The Bank of New York Mellon (London Branch) v Truvo NV & Ors

The Bank of New York Mellon (London Branch) v Truvo NV & Ors

The amendment to Clause 11.3 of the SFA did not have the effect of changing or relating to an amendment to the order of priority or subordination under the ICA within the meaning of Clause 40.3(a)(v) of the SFA. Therefore, only the consent of the Majority Lenders and Truvo was required, not the consent of all lenders.

Parties
Claimant: THE BANK OF NEW YORK MELLON (LONDON BRANCH); First Defendant: TRUVO N.V.; Second Defendant: DEUTSCHE BANK AG (LONDON BRANCH); Third Defendant: MILLAR INVESTMENTS S.À R. L.
Jurisdiction
England and Wales
Judgment Date
05 February 2013
Procedural Posture
Commercial / Judgment
Outcome
Amendment to Clause 11.3 of the SFA valid and effective; only Majority Lender and Truvo consent required.
Legal Topics
Contractual Interpretation, Amendment of Finance Documents, Priority of Debt, Mandatory Prepayments
Contract Law Banking Law Contractual Interpretation Amendment of Finance Documents Priority of Debt Mandatory Prepayments

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Parties

THE BANK OF NEW YORK MELLON (LONDON BRANCH)

Claimant

TRUVO N.V.

First Defendant

DEUTSCHE BANK AG (LONDON BRANCH)

Second Defendant

MILLAR INVESTMENTS S.À R. L.

Third Defendant

Procedural Posture

Commercial / Judgment

Legal Issues

  1. 1 What level of lender consent was required to amend the mandatory prepayment provisions under the Senior Facilities Agreement (SFA)?
  2. 2 Did the amendment to Clause 11.3 of the SFA require consent of all lenders under Clause 40.3(a)(v) of the SFA and Clause 27.1(b) of the Intercreditor Agreement (ICA)?

Ratio Decidendi

The amendment to Clause 11.3 of the SFA did not have the effect of changing or relating to an amendment to the order of priority or subordination under the ICA within the meaning of Clause 40.3(a)(v) of the SFA. Therefore, only the consent of the Majority Lenders and Truvo was required, not the consent of all lenders.

Court Disposition

Amendment to Clause 11.3 of the SFA valid and effective; only Majority Lender and Truvo consent required.

Orders

  • Counsel to agree draft order including costs; court will address any outstanding issues if not agreed.