The WHOA

WHOA is a powerful tool for corporate reorganization in times of crisis.

Since 2021, the Homologation Private Arrangement Act (WHOA) has entered Dutch law. This law comes just in time for companies that, while having a viable business model at their core, are facing short-term liquidity problems and/or excessive debt. Many companies have taken advantage of deferrals for tax payments, interest and repayments, and other obligations, but at some point these obligations must be met.

 

The WHOA in a nutshell

The WHOA allows companies to restructure their debts through a private agreement. This agreement can result in structural debt reductions, deferral of obligations, or changes to creditors' rights. It is a flexible instrument based on contractual freedom that gives companies the space to improve their financial situation through a private agreement with their creditors, without the need for bankruptcy.

To go through the WHOA procedure, the company must file a commencement statement with the court stating that they are in the process of preparing an agreement. There are two procedural options: open or closed proceedings. In most cases, the closed procedure will be preferred, as an open procedure will usually negatively affect the company's operations and continuity. It is important to note, however, that legal assistance and the appointment of a valuation expert are a perk for managing the process.

 

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Key considerations in WHOA

WHOA is a powerful tool to quickly improve the prospects of companies in financial trouble.

When considering a WHOA proceeding, professional advice is essential. Our experienced advisors understand the complexity of this process and strive to work with you to identify obstacles and provide effective solutions. WHOA can be an effective tool to help struggling companies improve their perspective.

Our approach is practical and focused on restoring the continuity of your business, working closely with legal experts. Rely on our advice to make informed decisions. With comprehensive services and in-depth knowledge in areas such as Corporate Finance, Strategy, Restructuring, and Interim & Governance, we are ready to support you. Contact us today for professional and reliable advice.

 

Professional advice

While we cannot cover all the legal and procedural details, there are some crucial elements we highlight.

With WHOA, there are essential aspects and phases to consider.

 

At the request of the company or restructuring expert, the court may declare a cooling-off period for a period of up to 4 months (extendable for another maximum of 4 months). During this time, creditors may not take any action against the company, such as enforcing collateral or filing for bankruptcy, in order to avoid frustrating the intended restructuring and affecting the company's value.

Within this cooling-off period, the debtor or restructuring expert must prepare a restructuring plan, also known as the WHOA agreement. This agreement covers various aspects, an important part of which is a valuation of the company based on reorganization and liquidation value. The basic principle here is that creditors must not be worse off under the WHOA agreement than in the case of bankruptcy.

Creditors and shareholders are divided into classes based on various criteria, such as security interests and the seniority of their claims, and cast their votes on the offered composition. It is crucial that at least one class of creditors agrees to the arrangement for a successful outcome. This must be done by a two-thirds majority of that class, after which the court can declare the agreement binding against the entire class (called intra-class cram down) and, under conditions, even against other classes (called cross-class cram down).

Ultimately, the court will have to approve, "homologate," the accord, unless there are one or more general or specific grounds for rejection. Examples of general grounds for refusal are that compliance with the settlement is not sufficiently guaranteed (e.g. under the settlement it is anticipated that the company will still have a liquidity shortage) and that creditors are not sufficiently informed. Examples of specific grounds for rejection are a deviation from the legal ranking of creditors or creditors receiving less than 20% of their claim. After homologation of the agreement, it becomes binding on the company, voting creditors and shareholders.

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WHOA Opinion

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