Rechtbank Amsterdam, 11-03-2021, ECLI:NL:RBAMS:2021:990, NCC 21/002 (C/13/697755)
Rechtbank Amsterdam, 11-03-2021, ECLI:NL:RBAMS:2021:990, NCC 21/002 (C/13/697755)
Gegevens
- Instantie
- Rechtbank Amsterdam
- Datum uitspraak
- 11 maart 2021
- Datum publicatie
- 11 maart 2021
- ECLI
- ECLI:NL:RBAMS:2021:990
- Zaaknummer
- NCC 21/002 (C/13/697755)
Inhoudsindicatie
Applicant, Glas Trust Corporation Ltd (based in the United Kingdom), seeks an order under article 3:251(1) Dutch Civil Code permitting the sale of pledged shares in AS Adventure BV (the Company, in the Netherlands known as parent of the “Bever” subsidiary) in a private transaction.
The Amsterdam District Court (NCC Court in Summary Proceedings) has exclusive jurisdiction under Article 25(1) of the Brussels Regulation (recast) (1215/2012). This provision of the Regulation applies regardless of the fact that one of the parties is domiciled in the UK, which is no longer an EU Member State. The chosen forum is located in an EU Member State (the Netherlands), and for the application of this provision the domicile of the parties is not relevant (“regardless of their domicile”).
The Company is in default under the Senior Facilities Agreement. Under Dutch law this means that Glas (the Pledgee) is entitled to enforce the pledge, and sell the collateral in a public auction. But to sell the shares in a private sale permission from the Court is required (article 3:251(1) CC). In these proceedings Glas requests the Court to grant such permission The Court agrees with the parties involved that the proposed private sale will deliver maximum value for the pledged shares and grants the permission requested.
(Summary in Dutch)
Verzoekster (Glas Trust Corporation Ltd, gevestigd in het Verenigd Koninkrijk) verzoekt de voorzieningenrechter van de NCC om toestemming te geven voor onderhandse verkoop van verpande aandelen in AS Adventure BV (in Nederland bekend als moedermaatschappij van de winkelketen “Bever”).
De voorzieningenrechter oordeelt dat zij bevoegd is op grond van artikel 25 Brussel 1bis-verordening. Deze bepaling is ook van toepassing als een partij in het VK woonachtig is (dat geen EU-lidstaat meer is). De forumkeuze is gedaan voor een rechter van een EU-lidstaat (Nederland), en voor de toepassing van deze bepaling is de woonplaats van partijen niet van belang (“ongeacht hun woonplaats”).
AS Adventure BV is in verzuim met haar financiële verplichtingen op basis van de Senior Facilities Agreement. Dit betekent naar Nederlands recht dat Glas als pandhouder gerechtigd is het pandrecht te executeren door de aandelen in het openbaar te verkopen. Voor onderhandse verkoop van de verpande aandelen is verlof van de rechter vereist (artikel 3:251 BW). Met partijen is de voorzieningenrechter van oordeel dat met de voorgenomen onderhandse verkoop de maximale opbrengst van de verpande aandelen wordt bereikt en verleent het vereiste verlof.
Uitspraak
judgment
Netherlands Commercial Court
NCC District Court – Court in Summary Proceedings
Case number: NCC 21/002 (C/13/697755)
Judgment
Applicant:
GLAS TRUST CORPORATION LIMITED, London (The United Kingdom),
represented by T.H.D. Struycken and Y.A.Y. Sevink, lawyers
Interested parties:
-
AS Adventure Holding B.V. , Amsterdam (The Netherlands),
-
AS Adventure B.V. , Amsterdam (The Netherlands),
represented by B.W.G. van der Velden and G.A.G. Kerstjens, lawyers
3. Yonderland Bidco B.V. Hoboken (Belgium).
The applicant is referred to below as Glas or the Pledgee.
The interested parties are referred to below as the Pledgor, the Company and the Purchaser respectively.
Counsel are members of the Netherlands Bar Association. The term “lawyer” above has the meaning as defined in Article 3.1.1 Netherlands Commercial Court Rules (NCCR).
1 Procedural history
Glas filed its application on 18 February 2021 and uploaded it to eNCC.
The Court gave directions on 2 March 2021. It identified the interested parties (belanghebbenden; reference was made to Amsterdam District Court 23 August 2012,
ECLI:NL:RBAMS:2012:BY1439) and requested the parties who had not already done so, to inform the Court of their wish to be heard on the application.
The applicant and the interested parties indicated that they did not wish to be heard on the application.
