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WHOA Desk (Dutch Scheme)

WHOA Desk (Dutch Scheme)

On January 1, 2021, the Act on the Confirmation of Private Plans (the Dutch Scheme or WHOA, its Dutch acronym) came into effect in the Netherlands. The WHOA is an important tool for companies and businesses to avoid a suspension of payments or bankruptcy by restructuring its capital structure (equity and debt) through a private plan. However, the WHOA can also be used to wind up business activities in a controlled manner via a liquidation plan.

The WHOA offers a statutory basis for a plan outside insolvency where shareholders and creditors or a subset of them, can be bound, even if they vote against the plan. As this may sometimes have far-reaching consequences, the Dutch Scheme sets out the procedures, safeguards and rules with which plan procedures must comply.

The WHOA is quite extensive and offers various possibilities for offering a tailor-made agreement. On this WHOA page we will use questions and answers to inform you about the main aspects and issues you may face as a director, shareholder, creditor or other stakeholder.

If you would have any question or would need any advice regarding the Dutch Scheme, please feel free to contact us. We will be happy to assist you.

The WHOA Plan Procedure

Q&A | The WHOA explained

1. The scope of the WHOA
  • 1.1  What is the purpose of the WHOA?
    The WHOA is an important tool for companies and businesses to avoid a suspension of payments or bankruptcy by restructuring its capital structure (equity and debt) through a private plan. The WHOA can also be used to wind up business activities in a controlled manner via a liquidation plan. This can be useful if the company is discontinued.
  • 1.2  When can I use the WHOA?
    One crucial condition for making use of the WHOA is that a debtor must be in a situation in which it is reasonably plausible that he will not be able to continue paying his debts. This condition implies that the debtor is still able to meet its current obligations, but at the same time foresees that there is no realistic prospect of averting a future bankruptcy if its debts are not restructured.
     
    The WHOA is therefore not intended for companies that are "on the brink of collapse". There must be sufficient liquidity to be able to go through the entire WHOA procedure. The procedure does have a short processing time.
     
    Please note that no court involvement is needed to commence a plan procedure under the Dutch Scheme.
  • 1.3  Who may use the WHOA?
    The WHOA applies to legal persons such as companies and private individuals persons with a business (the sole proprietorship or general partnership).
     
    Please note that banking institutions and insurance companies cannot make use of the WHOA.
  • 1.4  How does the WHOA work? 
    If the debtor starts preparations for a plan, a declaration must be filed with the registry of the competent court . This declaration is also referred to as the start-of-procedure declaration. This is merely a document proving that the debtor has commenced the WHOA plan procedure. There is no test of entry by the court; the court does not test the start-of-procedure declaration.
     
    Once this start-of-procedure declaration has been filed, the debtor can make use of certain provisions of the WHOA, such as requesting a stay period (afkoelingsperiode).
  • 1.5  Who can start a WHOA plan procedure?
    The debtor itself can start a WHOA plan proceedings and offer a plan to the creditors. If the debtor is a legal person, the legal person will be represented by its board of directors. During the WHOA, the debtor retains control over its assets and the day-to-day operation of the business. The WHOA is therefore a so-called debtor-in-possession-procedure or DIP-procedure. 
     
    Creditors, shareholders, the works council and employee representatives can also take the initiative to start a WHOA procedure. To do so, they have to request the court to appoint a restructuring expert. A lawyer is needed to submit such a request. The restructuring expert can then prepare an plan, put it to the vote and submit it for confirmation. More information about the restructuring expert can be found in Section 2.3 of Chapter 2 of this Q&A.
  • 1.6  What kind of procedures are there?
    The WHOA provides for two types of a plan procedure, i.e. (i) a confidential plan procedure and (ii) a public plan procedure. 
     
    The choice is made by the person initiating the plan procedure. The choice for the confidential  or public procedure must be made when the court is involved in the plan procedure for the first time. It is not possible to switch between the two types during the remainder of the WHOA plan procedure.
     
    In the confidential plan procedure, it is not made public that a plan is being prepared. The judge will hear all applications in a confidential plan procedure in chambers (in de raadkamer). The public procedure will be given publicity. The court will hear the applications in the public plan procedure in public. In addition, the public plan procedure will be put on Annex A to the European Insolvency Regulation. Once this has been done, the public plan procedure will be automatically recognised in each Member State of the European Union (with the exception of Denmark). 
     
