28 August 2023

De Brauw takes court appointment in combined US-NL restructuring, a Chapter 11-cum-WHOA for Diebold Nixdorf

De Brauw partner Ferdinand Hengst was appointed by the Amsterdam court as the first observer to monitor the interests of the joint creditors in a combined US Chapter 11, Dutch scheme (WHOA) and US Chapter 15 proceedings. The successful global preventive restructuring process were initiated by Diebold Nixdorf (the cash-strapped cash machine manufacturer) in the US and in the Netherlands, reducing its debt burden by USD 2.1bn. Although supported by a large group of creditors, the cross-border restructuring was complex, involving two parallel restructuring proceedings in the US and the Netherlands, subsidiaries in multiple jurisdictions and creditors under 13 different tranches of notes and term loans. The role of the observer in this case was to supervise the drafting and negotiation of the restructuring plan for the benefit of the joint creditors. Ferdinand provided an extensive opinion on the plan and its implications, an opinion that was followed by the court. The WHOA plan is recognized as a foreign main proceeding under Chapter 15 in the US so that the WHOA plan can also be enforced against creditors in the US. This is the first time that the WHOA is recognized in the US, making the WHOA even a more compelling option for cross-border restructurings.