Financing and securities

Financing is the lifeblood of almost every business. As a result of our extensive insolvency practice, Thuis Partners has a great deal of expertise in the area of financing and securities. After all, the soundness of financing and securities is crucial, especially in the event of insolvency (or even just the threat of insolvency).

It used to be (until 2007) that banks were usually the only providers of loan capital, but nowadays there are often a wide range of financing options. Bank loans are often supplemented by other forms, such as private equity, business angels, family and friends, credit unions, crowdfunding, etc. Proper documentation is important for such financing, for the associated securities (such as mortgages and pledges, sureties, joint and several liability, etc.), and for the distinctions between these various forms of financing.

Another development since 2007 has been the massive sale of interest rate swaps and other interest rate derivatives to SMEs by various banks. Many banks have failed to comply with their duty of care, resulting in countless problems with such interest rate swaps, for example negative value, unexpected interest surcharges, over-hedging, etc.

Advice

We assist businesses and institutions in raising and providing finance by drawing up the corresponding documentation and/or conducting negotiations on the content of that documentation. We also assist financiers in enforcing securities that have been furnished.

We advise businesses and private individuals that have concluded an interest rate swap. We look, for example, at whether the bank’s proposal for the “recovery framework” is in fact sound. We also provide advice on the likelihood of success in instituting a claim against the bank with respect to interest rate swaps. We assist businesses in negotiations with the bank in order to resolve problems relating to interest rate derivatives that have been concluded. In that context, we also work closely with financial experts to assess the technical errors in an interest rate swap and calculate the loss that has occurred as a result.

Litigation

If necessary, we can support you in legal proceedings regarding the recovery of loans, the enforcement of securities, and the validity of financing and securities. We do this not only for Dutch financiers but often also for foreign parties that have invested in Dutch companies.

We also litigate against various banks. The matters concerned then include problems relating to interest rate derivatives, including proceedings regarding the correct application of the recovery framework, cancellation of interest rate swaps due to error, claims for damages as a result of a breach of the duty of care, unnecessary interest surcharges, negative value, etc.

Fields of law

Financing and securities cover the following:

• support regarding all kinds of financing (banks, private equity, venture capital, crowdfunding, factoring, leasing, subordinated loans, convertible loans);
• establishment and enforcement of securities (mortgages and pledges, sureties, joint and several liability, etc.);
• financing for public-private partnerships (for example infrastructure, education, triple helix projects);
• acquisition financing;
• legal validity of credit cancellation;
• interest rate swaps (including application of the recovery framework, losses due to banks failing to comply with their duty of care).

Please contact our Financing & Securities department with any questions about these matters.