CERP (The Dutch Act on Court Confirmation of Extrajudicial Restructuring Plans) or WHOA
The COVID-19 pandemic has had a great impact on business in the Netherlands. Many companies have been forced to cease operations due to the country-wide lockdowns. Despite the unprecedented financial aid programs launched by the Dutch government, many companies are expected to face liquidity and insolvency issues in 2021 and beyond.
On the 1st of January 2021, the existing Bankruptcy Code (Faillissementswet) was expanded as the Act on Court Confirmation of Extrajudicial Restructuring Plans ('CERP') came into force. The new legislation, also known in Dutch as the WHOA (Wet Homologatie Onderhandse Akkoord), offers entrepreneurs a debtor-in-possession ('DIP') scheme to restructure their debts. The Dutch framework is akin to the United Kingdom's Scheme of Arrangements and Chapter 11 of the U.S. Bankruptcy Code.
The Dutch scheme provides for private and public procedures and applies to debtors for whom it is foreseeable that they will not be able to continue meeting their (financial) obligations. The private procedure will take place behind closed doors, under the supervision of a Dutch court, and is open to foreign companies with a sufficient nexus to the Netherlands. The public procedure will involve full disclosure and is open to companies with their center of main interests ('COMI') in The Netherlands.
The CERP is codified in the existing Dutch Bankruptcy Code and offers debtors a viable alternative to bankruptcy by offering creditors and shareholders (including preferential creditors like the Tax and Customs Authorities) a restructuring plan. The CERP offers the possibility of a cram-down and a cross-class cram down to deter hold-out behavior from creditors. Proceedings can also be initiated by creditors, shareholders, and the works council (Ondernemingsraad).
The CERP restructuring plan can be drafted by the debtor or by a restructuring expert (Herstructuringsdeskundige). It can include:
- Adjusting the rights of creditors and shareholders
- (Partial) debt forgiveness
- Debt for equity swaps
- Termination of agreements (except for employment agreements)
In a CERP procedure initiated by the debtor, the debtor is free to choose which creditors or shareholders to include in the plan. The substance of the agreement and its financial underpinnings are subject to requirements that will be scrutinized by the presiding court.
In financial distress, swift and efficient proceedings are paramount. One of the main advantages of the CERP is that courts can confirm a restructuring plan within 5 weeks.
To conclude the process within 5 weeks, diligent preparation, sound legal (and financial) advice and methodical deliberations with creditors will be of key importance. If creditor groups resist elements of the plan, confirmation is likely to be delayed.
What do we offer?
Our attorneys can guide you through the CERP process. They are tried and tested in the field of insolvency and have a vast experience in advising clients on debt restructuring. The legislative process has been followed intensively and years of negotiating composition or restructuring plans contribute to a high level of preparedness.
Additionally, Van Benthem & Keulen has developed close partnerships with corporate finance advisors. Through these partnerships, we can offer a one-stop-shop and guide debtors – or creditors that are offered a restructuring plan – through the entire process with a single point of contact.
Please contact our attorneys with any questions that you may have.