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Cabinet d'avocats fiscalistes

Ad hoc mandate and judicial conciliation

Assistance to companies in financial difficulty in phase n°1: appointment and expertise from a legal, fiscal and accounting point of view of your file and the situation of your company

It is possible in certain cases that an intervention of Yaël SION with your banking institutions, your suppliers and service providers with whom you are in contact is sufficient. If the financial difficulties are not proven, Maître SION will offer to negotiate with them a re-spreading of your debts and will make sure that the proposed solutions allow enough oxygen to your company to make it profitable again, based on a 6 months or 1 year forecast. If this proves to be insufficient or if the renegotiation conditions are too unadvantageous, or even dangerous for the company or for the personal assets of the company director, who often has to go back into debt or provide new guarantees, we will suggest that you enter phase n°2, by proposing the most effective procedure and protection that is best suited to your situation, which must imperatively take into account your vision of the company and your desire as a director.

Assistance and intervention in phase n°2: choice of the most protective procedure for your company regarding your financial difficulties and request for protection from the competent Commercial Court or Judicial Court

Maître SION will offer several solutions, tailored to your situation. During this phase, Maître SION will help you choose the procedure best suited to your difficulties and will assist you in drafting the request to be submitted to the competent Commercial Court or Judicial Court, in order to place you under its protection, whether in Marseille, or anywhere else, especially in Aix-en-Provence, Nice, Bordeaux and Paris, by assisting and advising you in the drafting of the request for the opening of the most suitable and least restrictive amicable procedure according to your company's situation.

Ad hoc mandate or conciliation procedure?

Two categories of procedures are available to us in the first instance, and are considered as "amicable" procedures for dealing with difficulties: the ad hoc mandate procedure and the conciliation procedure.The choice between one or the other of these procedures, which are totally confidential in order to avoid disclosing your difficulties to your service providers or potential partners or buyers of your business, depends on Ms. SION's assessment of your situation, on the elements that you submit to her analysis, on our exchanges on the advantages and disadvantages of each of these procedures, on the company's working capital requirements which condition the transactional agreements that we will negotiate together within the framework of these procedures, on the time available to us to act and on the extent of the financial difficulties encountered. Please note that the ad hoc mandate and the conciliation procedure are confidential procedures designed to protect you and find solutions with your creditors, and therefore benefit from absolute confidentiality.

Any third party or organization not invited to negotiate within the framework of these procedures does not have to be informed of your company's financial difficulties under any circumstances. Your difficulties will therefore not be disclosed to your partners or potential buyers, service providers and future employees at this stage of the procedure. The CABINET SION AVOCAT will base itself on several criteria before setting up the most effective and most adapted procedure, and will take into account the fact that your company is in bonis, or not, by basing itself on the legal criteria defined in the Commercial Code and the the last jurisprudences in this field. The state of cessation of payment is one of the fundamental criteria that determines the debt threshold you have and your working capital needs, and it is defined according to precise criteria of the Commercial Code.

The line that determines the passage from a prevention procedure (ad hoc mandate and conciliation) to a protection procedure (safeguard, recovery or liquidation) is precisely this state of cessation of payments encountered by the company. In other words, the first question that we must answer together is: do the assets that I have at my disposal immediately enable me to meet all the debts that my company has, which constitute the liabilities due? This definition allows the competent Commercial Court to assess whether the company is in a state of cessation of payments or not. If you are not in a state of suspension of payments, we will suggest that you quickly open a procedure of ad hoc mandate with the Commercial Court in order to discuss with your creditors and to draft a transactional agreement which will get you out of this delicate situation.

If the company is however in a state of cessation of payments but for less than 45 days, it is still time to act in a preventive way, and we remain in a so-called preventive procedure, which is this time the conciliation procedure, that Maître SION will propose to you to open without delay with the competent Court, either the Commercial Court or the Judicial Courts.

The ad hoc mandate, a totally confidential procedure in which the company director remains in charge of the management of his company

Maître SION accompanies you during this first step, which is psychologically difficult to take, but which nevertheless constitutes a very effective means of protecting you from your creditors, in order to set up together and assist you during the meeting with the President of the Commercial Court to request the opening of the ad hoc mandate and/or conciliation, in the presence if you wish of your chartered accountant. Once the judicial representative has been appointed by the President of the Commercial Court, Maître SION will attend all the meetings that the latter will organize with you and will intervene on your behalf with the representative and the creditors during the various exchanges with the aim of finding a transactional agreement with your creditors that will allow you to get out of your difficulties. It is customary during this procedure for your banks to suspend the repayment of any loans you may have taken out in order to prove their goodwill in finding a favorable outcome to this ordeal and a settlement agreement that is satisfactory to all. However, this is not an obligation, as we remain in an amicable phase.

Your lawyer is in charge of these negotiations but also of drafting all observations and legal documents that you wish to transmit to the judicial representative, to help you. Our missions are therefore:

  • Assistance with the request for the opening of the ad hoc mandate procedure before the competent Commercial Court
  • Assistance and intervention on your behalf at meetings organized by the judicial representative
  • Explanations and meetings with you in order to give you all the necessary details and answer your questions at each stage
  • Assistance in the negotiation of settlement agreements with your creditors and in particular your bank
  • Intervention to verify the respect of your rights and the confidentiality of the exchanges in this sense
  • Drafting of settlement agreements
  • Assistance after the end of the ad hoc mandate

The conciliation procedure

This is a protection procedure, which can only be requested by the debtor, i.e. you, in a voluntary and spontaneous manner. Your company may be in good standing or in a state of cessation of payments, but for a short time, i.e. less than 45 days. The President of the Commercial Court will then decide by himself whether or not to open this procedure, according to this 45-day period but also according to the explanations that we will provide him with in your presence during the hearing to which we will be invited. Hence the importance of coming to meet us as soon as the financial difficulties arise, because time is of the essence and our role is to advise you on the subtleties and important elements of this type of procedure.

