1st January 2021 is the day; the WHOA is coming

On 6 October 2020, the Court Confirmation of Extrajudicial Restructuring Plans Act (In the Netherlands: Wet Homologatie Onderhands Akkoord or WHOA) was passed. The WHOA makes it possible for a company in financial difficulties to oblige its creditors and shareholders to cooperate on a private compulsory settlement outside of bankruptcy. The WHOA will enter into force on 1st January 2021. In this blog, insolvency lawyer Sander Schouten will discuss the most important aspects of WHOA.

Extrajudicial creditors’ agreement against final discharge

At present, outside bankruptcy situations, it is in principle not possible to force creditors to agree to payment of a certain percentage of their claim against final discharge. Only in very exceptional cases will the court grant a claim for the cooperation of a creditor to a private composition in a compulsory settlement procedure. The WHOA is going to change this.

WHOA

As of 1st January 2021, it will be possible for companies to restructure through a private compulsory agreement – outside bankruptcy -, to restructure debts and to have these approved or confirmed (homologated) by the court. As a result, creditors and/or shareholders who have not agreed to the settlement are also bound by the composition. The WHOA therefore aims to prevent individual creditors from being able to oppose an extrajudicial creditors’ agreement. The intended goal is to make it easier for companies to (re) structure their business, to restructure debts and to be less likely to fail. De WHOA beoogt dus te voorkomen dat individuele schuldeisers niet langer een buitengerechtelijk crediteurenakkoord kunnen tegenwerken.

WHOA in a nutshell

The WHOA offers both legal persons and natural persons who exercise an independent profession or business various options for offering an agreement, which makes customisation possible. Incidentally, not only can the debtor himself initiate the offering of a settlement under WHOA, but shareholders, creditors, the debtor’s works council or employee representative body can also do so. The judge may be requested to appoint an expert for this purpose.

Different classes of creditors

In restructuring under the WHOA, the creditors and/or shareholders are divided into classes. The class division depends on the rank that accrues to the creditor and/or shareholder in the event of recourse from the debtor’s assets The assets of a Dutch company reflect the value of all that the company possesses
» Meer over assets assets. For example, a creditor on whose behalf a security right has been established has a different rank than a supplier with an unpaid invoice. The security holder will therefore be classified in a different class from the supplier.

A settlement is offered per class, whereby the offered percentage of a claim can and will differ per class. It is also possible that the plan relates to something other than the payment of part of a sum of money, such as subordination of loans. Subsequently, the agreement is voted on by class. A settlement is reached within a class if the consenting creditors represent at least two-thirds of the total amount of claims belonging to that class. In case the class relates to shareholders, an agreement is reached if the consenting shareholders represent at least two thirds of the total amount of issued capital in that class.

Personnel

Personnel can quite often be a creditor. However, it cannot be involved in the WHOA agreement. In other words, a reorganisation of personnel cannot be achieved through the WHOA.

Homologation

At some point, the initiator will ask the court to approve the full composition – the settlement as offered to all classes -, but this requires that at least one class has agreed to the settlement offered to them. The judge will then test the plan against the grounds for refusal and whether it is reasonable. If the court decides to approve it, the plan will apply to all creditors and/or shareholders, including those who have not agreed.

Do you have questions about WHOA, restructuring, debt restructuring or bankruptcy? Then contact AMS Advocaten!