# C_2006033EN.01000201.xml

| 9.2.2006 | EN | Official Journal of the European Union | C 33/2 |
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9.2.2006

EN

Official Journal of the European Union

C 33/2

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Extract of reorganisation measure decided on pursuant to Article 3(1) and (2) of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding up of credit institutions.

(2006/C 33/02)

ALMELO COURT OF LAW

Case No: 71661 HA RK 05.45

Date of ruling: 16 June 2005

Ruling of Almelo Court, civil division, at the request of

the limited company

De Nederlandsche Bank N.V.,

De Nederlandsche Bank N.V.,

registered in Amsterdam,

petitioner,

hereafter known as DNB,

Procurator litis: E.M.M. van de Loo

Lawyer: D.A. van der Stelt, Amsterdam

versus

the private limited company

Geregelde Zaken Holding B.V.,

Geregelde Zaken Holding B.V.,

registered in Hengelo (Overijssel),

with offices at 7500 AC Enschede, Neptunusstraat 15a,

hereafter known as GZH,

respondent,

Procurator litis: E.M.M. van de Loo

Lawyer: A.C. van Campen, Arnhem

Proceedings

By letter dated 13 June 2005, DNB petitioned the court to rule, with immediate effect, that GZH is in a situation requiring a special remedy in the interests of the joint creditors and to appoint J.A.D.M. Daniëls, procurator litis and lawyer of Almelo, as administrator and a member of the court as delegated judge, along with an order regarding the duration of the remedy as the court deems appropriate. DNB also requests that, if the petition is upheld, the time of the order be specified to the minute and a summary of the order be published by the administrator or the court's bailiff in the Dutch Government Gazette, the Official Journal of the European Union and two Dutch newspapers to be specified by the court. Both parties submitted evidence prior to processing of the petition. The hearing took place on 15 June 2005. GZH was represented by Mrs B. Muller-de Graaf, assisted by Mr Van Campen. DNB was represented by J.W.E. Nagtegaal, an employee of DNB, assisted by Mr Van der Stelt.

Official Journal of the European Union

Adjudication of the dispute and grounds for the ruling

| 1. | The petition is based on Section 71(2) of the Wet Toezicht Kredietwezen [Act on the supervision of the banking industry] (WTK). The provisions of Section 71(2) empower the court, at the request of DNB, to declare that, if the solvency or liquidity of a credit institution subject to the prohibition contained in Section 6 of that Act is such that DNB is of the opinion that the credit institution cannot, or cannot fully, meet its obligations in respect of the monies obtained by it, the credit institution is in a situation requiring a special remedy in the interests of the joint creditors. DNB states that, where GZH is concerned, a situation as referred to in Section 71(2) of the WTK exists and a special remedy is required. |
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1.

The petition is based on Section 71(2) of the Wet Toezicht Kredietwezen [Act on the supervision of the banking industry] (WTK). The provisions of Section 71(2) empower the court, at the request of DNB, to declare that, if the solvency or liquidity of a credit institution subject to the prohibition contained in Section 6 of that Act is such that DNB is of the opinion that the credit institution cannot, or cannot fully, meet its obligations in respect of the monies obtained by it, the credit institution is in a situation requiring a special remedy in the interests of the joint creditors. DNB states that, where GZH is concerned, a situation as referred to in Section 71(2) of the WTK exists and a special remedy is required.

Wet Toezicht Kredietwezen

| 2. | DNB claims that GZH is a company or institution the business of which is to obtain accounts payable, whether or not on the due date, and to extend credit and/or make investments for its own account. The company is therefore a credit institution within the meaning of Section 1(1) of the WTK. Such an institution is prohibited from carrying on the business of credit institution unless it has received a licence for that purpose from DNB, been granted exemption from that prohibition by the Minister for Finance or been given a dispensation from that prohibition by DNB. DNB claims that no such licence or dispensation has been granted to GZH. GZH did not contest in court that it is a credit institution within the meaning of the Act. It declared that it based itself on information obtained from the Autoriteit Financiële Markten [Financial Markets Authority] (AFM). As the AFM did not refer it to DNB for a licence or dispensation, it was therefore acting in good faith. However, that does not detract from the fact that GZH has acted and is acting in contravention of Section 1(1) of the WTK. |
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2.

DNB claims that GZH is a company or institution the business of which is to obtain accounts payable, whether or not on the due date, and to extend credit and/or make investments for its own account. The company is therefore a credit institution within the meaning of Section 1(1) of the WTK. Such an institution is prohibited from carrying on the business of credit institution unless it has received a licence for that purpose from DNB, been granted exemption from that prohibition by the Minister for Finance or been given a dispensation from that prohibition by DNB. DNB claims that no such licence or dispensation has been granted to GZH. GZH did not contest in court that it is a credit institution within the meaning of the Act. It declared that it based itself on information obtained from the Autoriteit Financiële Markten [Financial Markets Authority] (AFM). As the AFM did not refer it to DNB for a licence or dispensation, it was therefore acting in good faith. However, that does not detract from the fact that GZH has acted and is acting in contravention of Section 1(1) of the WTK.

