Gemini (Eclipse 2006-3) Plc & Anor v Danske Bank AS & Anor

Gemini (Eclipse 2006-3) Plc & Anor v Danske Bank AS & Anor

Liquidity Subordinated Amounts are only due and payable if and to the extent that the Issuer has funds available after payment of all higher priority obligations under the Cash Management Agreement and Issuer Deed of Charge; calculation of available funds cannot include Expenses Drawings for Liquidity Subordinated Amounts, and no Expenses Drawing is required unless such amounts are due.

Parties
Claimant: GEMINI (ECLIPSE 2006-3) PLC; Claimant: The Bank of New York Mellon; Defendant: Danske Bank A/S; Defendant: BNY Mellon Corporate Trustee Services Limited
Jurisdiction
England and Wales
Judgment Date
05 November 2012
Procedural Posture
Commercial Dispute / Judgment
Outcome
judgment for claimants
Legal Topics
Securitisation, Priority of Payments, Subordination, Liquidity Facility, Interpretation of Contracts
Banking and Finance Contract Law Securitisation Priority of Payments Subordination Liquidity Facility Interpretation of Contracts

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Parties

GEMINI (ECLIPSE 2006-3) PLC

Claimant

The Bank of New York Mellon

Claimant

Danske Bank A/S

Defendant

BNY Mellon Corporate Trustee Services Limited

Defendant

Procedural Posture

Commercial Dispute / Judgment

Legal Issues

  1. 1 Whether Liquidity Subordinated Amounts were due and payable on 25 July 2012
  2. 2 Whether an Expenses Drawing was required to be made under the Liquidity Facility Agreement and Cash Management Agreement in respect of those amounts

Ratio Decidendi

Liquidity Subordinated Amounts are only due and payable if and to the extent that the Issuer has funds available after payment of all higher priority obligations under the Cash Management Agreement and Issuer Deed of Charge; calculation of available funds cannot include Expenses Drawings for Liquidity Subordinated Amounts, and no Expenses Drawing is required unless such amounts are due.

Court Disposition

judgment for claimants

Orders

  • Liquidity Subordinated Amounts are not due and payable unless and until there are funds available after payment of higher priority obligations.
  • No Expenses Drawing is required for Liquidity Subordinated Amounts unless such amounts are due.