In addition, the Court was informed that the shareholder of the Pledgor, AS Adventure Coöperatief U.A (the Coop), and the Lenders (see below) had no wish to be heard either.
No hearing was scheduled. The Court set a date for judgment.
2 Facts – background
The Pledgor is the sole shareholder of the Company, which in turn is the holding company of a group of Dutch and foreign subsidiaries (the Group). The current holding company at the top of the Group, and the shareholder of the Pledgor, is AS Adventure Coöperatief U.A (the Coop). In 2015, investor PAI Partners SAS (the Sponsor) acquired a majority stake in the Group.
The Group is predominantly active in the sale of retail clothing and equipment with a specific focus on outdoor activities, such as biking, trekking, skiing, climbing and camping. The Group has operations spread across Europe, including Belgium, France, Germany, Luxembourg, the Netherlands and the United Kingdom. As such, the Group operates a network of around 200 stores as well as an online retail platform. In the Netherlands, the Group is also known as ‘Bever’. The Group employs more than 3,200 employees in total, approximately 900 of whom are employed in the Netherlands.
The Company is a borrower and guarantor under an English law governed senior facilities agreement (the SFA), originally dated 14 April 2015, as amended from time to time and most recently on 31 July 2019. The SFA was made between the Pledgor as guarantor, the Company as borrower and guarantor, Glas as successor security agent, and Global Loan Agency Services Limited as successor agent (the Agent).
The payment obligations under the SFA are secured by a share pledge dated 14 April 2015, made by the Pledgor, (the predecessor of) Glas as pledgee, and the Company as the company in which the shares are pledged (the Share Pledge).
Article 12 of the Share Pledge provides:
“ GOVERNING LAW AND JURISDICTION
(a) This Deed is governed by the laws of the Netherlands (including for the avoidance of doubt the obligation of the Pledgor to create the rights of pledge set out in Clause 2.1 (Agreement to pledge Share Collateral) notwithstanding that such obligation may be governed by any other law pursuant to any other Finance Document).
[...]
(c) The courts of Amsterdam, the Netherlands have exclusive jurisdiction to settle any dispute arising from or in connection with this Deed (including a dispute regarding the existence, validity or termination of this Deed) (a "Dispute"). This paragraph (c) is for the benefit of the Pledgee only. As a result, the Pledgee shall not be prevented from taking proceedings relating to a Dispute in any other courts with jurisdiction. To the extent allowed by law, the Pledgee may take concurrent proceedings in any number of jurisdictions.”
Due to the financial difficulties the Group has experienced over a number of years, it has been struggling to meet the financial covenants under the SFA. This was predominately driven by disappointing results of subsidiaries in the United Kingdom and Germany. In the first quarter of 2020, the financial position of the Group was severely exacerbated by the unexpected and adverse impact of the events related to the COVID-19 pandemic.
On 17 February 2021, the Agent served an acceleration notice on the Pledgor (in its capacity as parent of the Company). It declared all amounts outstanding under the SFA (over EUR 283 million) to be immediately due and payable, and requested full repayment of these amounts. Simultaneously, the Agent made a demand on the Pledgor as guarantor. The Company and the Pledgor informed Glas and the Agent that they were not able to repay these debts.
On 18 February 2021, the Pledgee and the Purchaser reached an agreement. The proposed Sale and Purchase Agreement (Proposed Sale) consists of five elements:
-
the Pledgor will be released from all of its guarantee liabilities under the SFA,
-
the current lenders under the SFA (the Lenders) will reduce the overall debt of the restructured group by effectively writing off 30% of their outstanding claims,
-
the Lenders will receive a combination of a cash consideration and a non-cash consideration, consisting of EUR 1 and 50% of the shares in the newly-incorporated holding company of the Purchaser (TopCo),
-
the intragroup debt owed by the Company is transferred and converted into equity of an intercompany receivable owing by the Company to the Pledgor,
-
the current indirect majority shareholder of the Group (the Sponsor) will provide the restructured group with additional liquidity by way of an equity contribution in TopCo in the amount of EUR 25 million; in exchange it will retain an equity interest of 50% of the shares in Topco).
3 Application
Glas, in its capacity as pledgee under the Share Pledge, requests the Court to order,
by means of an immediately enforceable decision, that the shares in the Company (the
Shares), by way of enforcement of the Share Pledge, be sold and transferred by the Pledgee
to the Purchaser under the conditions described in the Proposed Sale, providing that the permission will be valid for a period of six months and with an appropriate costs order under the law.