ECLI:NL:RBAMS:2025:67, Rechtbank Amsterdam, 08-01-2025, NCC C/13/761263
Rechtbank Amsterdam — Uitspraak 
Datum: 2025-01-08 00:00:00.000000
Rechtsgebied: Civiel recht

Samenvatting: Applicant, RS Lender V S.A. R.L. (based in Luxemburg), seeks an order under article 3:251(1) Dutch Civil Code permitting the sale in a private transaction of pledged shares in FundGB Borrower B.V. and Unbrick Concepts B.V. (the Companies). The holding companies of the Companies granted a right of pledge over all the shares in the Companies for the benefit of Pledgee (applicant) to secure the repayment of a loan provided under the Facility Agreement. The Companies are a part of the Unbrick Group which is active in the development and exploitation of premium holiday parks in the Netherlands. 
        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 Companies are in default under the Facility Agreement, which in turn constitutes a default under the Share Pledges. 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 (RS Lender V S.A. R.L., gevestigd in Luxemburg)) verzoekt de voorzieningenrechter van de NCC om toestemming te geven voor onderhandse verkoop van verpande aandelen in FundGB Borrower B.V. en Unbrick Concepts B.V. (de Ondernemingen). De houdstermaatschappijen van de Ondernemingen hebben pandrechten verstrekt aan verzoekster ter zekerheid voor de terugbetaling van een geldlening die is verstrekt op basis van de Facility Agreement. De Ondernemingen zijn een onderdeel van de Unbrick Group die zich bezighoudt met de ontwikkeling en exploitatie van premium vakantieparken in Nederland.
        De voorzieningenrechter oordeelt dat hij bevoegd is op grond van artikel 25 Brussel 1bis-verordening.
        De Ondernemingen zijn in verzuim met hun financiële verplichtingen op basis van de Facility Agreement, wat vervolgens een verzuim oplevert op grond van de pandaktes. Dit betekent naar Nederlands recht dat verzoekster 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). 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.

judgment
    AMSTERDAM DISTRICT COURT
    
    
      Netherlands Commercial Court 
      NCC District Court – Court in Summary Proceedings
    
    
    
      Case number: NCC C/13/761263
    
    
    
      
        Judgment
      
    
    
    8 January 2025
    
    
      
        Claimant: 
      
        RS Lender V, S.À R.L.,
      Senningerberg, Grand Duchy of Luxembourg,
      hereinafter Areferred to as: ‘RS Lender V’ or ‘Pledgee’,
      represented by Mr. V.R. Vroom and Mr. K. de Bruijn, lawyers
    
    
    
      
        Interested parties:
      
    
    1. FundGB Parent B.V.,
    
      Ede, the Netherlands,
      hereinafter referred to as: ‘FundGB Parent’ or ‘Pledgor 1’,
    
    2. FundGB Borrower B.V.,
    
      Ede, the Netherlands,
      hereinafter referred to as: ‘FundGB Borrower’ or ‘Company 1’,
    
    3. Unbrick Group B.V.,
    
      Ede, the Netherlands,
      hereinafter referred to as: ‘Unbrick Group’ or ‘Pledgor 2’,
    
    4. Unbrick Concepts B.V.,
    
      Ede, the Netherlands,
      hereinafter referred to as: ‘Unbrick Concepts’ of ‘Company 2’,
    
    5. RS Dutch Holiday Park S.À R.L.,
    
      Senningerberg, Grand Duchy of Luxembourg,
      hereinafter referred to as: ‘RS Dutch Holiday Park’ or ‘Purchaser’,
    
    6. ‘the Obligors’:
    
      
        De Weelderik Holding B.V.,
      
      
        De Weelderik OG B.V.,
      
      
        De Weelderik Exploitatie B.V.,
      
      
        Roodewoud Holding B.V. (previously: Unbrick Park Dwingeloo Holding B.V.), 
      
      
        Roodewoud OG B.V. (previously: Unbrick Park Dwingeloo OG B.V.), 
      
      
        Roodewoud Exploitatie B.V. (previously: Unbrick Park Dwingeloo Exploitatie B.V.) and 
      
      
        Green Boutique B.V.
      
    
    All interested parties will hereinafter be 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).
    
    
  
  
    
      1Procedural history
    
      1.1.
      RS Lender V filed its application on 17 December 2024 and uploaded it to eNCC.
      
    
    
      1.2.
      The Court gave directions on 20 December 2024. It identified the interested parties (belanghebbenden; reference was made to Amsterdam District Court 23 August 2012 ECLI:NL:RBAMS:2012:BY1439) and requested a statement from the interested parties on their wish to be heard on the application.
    
