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WHOA
CERTA’s insolvency team has extensive experience in insolvency law, restructuring, and businesses in financial distress. As part of this practice, we also have in‑depth expertise in the WHOA.
The WHOA (the Dutch Act on Court Confirmation of Private Restructuring Plans) is a relatively new act that was introduced in 2021. With this act, several amendments and additions were made to the existing Dutch Bankruptcy Act (Faillissementswet).
Restructuring
The WHOA provides a new and powerful restructuring tool. Under this act, entrepreneurs can offer a restructuring plan (debt settlement) to their creditors. Subsequently, the court can be requested to confirm (homologate) this plan, thereby binding all creditors involved.
A WHOA restructuring plan offers extensive possibilities to limit and amend the rights of creditors. This applies not only to unsecured (concurrent) creditors, but also to preferential creditors, secured creditors and shareholders. Shareholders cannot prevent the offering of such a restructuring plan. Ongoing agreements (for example, an excessively expensive lease agreement) may be amended or even terminated. However, the WHOA does not apply to employment contracts or employee rights.
Creditors
Creditors and shareholders may be divided into different classes, depending on their position and the proposed terms offered to them. Each class votes separately on the restructuring plan. If a two‑thirds majority is achieved in at least one class, calculated on the basis of the total financial value of the claims in that class, the plan may be adopted.
The most important requirements for a WHOA restructuring plan are that creditors may not be worse off than they would be in the event of bankruptcy and that they may not be unfairly prejudiced by a deviation from the statutory ranking of claims. In addition, the plan must contain all information creditors need to properly assess the restructuring proposal.
During the WHOA process, a cooling‑off period may be ordered and attachments already levied may be lifted. Simultaneously filed bankruptcy petitions or applications for suspension of payments are stayed. The WHOA also provides the possibility of a liquidation plan if the business activities are (to be) discontinued. In this way, bankruptcy can be avoided.
In short, this new procedure significantly expands the possibilities for restructuring.
Would you like to know more about the possibilities of the WHOA, or how you as a creditor can oppose a proposed restructuring? Please feel free to contact us.
CERTA is happy to assist you.
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