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England and Wales High Court (Commercial Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> Royal Bank of Scotland Plc v Highland Financial Partners LP & Ors [2010] EWHC 194 (Comm) (10 February 2010) URL: http://www.bailii.org/ew/cases/EWHC/Comm/2010/194.html Cite as: [2010] EWHC 194 (Comm) |
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QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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Royal Bank of Scotland plc |
Claimant |
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- and - |
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Highland Financial Partners LP HFP CDO Construction Corp Highland CDO Opportunity Master Fund LP |
First Defendant Second Defendant Third Defendant |
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Mr R Cox QC and Mr B Strong (instructed by Cooke, Young & Keidan) for the Defendants
Hearing dates: 21 & 22 January 2010
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Crown Copyright ©
Mr Justice Burton :
i) The E400,000,000 Variable Funding Note Purchase Agreement ("the Funding Agreement") between the Issuer and the Claimant (described as "Variable Funding Noteholder") and another bank simply as holder of designated accounts. This provided for the payment of the advances by the Claimant, and for repayment to the Claimant from time to time of the proceeds of and from the loans to be acquired by way of a 'rolling repayment obligation' in accordance with Clause 5 of the Funding Agreement. The Funding Agreement contained, in Clause 14, as did the ISD, to which I shall refer, at Clause 15, an express provision of Limited Recourse against the SPV Issuer. The one thing that is quite clear is that the liability of the SPV was limited to its assets, and the Issuer would not be obliged to pay any shortfall between those assets (i.e. the value of the loans and any proceeds of or from such loans) and the amounts due to the Claimant.ii) The ISD was also dated 5 April 2007. The parties were, apart from the Issuer and the Servicer, and the account bank, the Claimant and the Second and Third Defendants. This effectively provided for the running of the Portfolio and the Warehouse by the Servicer. Clause 4.2, which will be of importance, provided for what was to happen in the event that the Closing Date (i.e. the issuing of securities) had not occurred on or prior to the Termination Date of the ISD. Clause 5.6 headed "Termination Date" is central, together with Clause 3(b) of the Mandate Letter, to the Claimant's claim against the Second and Third Defendants (and the First Defendant as guarantor) on this application.
iii) The third document was a Debenture of the same date, whereby the Claimant took a fixed and floating charge over the assets of the Issuer.
i) The 31 October Amendment Deed provided for the first extension of the longstop date for closing to 28 February 2008.ii) The First Loss Deposit Facility Deed ("the First Loss Deed") of the same date provided two specific benefits to the Claimant. First, the First Defendant, which was for the first time a party to one of the agreements, agreed to give, by Clause 6 (which will be central to the determination of the First Defendant's liability on this application) the guarantee of the Second Defendant's liability to which I referred above. Additionally, the Second and Third Defendants agreed to make a "collateral advance" to the Claimant (in their agreed proportions) by Clause 2 of the Deed, upon which, in the circumstances provided by Clause 3 (which will be in issue before me) the Claimant would be entitled to draw down. The total of the collateral advance was E7.5m, and it is common ground that this arose as a result of the substantial fall in the market and hence in the value of the loans which the Servicer had been buying in.
(i) An Amended and Restated Mandate Letter, now incorporating the various changes, including the new expiration date of 31 January 2009. Significantly, on the Claimant's case, there was no material change in Clause 3(b), which still contained the words upon which the Claimant relies:"... the CDO Fund and HCC will participate in the risk of the Warehouse Facility. If the transaction does not close, the economics will be 7.5% for the account of CDO Fund and 92.5% for the account of HCC."The material addition was the reference to the First Defendant's guaranteeing the obligations of the Second Defendant.(ii) The Amendment Deed of 1 April 2008 ("the Second Loss Deed") provided inter alia for the increased collateral advance, to which I have referred above, and made clear, by paragraph 2.3(d) that the Claimant would make no further advances to the Issuer under the Funding Agreement.
i) What is payable by the Second and Third Defendants to the Claimant? Is their liability limited to the assets of the Issuer, in which case since the assets of the Issuer, such as they were, have now been paid over to the Claimant, they would thus have no liability in respect of repayment of the outstanding advances by the Claimant? This depends upon construction of Clause 5.6 of the ISD.ii) Has the Termination Date, which triggers the liability of the Defendants (if any) to make payment to the Claimant, within Clause 5.6 of the ISD, occurred? This depends upon whether the Claimant has terminated, and was entitled to terminate, the ISD.
iii) Has the Final Realisation Date (as defined by the ISD set out in paragraph 7 above) occurred, when the payments (if any) by the Second and Third Defendants fall to be made? This depends upon a construction or assessment of the effect of Clauses 4.2 and 4.3 of the ISD and Clause 5.1 of the Funding Agreement.
iv) Do the Second and Third Defendants have a counterclaim for the return of the collateral advances made by them, which have been used by the Claimants to reduce the balance owed to it? This depends upon a construction of Clause 3 of the First Loss Deed.
v) Was the First Defendant's guarantee triggered (a question depending upon construction of Clause 6 of the First Loss Deed)?
