Rechtbank Amsterdam, 13-05-2025, ECLI:NL:RBAMS:2025:4217, C/13/768479
Rechtbank Amsterdam, 13-05-2025, ECLI:NL:RBAMS:2025:4217, C/13/768479
Gegevens
- Instantie
- Rechtbank Amsterdam
- Datum uitspraak
- 13 mei 2025
- Datum publicatie
- 19 juni 2025
- ECLI
- ECLI:NL:RBAMS:2025:4217
- Zaaknummer
- C/13/768479
Inhoudsindicatie
Applicant, Kroll Trustee Services Ltd (based in the United Kingdom), seeks an order under article 3:251(1) Dutch Civil Code permitting the sale in a private transaction of pledged shares in Selecta Group B.V. (the Company, based in the Netherlands). The Company is a part of the Selecta Group (the Group) which is active in the field of coffee roasting and coffee vending machines throughout Europe. The shares in the Company were pledged in the context of the Group’s debt to the lenders, which appointed Applicant as a security agent to act as their representative.
The Amsterdam District Court (NCC Court in Summary Proceedings) has jurisdiction under Article 25(1) of the Brussels Regulation (recast) (1215/2012).
No one disputes that the Company is in default under its financial instruments. Under Dutch law this means that the Pledgee is entitled to enforce the pledge, and sell the pledged asset in a public auction. But to sell the shares in a private sale permission from the Court is required (article 3:251(1) DCC). In these proceedings the Pledgee requests the Court to grant such permission. The Court finds that the proposed private sale will deliver maximum value for the pledged shares and grants the permission requested.
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(Summary in Dutch)
Verzoekster (Kroll Trustee Services Ltd, gevestigd in het Verenigd Koninkrijk) verzoekt de voorzieningenrechter van de NCC om toestemming te geven voor onderhandse verkoop van verpande aandelen in Selecta Group B.V. (de Onderneming). De Onderneming is een deel van de Selecta Groep (de Groep) die zich bezig houdt met het branden van koffie en de verkoop van koffieautomaten in heel Europa. De aandelen in de Onderneming zijn verpand in het kader van een schuld van de Groep aan geldleners. Deze geldleners hebben Verzoekster aangewezen als ‘security agent’ om hen in dat kader te vertegenwoordigen.
De voorzieningenrechter oordeelt dat hij bevoegd is op grond van artikel 25 Brussel 1bis-verordening.
De Onderneming is in verzuim met haar verplichtingen onder de ‘financial instruments’. Dit betekent naar Nederlands recht dat de 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). Verzoekster vraagt in deze zaak om dat verlof te verlenen. De voorzieningenrechter is 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 C/13/768479
Judgment
Applicant:
Kroll Trustee Services Limited,
London, England,
hereinafter referred to as: ‘Kroll’ or ‘Pledgee’,
represented by Mr. J.W. Volkers and Mr. W.N.M. Bouman, lawyers (Van Doorne)
Interested parties:
1. Selecta Group AG,
Cham, Switzerland,
hereinafter referred to as: ‘Parent’ or ‘Pledgor’,
2. Selecta Group B.V.,
Hoofddorp, the Netherlands,
hereinafter referred to as: ‘Company’,
3. Seagull Bidco Limited,
Folkstone, Kent, England,
hereinafter referred to as: ‘Purchaser’,
all interested parties hereinafter collectively referred to as: ‘the interested parties’.
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
Kroll filed its application on 30 April 2025 and uploaded it to eNCC.
The Court gave directions on 1 May 2025. It requested supporting documentation, in addition to the Exhibits accompanying the Application, that the sale of the shares in Company to Purchaser is indeed the best possible option.
By letter, dated 30 April 2025 all interested parties waived their right to be heard on the application. Consequently no hearing was scheduled.
By notice, dated 1 May 2025 (as corrected on 6 May, 2025) the Court requested to submit any other documentation in their possession, that might support that the sale of shares to Purchaser (at the given consideration) is indeed the best available option.