    Both procedures have advantages and disadvantages. The choice for a confidential or public procedure may be prompted by international aspects, for example. We will be happy to help you make such a choice.
2. Main actors
  • 2.1  The Board
    The board of directors of a legal person can initiate WHOA proceedings and then offer a composition plan to its capital providers (creditors and shareholders, if any). The board retains control over the assets and the day-to-day operation of the business during the WHOA procedure (DIP-procedure).
  • 2.2  The (role of the) shareholder
    The board of a legal person does not require the approval of the general meeting of shareholders to offer a WHOA plan and for the execution of a court-confirmed plan.
     
    If the rights of the shareholders under the agreement are changed, the shareholders do of course have the right to vote during the plan proceedings and thus exercise their influence.
  • 2.3  The restructuring expert 
    What is a restructuring expert?
    The Dutch Scheme does not define what kind of person the restructuring expert is. However, it can be deduced from the legislative history that the restructuring expert must have financial knowledge, knowledge of insolvency law, experience with restructuring operations and, in particular, skills that enable him to properly coordinate the plan process with all parties involved. A restructuring expert is someone who can prepare a plan and present it to the creditors and shareholders concerned in order to subsequently submit an approved plan for confirmation.
     
    When do you request for a restructuring expert?
    A debtor is not obliged to request for a restructuring expert. However, there may be strategic considerations for the debtor to request for a restructuring expert. 
     
    If creditors, shareholders, the debtor's works council or employee representative body take the initiative to initiate a WHOA procedure, the appointment of a restructuring expert is required.
     
    Who may request for a restructuring expert?
    Creditors, shareholders, the debtor's works council or employee representative body may ask the court to appoint a restructuring expert.
     
    The debtor itself can also request the court to appoint a restructuring expert, for example if the debtor wants assistance in drafting a restructuring plan or needs an independent person to handle the plan procedure or for other strategic reasons.
     
    The request for the appointment of a restructuring expert should contain at least two and not more than three names of potential restructuring experts. The request should also be accompanied by an offer of costs for the appointment of the expert. Only if all involved parties agree it will be possible to appoint one restructuring expert and to submit one offer. 
     
    What is the position of the restructuring expert?
    A restructuring expert can prepare a plan and can present this plan to the involved creditors and shareholders. 
     
    The WHOA provides that a restructuring expert must carry out his task 'effectively, impartially and independently'. This means that a restructuring expert will not act on behalf of or for the involved debtor. It follows from the first case law on the Dutch Scheme that the task of a restructuring expert is not to update the books and financial data of the debtor. Also, case law shows that will not be an engagement agreement between the debtor and the restructuring expert.
     
    The debtor shall be obliged to provide the restructuring expert with all information which may be required from him. This duty shall also apply to the directors, supervisory directors and shareholders, if any, as well as the employees of the debtor.
     
    Who pays the restructuring expert?
    The fees of the restructuring expert will be borne by the debtor unless the majority of the creditors support the request. In that case, they will have to pay the costs of the restructuring expert.
  • 2.4  The observer
    What is an observer and what is his role?
    The court may appoint an impartial and independent observer throughout the WHOA plan procedure. The observer will supervise the realisation of the plan and must primarily protect the interests of the joint creditors. Like the restructuring expert, the observer is required to carry out his duties effectively, impartially and independently. 
     
    When is an observer appointed?
    The appointment of an observer is only open to cases in which the debtor is trying to reach a plan. 
     
    An observer comes into the picture, for example, if a request for confirmation of the plan has been submitted to the court and no restructuring expert has been involved in the arrangement up to that point. The court must then appoint an observer of its own motion.
     
    Who may request for an observer?
    The observer is appointed at the request of the debtor, not at the request of the creditors. The court can also appoint an observer of its own motion in certain cases.
     
    Who pays the observer?
    The fees of the observer shall be borne by the debtor. 
  • 2.5  Concurrence of functions
    Can an observer and a restructuring expert be appointed at the same time?
    No. If a restructuring expert is appointed to prepare and subsequently offer a plan, an independent expert acting on behalf of the joint creditors will already be involved. The appointment of an observer is not necessary and therefore not possible. The basic assumption of the Dutch Scheme is that a restructuring expert and an observer cannot be employed simultaneously.
     
