LM-2023-000035 - [2025] EWHC 1989 (Comm)

Fecha: 28-Jul-2025

The Mandate

The Mandate

56.

In the following extracts, emphasis has been added and words underlined to show examples of poor drafting or where the parties have chosen words that are unclear (or as Jackson LJ put it in Hamid at paragraph 47: instances where “the temptations of the keyboard, the “cut and paste” facility and the mouse” have not been resisted).

57.

The Mandate in its final form was dated 6 July 2021 and addressed to DL Invest Group at an address which is the headquarters (and later became the registered office) of the Defendant. The first paragraph provides:

We are writing to set out the terms on which Xtellus Capital Partners Inc (“Consultant”) will assist DL Invest Group (the “Company”) in raising debt facilities for the financing of its business for an amount of up to c. EUR 200 million (“Financing”)

58.

At clause 1 the Mandate provided:

1.1

By signing this letter where indicated below, the Company and the Consultant confirm, agree, and acknowledge that they wish to proceed with the development of the Financing. In consideration of the Consultant’s agreement to provide advisory services for the Financing, the Company makes the representations and warranties and agrees to the remuneration and reimbursement as set forth hereunder.

1.2

The services to be provided by the Consultant in developing and arranging the Financing may include inter alia the following:

(a) collecting and reviewing relevant information from the Company with regards to the Financing, including operational and financial information about the Company,

(b)

conducting a bankability assessment of the Financing and market assessment of the financing markets and identifying potential financing alternatives,

(c)

identifying an appropriate financing structure to be set up in order to achieve the Company's objectives in connection with the Financing,

(d)

identifying potential financial institutions for the Financing and engaging in dialogue to solicit financial proposals

(e)

evaluating the proposals, discussing the key issues with the management, providing recommendations and developing decision criteria

(f)

participating in meetings/discussions with the financial institutions to assist the Company in such discussions

(g)

coordinating the information flow and questions/queries between the Company and financial institutions or other parties throughout the process: and

(h)

assisting the Company during the entire financing process including the execution/documentation phase up to the successful closing of the Financing.

59.

By clause 4, under the heading “remuneration and reimbursement”, the Mandate provided as follows:

“In consideration of the services to be provided by the Consultant in relation to the Financing, the Company hereby agrees to pay the Consultant in cash, immediately upon commencement of the relevant contract/agreement for each of the Financing, including the initial amount of financing and any subsequent increase or additional amounts of financing, a success fee equal to 1.25% for debt financings to be calculated on the total amount of such Financing.
…..

60.

Under the heading “termination” the Mandate provided as follows at clause 6:

6.1

either the Company or the Consultant may terminate this letter with 10 days prior written notice to the other. Such termination shall be without prejudice to any rights or liabilities of either party accrued until and at the effective date ofsuch termination.

6.2

The obligations and liabilities of the parties hereto accrued as at the date of termination hereunder shall not be extinguished in the event of any such termination.

6.3

The parties hereto expressly agree and acknowledge that notwithstanding termination of this letter and the agreement contemplated herein, the Consultant shall still be entitled to the fee detailed in clause 4 (Remuneration and Reimbursement) of this letter, if any of the Company completes (either wholly or partially) that Financing or any bilateral or analogous financing with one or more Potential Investors (as defined below) within 18 months of the termination of this letter.

….

61.

At clause 7 under the heading “non circumvention and exclusivity”:

The Company agrees not to contact or initiate contact at any time, either directly or indirectly, with the institutions to which the Financing has been and will have been marketed by the Consultant and whose names are disclosed below (the “Potential Investors”), or any officers, directors, shareholders, consultants, attorneys, employees, agents or other affiliates of the potential investors (the “relevant entities”) without the express prior written consent of the Consultant. The reservation does not apply to the period after the termination of this letter and for the next 18 months.

Potential investors are:
1. VTB

Macquarie capital

Notwithstanding the above, during this letter is bonding to the Company, the Company agrees not to undertake the Financing or any transaction or a series oftransactions of any kind with any of the Potential Investors or relevant entities or to pay any fees there under without the express prior written consent of the Consultant…..

62.

In the closing paragraphs:

“Please confirm and indicate your acknowledgement of, and agreement to the foregoing terms of engagement by signing and returning the enclosed duplicate copy of this letter.

Yours faithfully,
……………………
Xtellus Capital Partners Inc
Stephen Zak
Chief Operating Officer
We hereby agree with the terms and conditions set forth above.
…………………..
DL Invest Group
Mr Dominik Leszczyński
CEO, Chairman”

63.

The drafting infelicities (underlined above) tend to suggest that the Mandate was drawn up in a hurry. The oral evidence seemed to confirm that with Mr Zak in particular accepting that he was not “bogged down with the fine details” and not overly concerned with the precise wording of the Mandate. The reason for that was, he told me, that Xtellus dealt with its clients on trust. He said: “we trade tens of hundreds of thousands of dollars’ worth of securities on a phone call. We deal with institutional clients who we trust.”