Autoriteit Financiële Markten

| 3. | Research by DNB's enforcement division revealed that GZH did not satisfy the requirements as to liquidity and solvency. The research was based on figures supplied by GZH. The figures were provisional and unaudited and did not take account of any tax aspects. It was found that, by means of interest guarantee certificates, GZH had concluded agreements whereby lenders invested various amounts of money at a fixed yield of between 7 % and 9 % per annum. In total, GZH had received monies amounting to at least EUR 2 033 574,70. Part of that money had been put out in the form of loans and used to make the monthly interest repayments on the guarantee certificates. There were also investments in property and a loan of EUR 980 533,03 was granted to Muller & De Graaf Financieel Advies B.V. GZH is the sole shareholder in Muller & De Graaf Financieel Advies B.V. DNB claimed that GZH's liquidity was insufficient to cover the repayment obligation arising from the interest guarantee certificates. That obligation amounts to EUR 2 158 574,70. GZH has EUR 424 159,10 immediately available. There is therefore a short-term shortfall of EUR 1 734 415,60. Key to the ability to cover the repayment obligation is the value placed on the current account claims on Muller & De Graaf Financieel Advies B.V. GZH stated in court that the money it lent to Muller & De Graaf Financieel Advies B.V cannot be repaid to GZH in the short term.
  The medium-term shortfall is EUR 1 605 848,60, the long-term shortfall EUR 320 368,10.
  As far as solvency is concerned, the research showed that equity, which consists solely of paid-up share capital less losses incurred, is a negative figure, EUR 67 399,54. By DNB's criteria, that negative equity cannot produce adequate solvency. The equity will be below any standard in DNB's solvency guidelines as applicable to credit institutions. DNB believes that application of the emergency arrangements is a way to safeguard the interests of creditors and arrive at the most prudent possible settlement of their claims. |
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3.

Research by DNB's enforcement division revealed that GZH did not satisfy the requirements as to liquidity and solvency. The research was based on figures supplied by GZH. The figures were provisional and unaudited and did not take account of any tax aspects. It was found that, by means of interest guarantee certificates, GZH had concluded agreements whereby lenders invested various amounts of money at a fixed yield of between 7 % and 9 % per annum. In total, GZH had received monies amounting to at least EUR 2 033 574,70. Part of that money had been put out in the form of loans and used to make the monthly interest repayments on the guarantee certificates. There were also investments in property and a loan of EUR 980 533,03 was granted to Muller & De Graaf Financieel Advies B.V. GZH is the sole shareholder in Muller & De Graaf Financieel Advies B.V. DNB claimed that GZH's liquidity was insufficient to cover the repayment obligation arising from the interest guarantee certificates. That obligation amounts to EUR 2 158 574,70. GZH has EUR 424 159,10 immediately available. There is therefore a short-term shortfall of EUR 1 734 415,60. Key to the ability to cover the repayment obligation is the value placed on the current account claims on Muller & De Graaf Financieel Advies B.V. GZH stated in court that the money it lent to Muller & De Graaf Financieel Advies B.V cannot be repaid to GZH in the short term.

The medium-term shortfall is EUR 1 605 848,60, the long-term shortfall EUR 320 368,10.

As far as solvency is concerned, the research showed that equity, which consists solely of paid-up share capital less losses incurred, is a negative figure, EUR 67 399,54. By DNB's criteria, that negative equity cannot produce adequate solvency. The equity will be below any standard in DNB's solvency guidelines as applicable to credit institutions. DNB believes that application of the emergency arrangements is a way to safeguard the interests of creditors and arrive at the most prudent possible settlement of their claims.

| 4. | In court GZH unconvincingly argued that it did not satisfy the solvency and liquidity requirements set. Although it did demonstrate that DNB, in the form of its enforcement division, did not take into account all the financial information and potential revenue that was made available, its explanation did reveal that the amounts involved were not substantial enough to lower the value assigned to DNB's calculations. The court then ruled that it had been adequately demonstrated that GZH's solvency and liquidity were such as to permit the conclusion that it was in a situation requiring a special remedy in the interests of the joint creditors. |
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4.

