ECLI:NL:RBAMS:2025:7161, Rechtbank Amsterdam, 10-09-2025, C/13/766188
Rechtbank Amsterdam — Uitspraak 
Datum: 2025-09-10 00:00:00.000000
Rechtsgebied: Civiel recht

Samenvatting: No breach of contractual obligations in a settlement agreement.
        The parties are investors involved in the development of a high-tech datacenter in the Netherlands. The parties concluded a settlement agreement, wherein it was agreed that the project would be sold and plaintiff would be entitled to some of the surplus proceeds following the sale of the project. However, to date the sale has not been completed, and no surplus proceeds are expected to remain for the plaintiff. The plaintiff argues that the defendant has failed to uphold three obligations under the settlement agreement: an obligation to aim for a sale within six months, an obligation to strive for maximisation of the proceeds, and an obligation to allow third-party bidders to participate in the bidding process. The Court determines that the plaintiff has not sufficiently demonstrated that the defendant has breached any contractual obligations or committed a tort. The Court rejects all claims.

judgment
    AMSTERDAM DISTRICT COURT
    
    
      Netherlands Commercial Court 
      NCC District Court 
    
    
    
      Case number: NCC C/13/766188
    
    
    
      
        Judgment
      
    
    
    
      
        10 September 2025
      
    
    
    
      
        Claimant: 
      
        DOLIKA B.V., Amstelveen (the Netherlands),
      represented by J.F.H.M. Bartels, lawyer,
    
    
    
      
        Defendants:
    
    
      1. TIKEHAU SPECIAL OPPORTUNITIES II MASTER FUNDLuxemburg (Luxemburg),
    
      2. TIKEHAU MERCATI PRIVATI EUROPEIParis (France),3. TIKEHAU SPD III, Paris (France),4. KRESK DEVELOPPEMENT, Paris (France),
    
      5. S1 HOLDINGParis (France),
    represented by G.J.L. Bergervoet, F.A.M. de Vries, E.J.R. Verwey, M.M.A. Serphos and R. Sarkis, lawyers.
    
    
      The parties are referred to below as Dolika and Tikehau.
    
    
    
      The term ‘lawyer’ has the meaning as defined in Article 3.1.1 NCC Rules of Civil Procedure (NCCR).
    
    
    
  
  
    
      1Procedural history
    
      1.1.
      On 14 March 2025, Dolika submitted a writ of summons and exhibits.
      
    
    
      1.2.
      On 30 April 2025, Tikehau submitted a statement of defence and exhibits.	
      
    
    
      1.3.
      On 6 June 2025, Dolika submitted additional exhibits.
      
    
    
      1.4.
      The Court held a hearing on the merits on 17 June 2025, the lawyers of the parties presented their cases and submitted notes, and the Court discussed the matter with the lawyers and the parties. The Court made a record (proces-verbaal) of this hearing. The lawyers submitted comments on the contents of the record which were added to the file.
      
      
    
  
  
    
      2Facts and background
    
      2.1.
      Dolika has been involved as an investor in a project to build a high-tech datacentre in the Netherlands since 2013 (“the project”). A joint venture — Dutch Datacenter Investments Group B.V. ("DDI") — was set up in 2016 for the development of the datacentre. Alongside Dolika, the joint venture included two other Dutch parties as investors or shareholders. In March and April 2021, Great Grey Investments B.V. purchased all shares in DDI from Dolika as well as the other Dutch parties and subsequently merged with another company to become Great Grey Investments Datacentre B.V. (“GGID”). DDI also merged with another company and was subsequently called FalconConnect 1 B.V. (“FC1”). GGID also incorporated two other operating companies for the project.
      
    
    
      2.2.
      In the context of the sale and transfer of the shares in DDI by Dolika to GGID, GGID and Dolika agreed that GGID would bear any transfer tax and/or turnover tax that might become due.
      
    
    
      2.3.
      Dolika was issued with a surcharge assessment on 2 June 2022 for EUR 1,530,217 in connection with the transfer of the DDI shares to GGID. Dolika appealed the decision of the Dutch Tax Administration to dismiss Dolika’s appeal.
      
    
    
      2.4.
      Defendants 1 through 3 are entities that are part of Tikehau Capital, a French investment company and private equity firm that invests in real estate projects. In July 2021, financier Tikehau was brought in and made EUR 80,000,000 available to FC1 to finance the development of the project. Defendants 4 and 5 are independent noteholders, but the Court will use ‘Tikehau’ for all defendants.
      
