Rechtbank Amsterdam, 23-06-2022, ECLI:NL:RBAMS:2022:3563, NCC 22-011
Rechtbank Amsterdam, 23-06-2022, ECLI:NL:RBAMS:2022:3563, NCC 22-011
Gegevens
- Instantie
- Rechtbank Amsterdam
- Datum uitspraak
- 23 juni 2022
- Datum publicatie
- 24 juni 2022
- ECLI
- ECLI:NL:RBAMS:2022:3563
- Zaaknummer
- NCC 22-011
Inhoudsindicatie
Credit Suisse (Singapore Branch), seeks an order under article 3:251(1) Dutch Civil Code (DCC) permitting the sale of pledged shares in Eagle Super Global Holding BV (the Company) in a private transaction. The Company is the holding company of a group of subsidiairies of the Lycra Group. The Court rejects all defences raised by the board of directors of the parent company of the pledge holder: Ruyi Textile and Fashion International Group Ltd, based in Hong Kong. The Court rules that:
- the current board of directors of the pledge holder (Eagle Ultimate Global Holding BV) was appointed in observance of the rules of Dutch company law, and could therefore validly enter into the NCC agreement,
- a sale of pledged shares under article 3:251 DCC does not constitute a violation of article 1 First Protocol to the European Convention on Human Rights,
- there are insufficient reasons to stay these proceedings and await the outcome of proceedings pending in Hong Kong, because the Court assumes that the Estoppel defence raised in those proceedings will fail,
- the proposed sale will deliver maximum value for the Shares.
Therefore, the Court grants the requested permission.
Verzoekster, de vestiging Singapore van Credit Suisse, verzoekt de voorzieningenrechter van de NCC om toestemming te geven voor onderhandse verkoop van verpande aandelen in Eagle Super Global Holding BV (de vennootschap). De vennootschap is de moedermaatschappij van de zogenaamde Lycra Group. De voorzieningenrechter wijst alle verweren van de raad van bestuur van de moedermaatschappij van de pandgever en tevens schuldenaar van de lening (Ruyi Textile and Fashion International Group Ltd, gevestigd in Hong Kong) af. De rechter oordeelt:
- dat het huidige bestuur van de pandgever benoemd is in overeenstemming met het Nederlandse vennootschapsrecht, en daarom gerechtigd was om de NCC-overeenkomst te sluiten,
- dat onderhandse verkoop van de verpande aandelen niet in strijd is met artikel 1 Eerste Protocol van het EVRM,
- dat er onvoldoende redenen zijn om de procedure aan te houden in afwachting van een procedure die in Hong Kong aanhangig is, omdat de rechter er vanuit gaat dat het ‘Estoppel defence’ in die procedure zal worden afgewezen,
- dat de voorgestelde onderhandse verkoop zal leiden tot de hoogste opbrengst voor de aandelen.
De voorzieningenrechter wijst het verzoek daarom toe.
Uitspraak
judgment
Netherlands Commercial Court
NCC District Court – Court in Summary Proceedings
Case number: NCC 22/011 (C/13/718393)
Judgment
Applicant:
CREDIT SUISSE AG, SINGAPORE BRANCH LIMITED,
Singapore,
represented by D.A.M.H.W. Strik and M.M. Roelofs, lawyers
Interested parties:
-
EAGLE ULTIMATE GLOBAL HOLDING B.V. , Amsterdam (The Netherlands),
-
EAGLE SUPER GLOBAL HOLDING B.V. , Amsterdam (The Netherlands),
represented by S.W. van den Berg and I. Spinath, lawyers,
3. the receivers of RUYI TEXTILE AND FASHION INTERNATIONAL GROUP LIMITED, Hong Kong, Mr [Receiver] and Ms [Receiver],
represented by S.W. van den Berg and I. Spinath, lawyers,
4. the board of directors of RUYI TEXTILE AND FASHION INTERNATIONAL GROUP LIMITED, Hong Kong,
represented by M.S.H. Verhoeven, T. Ensink and T.M. Munnik, lawyers,
5. THE PURCHASERs listed in the DRAFT sHARE PURCHASE AGREEMENT,
represented by D.A.M.H.W. Strik and M.M. Roelofs, lawyers.
The applicant is referred to below as Credit Suisse and Pledgee.
The interested party under 1. is also referred to below as the Pledgor, the interested party under 2. as the Company, the interested party under 3. as the Receivers, the interested party under 4. as the Board, the Ruyi company as Ruyi Textile or the Borrower and the interested party under 5. as the Purchasers.
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
Credit Suisse submitted as pledgee an application with exhibits by regular mail on 27 May 2022 requesting permission for a private sale of pledged shares, and re-submitted the application on 31 May 2022 in eNCC.
The Court gave directions on 1 June 2022. It identified the Pledgor, the Company and the Purchasers as interested parties (belanghebbenden) and requested the parties who had not already done so, to inform the Court of their wish to be heard on the application. In response to a request made by Credit Suisse, the Court ruled that the valuation report made on behalf of Credit Suisse is a confidential document. The Court prohibited all parties from disclosing any information in that report to third parties on the basis of Article 28(1) Dutch Code of Civil Procedure (DCCP).
The Pledgor and the Company indicated that they wished to be heard on the application. A hearing was scheduled.
On 1 June 2022, Mr Munnik requested the Court to identify Ruyi Textile as an interested party, and allow this company’s board of directors to submit a statement of defence. The Court responded the next day by accepting Ruyi Textile, being the borrower under the Facilities Agreement, as an interested party, and allowed Mr Munnik to submit a statement of defence for the board of directors.
On 5 June 2022, Credit Suisse objected, alleging that only the receivers of the Borrower have exclusive authority to appoint counsel to represent the Borrower in these proceedings. The Court directed on 7 June 2022 that it would deal with this issue at the hearing.