    What is the role of the director in relation to the restructuring expert?
    During the WHOA procedure, the board of directors will retain full or at least partial control of the assets and the day-to-day operation of the company. If a restructuring expert is appointed, he/she will have sole authority to offer the plan. This is without prejudice to the fact that the board may prepare the plan and/or request the restructuring expert to present the plan.
     
    The debtor shall, however, be obliged to provide the restructuring expert with all information that may be required from him. This duty shall also apply to the directors, supervisory directors and shareholders, if any, as well as the employees of the debtor.
  • 2.6  The (role of) the supervisory board
    What is the role of the supervisory board? 
    The supervisory board supervises the policies of the board of directors and the general affairs of the company and its business. In addition, the supervisory board advises the board of directors Part of the supervisory role of the supervisory board is that it regularly has to give prior approval under the articles of association to major management decisions, which may include the decision to start a WHOA procedure. But also during a WHOA procedure the supervisory board should continue to perform its supervisory duties and focus on the corporate interest and the business connected with it. Especially in situations of financial distress, the supervisory board can be expected to take a (pro)active approach: it should obtain information, ask critical questions and advise on possible measures. Although the supervisory board should be enabled to exercise its supervisory role, the supervisory board should not assume this in such cases. If a restructuring expert is appointed, the supervisory board should also provide this person with information so that the restructuring expert can properly perform his duties. The task of the supervisory board therefore emphatically does not end during a WHOA procedure and the supervisory board should take a more (pro)active role.
  • 2.7  The (role of) the general meeting of shareholders
    What is the role of the general meeting of shareholders? 
    The board of a legal entity does not require the approval or consent of the general meeting of shareholders for the offer of a WHOA plan and for the execution of a court-confirmed.
     
    If the shareholders' rights are changed under the plan, the shareholders do of course have the right to vote under the plan and thus exercise their influence. A dissenting shareholder can, under certain circumstances, still be bound by an offered plan, for example because the majority of the class did consent (the quorum is at least two-thirds of the nominal value of the shareholders present during the vote). Read more about voting and confirmation of the plan in Section 6 and 7 of this Q&A.
      
    The shareholders, just like the management board and the supervisory board, shall be obliged to provide all information to the restructuring expert if this is required of them. They shall voluntarily inform the restructuring expert of facts and circumstances which they know or ought to know are of importance to the restructuring expert in the proper performance of his duties and shall provide all assistance required for that purpose.
  • 2.8  The (role of) the works council and workplace representation 
    What is the role of the works council and workplace representation?
    In addition to the debtor, creditors and shareholders, the statutory works council or workplace representation can also initiate a WHOA procedure. For this purpose, the works council or workplace representatives must request the court to appoint a restructuring expert who can prepare and submit a plan to the creditors and shareholders in the place of the management board. 
     
    In addition, the participation rights of the works council are not affected by the WHOA. For instance, it is conceivable that the advice of the works council will have to be sought in advance if the debtor wants to request the appointment of a restructuring expert.
  • 2.9  The (position of) the pledgee and mortgagee
    What is the position of the pledgee and mortgagee?
    The exercise of rights by third parties, including suppliers with retention of title but also pledgees and mortgagees, can disrupt the business operations and thus interfere with the chances of success of a plan. In order to mitigate this risk, the debtor's management or the restructuring expert - if appointed - can request the court to declare a stay period. The court can then determine that the pledgee and/or mortgagee may not proceed to exercise the pledge and/or mortgage rights as soon as this has been made known to the pledgee or mortgagee. This may mean, among other things, that no notice of an undisclosed pledge on a receivable may be given and that no payments may be received by the pledgee. In that case, the debtor must provide substitute security for the pledgee's recourse by virtue of that pledge. If the pledgee and/or mortgagee do not agree with this declared stay period, they can request the court to grant authorisation to exercise their rights again.
3. The plan
  • 3.1  Which creditors and shareholders are affected by the plan?
    The debtor can offer an plan to all his creditors and shareholders, but also to subset of them. This also applies to the offer of the plan by the restructuring expert. For example, there may be reasons for offering the plan only to financiers or shareholders.
  • 3.2  How can a plan look like?
    A great deal of freedom is left to the debtor regarding the form of the plan to be offered. Various forms are conceivable. For example, there is a liquidation plan. This variant of plan implies that the debtor renounces his assets with a view to liquidating them and dividing the proceeds among the creditors. A percentage settlement is another option, whereby a lump sum or an amount spread over time is paid to the creditors and/or shareholders. There are also plans conceivable in which claims are converted into convertible loans or risk-bearing capital. The latter is also called a debt-for-equity swap. Of course, this is only possible if the debtor is a company with share capital. Other forms of a plan are also conceivable whereby different classes of debt are offered different plans.
  • 3.3  What is a class formation?
    Creditors and shareholders that are involved in the plan must be divided into classes. Creditors and shareholders shall be divided into different classes if their rights in the event of liquidation of the debtor's assets in bankruptcy or their rights under the plan are so different that their positions are not comparable.
     
