FL-2025-000012 - [2025] EWHC 2673 (Ch)

Recital (B) records that:

“Payment events of default (among others) are continuing in respect of the Bonds as both the Parent and the Company failed to redeem their respective Bonds on their maturity date …”

There was then, and there is now, no dispute that the Company and the Parent were and are in default, and that the debt has not been repaid.

Clause 3.1 provides:

“Subject to Clause 4 (Limitations), the Bondholder [FV Debt] agrees that during the Standstill Period it shall not [….]:

(a)

make any demand or institute any action, proceeding or step against any Obligor in respect of any unpaid amount, or exercise any right or power to enforce the terms of or pursue any remedy under, any Finance Document;

(b)

enforce, or instruct or consent to the enforcement of, any debt, claim, right or remedy under any Finance Document; or

(c)

otherwise take any Enforcement Action in respect of any Finance Document or any Obligor

unless such action has been agreed in writing by or on behalf of the Company Parties.”

The capitalised terms are defined in the Intercreditor Agreement and are given the same meanings in the Standstill Agreement. The Finance Documents include the terms of the Subscription Agreements, the Intercreditor Agreement and the Security Documents itemised in Schedule A to the terms and conditions of the bonds, which include the Lux Share Pledge, the Lux Receivables Pledge and the Fiducie.

Clause 3.1 therefore identifies the steps that, incontestably, FV Debt was entitled to take at the date of the Standstill Agreement, under the terms of the Finance Documents, but was agreeing not to take for the standstill period. This is reinforced by clause 12(c), which states that the Bondholder and the Agent expressly reserve all their rights and remedies under the Finance Documents and give no waiver of them.

Clauses 3.2 and 3.3 set out various matters that the Parent and the Company, and separately the Defendant, were agreeing to do and not to do. In both cases, this includes an agreement:

“to cooperate fully with the Bondholder and the Agent in the exercise of their rights under the Finance Documents (subject to the terms of this Agreement”

and (in the Company’s and the Parent’s case) to provide updated information to FV Debt in relation to refinancing or any other enforcement action against them, and (in the Defendant’s case) not itself to make any demand or take any action by way of enforcement against the Company or the Parent.

Clause 7 provides that:

“Without prejudice to any other remedy available to any Party, the obligations under Clause [3] …. shall, subject to applicable law, be the subject of specific performance by the relevant Parties. Each Party acknowledges that damages shall not be an adequate remedy for breach of the obligations under such provisions.”