In court GZH unconvincingly argued that it did not satisfy the solvency and liquidity requirements set. Although it did demonstrate that DNB, in the form of its enforcement division, did not take into account all the financial information and potential revenue that was made available, its explanation did reveal that the amounts involved were not substantial enough to lower the value assigned to DNB's calculations. The court then ruled that it had been adequately demonstrated that GZH's solvency and liquidity were such as to permit the conclusion that it was in a situation requiring a special remedy in the interests of the joint creditors.

| 5. | In court GZH also claimed that application of the emergency arrangements with the concomitant public announcements would have an adverse effect on GZH and Muller & De Graaf Financieel Advies B.V and that the effect would be to damage precisely those interests that DNB was trying to protect. The court concluded that the publicity generated in this case could not stand in the way of application of the emergency arrangements. Whether deliberately or not, GZH had breached the provisions of the WTK and created a situation of inadequate solvency and liquidity. That necessitates intervention. The fact that this will or could lead to publicity does not make intervention unnecessary or unwanted. GZH also noted that DNB has the opportunity to appoint a ‘stille curator’ [a silent administrator]. That does not require the court's approval nor does it have to be publicised. However, DNB did not opt for that solution and GZH did not request beforehand the appointment of a silent administrator. The court will therefore ignore this defence. |
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5.

In court GZH also claimed that application of the emergency arrangements with the concomitant public announcements would have an adverse effect on GZH and Muller & De Graaf Financieel Advies B.V and that the effect would be to damage precisely those interests that DNB was trying to protect. The court concluded that the publicity generated in this case could not stand in the way of application of the emergency arrangements. Whether deliberately or not, GZH had breached the provisions of the WTK and created a situation of inadequate solvency and liquidity. That necessitates intervention. The fact that this will or could lead to publicity does not make intervention unnecessary or unwanted. GZH also noted that DNB has the opportunity to appoint a ‘stille curator’ [a silent administrator]. That does not require the court's approval nor does it have to be publicised. However, DNB did not opt for that solution and GZH did not request beforehand the appointment of a silent administrator. The court will therefore ignore this defence.

stille curator

| 6. | In light of the above, the court rules that GZH is in a situation requiring a special remedy in the interests of the joint creditors. It will therefore appoint an administrator. DNB has, under Section 71(7) of the WTK, requested the appointment of J.A.D.M. Daniëls (of Daniëls, Dijkman & Huisman, lawyers, of Almelo), business address: Ootmarsumsestraat 72, 7602 JR Almelo, Nederland (postal address: PO Box 31, 7600 AA Almelo, Nederland) as administrator. The court concurred. |
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6.

In light of the above, the court rules that GZH is in a situation requiring a special remedy in the interests of the joint creditors. It will therefore appoint an administrator. DNB has, under Section 71(7) of the WTK, requested the appointment of J.A.D.M. Daniëls (of Daniëls, Dijkman & Huisman, lawyers, of Almelo), business address: Ootmarsumsestraat 72, 7602 JR Almelo, Nederland (postal address: PO Box 31, 7600 AA Almelo, Nederland) as administrator. The court concurred.

| 7. | The court will set the duration of the remedy at eighteen months, stipulating that it will run until 16 December 2006. The remedy can, if required, be prolonged pursuant to Section 71(15) of the WTK. |
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7.

The court will set the duration of the remedy at eighteen months, stipulating that it will run until 16 December 2006. The remedy can, if required, be prolonged pursuant to Section 71(15) of the WTK.

Ruling

The court

| I. | declares that Geregelde Zaken Holding B.V. is in a situation requiring a special remedy in the interests of the joint creditors; |
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I.

declares that Geregelde Zaken Holding B.V. is in a situation requiring a special remedy in the interests of the joint creditors;

| II. | appoints as delegated judge member of the court A.E. Zweers and as administrator J.A.D.M. Daniëls, procurator litis and lawyer at Almelo; |
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II.

appoints as delegated judge member of the court A.E. Zweers and as administrator J.A.D.M. Daniëls, procurator litis and lawyer at Almelo;

| III. | stipulates that the remedy shall be in force until 16 December 2006; |
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III.

stipulates that the remedy shall be in force until 16 December 2006;

| IV. | stipulates that the administrator shall without delay publish the announcement prescribed by Section 71(8) of the WTK in the following publications: the Dutch Government Gazette, the Official Journal of the European Union, the Twentsche Courant Tubantia and NRC-Handelsblad; |
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IV.

stipulates that the administrator shall without delay publish the announcement prescribed by Section 71(8) of the WTK in the following publications: the Dutch Government Gazette, the Official Journal of the European Union, the Twentsche Courant Tubantia and NRC-Handelsblad;

Official Journal of the European Union

| V. | declares that this ruling be executable with immediate effect, retroactive to the beginning of the day of pronouncement. |
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V.

declares that this ruling be executable with immediate effect, retroactive to the beginning of the day of pronouncement.

Done at Almelo and pronounced in open court on 16 June 2005 at 14.00 by K.J. Haarhuis in the presence of the Registrar. Signed for the court and by the Registrar.

Issued as copy/photocopy on 16 June 2006.

Registrar of Almelo Court

Civil Division

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