Uitspraken

IHC Merwede is the operational top holding company of the IHC Group. The Group produces ships and equipment and delivers services to the dredging and offshore industries globally. A valuable subsidiary of the Group is IHC IQIP B.V. (IQIP). IQIP offers equipment and services for renewables, oil and gas, and construction. Approximately 2,400 out of the 3,200 total number of employees of the IHC Group are employed in the Netherlands.

All outstanding shares in the Company are held by respondent sub 2: IHC B.V. IHC B.V. is a shareholder vehicle, the ordinary shares in which are held by four shareholders (the Shareholders):

( a) Parkland N.V.;

( b) Noordland N.V.;

( c) Rabo Capital II B.V.; and

( d) Stichting Administratiekantoor Management en Personeel IHC.

Parkland et al hold approximately 70% of the shares in IHC B.V.

Funding for the IHC Group is provided inter alia on the basis of a senior facility agreement with several lenders and ING Bank N.V. as the Senior Agent, and of a junior facility agreement with several lenders and NIBC Bank N.V. as the Junior Agent (and together with the Senior Agent, the Agents). The lenders under these facility agreements (Facilities Agreements) together are referred to as the Lenders.

IHC Merwede experienced financial and other setbacks starting in 2015. As part of a financial restructuring in August 2019, IHC B.V. granted a first right of pledge over the shares in the Company (the Share Pledge). The Share Pledge provides security for payment of a guarantee included in the Share Pledge. IHC B.V., under this guarantee, guaranteed punctual performance of the obligations under the Facilities Agreements of the members of the IHC Group that are a party to these documents. Recourse under the guarantee is limited to the pledged shares in the Company. Article 15 of the Share Pledge provides:

After August 2019, the IHC Group has experienced further setbacks. The Group has incurred additional costs on a number of major projects. A number of major projects were delayed, leading to delayed incoming cash flows. Furthermore, customers are increasingly demanding prefunding of projects by the IHC Group, increasing its working capital requirements. As a result of these elements combined, the Company is in need of € 250 million additional funding to ensure its continuity for the upcoming period.

The Company concluded that, as the Shareholders were not willing to invest substantially, the only future for the IHC Group as a whole lay in a solution with the following three central elements. First, a new strategic investor would need to commit itself to the IHC Group to restore trust in the Group among its customers in the market. Second, this investor would need to make a significant equity contribution. Third, the Lenders would need to agree to a substantial write-off of their outstanding loans.

To find the necessary strategic investor, IHC Merwede engaged the financial advisory firm Lazard. The Lenders at a later stage also appointed Rothschild & Co as their financial advisor as part of this M&A process. Both Lazard and Rothschild have approached a number of potential investors about investing in the IHC Group.

In the course of the M&A process, a group of industry partners affiliated with major customers of the IHC Group in the Benelux (the Industry Consortium) showed a serious interest in investing in the IHC Group.

At the request of the Company and the Lenders, Duff & Phelps made an assessment of the going concern value and of the liquidation value of the Company and the Group as of 31 December 2019 (the D&P Report). The D&P Report was issued on 19 March 2020.

On 30 April 2020, the Lenders and the Industry Consortium with the support of Atradius DSB, the Dutch State and the Company reached an agreement. The deal involves (in broad strokes):

- transfer of the shares in the Company (the Shares) and of € 195 million of existing debt for an amount of 1 Euro (and the subsequent conversion of that debt into equity in the Company);

- an equity contribution by the Dutch State in an amount of € 40 million subsequently to be taken over by the Industry Consortium in an amount of € 30 million and the Lenders by providing an additional € 10 million financing to the Company;

- an equity contribution by Coöperatieve Rabobank U.A. in an amount of € 30 million;

- additional funding provided by the Lenders in a total amount of € 340 million (and an additional € 10 million as set out above); and

- financial support in the form of counterguarantees, working capital cover and GO cover by Atradius DSB and the Dutch State (through the Rijksdienst voor Ondernemend Nederland) in an amount of up to € 300 million.