The First Issue
"5.6 Termination Date.
If the Closing Date does not occur prior to the Termination Date, on the Final Realisation Date, all amounts standing to the credit of each of the Accounts shall be applied in payment of all amounts due and payable pursuant to the [Funding Agreement], including repayment of all Advances outstanding thereunder and payment of all unpaid interest accrued thereon ...
In the event that all amounts due and payable under the [Funding Agreement], including repayment of all Advances outstanding thereunder and payment of all unpaid interest accrued thereon are not paid in full on the Final Realisation Date (such amount a "VFN Payment Amount") [the Second and Third Defendants] will each unconditionally and promptly on demand pay the [Claimant] their Highland Share of such VFN payment Amount on the Final Realisation Date, and the parties hereto agree that such payment shall operate in full and final discharge of the Issuer's obligation to pay the [Claimant] such amounts. The obligations of [the Second and Third Defendants] to the [Claimant] pursuant hereto shall be subject to the provisions contained in Schedule 7 attached to this Deed.
[The Second and Third Defendants] each undertake as a direct and primary obligation to pay the [Claimant] their Highland Share of any VFN payment amount."
"The [Claimant] agrees that, subject to obtaining its internal approval, the [Second and Third Defendants] will participate in the risk of the Warehouse Facility. If the transaction does not close, the economics will be 7.5% for the account of [the Third Defendant] and 92.5% for the account of [the Second Defendant] ... It is acknowledged that the Warehouse Documents are expected to stipulate that (i) the [Claimant] will earn EURIBOR + 50bps on all funded amounts and have discretionary veto rights on any proposed purchase and (ii) HCC [probably a mistake for the Second Defendant] and [the Third Defendant] will earn all excess spread (above EURIBOR + 50bps) and be responsible for any losses incurred by the [Claimant] as provided above."
i) The purpose of the Limited Recourse provided by Clause 14 of the ISD is to limit the liability of the trust company, the SPV, and can have no relation whatever to that of the commercial companies who were parties to the transaction for the purposes of making profits. There is no cross-reference, as there could have been, in Clause 5.6 to Clause 14.ii) Insofar as Mr Cox points out that the parties agreed in Clause 5.6 that "such payments shall operate in full and final discharge of the Issuer's obligations", that was expressly preceded by the word "and", which was exactly as one would expect, namely that, as a result of any payment by the Second and Third Defendants, the Issuer must pro tanto be relieved.
iii) Similarly, the provision that "the obligation of [the Second and Third Defendants] to [the Claimant] pursuant hereto shall be subject to the provisions" of Schedule 7 neither added nor subtracted anything to the argument, unless some emphasis was to be placed upon the heading to Schedule 7 "Clause 5.6 Guarantee", but, if the obligation by reference to Schedule 7 was to be limited to being a guarantee to the liability of the Issuer, the fact that the Second and Third Defendants had a "direct and primary obligation" was made clear in the last sentence of Clause 5.6.
iv) Mr Johnson drew attention to the provision of collateral by the Second and Third Defendants under the two Amendment Deeds, as indicating a clear liability to provide funds for repayment to the Claimant over and above the assets of the Issuer; but (a) strictly speaking such matters, being events subsequent to the ISD, even though part of a course of amendment of it and the other Warehousing Documents, should not be seen as part of the factual matrix, and (b) in addition it could be said that the provision of the collateral was not part of the Defendants' obligations, but above and beyond the call of duty in order to stave off termination of the transaction by the Claimant. In any event, Mr Cox submits that what the Defendants were doing was adding to the assets of the Issuer, so as to increase those assets, to which alone any claim by the Claimant was limited. Mr Johnson's contention seems to me to be neutralised by those various arguments. However:
v) What remains a very powerful final plank in support of Mr Johnson's proposition that the liability of the Second and Third Defendants to repay the Advances to the Claimant is indeed unlimited, and not affected by the Limited Recourse to the assets of the Issuer, is the existence of the Debenture. Given that the Claimant had entire recourse to the assets of the Issuer by reference to a fixed and floating charge, and the right to appoint a receiver, they would gain nothing whatever by Clause 5.6 if the liabilities of the Second and Third Defendants (not to speak of the subsequent guarantee of the bulk of the liability by the First Defendant) were also so limited. Mr Cox, relying on submissions made in the witness statement of a Mr Braner on the Defendants' behalf, seeks to explain this as addressing what he calls a "moral risk", because "the Issuer was outside the management and control of both sides and thus it could never be discounted that the Issuer could act improperly". It seems to me wholly divorced from reality to suggest that this structure to ensure the safe keeping of the assets of the Issuer, with provisions for express accounts and, of course, the fixed and floating charge, was not all that was necessary in respect of a trust company. It is plain that the obligations of the Second and Third Defendants were not necessary to back up that obligation, but were necessary to ensure the repayment of any shortfall if the value of the loans plummeted, as it did.
"(A) The [Claimant] and [the Servicer] have entered into the Mandate Letter, pursuant to which [the Claimant] has agreed that, following a request from time to time by [the Servicer], it shall provide funding in respect of the purchase by or on behalf of the Issuer of certain loans or participations in loans in accordance with the provisions set out in the Mandate Letter."