    
    
      2.5.
      GGID experienced a variety of problems with progress on the project in 2022 and 2023. Tikehau, through the various defendants, made additional funding available, up to EUR 135,000,000 and obtained a range of securities, including pledges or liens over the shares in GGID and FC1. In the fall of 2023 Tikehau threatened to proceed with a foreclosure of its securities. In October 2023, it was agreed that a process had to be initiated by GGID for the sale of (the shares in) FC1 and the two operating companies. GGID instructed Jones Lang LaSalle ("JLL") on 30 October 2023 to initiate this process. At the time Tikehau also acquired a call option to acquire the shares in FC1. 
      
    
    
      2.6.
      In January 2024, Tikehau issued a notice to exercise the call option. Following negotiations, the parties involved, including Dolika and Tikehau, concluded a settlement agreement (“the settlement agreement”) on 23 February 2024. The sale process initiated by JLL would continue and GGID would transfer all shares in FC1 and the two operating companies to Tikehau. Under the terms of the settlement agreement, Dolika surrendered its tax claim against GGID in exchange for a right to payment of EUR 1,615,000 and a more preferential payout position during the post-completion sale (namely, the sale of the project to a third party after which surplus proceeds would be paid out to a number of parties, including Dolika, under the terms of the settlement agreement).
      
    
    
      2.7.
      On 24 February 2024, a third party, Pure DC was granted exclusivity in the sale process. On 4 July 2024, the parties signed a contract for the sale and transfer of the shares in FC1 and the two other operating companies to Pure DC. However, at the time of the hearing, the actual transfer had still to happen. It is clear now that after the transfer of the shares, there will be no surplus proceeds to pay Dolika’s claim.
      
      
    
  
  
    
      3The claim
    
      3.1.
      Dolika now asks that the Court order Tikehau – jointly and severally – to pay to Dolika EUR 1,615,000 with the addition of contractual interest, extrajudicial collection and attachment expenses and the costs of these proceedings. 
      
    
    
      3.2.
      Dolika substantiates its claims by asserting that Tikehau has failed to uphold several obligations under the settlement agreement, namely:
      
      
        
          an obligation to aim for a post-completion sale within six months,
        
        
          an obligation to strive for maximisation of the proceeds, and
        
        
          an obligation to allow third-party bidders to participate in the bidding process.
        
      
      
    
    
      3.3.
      The question before the Court is if Tikehau has breached any contractual obligations in the settlement agreement, and if Tikehau has committed a tort by disregarding Dolika’s justified interests. 
      
    
    
      3.4.
      The Court determines that Dolika has not sufficiently demonstrated that Tikehau has breached any contractual obligations or committed a tort.
      
      
    
  
  
    
      4Discussion 
    
      4.1.
      There are four main issues the Court must consider.
      
      
        
          The first issue: The obligation to aim for a post-completion sale within six months
        
      
      
    
    
      4.2.
      The first issue is Dolika’s position that Tikehau was obligated under the terms of the settlement agreement to complete the post-completion sale process within six months. The Court rejects this claim. 
      
      
        
          The text of the settlement agreement is clear
        
      
      
    
    
      4.3.
      The Court considers clause 4.1 of the settlement agreement to be clear: Tikehau has an obligation to conduct the post-completion sale ‘with the aim to effect a transfer’ within six months. In other words, six months is not a hard deadline within which Tikehau must conclude the post-completion sale but rather a goal to which they must strive. During negotiations for the settlement agreement, Dolika chose to represent itself through [naam 1] and [naam 2] , while GGID and Tikehau were represented by their own respective legal counsel. That Dolika chose not to have legal counsel represent them during the negotiations does not absolve them of the commitments they made therein. Dolika is a professional real estate investor and has participated in multiple deals over many years. The Court does not believe there was such a disparity between negotiating parties to conclude that the terms of the settlement agreement should not be honoured.
      
    
    
      4.4.
      The Court also accepts that the last sentence of clause 4.1 specifically obligates Tikehau to adhere to the post-completion sale process even after the six-month period lapses. This clause demonstrates that a six-month period for concluding the sale was a goal and not a deadline or a guarantee that the process would be completed within six months. 
      
    
    
      4.5.
      Dolika states that, at the time the settlement agreement was completed, all parties involved expected that there could be a rapid sale and transfer of the shares. This was especially important to Dolika since Tikehau was being paid a huge interest on its loans and only with a smooth sale process would there be any money left for Dolika. Such expectations do not, however, alter the conclusion of the Court. The settlement agreement is clear and does not provide for an obligation to finalise the sale process within six months.
      
      
        
          Tikehau did not attempt to delay the post-completion sale process
        
      
      
    
    
      4.6.
      A wilful and/or permitted attempt to delay the post-completion sale process by Tikehau would constitute a breach of their obligations under clause 4.1. From the facts the Court discerns that the sale to Pure DC occurred within approximately four months after the beginning of the bidding process. As a condition of the sale to Pure DC, certain environmental permits required for the project must be obtained. However, to this day, these permits have not been acquired.
      