As part of this agreement, the shares in either IHC B.V. or IHC Merwede are to be transferred to Stichting Continuïteit. The Shareholders and the Industry Consortium did not come to an agreement on the transfer of the shares in IHC B.V.

On 3 April 2020, the Agents sent a default notice to the Company. At the same time, IHC B.V. was also notified of the outstanding defaults. By notices dated 4 May 2020 the Lenders declared the entire outstanding amount under the Facilities Agreements and the guarantee immediately due and payable. The amount drawn under the Facilities Agreements is € 387,300,000 and the total amount of outstanding guarantees thereunder is approximately € 750 million. All these amounts are currently due and payable (together with accrued interest and costs).

On 4 May 2020, Glas reached an agreement with Stichting Continuïteit on the private sale (the Proposed Sale or the SPA) as follows:

( a) acquisition of the Shares by Stichting Continuïteit (with Glas acting as seller);

( b) disposal of part of the claims against the Company under the Facilities Agreements to Stichting Continuïteit; and

( c) a consideration to consist of:

The Dutch State, the Industry Consortium, the Lenders and Atradius DSB have agreed to make their funding and other financial support available once the Shares have been transferred to Stichting Continuïteit.

As Glas is incorporated in the United Kingdom and the Company is a Dutch legal person, this is an international matter. The choice-of-court clause in Article 15 of the Share Pledge (see 2.4) is valid. That means that the NCC, as a chamber of the Amsterdam District Court, has exclusive jurisdiction under Articles 25(1) and 26(1) of the Brussels Regulation (recast) (1215/2012). Article 438a of the Dutch Code of Civil Procedure (Wetboek van Burgerlijke Rechtsvordering; DCCP) concerning personal jurisdiction for applications based on Article 3:251 of the Dutch Civil Code (DCC) does not apply as the Brussels Regulation directly determines which court has jurisdiction.

The official copy of each document in the proceedings was submitted in hard copy. In addition, counsel have affirmed their consent to use eNCC on a voluntary basis. No one has objected to this. eNCC has been used in this matter on that basis.

The Company’s statutory seat is in the Netherlands and Dutch law therefore provides the rules on company and on property law in respect of the Shares. Hence Dutch law will be applied. The parties to the Share Pledge (the Company and IHC B.V. and ING Bank, acting as agent for the Lenders) also explicitly chose Dutch law as the applicable law. None of the respondents raised an objection to the application of Dutch law.

Article 3:251 DCC governs the enforcement of the pledge. Article 3:250 DCC provides that an enforcement sale is to be held in public, i.e. by way of a public auction. Article 3:251 DCC offers an alternative:

All parties present at the hearing agreed that the Proposed Sale (see 2.13) will realise the maximum value under the current circumstances. Parkland et al declared at the hearing they no longer oppose the Proposed Sale.

No one disputes that the Company and its subsidiaries that are party to the Facilities Agreements are in payment default, that IHC B.V. is in default (verzuim) under the guarantee it granted, and that Glas has the right to enforce the pledge. When the right to enforcement arises, a pledgee has the right to decide if and when to proceed with enforcement. The Court on its own initiative has to examine whether, at the time the application was made, the requested alternative to a public auction (in this case: the Proposed Sale) would realise the maximum possible value. This examination is done in the interest of the pledgor, other secured creditors and other creditors in general. The interest of the company whose shares are being sold (and therefore in this case, its shareholders) do not prevail over the interest of the pledgee and creditors, to realise the maximum possible value (see: District Court of Amsterdam, 23 September 2009, ECLI:NL:RBAMS:2009:BJ8848).

The consideration for the Shares is 1 Euro in cash, plus a write-off of (senior) debt resulting in a reduction of € 195 million of the Company's liabilities under the Facilities Agreements. This does not mean that only 1 Euro is paid for the Pledged Shares. Part of the transaction is a write-off of approximately € 195 million of outstanding debt. Linked to this transaction is further funding to be provided by the Industry Consortium and the Dutch State for the IHC Group (see 2.11). All these elements are to be considered as the value of the Proposed Sale, the consideration offered for the Pledged Shares.