On 9 May, 2025 Kroll submitted additional documentation in support of the sale of the shares to Purchaser.
Judgment was subsequently set for today.
2 Background and facts
Parent operates a food technology business and Parent and its subsidiaries are (amongst other things) active in the field of coffee roasting and coffee vending machines throughout Europe, with a focus on the Benelux, the United Kingdom, Spain and Germany. Parent and its subsidiaries will hereafter collectively be referred to as ‘the Group’.
Company currently is a wholly owned subsidiary of Parent. Company is an intermediate holding company and it is the holding company for Parent’s operating companies.
The Group’s external finance requirements are covered by multiple layers of secured financing, including bank facilities, debt instruments and intercreditor arrangements, with various levels of seniority. The Group’s total secured third party debt amounts to approximately EUR [amount], including accrued but unpaid interest.
In the context of the Group’s debt certain security instruments were granted to the lenders, including a first ranking share pledge over the entire issued share capital of Company.
The Group’s lenders, which have changed over time, appointed a security agent to act as their representative to enforce their rights of pledge in cases of an Enforcement Event, as defined in the relevant financing instruments and/or the deeds of pledge. Currently Kroll (previously known as Lucid Trustee Services Limited) is the lenders’ security agent.
The pledge of the shares in the Company was formally accomplished by way of notarial deeds of pledge, dated 16 April 2020, 14 September 2020 and 1 December 2020. Each of the deeds of pledge are governed by Dutch law.
On 22 May 2025 a repayment obligation of an amount currently totalling EUR [amount] under a short-term interim facilities agreement (known as the ‘IFA’) will fall due, whilst the Group is unable to meet its repayment obligations towards the providers of the IFA. This situation is the result of a combination of a structural Covid-19 induced impact on the Group’s business and recent considerable price increases of coffee and changing trends in customer spending.
Under the prevailing covenants, the lenders to the Group consider themselves entitled to exercise their security rights, including the enforced sale of the pledged shares in the Company. To this end the lenders have instructed Kroll, by way of a Notice dated 30 April 2025, amongst other things, to enforce the pledge over the shares in the Company.
In order to avoid a possible filing for bankruptcy due to the Group being unable to meet its financial obligations towards its lenders a restructuring of the Group’s finances is contemplated, part of which would be the sale and transfer of the shares in Company to Purchaser.
To this end Kroll and Purchaser negotiated a Share Purchase Agreement (hereafter: the SPA) for the sale and transfer of the shares in Company. Execution of the SPA is made subject to this Court granting permission to sell the shares in Company to Purchaser.
The consideration for the purchase of the shares in Company would be a cash payment of EUR 1, which reflects the situation that the present value of the shares is negative, and a non-cash consideration consisting of an obligation for the Purchaser to release the Group from a considerable portion of the outstanding debt of the Group.
By separate agreement, dated 30 April 2025 Kroll and all of the interested parties agreed to refer any disputes to the Netherlands Commercial Court as follows:
In addition to the Choice of Forum, all legal proceedings and disputes arising out of or in connection with any Deed of Pledge (including the Enforcement Proceedings) will be resolved by the Amsterdam District Court following proceedings in English before the NCC. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC's Court in Summary Proceedings ("CSP") in proceedings in English. Any appeals against NCC or CSP judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters. The Rules of Procedure for the International Commercial Chambers of the Court and the Amsterdam Court of Appeal of June 2023 (the “NCC Rules of Procedure”) apply.
3 The application
Kroll, in its capacity as Security Agent and as pledgee under the Deeds of Pledge, requests the NCC to order, by means of an immediately enforceable decision, valid for the duration of two (2) months following the date of the decision, to grant leave pursuant to Article 3:251(1) DCC to the Security Agent to transfer the Shares to the Purchaser under the conditions as described in the SPA, with appropriate cost order under the law (kosten rechtens).