    In any case, creditors or shareholders with different ranks in the recovery of the debtor's assets will be divided into different classes. In addition, there are specific rules for the classification with regard to (i) SME creditors and persons having tort claims who receive less than 20% on the basis of the plan and (ii) pledgees and mortgagees whose claims have to be split into a secured and an unsecured part. 
  • 3.4  Which valuations are needed?
    In order to assess whether the plan is fair and reasonable, creditors must be able to compare the value they will receive under the plan (the reorganization value or plan value) and the value they would receive in bankruptcy (the liquidation value). To enable the creditors to assess the values and underlying valuation methods, the offeror should explain how it arrived at the valuation and the principles and assumptions underlying the valuation. 
  • 3.5  What is the role of the Collector of Dutch Tax Authorities in the Dutch Scheme?
    The collector (Ontvanger), the section of the tax administration that deals with the collection of tax debts, applies various policy rules for the collection of tax debts. These policy rules are laid down in the "Collection Guidelines". The Collection Guidelines also contain conditions under which the collector will cooperate with a plan. The decision amending came into force on 1 July 2021, as a result of which the new policy rules of the collector apply. The basic principle is and remains that the relevant provisions of the Collection Guidelines apply in full to a WHOA procedure, unless departed from in specific articles of the Guidelines.
     
    In general terms, the collector may agree to an offered plan if the following requirements are met:
    •    the settlement is offered in writing and meets the requirements set out in article 375 of the Dutch Bankruptcy Act (including the name of the debtor, the financial consequences of the plan, etc.);
    •    the collector is classified in a class that adequately reflects its legal preference; and
    •    it is likely that, apart from the formalities still to be completed, the plan offered would be approved by the court. 
     
    The collector does not agree to a plan where it is proposed that the tax debt be converted into share capital. This does not fit in with the social function that the collector fulfils. In a general sense, therefore, a cash payment will have to take place. It should be noted that, in principle, the collector should be offered a percentage  twice of what is offered to ordinary creditors. This is an expression of the statutory preference that the collector has. The collector must respect the minimum percentage of 20% offered to small SME companies. More information on the regulation of the minimum percentage for SME entrepreneurs can be found under part 7.4 of section 7 of this Q&A.
     
    If the collector accedes to the plan, discharge will in principle be granted for the remaining debt not included in the plan. The collector may also stipulate other conditions, such as that no further collection measures are taken instead of discharge. The latter will also be applied if the collector does not voluntarily accede to the agreement and is therefore forced to do so, as it were, by confirmation of the plan. More information on the role of the collector can be found here (in Dutch).
4. Stay period
  • 4.1  What is a stay period?
    During a stay period, third parties cannot claim the assets under the debtor's control, unless the court authorises third parties to do so. This allows the debtor to continue his business while preparing for the negotiation of a WHOA plan. Also, during a general stay period, security rights cannot be enforced and the court can lift attachments. Proceedings for suspension of payments and bankruptcy petitions are suspended. 
     
    It is also possible that the judge limits the stay period to certain third parties. 
  • 4.2  How is a stay period obtained?
    As soon as the debtor has filed a statement of assets and offered a plan or promises to offer a plan within no more than two months, or as soon as a restructuring expert has been appointed, the debtor or the restructuring expert may request the court to declare a stay period.
     
    The request to declare a stay period shall be granted if it summarily appears that:
    i. this is necessary to enable the continuation of the debtor's business during the preparation and negotiation of a plan; and
    ii. at the time the stay period is declared, it is reasonable to assume that the interests of the debtor's joint creditors will be served and that their interests will not be substantially prejudiced.
     