On 8 June 2022, Mr Munnik submitted a statement of defence, with exhibits, on behalf of the Board. Credit Suisse submitted additional exhibits.
A hearing was held on 9 June 2022.
Credit Suisse was represented by its Hong Kong lawyer, Mr Warboys (online) and its Dutch lawyers, Ms Strik and Mr Roelofs, who have argued the case on the basis of pleading notes that have been added to the case file. Ms Strik and Mr Roelofs also represented the Purchasers.
The Pledgor, the Company and the Receivers were represented by their lawyers, Mr Van den Berg and Mr Spinath, who have argued the case on the basis of pleading notes that have been added to the case file. Mr [board member] and Mr [board member] attended the hearing by videoconference as members of the board of directors of the Company, and Mr [receiver] also as one of the Receivers. Mr Fairbairn joined online as well as the Hong Kong solicitor of the Receivers.
The Board was represented by its lawyers Mr Verhoeven, Mr Ensink and Mr Munnik. Mr Verhoeven argued the case on the basis of pleading notes that have been added to the case file. On behalf of the Board, Ms [president], president of Shandong Ruyi International Fashion Industry Investment Holding Company Limited (parent company of Ruyi Textile), using an interpreter, attended the hearing online, as well as Mr S.H.P Anderson, the Board’s Hong Kong lawyer.
During the hearing Mr Holterman explained his valuation report.
Mr Munnik submitted an additional exhibit, a term sheet containing a proposal for the acquisition by a third party of ‘the entire debt due under the Facility Agreement’, which resulted in a short recess of the hearing.
After extended debate, the parties requested that the Court give judgment. The date for judgment was set for today.
2 Facts – background
The Pledgor is the sole shareholder of the Company, which in turn is the holding company of a group of foreign subsidiaries (the Lycra Group). The Borrower is the sole shareholder of the Pledgor.
On 21 September 2018, the Borrower entered into a Hong Kong law governed Facilities Agreement (FA) with Credit Suisse. The FA was amended twice, in January 2019 and August 2019 respectively, when other entities entered into the agreement as lenders. Credit Suisse as the original lender serves as agent for these other lenders, also referred to as the Mezzanine Lenders. Credit Suisse assigned its rights as the original lender to the Mezzanine Lenders. The Pledgor and the Company provided guarantees to Credit Suisse to the effect that they would immediately pay any unpaid amount as if they were the principal obligor.
The payment obligations under the FA are secured by a share pledge dated 30 January 2019 under which the Pledgor pledged its shares in the Company to Credit Suisse as pledgee. The Share Pledge is ruled by Dutch law. Under the Deed of Pledge, the Share Pledge is immediately enforceable following the occurrence of an acceleration event, provided that there is a default (verzuim) within the meaning of Article 3:248(1) Dutch Civil Code (DCC). The Deed of Pledge further provides that such Acceleration Event shall occur following the issuance of an acceleration notice by Credit Suisse as Agent under the FA, where such notice may be issued following the occurrence of an Event of Default which is continuing.
Article 21 of the Deed of Pledge provides:
“21 Governing law and jurisdiction
Governing law
(a) This deed and any non-contractual obligations arising out of or in connection
with it are governed by Dutch law (...)
Jurisdiction
(a) The courts of Amsterdam, the Netherlands, have exclusive jurisdiction to settle
any dispute arising out of or in connection with this deed (including a dispute relating to non-contractual obligations arising out of or in connection with this deed or a dispute regarding the existence, validity or termination of this deed) (a "Dispute"). (...)”
Pursuant to the terms of the FA, several financial facilities were made available to Ruyi Textile as Borrower, in particular a term loan facility of USD 300 million and a term loan facility of USD 100 million, both of which were fully drawn on 28 September 2018.
Ruyi Textile was under the obligation to repay all loans on or before 21 September 2021 (the Maturity Date). Prior to this date, Ruyi Textile was under the obligation to repay USD 50 million by 30 September 2019, USD 100 million by 31 December 2019 and USD 150 million by 31 March 2020.
On 18 November 2019, Credit Suisse as Agent served an acceleration notice on the Pledgor, the Company and the Borrower. It notified these parties that they were in default on repaying inter alia USD 50 million and that the Mezzanine Lenders had instructed the Agent to declare the loans immediately due and payable.
On the Maturity Date (21 September 2021), none of the lenders had received any payment from the Borrower (Ruyi Textile) except for a partial payment of USD 15,330,000 in January 2021.
On 21 February 2022, upon instruction of Credit Suisse, Mr [receiver] and Ms [receiver] were appointed as joint and several receivers over inter alia all assets of Ruyi Textile.
Credit Suisse and the other Mezzanine Lenders reached an agreement on a proposed Share Purchase Agreement (SPA) providing for a (private) sale of the shared pledges to the Mezzanine Lenders. The SPA consists of the following elements:
-
the Mezzanine Lenders purchase the pledged shares for a price of USD 450 million,
-
the obligation of each Mezzanine Lender to pay its share of the purchase price to Credit Suisse as pledgee will be set off against its obligation as pledgee to distribute that purchase price,
-
the Pledgor will be released from its payment obligations under the FA for an amount equal to the purchase price.
On the filing date of the application, the aggregate amount owed by Ruyi Textile to the lenders exceeded USD 600 million.
3 Application
Credit Suisse requests the Court to decide, by means of an immediately enforceable decision, that the pledged shares in the Company may be sold in a private sale - instead of in a public sale - and transferred by Credit Suisse as Pledgee to the Mezzanine Lenders as Purchasers under the conditions described in the draft SPA, for an amount of USD 450 million.