ECLI:NL:RBAMS:2025:4217

Uitspraak

judgment

AMSTERDAM DISTRICT COURT

Netherlands Commercial Court

NCC District Court – Court in Summary Proceedings

Case number: NCC C/13/768479

Judgment

13 May 2025

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

1.1.

Kroll filed its application on 30 April 2025 and uploaded it to eNCC.

1.2.

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.

1.3.

By letter, dated 30 April 2025 all interested parties waived their right to be heard on the application. Consequently no hearing was scheduled.

1.4.

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.

1.5

On 9 May, 2025 Kroll submitted additional documentation in support of the sale of the shares to Purchaser.

1.6.

Judgment was subsequently set for today.

2.Background and facts

2.1.

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’.

2.2.

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.

2.3.

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.

2.4.

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.

2.5.

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.

2.6.

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.

2.7.

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.

2.8.

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.

2.9.

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.

2.10.

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.

2.11.

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.

2.12.

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

3.1.

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).

4.Discussion

Jurisdiction and applicable law

4.1.

As Pledgee and Purchaser are seated in England, Parent is seated in Switzerland and Company is seated in the Netherlands this is an international matter. In the
30 April 2025 Agreement (ref. consideration 2.12.) Pledgee, Parent, Purchaser and Company agreed to have all disputes and any proceedings resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC District Court).

4.2.

This means that the Amsterdam District Court has jurisdiction under Article 25(1) of the Brussels Regulation (recast) (1215/2012), and the NCC Court in Summary Proceedings is the appropriate chamber to deal with the application.

4.3.

Company’s statutory seat is in the Netherlands and Dutch law therefore provides the rules on property law in respect of the shares. In addition, the deeds of pledge are governed by Dutch law. Hence Dutch law will be applied.

Enforcement of the pledge

4.4.

Article 3:250 of the Dutch Civil Code (DCC) provides that an enforced sale of pledged assets is to be held in public, i.e. by way of a public auction. Nonetheless, Article 3:251 DCC offers an alternative, as follows:

[…] the provisional relief judge of the District Court may, upon the request of the pledgee or pledgor, order that the pledged asset is sold by foreclosure in a different way than the one meant in the previous Article […].

4.5.

All interested parties waived their right to be heard on the application.

4.6.

Neither Company nor any of the interested parties disputes that Company is in default (
verzuim) under its financial instruments. Therefore, the Pledgee has the right to enforce the pledge(s).

4.7.

When the right to enforcement arises, a pledgee has the right to decide if and when to proceed with the enforcement of the pledge. The Court on its own initiative has to examine whether, at the time the application was made, the requested alternative to a public auction would realise the maximum possible value or in any event a higher value than can be expected to be realised in a public auction. This examination is done in the interests of the pledgor, other secured creditors and other creditors in general. The interests of the party whose shares are being sold do not prevail over the interests of the pledgee and creditors to realise the maximum possible value (reference is made to: Amsterdam District Court,
23 September 2009, ECLI:NL:RBAMS:2009:BJ8848).

4.8.

The proposed sale of the shares will have the following result:

- Purchaser will pay a cash consideration of EUR 1 for all of the shares in Company;

- Purchaser will release the Group from its outstanding third party debt for an aggregate amount of EUR [amount].

4.9.

In support of the financial situation of Company, an Enterprise Valuation (submitted as Exhibit 21) and a Fairness Letter (submitted as Exhibit 24), both dated 29 April 2025, were made by [valuator] of London, England. Also a Moody’s rating, dated 17 December 2024 (submitted as Exhibit 23), shows that the Group’s rating was changed from
positiveto
negative, due to
weakened operating performance, [and] approaching debt maturities.

4.10.

From the documentation submitted, it appears that there is a discrepancy between the Group’s longer term operational and financial viability and the Group’s short term cash requirements, given the upcoming maturity of certain of its debt instruments, including the repayment of a short term super-senior Interim Facilities Agreement, dated 10 January 2025, in the amount of EUR [amount], that matures ultimately on 22 May 2025. The Group’s inability to repay the Interim Facilities Agreement at maturity triggers the Group’s default under its other debt instruments.

4.11.

The combination of the Group’s overall financial structure with a considerable third party debt burden and its short term cash requirements imply (a) that swift action is required in order to avoid a forced winding down operations as a result of its default under its debts instruments and (b) that the options to find alternative funding at short notice are limited. In this regard Kroll has argued that there was just one alternative funding option, but that the conditions for such funding were inadequate.

4.12.

On request of the Court, Kroll submitted further documentation, which also indicates that under the given time restraints there are no other (private) funding options available to the Group, let alone that a public sale of the shares in the Company will yield a better outcome. The Court considers this sufficiently plausible.

4.13.

This leads to the conclusion that the proposed sale of the shares in Company to Purchaser, under the circumstances, is the best possible outcome and will deliver maximum value for the shares in Company.

4.14.

On the basis of the foregoing the Court will grant the permission as requested. However, as the decision of the Court is of a declaratory nature only, the decision cannot and hence will not be declared as enforceable notwithstanding appeal.

Costs

4.15.

Kroll asks the Court to determine and award costs. Based on Article 289 Dutch Code of Civil Procedure, the Court can award costs. However, as these proceedings were necessitated by law (Article 3:251 DCC) and the permission requested is granted, the Court sees insufficient grounds for a cost award.

5.Conclusion

THE COURT IN SUMMARY PROCEEDINGS

5.1.

Grants leave pursuant to Article 3:251(1) DCC to Kroll to transfer the shares in the Company to the Purchaser under the conditions as described in the SPA;

5.2.

Orders that this permission is valid for a duration of two (2) months from today

5.3.

Orders that no costs are awarded.

Done by C.W.D. Bom, Judge, assisted by E.F.M. Houbiers, Clerk of the Court.

Issued in public on 13 May 2025.

APPROVED FOR DISTRIBUTION IN eNCC