    The stay period is for a maximum of four months and may be extended by the court under certain conditions to a maximum of eight months. Before granting such a request, creditors will be heard first and sufficient progress must have been made in offering the WHOA plan. 
  • 4.3  Which creditors are affected by the stay period?
    This may concern all creditors, but also a certain group of creditors. The court will ultimately determine this.
  • 4.4  What options do creditors have to act against a stay period?
    The creditor may ask the court for authorization to proceed with enforcement or recovery after all. If, in addition, it can no longer be assumed that the interests of the creditors will benefit from the stay period and it can be assumed that the interests of the creditors will be substantially prejudiced, the court may be asked to lift the stay period. The court may also appoint an observer to monitor that the interests of the creditors are not materially prejudiced.
  • 4.5  Special position of pledgees and mortgagees
    Pledgees and mortgagees are also affected by the stay period. This means that a pledgee with an undisclosed pledge on receivables may not, for example, notify creditors of the pledge, receive payments or offset payments against a claim during the stay period. In that case adequate replacement security must be provided to the pledgee by the debtor. Again, the court may grant an authorization to a pledgee or mortgagee to be exempt from this prohibition. See also Section 2.6 of Chapter 2 of this Q&A.
  • 4.6  Use and disposal of goods
    In principle, the debtor is allowed to use, consume or dispose goods belonging to third parties or to collect debts during the stay period, as long as this is in line with the normal course of business. However, this power must have existed before the stay period. In addition, the interests of the creditors must be sufficiently safeguarded. This can be done, for example, by providing adequate replacement security. If these conditions are not met, the court can revoke the debtor's authority.
  • 4.7  Rulings on stay periods
    Rulings on the stay period show that a request to declare a stay period must be properly prepared. Although it is clear from the law that it is sufficient for the debtor to promise to offer a plan within two months, the debtor must substantiate that such a promise is realistic. Moreover, the debtor will have to make a plausible case in that case as well - especially where it concerns an intended liquidation agreement - that a settlement outside the bankruptcy will achieve a better result than a settlement in the bankruptcy. 
5. Protection clause, amendment of agreements and tailor-made provision
  • 5.1  Protection clause 
    It is quite possible that the agreement under the WHOA will have to be financed by a third party. These third parties, such as banks or other financiers, may be reluctant to provide loans if the security obtained for repayment of these loans can be voided by a trustee in bankruptcy if the debtor is later declared bankrupt. This creditor risk can be eliminated during a WHOA procedure by virtue of Section 42a Dutch Bankruptcy Act. Briefly put, this section stipulates that the court can grant so-called voidance protection.
     
    For this purpose, the debtor must apply to the court for authorization to enter into the legal acts required for the financing. The court will then review whether the following two conditions have been met:
    i. The performance of the legal act is necessary to continue the business conducted by the debtor during the preparation of the plan; and
    ii. At the time the authorization is granted, it may reasonably be assumed that the interests of the joint creditors will be served by this legal act, while none of the individual creditors' interests will be substantially prejudiced as a result.
  • 5.2  Amendment and termination of current agreements
    In the context of WHOA proceedings, the debtor or the restructuring expert can make a proposal to amend or terminate an agreement with a counterparty. This can be interesting, for example, in the case of loss-making contracts. If this counterparty does not agree to the proposal, the provider of the agreement can request the court, at the same time as the request for confirmation, to grant permission to terminate the agreement before the end of the term. The court may grant this request if it approves the plan.
     
    After termination, the counterparty is entitled to compensation. This right to compensation can be included in the plan and can be amended. As a creditor, the counterparty can vote on the plan and oppose to its confirmation.
     
    An important limitation of this possibility is that, as mentioned earlier, the WHOA does not apply to employment contracts. If the problems are personnel-related, a WHOA procedure may have to be combined with an employment reorganisation.
     
