A Dutch court’s approval of Diebold Nixdorf Dutch Holding BV’s WHOA scheme recently allowed it to achieve and implement a parallel restructuring plan in the United States.
On 7 August, the US Bankruptcy Court for the Southern District of Texas ordered the recognition and enforcement of Diebold Nixdorf Dutch Holding BV’s WHOA agreement, marking the first time a foreign judge has recognised a Dutch WHOA scheme since the WHOA legislation was introduced in January 2021. The recognition order follows a court in Amsterdam approving Diebold Nixdorf Dutch Holding BV’s request to sanction its WHOA plan in a judgment dated 2 August, which was published on 19 October. The WHOA’s sanction and recognition in the US show it has become a successful restructuring tool in international restructurings.
The case. The BV is part of Diebold Nixdorf, an American multinational banking technology group. Earlier this year, that group successfully completed Chapter 11 proceedings. Certain parts of Diebold Nixdorf also initiated a Dutch WHOA procedure to implement a parallel restructuring plan in the Netherlands on 1 June. The Chapter 11 plan and the WHOA agreement are inextricably linked in several respects, as approval of the Chapter plan was expressly included as a contractual condition for approval of the agreement, and vice versa. Creditor distributions under the WHOA agreement are also made via cross-references to the Chapter 11 plan.
Diebold Nixdorf’s restructuring concerns only financial debts, namely the group’s debts under its credit facilities and bonds. The restructuring essentially consists of a partial refinancing of the group’s most senior financial indebtedness (the “ABL facility”, the “FILO amendment” and the “superpriority term loan”), with provision of additional capital to enable Diebold Nixdorf’s business to continue, both during the restructuring process, and in the future, plus a reduction of Diebold Nixdorf’s overall financial debt to a sustainable level.
The restructuring will be financed during the process with a DIP Facility, which will be converted into a normal credit facility (the “exit facility”) if the restructuring is successful.
The creditors. Because it is a large multinational, Diebold Nixdorf engaged a specialised “vote solicitation agent” to take care of communication with creditors. During the WHOA process, all creditors received a voting package in a timely manner, with information about the restructuring, the creditors’ agreements (both under the WHOA and under Chapter 11) and the voting procedure.
The creditors in the WHOA process were divided into four classes for voting. The voting creditors of the first three classes almost all agreed to both the WHOA agreement and the Chapter 11 plan. The fourth class voted in favour of the WHOA agreement by a majority, but not with the necessary two-thirds majority under Dutch law.
Confirmation. When Diebold Nixdorf Dutch Holding BV asked the Amsterdam District court to confirm the WHOA agreement, it argued that it and its financiers wanted the restructuring to provide for a going concern, future-proof continuation of Diebold Nixdorf. It said the agreement provided a solution to its dire financial situation and preserved the company, both for creditors and for its customers, suppliers and approximately 21,000 employees.
Moreover, it argued that if the WHOA agreement was not approved, Diebold Nixdorf Dutch Holding BV and other parts of the group would enter bankruptcy.
Diebold Nixdorf was able to meet its current obligations during the WHOA process by using the DIP facility mentioned above. If the WHOA scheme was not approved, BV told the court, the DIP facility would not be converted into the exit facility, meaning that the entire debt burden would become due in one go.
Finally, the company argued that the WHOA agreement enjoyed great support among creditors, as well as from the observer appointed in the WHOA process. The latter was only appointed after the plan was submitted to creditors for a vote, but was nevertheless able to form a good picture of the conclusion of the agreement and said he believed that Diebold Dutch Holding had followed a thorough process.
After it had established its international jurisdiction to decide on the confirmation request in a separate judgment, the Amsterdam court assessed whether general grounds for rejection of the agreement existed on the basis of Article 384(2) of the Dutch Bankruptcy Act. The court followed the check-the-box criteria in Article 384(2), all of which it answered in the affirmative:
- Is there a threat of insolvency?
- Have creditors and shareholders been properly notified during the WHOA process?
- Does the voting procedure meet the requirements?
- Is the class classification and the amount for which creditors/shareholders are allowed to vote correct?
- Does the agreement contain all required information?
- Is compliance with the agreement sufficiently guaranteed?
Next step. Because there were no other grounds for rejection or other reasons opposing the confirmation, the court granted the company’s request. With the recognition of the Dutch WHOA agreement by the Texas court in August, the WHOA scheme can now be implemented in the United States.
District Court Amsterdam, 8 June 2023, ECLI:NL:RBAMS:2023:6159
District Court Amsterdam, 2 August 2023, ECLI:NL:RBAMS:2023:6160
This is a slightly adapted version of a regular column Bob Wessels is writing for Global Restructuring Review (GRR) on the topic of cross-border restructuring and insolvency in a European context. GRR is a subscription-only publication and the column appeared in GRR on 3 November 2023. See www.globalrestructuringreview.com