Roadmap applying for WHOA

On 1 January 2021, the Homologation private agreement in bankruptcy Act (Wet Homologatie Onderhands Akkoord, WHOA) came into effect. This new law (in Dutch) helps companies reach an agreement on a debt settlement without the consent of all creditors. The WHOA roadmap leads you step by step on the path from preparation to agreement.

What do you have to do to get a judge's agreement on the debt settlement plan? You can initiate the WHOA process yourself. This roadmap shows you how this works, what you can do yourself, and what you need a lawyer for. In addition, you can read approximately how long each step takes.

The WHOA is based on the Bankruptcy act and helps companies that are in danger of going bankrupt due to high debts.

With the WHOA, companies can make a fresh start (reorganisation agreement) or end their business in a controlled manner (liquidation agreement). This roadmap describes an overall picture and assumes a positive end result. Meaning: that the judge will approve the debt settlement plan (homologation).

If you want to use the WHOA, take into account certain costs. For example, you need a lawyer and you also pay court fees.

WHOA roadmap

Preparation

  • If you anticipate that you will no longer be able to pay your debts, you can use the WHOA.
  • When in doubt as to whether you can use the WHOA, it is wise to seek advice from, for example, your accountant, lawyer, or the KVK Advice Team.
  • If you need help with the process, you can have your lawyer ask the court to appoint a restructuring expert. The restructuring expert can prepare the plan and initiate the process. The court that appoints the restructuring expert will intervene if it finds that the restructuring expert is not performing their duties properly and, in the most extreme case, can replace them.
  • You may do the preparation, presentation, and arrange voting of the agreement yourself.
  • You or your restructuring expert need a lawyer to submit a request for homologation of the debt settlement plan at the court. It is advisable to have a lawyer assist you from the start.
  • A lawyer is also needed to request a cooling-off period. This is a period in which creditors are not allowed to take any action. The cooling-off period is a maximum of 4 months with a possible extension of another 4 months.
  • You may continue to do business during the WHOA process, even if you receive help from a restructuring expert.

Step 1

Record agreements in a draft agreement. Duration: from 2 days to a maximum of 8 months.

  • File a statement with the registry of the court in which you indicate that you are starting to prepare an agreement. This is free of charge.
  • Consult with your creditors and record the agreements you make in a draft agreement.
  • Divide your creditors and shareholders into different classes based on their rights and the agreements you want to make with them.
  • The debt settlement plan must contain information about the value it has for creditors compared to the value that remains for them in the event of your bankruptcy. The content and layout of the agreement (plan) must comply with the regulations mentioned in Article 374 classes (klassen) and Article 375 content of the plan (inhoud) of the Bankruptcy Act.

Step 2

Submit the draft agreement to all creditors. Duration: 1 day.

Make sure that your creditors and shareholders can study the plan at least 8 days before the vote.

There are 2 procedures:

  1. A closed agreement procedure: this takes place behind closed doors. Publicity can lead to reputational damage and loss of revenue, which reduces the chance of an agreement.
  2. A public agreement procedure: an open procedure is published in the Insolvency Register (in Dutch).

When the request is presented to the court (step 5), the choice for a closed or public procedure must be in the request, including the reasons for this choice. If the request is not submitted by the debtor, the debtor is given the opportunity to express their preference. Once the court procedure has started, it is no longer possible to switch between open or closed. Read more (in Dutch) about these procedures and the importance of making the right choice.

Step 3

Organise a vote. Duration: 8 days.

  • Before you put the proposed debt settlement plan to the vote, you can ask the court to check the proposal. A lawyer must submit a request for this, you cannot do that yourself.
  • You decide how your creditors and shareholders vote. This can be done physically, in writing, and by electronic means of communication.
  • The creditors vote per class.
  • They can only vote 'Yes, agree' or 'No, disagree'.

Step 4

Share vote report. Duration: 7 days.

  • Within 7 days after the vote, you must prepare a report stating the outcome of the vote. Share this report directly with your creditors and shareholders.
  • The report must state, among other things, who voted, what the voting result is and what amount of money the creditors are owed.

Step 5

Lawyer submits the homologation request to court. Duration: 1 day (as soon as possible).

  • A lawyer submits the homologation request to the court as soon as possible. You pay a registry fee for this.
  • You also submit the report to the registry. You can do this yourself, without a lawyer.
  • The court will handle your request within 8 to 14 days after it has been submitted.
  • Homologation by the judge is only possible if the vote shows that two thirds of at least 1 class of voters agree with the proposal. Not the heads are counted, but the total amount of debt in the class.

Step 6

Objection period. Duration: 8 to 14 days.

  • All creditors and shareholders entitled to vote can submit a written request to the court to reject the homologation request up to the day of the hearing.

Step 7

Judge's decision: homologation approval. The judge will decide on your agreement as soon as possible after the hearing:

  • Creditors who have not voted or have voted ‘no’ are nevertheless bound by the agreement.
  • Nobody can appeal against the court's decision.
  • Everyone must adhere to the homologated agreement.
  • With the judge’s homologation decree, you can hold creditors to the verdict.
  • Do you not comply with the agreement? Then you must compensate the damage suffered by your creditors, unless you cannot be blamed for the non-compliance.

Is your company facing debts? Here are some steps you can take.

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