    Contracts cannot be terminated or cancelled purely because a WHOA plan is being prepared. Such clauses, also known as ipso facto clauses, are frequently found in contracts in, for example, bankruptcies but remain ineffective in the context of a WHOA preparation.
  • 5.3  Tailor-made provision
    The WHOA provides a possibility for the court to tailor its decision. At the request of the debtor or the restructuring expert, or ex officio, the court may make such provisions or make such arrangements as it deems necessary to protect the interests of the creditors or the shareholders. One example is the stipulation that the plan must be voted on within a certain period of time. Or that the debtor must regularly inform the creditors and the court about the progress of the proceedings. A specific provision, for example, is the appointment of an observer. 
6. Voting
  • 6.1  What is a class?
    It is the debtor or the restructuring expert who assigns the creditors or shareholders to different classes. Creditors with similar positions shall - as far as possible - be assigned to the same classes. Creditors and shareholders will be divided into different classes if their rights in the event of liquidation of the debtor's assets in bankruptcy or their rights under the agreement are so different that their positions are not comparable.
     
    In any case, creditors or shareholders with different ranks in the recovery of the debtor's assets will be divided into different classes. In addition, there are specific rules for the classification with regard to (i) SME creditors and persons having tort claims who receive less than 20% on the basis of the agreement and (ii) pledgees and mortgagees whose claims have to be split into a secured and an unsecured part.
  • 6.2  How does the voting work?
    The creditors or shareholders whose rights are changed and who are divided into classes may vote on the plan in that class. The creditors or shareholders whose rights are not changed - and who therefore are not affected by the plan - are not entitled to vote. The vote will take place per class of creditors or shareholders. 
  • 6.3  How can votes be cast?
    The vote shall be free of form and may take place either physically or digitally. The debtor or the restructuring expert shall indicate the method of voting. 
  • 6.4  When has a class agreed?
    The class of creditors has consented to the plan if the decision to consent has been taken by a group of creditors who together represent at least two thirds of the total amount of claims belonging to the creditors within that class who have cast their votes (a value criterion). In other words, the number of creditors who voted in favour (no head count) is not relevant.
7. Confirmation
  • 7.1  What is confirmation? 
    The debtor or the restructuring expert will apply to the court for confirmation of the arrangement if at least one class has agreed to the plan. The court must assess the plan against various grounds for refusal (see below) and reject the confirmation of the plan if one of those grounds applies. The plan must be fair and reasonable, especially since even dissenting creditors can be bound by it.
     
    All creditors and shareholders with voting rights can submit a written request to the court for the rejection of the application for confirmation until the day of the hearing. It is important that a creditor, shareholder or counterparty to a plan cannot invoke a ground for rejection if it has not protested to the debtor or the restructuring expert (you snooze, you lose) soon after it has discovered or reasonably should have discovered this ground for rejection. 
  • 7.2  What are the consequences of confirmation? 
    If the plan is approved by the court, it is binding on all creditors and shareholders involved in the plan. This means that dissenting classes can also be bound by the plan. If the plan is imposed on the dissenting classes, this is known as a cross-class cram down.
     
    No appeal can be made against the decision of the court. 
  • 7.3  What are the grounds for rejection?
    The district court applies various grounds for rejecting a request for confirmation. First of all, there are the general grounds for rejection. The court applies these grounds for rejection ex officio.
     
    General grounds for refusal
    There are (inter alia) the following general grounds for rejection:
    - the debtor is not in a situation where it is reasonably plausible that he will not be able to continue paying his debts;
    - procedural errors were made during the WHOA procedure;
    - it is a case of fraud or the plan has been reached by other unfair means;
    - compliance with the plan is not sufficiently guaranteed;
    - the remuneration of the experts (e.g. the restructuring expert or the observer) has not been paid; and
    - an open standard: if there are (other) reasons for refusing to approve the plan.
     
    Additional grounds for refusal
    In addition to the general grounds for refusal, the court can also refuse the confirmation if there are additional grounds for refusal. Unlike the general grounds for refusal, these must be invoked by creditors entitled to vote. Firstly, the court may, at the request of a creditor or shareholder entitled to vote who has voted against the plan, refuse the confirmation if it  summarily appears that this creditor (or shareholder) would be worse off on the basis of the plan than in the event of the liquidation of the debtor's assets in bankruptcy. This best interest test has to be met, whereby the creditor may not receive less from the plan based on the liquidation value than it would have received in the event of bankruptcy. A dissenting creditor or shareholder can always invoke this, even if the class of this creditor or shareholder has voted in favour of the plan.
     
