Directors buy liability in a dramatic bankruptcy

Tholen – Coordinator Søren and his team have been growing again for a month now. According to plan, the last cucumbers in the greenhouse in Steenbergen were harvested in mid-July. The greenhouses in Made, which were involved in a sensational bankruptcy, were also sold. The sale of 22 hectares of greenhouses raised 14.5 million euros. 4.3 million euros were raised through the sale of crops and stocks.

The new bankruptcy report provides more information about the financial handling of the bankruptcy, but not about the findings of the forensic accountant who reported on it. Those findings were “unambiguous on many points,” the curator wants to say in the report. The parties agreed to waive the administrator’s liability.

Help from the back neighbor
After the court ruling this spring, the bankruptcy settlement accelerated. “Everything was sorted out and paid for,” the curator had previously announced after the agreements were concluded. This brought an end to a remarkable phase in dealing with a major bankruptcy, which the curator briefly touched upon in his latest report.

With the help of the neighbor behind Steenbergen, the cultivation of cucumbers and peppers in the greenhouses continued once the museum curator regained control of the greenhouses. Fearing vandalism, he managed to take control of all the installations with the help of IT teams the day before the greenhouses were taken over.

“I wanted to prevent the destruction of crops that would be seized at the last minute, for example due to water contamination,” he wrote in the report. “This fear arose from the almost complete lack of communication with the managers up to that point, and fortunately turned out to be unfounded. The managers cooperated fully.”

Income from temporary exploitation
The curator incurred costs by allowing the cultivation to continue. However, the curator expects the net income of the property from exploitation to reach approximately half a million euros. The temporary exploitation of the gardens by the curator has not yet been settled.

The operation in Steenbergen in particular was profitable, because the harvest could be done almost immediately and there were no start-up costs. The operation in Made had a harvest period of only two weeks. Here the pepper harvest only started at the end of April. The return from the short harvest window may not have outweighed the heating costs. As a result, the operation in Made may have been loss-making.

The coordinator takes this loss because a “high compensation” was stipulated for the launch of the existing cultivation. “The compensation received for this is higher than the total net profit budgeted for the exploitation of the existing cultivation in this greenhouse throughout 2024, assuming higher prices.”

Greenhouses for sale
The greenhouses were sold for 85% of the estimated value. In Steenbergen, the greenhouses were sold to a farmer who had already helped the coordinator during the interim process. In Made, the greenhouses were sold to brothers who had previously been expelled from the greenhouses by the greenhouse curator.

The total interest earned by the coordinator is expected to reach €23 million. After deducting the mortgage debt, €17 million flows into the estate. The current estate balance is €15.7 million.

Payment to creditors
It is possible that the trustee will pay 75 percent of the amount owed to creditors from the proceeds, although it remains “highly uncertain” whether this percentage will be achieved. “However, it is now only a matter of assessing the discharge in the settlement agreement.”

In other words, the calculations still need to be done. The claims are known to amount to €26 million, of which more than €1 million are from the tax authorities and €25 million from unsecured creditors. The energy supplier Powerhouse is also among the creditors. This is by far the largest creditor, with a claim for almost €20 million. The company filed for bankruptcy with Capsicum BV in the fall of 2022, and a series of related companies have also declared bankruptcy.

mortgage cancellation
The €23 million in revenue also comes from a “significant reduction” in the debts of companies involved in the complex bankruptcy of their directors and subsidiaries. The exact extent of this is difficult to determine, according to the curator.

This is partly due to a $33 million mortgage from a subsidiary. There will still be a $12.5 million debt. The curator disputes this. It was decided to ignore that debt. Also part of the deal is that the brothers, who owned the greenhouses on the property under a sublease, will have their claims on the property dropped. They incurred the costs of the cultivation, which were temporarily taken over by the curator after legal intervention. The curator announced this spring that he believed the brothers were “badly advised.”

Legal follow-up
The bankruptcy trustee and the parties involved in the bankruptcy process may have reached an agreement, but that does not mean that anything necessary still needs to be done or will be done in a particular case. In the report, the coordinator reported on an action taken by the tax authorities, which holds two bankrupt companies involved liable for the payroll tax owed by recruitment agencies, referring to the Chain of Liability Act. This could amount to EUR 2.5 million.

The complex structure with several companies also plays a role in another point. The liability of the directors has been bought out and 2.5 million euros must be paid to the curator of the exhibition for this. It remains to be determined who exactly will pay for what. The same applies to the allocation and distribution of the proceeds from the acquisition of crops.

About this issue
On November 29, 2022, Capsicum BV and also the BVs Color Capsicum H, Color Capsicum K and Color Capsicum R were declared bankrupt. On December 6, Color Capsicum vof and Growers vof were also declared bankrupt, with the coordinator Mathieu Soren from Zoetermeer and his investigation team together.