    
    
      4.7.
      During the oral hearing Dolika argued for the first time that Tikehau should have requested the environmental permits much earlier. According to Dolika, Tikehau’s failure to do so represents a wilful and/or permitted delay in the post-completion sale process in violation of clause 4.1 of the settlement agreement. In rebuttal Tikehau contends firstly that it is GGID who must request the environmental permits, not themselves. Secondly, that GGID submitted the application for the permits in a timely manner and lastly that the delay is strictly due to a ‘ [onderzoek] ’ against a (now former) shareholder (Likado B.V.). GGID submitted the permit application in April 2022. Tikehau asserted during oral arguments that they tried to rectify the [onderzoek] complication with the province of Noord-Holland through restructuring of the shareholder structure and even sent a ‘notice of concern’ to all parties and shareholders, including Dolika, informing them of the issue. The result is that Likado was no longer involved in the project, However, the government has still not (yet) issued the permit. In the Court’s opinion, the ultimate decision to issue environmental permits is up to the government to decide and outside of Tikehau’s control. 
      
    
    
      4.8.
      Dolika next takes the position that Tikehau knowingly made its six-month estimate for the post-completion sale with no justifiable basis. The Court, however, finds that the facts do not support this assertion. Firstly, at the time the settlement agreement was drafted, Tikehau and Pure DC had already begun the sale process and there were no indications that the post-completion sale process would encounter delays. Secondly, the issues with the [onderzoek] were unknown to Tikehau at the time the settlement agreement was drafted. The source of the [onderzoek] after all rested with Likado and the highly secretive/confidential process left Tikehau largely in the dark. Furthermore, once made aware of the issue, Tikehau demonstrated that they took steps to try and find a speedy remedy (i.e. the removal of Likado from the project). Lastly, these sorts of sales are complicated, and potential issues can commonly arise. No issue with the environmental permits does not preclude the possibility of other delays occurring. 
      
      
        
          The second issue: Obligation to maximise the proceeds
        
      
      
    
    
      4.9.
      The second issue is whether Tikehau complied with its obligation to maximise the proceeds of the sale. While maximising the proceeds is certainly an important aspect of the settlement agreement, the Court believes that Dolika’s argument oversimplifies the obligations of Tikehau. 
      
      
        
          The consideration of additional factors in the bidding process was justified
        
      
      
    
    
      4.10.
      In their statement of defence, Tikehau outlines exactly why they accepted the bid of Pure DC over other potentially higher bidders. Pure DC has a strong track record, has a high probability of sale completion, can acquire the shares without incurring third-party debt, and made an unconditional offer. As Tikehau was obligated to try and facilitate a speedy sale within six months, the Court is of the opinion that the extra weight given to these considerations was justified. Under clause 4.2 of the settlement agreement, Tikehau may consider alternative factors in addition to the maximisation of proceeds so long as there is a reasonable basis. In this regard, it is also relevant that Dolika’s proposals to include a minimum purchase price in the settlement agreement and to prioritise the highest bid were expressly rejected by Tikehau. Furthermore, the external advisor JLL advised that the bid of Pure DC was the best and should be pursued.
      
    
    
      4.11.
      Throughout the process, even before the settlement agreement was finalised, Dolika was aware that the highest possible bid would not be the only consideration made by Tikehau during the sale process. On 22 February 2024, the terms of a non-binding offering from the [naam 3] Group were expressly rejected (despite the bid being higher than the one offered by Pure DC) and Dolika was notified of this rejection. One day later, the settlement agreement was signed. Moreover, as evidenced by emails between Tikehau and Dolika prior to the signing of the settlement agreement, Tikehau made it clear that while maximisation of profit would remain of utmost importance, it would not be the only consideration. Dolika cannot now cry foul when it was made aware ahead of time that other factors beyond maximisation of proceeds would be considered in determining the best bid to accept.
      
      
        
          The third issue: The obligation to allow third-party bidders to participate in the bidding process
        
      
      
    
    
      4.12.
      At the time of the settlement agreement negotiations, there were two serious bidders: Pure DC and AGC. The third issue is whether Tikehau had an obligation to allow third parties to participate in the bidding process. 
      
    
    
      4.13.
      Dolika provides insufficient evidence that third-party bidders were not permitted to participate in the bidding process. On the contrary, Tikehau communicated that while they were already far into the sale process with Pure DC, potential bids would nevertheless be considered and access to the virtual data room could be granted. Tikehau also provided evidence to support that third-party bidders were given access to virtual data rooms with important information regarding the bidding process and the project and that in-person meetings with [naam 3] Group regarding their bid were held. 
      