SION AVOCAT advises and assists you in:

  • The drafting of the request addressed to the President of the Commercial Court, which is a fundamental step of the procedure and which must respect a very precise formalism with the handing-over of essential documents to the Commercial Court
  • The hearing to which the President of the Commercial Court summons you
  • We will intervene with the conciliator on your behalf to provide all the explanations or requests you may have as well as all our observations to protect and restore the company's cash flow by trying to find a conciliation with your creditors
  • Request for the granting of possible payment delays
  • Our main objective will be to negotiate any agreement that we find favorable to the resolution of the difficulties after having discussed it together and to set up a fiscal and accounting restructuring of your company to allow it to benefit from a sufficient oxygen bubble which will allow the revival of your activity
  • Assistance and protection of your rights during the approval of the agreement by the President of the Commercial Court. This agreement will be enforceable, no recourse will be possible against this agreement and it will be subject to total confidentiality which means that the parties who sign it will not be able to disclose to third parties the financial difficulties that you have faced. During the entire duration of this agreement, once it has been put in place, Maître SION will ensure its proper execution, in particular as regards the fact that it prohibits any legal action and interrupts any legal actions that your company was the subject of, it also interrupts and prohibits any individual lawsuit against the company director, and finally, interrupts the deadlines to which you were subject to repay your creditors.
  • If Maître SION deems it appropriate, we propose a pre-packaged assignment to our clients and, with the agreement of the conciliator in charge of your file, we set up this particular procedure. This procedure is requested at the initiative of the debtor that we assist and requires an opinion of the creditors participating in the search for a solution. It is during the conciliation phase that we will prepare this transfer of the company and that we will implement it thereafter, when we will ask the Commercial Court to open, depending on the case, a safeguard, recovery or liquidation procedure, by consulting and detailing each offer to take over your company and each arrangement that we suggest to put in place within the framework of this takeover.

Our firm, expert in companies in difficulty, will remain at your side to verify and ensure the proper execution of this transactional agreement, so that you can move forward in confidence and security.

Collective procedures allowing the reinforcement of the protection of the company in financial difficulties

Depending on the progress and seriousness of the financial difficulties encountered, Maître SION is able to assist you in the various types of so-called collective procedures, such as the safeguard procedure or the judicial recovery procedure for a company in difficulty, which are implemented to protect the company's cash flow, your jobs and your business.

Safeguard procedure and accelerated safeguard procedure

Anticipating difficulties requires an expertise that we put at your service to avoid the occurrence of problems that you might not have thought of. Likewise, the control of time and deadlines for action are a fundamental element of the success of your business transfer project or of your desire to overcome the financial difficulties encountered. We are there to manage them and to inform you at each stage of the procedures implemented.

What is the safeguard procedure?

Safeguard is a procedure that only you, as the debtor, are entitled to initiate and is a preventive procedure. It is reserved for viable companies that can get out of the difficulties they are experiencing. We will establish together if you indeed meet the conditions necessary for its implementation and if it allows you to ensure the recovery of your activity. This procedure will place you in a protective bubble that prohibits you from paying any debt prior to the opening of the procedure, whether it be contractual, fiscal or penal, and any subsequent debt that is not privileged. It also allows the prohibition of any possible pursuit against the debtor during the procedure, in order to maintain your activity. In this procedure, that only you can request, you remain the main actor, with the partners of the company, of the recovery of your company.

What is the accelerated safeguard procedure?

The accelerated safeguard is done at the request of the debtor, who must meet certain conditions (presence of an auditor or a chartered accountant who has established your accounts). We advise and assist you when you wish to establish it. To benefit from this procedure, you must not be in a state of suspension of payments for more than 45 days, not be involved in a conciliation procedure, be able to present an accounting and financial forecast that ensures the company's sustainability, and that it is foreseeable that the creditors concerned by this procedure will adopt the proposed plan. We can also set up an SFA, which is an accelerated financial safeguard, if the only creditors concerned by the procedure are those of the credit institution committee. 

Our mission during the safeguard procedure consists of providing you with:

  • Assistance in the drafting of the petition to open the safeguard procedure and assistance in the presentation of the difficulties encountered and the reasons why they can be overcome
  • Assistance and advice during the two-month information period of the Court, allowing it to form an opinion on the appropriateness of this procedure rather than a recovery or liquidation procedure
  • Assistance and advice during the observation period of the company, which is a protective bubble for you
  • Assistance and intervention with the organs of the procedure, whether it be the official receiver, the judicial representative who represents the collective interest of the creditors, the judicial administrator who has the mission of supervising the smooth running of the procedure and who has exclusive prerogatives, the employees' representative if there is one, or the creditors concerned
  • If redundancies for economic reasons are ordered, assistance and drafting of the documents necessary for their implementation
  • Drafting of a credible safeguard plan and highlighting of the company's potential, assistance in negotiating with creditors in order to obtain their agreement for this plan
  • Drafting and intervention in the drafting of conciliation agreements to be placed somewhere
  • Assistance and intervention in the adoption of the safeguard plan, allowing the restructuring of your company
  • Assistance and advice in the implementation of this plan and its execution
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