    Because the plan can also be invoked against dissenting classes (see the so-called cross-class cram down), it is possible for a voting creditor or shareholder who has not consented to the plan and has been assigned to a class that has not consented to the plan (or has wrongfully been excluded from the vote) to request the court to reject the confirmation after all if the following scenarios exist. 
     
    Firstly, if in the distribution of the value (taking into account the reorganisation value) the statutory ranking or contractual arrangement is deviated from to the detriment of the dissenting class. Compliance with the statutory ranking order (the absolute priority rule) is guaranteed, although a deviation from this main rule is again possible if there are reasonable grounds for doing so and if the creditor's interests are not prejudiced. 
     
    Secondly, if the dissenting creditor does not have the right to opt for a cash distribution equal to the amount it would have received in the event of a distribution in bankruptcy. The creditor has a right to a cash-out. For a bank, this right to a cash distribution does not apply to its claim which is secured by collateral (pledge or mortgage).
  • 7.4  The SME scheme 
    In principle, SMEs must receive at least 20% of their claim on the basis of the plan, unless the class consents to a lower pay-out. If the class does not agree to a lower payment, the court can only deviate from this rule if there are compelling reasons for doing so. 
8. Other
  • 8.1  Interim judgment of the court
    The dispute settlement procedure offers the possibility of obtaining certainty about any points of dispute or discussion prior to the vote. These include, for example, the question of whether the classifications are correct, whether the voting procedure has been properly followed, or whether there are grounds for refusing confirmation.
     
    The possibility to appeal to the dispute settlement procedure is exclusively reserved to the debtor or the restructuring expert. Creditors and shareholders cannot appeal to the dispute settlement procedure. However, the creditors and shareholders will be heard before the court makes a decision. 
  • 8.2  Second chance? 
    A debtor must wait at least three years to offer a plan under the WHOA if it has made an unsuccessful attempt to do so. This does not apply if the unsuccessful plan was offered by a restructuring expert.
  • 8.3  WHOA and group companies
    An agreement under the WHOA may also relate to group companies. It is, for instance, not excluded that a group company has committed itself jointly and severally for the performance of an obligation (or has provided security for this) or has provided security for the debts of another group company (an organizational and economic unit as referred to in Section 2:24b of the Dutch Civil Code). If a creditor decides to seek recourse, this may have undesirable consequences if, for example, a parent company is sued for payment of the debts while the subsidiary company manages to restructure its debts by means of a WHOA plan. In that case the group company can also become part of the WHOA plan provided that a number of other conditions are met. See for example Section 1.2 of Chapter 1 of this Q&A. The group companies can then appoint one court to deal with the WHOA application.
     
    Under certain conditions, foreign companies may also fall under this regime. For example, the Dutch court must first have jurisdiction. We will be happy to advise you further on this matter.
  • 8.4  Rights of third parties
    A creditor whose rights are changed by the agreement retains the right to sue a third party, for example a guarantor and codebtor. The third party cannot subsequently recover against the debtor. This will prevent the debtor from being sued for the original debt - through a recourse action - and the plan will not provide a solution to the financial problems.
  • 8.5  Concurrent requests for bankruptcy or suspension of payments
    If a petition for bankruptcy or a petition for application of the suspension of payments and a petition for appointment of a restructuring expert are pending at the same time, the petition for bankruptcy or application of the suspension of payments will be suspended until the court has decided on the petition for appointment of a restructuring expert. This will also give priority to the WHOA.
  • 8.6  What BUREN can do for you
    As a debtor, do you want to offer an agreement to your creditors? Or are you wondering whether the WHOA could be useful for your company? Are you a creditor or contractual counterparty involved in a plan? Or do you want to initiate a plan as a creditor?
     
    Please feel free to contact us. The advisors of BUREN's restructuring and insolvency practice group have extensive expertise to advise you further on the WHOA. For example, our advisers can act as restructuring experts or observers, but they can also advise on drawing up valuations, offering a plan and determining reorganisation values. Furthermore, BUREN has an excellent network of financial advisors with whom we frequently collaborate. 

Team

Ashley Snel

Associate | Lawyer
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Hannah de Waard

Associate | Lawyer
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Laurens Prickartz

Senior Associate | Lawyer
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Martijn Vermeeren

Managing Partner | Lawyer
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Ruud Brunninkhuis

Senior Associate | Lawyer
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Stefan van Wijk

Partner | Lawyer
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