    
      1.3.
      By letter dated 23 December 2024 all interested parties waived their right to be heard on the application. Consequently, no hearing was scheduled.
    
    
      1.4.
      Judgment was set for today.
      
    
  
  
    
      2Background and facts
    
      2.1.
      Unbrick Group and its wholly and partly owned subsidiaries are active in the development and exploitation of premium holiday parks in the Netherlands.
      
    
    
      2.2.
      Unbrick Concepts currently is a wholly owned subsidiary of Unbrick Group. Unbrick Concepts holds the IP rights on the design of the eco-friendly homes used for the development of the premium holiday parks.
      
    
    
      2.3.
      FundGB Parent is owned for 75% by Unbrick Group and for 25% by RS Dutch Holiday Park.
      
    
    
      2.4.
      FundGB Borrower is fully owned by FundGB Parent.
      
    
    
      2.5.
      FundGB Borrower directly or indirectly holds the shares in 13 subsidiaries, which contribute to the development and exploitation of the holiday parks.
      
    
    
      2.6.
      On 21 February 2023, Company 1 (as original borrower and original guarantor), Pledgor 1 (as parent and original guarantor) and other parties (the Obligors: the original borrowers and the original guarantors) and Pledgee entered into a Dutch law-governed Facility Agreement (hereinafter: the Facility Agreement).
      
    
    
      2.7.
      Pursuant to the Facility Agreement, the Pledgee agreed to make available to the Obligors a secured term loan facility of up to EUR 30,000,000 to fund the refinancing, acquisition and/or development of properties (as defined in the Facility Agreement), upon and subject to the terms and conditions of the Facility Agreement.
      
    
    
      2.8.
      To secure the repayment of the debt under the Facility Agreement, also on 21 February 2023, Pledgor 1, Company 1 and the Obligors as pledgors and Pledgee entered into a Pledge Agreement (hereinafter: the Pledge Agreement), pursuant to which the pledgors granted to Pledgee a right of pledge over the Charged Assets, as defined in that agreement.
      
    
    
      2.9.
      On 21 February 2023, Pledgor 1 granted a right of pledge over all the shares in Company 1 for the benefit of Pledgee (hereinafter: ‘Share Pledge 1’, Exhibit 1). In addition thereto, the Obligors provided a right of pledge in favour of the Pledgee over certain assets listed in the Pledge Agreement.
      
    
    
      2.10.
      On 28 September 2023, Pledgor 2 granted an additional right of pledge over all the shares in Company 2 for the benefit of Pledgee (hereinafter: Share Pledge 2’, Exhibit 2).
      
    
    
      2.11.
      A default (verzuim) occurred with regard to the payment obligations secured by the share pledges. Accordingly, Pledgee is entitled to enforce its right of pledge over the shares in Companies 1 and 2 created by Share Pledges 1 and 2.
      
    
    
      2.12.
      At the date of the application, the total amount outstanding under the Facility Agreement was EUR 35,186,607 due to costs overruns.
      
    
    
      2.13.
      Articles 13.1 and 13.2.1 of the Pledge Agreement read as follows:
      
    
    
      13.1
      
        Governing law
        
        This Agreement and any non-contractual obligations arising out of or in connection with it are governed by Dutch law.
      
      
    
    
      13.2
      
        Jurisdiction
        
        The court (rechtbank) of Amsterdam, the Netherlands has exclusive jurisdiction to settle at first instance any dispute arising out of or in connection with this Agreement (including a dispute regarding the existence, validity or termination of this Agreement or any non-contractual obligation arising out of or in connection with this Agreement) (a 
        Dispute
        ). 
        
        (…)
      
      
    
    
      2.14.
      By separate agreement dated 13 December 2024, Pledgee and the interested parties 1 through 4 listed above agreed to refer any disputes to the Netherlands Commercial Court as follows:
      
      
        
          All disputes and any proceedings, including any action or application regarding the enforcement of the Pledgee's rights such as an application for a deviating manner of enforcement of the rights of pledge over the Shares in accordance with section 3:251 paragraph 1 of the Dutch Civil Code, 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
          ”) will be resolved by the Amsterdam District Court following proceedings in English before the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC District Court), to the exclusion of the jurisdiction of any other courts. An action for interim measures, including protective measures, available under Dutch law may be brought in the NCC’s Court in summary proceedings in English. Any appeals against NCC or NCC’s Court in summary proceedings judgments will be submitted to the Amsterdam Court of Appeal’s Chamber for International Commercial Matters.
        
      
      
    
    
      2.15.
      By letter to this Court dated 23 December 2024, the Purchaser and the Obligors also agreed to the NCC chamber of the Amsterdam District Court dealing with this case.
    