The Second Issue
""Termination Date" means . the earliest to occur of:
(a) the termination of the Mandate Letter pursuant to the terms thereof ...
(b) the Final Realisation Date
(c) the date on which the [Claimant] provides written notice to the [Servicer] following the occurrence of an Interim Servicer Event ...
(d) the Closing Date
(e) 30 September 2007 [the then Longstop Date] ..."
"(g) at any time of determination, a market value decline of greater than 2.25 per cent on all the Acquired Loans since their purchase."
"[The Claimant] did not need a reason to terminate the Mandate Letter. Without prejudice to that position, [the Claimant] did so as I have explained above because it was concerned about the ability of [the Second and Third Defendants] to pay the anticipated shortfall (in excess of the cash sums they had paid as collateral security). The Defendants are wrong to say that [the Claimant] terminated the Mandate Letter because it considered that the drop in the market value of the loans left [the Claimant] with a loss. The risk of a loss on the underlying portfolio was allocated to [the Defendants] by Clause 5.6 of the [ISD]. The risk that [the Claimant] took was on [the Second and Third Defendants] and their ability and/or willingness to meet their obligations."
"[The Claimant] cannot rely on [subclause] (a) to the extent that it was inconsistent with or in conflict with the Second Amendment Deed i.e. to the extent that the definition would, after April 2008, otherwise have provided that the ISD be terminated because of termination of the Mandate Letter because of the decline in the market value of the loans."
The Third Issue
"4.2 No Closing Date
If the Closing Date does not occur on or prior to the Termination Date, the Acquired Loans shall be sold in accordance with the provisions set out below:
(a) the ... Servicer shall have the right to purchase all Acquired Loans from the Issuer ... provided that in respect of any Acquired Loans not sold or agreed to be sold by the Issuer to the ... Servicer within 3 Business Days of the Termination Date, the [Claimant] will have the option to direct the Issuer to sell one or more of the Acquired Loans remaining in the Portfolio in such manner as specified below and as [the Claimant] shall determine in a commercially reasonable manner, which (for the avoidance of doubt) may include a sale of any such Acquired Loans to the [Claimant] ... at a price equal to the sum of the market values for such Acquired Loans ...
(b) the acquisition by the ... [Claimant] of any Acquired Loan pursuant to this Clause 4.2 shall be effected by the relevant purchasing entity delivering immediate available funds in an amount equal to the purchase price payable into the Sale Proceeds Account of the Issuer ..."
"4.3 Set Off
The [Claimant] may set off any amounts owed by it under this Clause 4 against any amounts payable to it in respect of the Variable Funding Note."
i) After exercising its right to purchase the Acquired Loans, the Claimant did not pay for them by paying the proceeds in to the Sale Proceeds Account of the Issuer, but kept the sums in reduction of the outstanding debt (and have of course given credit in the course of the Final Realisation) the 'set-off point'.ii) In relation to one set of the loans (the Consolis Loans), the Claimant was unable to acquire the loan because of the objection of the debtor, but instead took an interest by way of sub-participation but paying the full amount of the value of the loans the 'Consolis point'.
The Fourth Issue
"3. Application Of Amounts Of Collateral
Following payment in full of all amounts set out in clause 5 of the [ISD], the [Claimant] shall on the Termination Date (as defined in [the ISD]) be entitled to use an amount up to an amount equal to the Collateral Advance (plus any interest accrued thereon) to meet any VFN Payment Amount, or any VFN Closing Date Shortfall Amount. Any part of the Collateral Advance (plus any interest accrued thereon) not used as aforesaid shall be paid back to [the Second and Third Defendants] in the same proportions as their respective shares of the Collateral Advance, on the Termination Date."
The Fifth Issue
"6. Guarantee.
In the event that [the Second Defendant's 92.5%] Share of the VFN Payment Amount payable under Clause 5.6 of the [ISD] is not paid in full on the Final Realisation Date (the "HCC Outstanding Amount"), [the First Defendant] will unconditionally and promptly on demand pay the [Claimant] the HCC Outstanding Amount on the Final Realisation Date."
"18.1 ... any notice or demand sent by post as aforesaid shall be deemed to have been given, made or served three days in the case of inland post or seven days in the case of overseas post after dispatch and any notice of demand sent by electronic mail or facsimile transmission as aforesaid shall be deemed to have been given, made or served 24 hours after the time of dispatch."
i) It does not in my judgment matter whether notice was given to the Second Defendant on the Final Realisation Date. The obligation of the First Defendant is to guarantee any relevant sum payable under Clause 5.6 which is not paid in full on the Final Realisation Date. As a matter of fact the sums owed by the Second Defendant were not paid in full on the Final Realisation Date.ii) In any event, insofar as it is necessary for there to have been notice given and received on the Final Realisation Date, it was. The deeming provision is, in my judgment, there to use in the event of any dispute about receipt. There is in this case no dispute that the fax was in fact received on 16 March.