First, the Court finds, as Glas argues, that it is likely in any case that a private sale would result in a better price than a public auction, taking into account the structure and the complexity of the IHC Group and the need for additional financing.

There are also no indications that any private sale, other than the Proposed Sale, would realise more value. This is based on the following reasoning.

First, if no additional liquidity is provided to the IHC Group, it will be unable to meet its obligations somewhere in May 2020. A serious influx of capital and reduction of debt are necessary to save the Company.

Second, the cash consideration of 1 Euro is based inter alia on the D&P Report. The executive summary of the D&P Report states:

At present the “going concern value” of the Company is no longer relevant, as the Company is nearing bankruptcy and the going concern value in the D&P Report is based on the assumption that additional funding will be provided to the Company, which is not the case. It is also uncontested that D&P has only taken the cash debt into account. However, not only are the cash liabilities currently due and payable, but also all bank guarantee liabilities under the Facilities Agreements in a total amount of approximately € 750 million. This means that it can be validly assumed that the economic value of the Shares is negative, as set out in the liquidation scenario in the D&P Report.

Furthermore, based on the documents provided and on the statements made by the Company and the Lenders in the course of these proceedings, it has become sufficiently clear that Lazard and Rothschild have reached out to a large number of potential investors across the world, but no seriously interested potential strategic investor presented itself, other than the Industry Consortium.

This leads to the conclusion that the Proposed Sale will deliver maximum value for the Shares. As the Lenders, Glas and the Company rightly argue, it is inconceivable that the privately negotiated deal between the Dutch State and the Industry Consortium should or could have been offered to the market, as suggested by Parkland et al, as a matter of law or indeed as a practical concern, considering the timeframe and the financial situation of the Company.

That means that the Court will grant the requested permission.

These proceedings are limited to the above issue only. If Parkland et al feel, as they argued in the course of these proceedings, that they have been wronged by the Lenders in any way (either by the amount of interest and costs charged to the Company by the Lenders, the way in which the M&A process was handled (because according to Parkland et al it was insufficiently investigated whether a sale of the subsidiary IQIP could have saved the Group) or the way in which the deal with the Dutch State was negotiated and reached), this issue is outside the scope of these proceedings, especially since Parkland et al no longer object to the Proposed Sale.

The Court provisionally identified the Shareholders of IHC B.V. (i.e. Parkland et al, Rabo Capital II B.V. and Stichting Administratiekantoor Management en Personeel IHC) and Stichting Continuïteit as interested parties in these proceedings. Rabo Capital II B.V. and Stichting Administratiekantoor Management en Personeel IHC did not appear in these proceedings. Stichting Continuïteit was represented by counsel at the hearing.

Prior to the hearing (in accordance with the directions of the Court) Glas raised the issue that the Shareholders and Stichting Continuïteit are not interested parties (belanghebbenden) in the meaning of Article 3:251 DCC. At the hearing, counsel of Parkland at al also represented Jacob Heijn Holding Retail Centra B.V., a group company claiming to be a direct creditor of IHC B.V. and a beneficiary of a second ranking right of pledge on the Shares. Glas and the Lenders argued that Jacob Heijn Holding Retail Centra B.V. does not qualify as an interested party either and moreover could not – at that late stage – be allowed to join these proceedings.

The Court will not rule on these issues here. As none of these parties objected to the requested order, and Glas did not object to Parkland at al presenting their arguments to the Court, it is immaterial to the outcome of this case whether or not they qualify as an interested party.

Glas, IHC Merwede and Parkland et al ask the Court to determine and award costs. Based on Article 289 DCCP, the Court can award costs. However, as these proceedings were necessitated by law (Article 3:521 DCC) and the requested permission is granted, the Court sees insufficient grounds to award costs to either Glas or any of the respondents.

Permission is granted for the Shares to be sold and transferred by Glas to Stichting Continuïteit under the conditions described in the SPA.

No costs are awarded.

This judgment is enforceable notwithstanding appeal.