    
      2.16.
      Pledgee, as seller, and Purchaser, as purchaser, negotiated two Share Purchase Agreements (hereinafter: the SPA’s) by way of which Pledgee will sell the shares in Companies 1 and 2 to Purchaser (the ‘Proposed Sale’). The conclusion of the SPA’s is made subject to the Court authorising the sale of these shares as per this application.
      
    
  
  
    
      3The application
    
      3.1.
      RS Lender V, in its capacity as Pledgee under the Share Pledges, and as security agent under the Facility Agreement, requests to order, by means of an immediately enforceable decision that, by way of enforcement of the Share Pledges, the shares in Companies 1 and 2 (hereinafter: ‘the Shares’) will be sold and transferred by Pledgee to Purchaser under the conditions described in the SPA’s, with appropriate cost order under the law (kosten rechtens).
      
    
  
  
    
      4Discussion
    
    
      
        Jurisdiction and applicable law
      
    
    
    
      4.1.
      As Pledgee is seated in the Grand Duchy of Luxembourg and Companies 1 and 2 are seated in the Netherlands, this is an international matter. In the 13 December 2024 Agreement (see para. 2.14.) Pledgee, Pledgors 1 and 2 and Companies 1 and 2 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). This agreement replaced the choice-of-court clause in Article 13.2.1 of the Pledge Agreement. By letter dated 23 December 2024 also the Purchaser and the Obligors accepted this Court’s jurisdiction.
      
    
    
      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.
      The statutory seats of Companies 1 and 2 are in the Netherlands and Dutch law therefore provides the rules on property law in respect of the Shares. Hence, Dutch law will be applied. The parties to the Pledge Agreement (Pledgors 1 and 2, Companies 1 and 2, the Pledgee and the Obligors) also explicitly chose Dutch law as the applicable law (Article 13.1 of the Pledge Agreement).
      
      
        
          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.
      No one disputes that Companies 1 and 2 are in default (verzuim) under the Facility Agreement, which in turn constitutes an event of default as defined in the Pledge Agreement. 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 will have the following result:
        -	Purchaser will pay a cash consideration of EUR 1 for each of the shares in Company 1 and Company 2 (so EUR 2 in total);
        -	Purchaser will perform a debt for equity conversion in the capital of Company 1, resulting in a reduction of the outstanding debt under the Facility Agreement by an amount of EUR 1,000,000.
      
      
    
    
      4.9.
      In support of the financial situation of Companies 1 and 2, a Valuation Report of Companies 1 and 2, made by [the valuator] based in Rotterdam (the Netherlands) and dated 29 October 2024, was submitted with the application as Exhibit 6. [The valuator] concludes that as per 31 August 2024 the fair market value of both companies is out of the money. This includes Company 2’s IP rights, as there is currently insufficient visibility on monetization of the IP and there are limited grounds to argue that the value of the IP is larger than the outstanding financing of Company 2.
    
    
      4.10.
      The Court finds, in line with the valuation and other arguments raised by Pledgee, that it is not likely that a public sale will result in a higher value than a private sale, as envisaged by Pledgee (which is EUR 1,000,002).
    
    
      4.11.
      There are also no indications that a private sale other than the Proposed Sale would realise more value. This is based on the reasoning that Companies 1 and 2, at least for the time being, will continue as going concerns, thereby preserving as many jobs as possible. Also, Pledgee argued that there are no unconditional offers from other parties on the table, and that under the current circumstances such offers cannot realistically be expected due to the size of the outstanding amount under the Facility Agreement. The Court considers this reasoning sufficiently plausible.
      
    
    
      4.12.
      This leads to the conclusion that the proposed sale of the shares in Companies 1 and 2 to Purchaser, under the circumstances, is the best possible outcome and will deliver maximum value for the Shares.
      
    
    
      4.13.
      On the basis of the foregoing the Court will grant the permission requested. 
      
      
        
          Costs
        
      
      
    
    
      4.14.
      Pledgee 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.
      
    
  
  
    
      5Conclusion
    
    
      THE COURT IN SUMMARY PROCEEDINGS
    
    
    
      5.1
      Orders that, by way of enforcement of the Share Pledges, the shares in Companies 1 and 2 may be sold and transferred by RS Lender V to RS Dutch Holiday Park under the conditions described in the SPA’s.
      
    
    
      5.2.
      No costs are awarded.
      
    
    
      5.3
      This judgment is enforceable notwithstanding appeal.
      
      
      
        Done by C.W.D. Bom, Judge, assisted by W.A. Visser, Clerk of the Court.
        Issued in public on 8 January 2025.
      
      
      
      
      
        
          APPROVED FOR DISTRIBUTION IN eNCC