    
    
      4.14.
      Dolika knew the deadline for non-binding offers was 23 February 2024, they now nevertheless take the position that the non-binding offer of AÇIK Holding which came thereafter was never truly considered. The Court is of the opinion that Tikehau chose not to accept an offer from other third parties based on reasonable grounds. There were several justifiable reasons beyond purely financial to choose Pure DC over alternative bidders. As Tikehau stated, AÇIK Holding made its bid far too late into the bidding process – June 2024 – and Tikehau was obligated to try and effect the sale in a timely manner. Accepting a non-binding bid as late as June 2024 could be counterproductive or destructive to the sale process. The Court considers the risk of losing a secure bid from Pure DC based on a higher (yet potentially riskier) bid from a third party as a reasonably justifiable reason for rejecting the bid of third parties.
      
    
    
      4.15.
      The Court also notes here that Dolika chose to sign the settlement agreement knowing that negotiations with Pure DC were ongoing and nearing completion. Further they were aware that Pure DC would soon have exclusivity over the project which would preclude third-party bidders from entering the process. While Dolika made several complaints and offered possible alternative options/priorities, each were expressly rejected prior to the signing of the settlement agreement. Thus, it was with this information in hand that Dolika entered into the settlement agreement. Dolika cannot now complain that the terms therein do not conform to their prior (rejected) complaints.
      
    
    
      4.16.
      Based on the reasoning presented above, the Court rejects Dolika’s arguments that Tikehau breached their contractual obligations under the settlement agreement. 
      
      
        
          The fourth issue: Grounds to find that Tikehau committed a tort
        
      
      
    
    
      4.17.
      Dolika has not provided the Court with any compelling arguments that Tikehau has breached their contractual obligations under the settlement agreement. Consequently, the Court finds there are no grounds to support Dolika’s claim that Tikehau has committed a tort by disregarding their justified interests.
      
      
        
          Costs
        
      
      
    
    
      4.18.
      Dolika, as the unsuccessful party, will be ordered to pay the costs incurred by Tikehau in these proceedings.
      
      
        
          Tikehau has failed to show an abuse of process
        
      
      
    
    
      4.19.
      Tikehau contends that Dolika brought the case before the Court solely to create nuisance for Tikehau and asks for costs associated with an abuse of procedural rights or a wrongful act to be awarded. The Court declines.
      
    
    
      4.20.
      According to the Dutch Supreme Court’s case law, abuse of procedural law only exists if the claim should not have been brought, in view of its manifest lack of merit, in connection with the interests of the other party involved. This can only be the case if the claimant bases its claim on facts and circumstances which it knew or should have known to be incorrect or on statements of which it should have understood in advance that they had no chance of success. When assessing alleged abuse of procedural law or wrongful acts by initiating proceedings, restraint is appropriate, in view of the right to access to justice that is also guaranteed by Article 6 of the European Convention on Human Rights. This stringent standard has not been met in these proceedings. Tikehau has not demonstrated that Dolika relied on arguments of which it should have understood in advance that they had no chance of success. 
      
      
        
          Cost of these proceedings
        
      
      
    
    
      4.21.
      The cost order is based on the NCC rates for assessing lawyers' fees (see Annex III to the NCC Rules of Procedure). 
      
    
    
      4.22.
      The costs on the part of Dolika are set at:
      
      
        
          
          
          
          
          
            
              
                - court fee
              
              
                EUR
              
              
                18,961,00
              
              
                
              
            
            
              
                - lawyer’s fee
              
              
                EUR
              
              
                6,900.00
              
              
                (3.0 × € 2,300.00)
              
            
            
              
                total amount
              
              
                EUR
              
              
                25,861.00
              
              
                
              
            
          
        
      
      
      
    
  
  
    
      5Conclusion and order
    THE COURT
    
    
      5.1.
      dismisses all claims,
      
    
    
      5.2.
      orders Dolika to pay to Tikehau the costs of these proceedings, quantified up to this judgment at EUR 25,861.00,
      
    
    
      5.3.
      declares the cost order enforceable notwithstanding appeal. 
      
      
        Done by N.A.J. Purcell, A.C. Bordes, P.J. Neijt, Judges, assisted by J.M. Johnston, Clerk of the court. 
      
      
      
        Issued in public on 10 September 2025.
      
      
      
      
        
          APPROVED FOR DISTRIBUTION IN eNCC 
        
        
          SIGNATURE PAGE 1 OF 2
        
      
      
      
      
      
      
      
      
      
      
      
      
      
      
        N.A.J. Purcell 
        (Presiding judge)						
      
      
      
      
        
          SIGNATURE PAGE 2 OF 2
        
      
      
      
      
      
      
      
      
      
      
      
      
      
        J.M. Johnston
        (Clerk of the Court)
      
      
    
  
  
     ‘ [onderzoek] ’ here is the Public Administration Probity Screening Act (Wet bevordering integriteitsbeoordelingen door het openbaar bestuur)
  
  
     Supreme Court 6 April 2012, publication number: ECLI:NL:HR:2012:BV7828