceptate si necontestate

(2) in intelesul alin. (1) reprezinta incalcare grava a obligatiilor asumate de debitor prin concordatul preventiv actiuni precum: favorizarea unuia sau a mai multor creditori in dauna celorlalti, ascunderea sau instrainarea de active in perioada concordatului preventiv, efectuarea de plati fara contraprestatie sau in conditii ruinatoare

(3) Daca adunarea creditorilor concordatari a decis introducerea actiunii in rezolutiune, procedura concordatului preventiv se suspenda de drept

(4) Prin hotararea de admitere a actiunii in rezolutiune, judecatorul-sindic acorda creditorilor daune-interese, potrivit dreptului comun.

Art. 36. – (1) Daca procedura concordatului preventiv se finalizeaza cu succes, la termenul prevazut in contract sau anterior acestuia, dupa caz, judecatorul-sindic va pronunta o incheiere prin care va constata realizarea obiectului concordatului preventiv. in acest caz, modificarile creantelor prevazute in concordatul preventiv raman definitive

(2) in cazul in care in cursul derularii procedurii, inainte de expirarea termenului prevazut la art. 24 alin. (4), administratorul concordatar apreciaza ca este imposibila realizarea obiectivelor concordatului din motive neimputabile debitorului, poate cere judecatorului-sindic constatarea nereusitei concordatului preventiv si inchiderea procedurii.

Art. 37. – (1) Masurile prevazute de prezentul titlu se vor aplica cu respectarea regulilor in materia ajutorului de stat

(2) Prevederile prezentului titlu nu sunt aplicabile in privinta contractelor financiare calificate si a operatiunilor de compensare bilaterala in baza unui contract financiar calificat sau a unui acord de compensare bilaterala.

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