Catbalogan Holdings Sàrl v Unik Bond SA [2025] EWHC 2673 (Ch)

[2025] EWHC 2673 (Ch)

Case No FL-2025-000012

IN THE HIGH COURT OF JUSTICE

BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES

FINANCIAL LIST (ChD)

Venue Rolls Building, Fetter Lane

London, EC4A 1NL

Date Thursday, 16 October 2025

Before

MR JUSTICE FANCOURT

Between

CATBALOGAN HOLDINGS S.à R.L.Claimant

UNIK BOND S.A.Defendant

Anna Boase KC and Joyce Arnold (instructed by Clifford Chance LLP) for Claimant

Nicholas Craig KC (instructed by Gherson Solicitors LLP) for Defendant

Hearing Hearing dates: 7, 8 October 2025

APPROVED JUDGMENT

(draft sent out 13 October 2025)

[1]The first issue in this expedited trial comes down to this, as a matter of contractual interpretation: did the Defendant agree not to challenge any subsequent enforcement of security upon an admitted event of default in return for being granted further time in which to seek to re-finance its subsidiaries’ debts?

[2]A second issue is whether the Claimant stands in its predecessor’s shoes for the purposes of the relevant contracts, so that it is entitled to enforce the agreement not to challenge enforcement and maintain this claim.

[3]If the Claimant succeeds on both issues then, by issuing the proceedings that it has before the Tribunal de Commerce in Paris (“the Paris Proceedings”), seeking to stay or reverse the enforcement action that has been taken, the Defendant is in breach of contract, and there is a question of what relief this Court should grant the Claimant.

[4]The Claimant seeks a declaration that the Defendant has acted in breach of contract and an injunction requiring it to withdraw the Paris Proceedings. By agreement, the Paris Proceedings have been adjourned until November to enable this claim to be determined first.

[5]It is common ground that it is unnecessary to decide any question of substantive French law, either because none is pleaded to be relevant to the issues raised by the Claimant in this claim, or because (in relation to the interpretation of contracts governed by French law) no party contends that French law is materially different from English law.

[6]Ms Anna Boase KC and Ms Joyce Arnold appeared for the Claimant and Mr Nicholas Craig KC appeared for the Defendant. I am grateful to them for their lucid and helpful submissions and to all the legal teams for the impeccable way that the documentation and other materials to assist the court were prepared.

[7]The Claimant, a company incorporated in Luxembourg, is the assignee of the interest and rights of FV Debt Holding S.à R.L. (“FV Debt”) in bonds issued by two companies, Hotel de Mandelieu La Napoule S.à.S. (“the Company”) and its parent, Poséïdon Hospitality S.à R.L. (“the Parent”). The shares in the Parent were held prior to 28 May 2025 by the Defendant as to 50% and by Financière Luminaire S.à R.L. (“FL”) as to 50%.

[8]FV Debt was itself the assignee (and an affiliate) of the original subscriber and bondholder, Regera S.à R.L. (“Regera”). The Subscription Agreements are governed by French law, with exclusive jurisdiction clauses in favour of the Tribunal de Commerce de Paris, and they include the terms and conditions of the bonds, at Schedule 3 to the Subscription Agreements. The maturity date of all the bonds was 6 September 2024.

[9]As part of the original financing transaction on 7 March 2023, security for the debt of the Company and the Parent under the bonds was provided by the Parent and Defendant respectively, including in the following form: i) a share pledge agreement (“the Lux Share Pledge”), governed by Luxembourg law, by which the Defendant and FL pledged all the shares in the Parent to Aether Financial Services (“Aether”), the administrative agent and security agent for the bonds; ii) a receivables pledge agreement (“the Lux Receivables Pledge”), governed by Luxembourg law, by which the Defendant and FL pledged receivables owed by the Parent to Aether; and iii) a fiducie agreement (“the Fiducie”), governed by French law, under which the Parent transferred its shares in the Company to Aloe Private Equity (“Aloe”), as trustee of a trust that was created as security for the obligations of the Company and the Parent under the bonds and for other loans by the Defendant to the Parent.

[10]On the same date, the Company, the Parent, Regera, the Defendant, FL and Aether entered into an Intercreditor Agreement, which is governed by English law.

[11]The bonds became immediately due and payable on 6 September 2024 but were not repaid. This was an event of default under the terms of the bonds. Aether on behalf of itself, Regera and FV Debt formally reserved their rights by letter dated 12 September 2024 but allowed the Company and the Parent further time to refinance.

[12]Two months later, on 11 November 2024, the Company, the Parent, the Defendant, Aether and FV Debt entered into two further written agreements, governed by English law, that are the relevant contracts to be interpreted for the first issue: i) a Standstill Agreement, which provided that FV Debt would not demand repayment, bring any claim or take any Enforcement Action, as defined in the Intercreditor Agreement, during the defined standstill period, to provide “a limited period for the Group to conclude a refinancing transaction to repay the Bonds in full”; ii) an Additional Agreement containing acknowledgments and undertakings on the part of the Company, the Parent and the Defendant “given in consideration for the accommodations provided by the Bondholder and the Agent in the Standstill Agreement”, as the Additional Agreement recites.

[13]It is common ground that the two written agreements are in substance a single agreement concluded on 11 November 2024 and fall to be construed together.

[14]The Standstill Agreement was made initially for a maximum period of 3 weeks, ending on 2 December 2024, but it provided that the standstill period could be extended by agreement. That date came and went but the bonds were not repaid.

[15]On 16 January 2025, the parties to the Standstill Agreement and the Additional Agreement entered into two Amendment Agreements (governed by English law), amending the terms of each of those principal agreements and providing that each principal agreement and the Amendment Agreement should be read and construed as one document. They extended the period of the standstill to 31 January 2025.

[16]I will return shortly to the central terms of these Agreements.

[17]On 19 February 2025, FV Debt, the Claimant and Aether entered into two Transfer Agreements, by which the bonds (in default) were to be transferred to the Claimant, which at that time was an affiliate of Regera, and so the bonds could be and were transferred without the consent of the Issuers. The Parent and the Company were not parties to the Transfer Agreements. Written notice of the transfers was given to the Company, the Parent, the Defendant and Aether on the same day.

[18]Also, on the same day, the Claimant executed a creditor accession agreement, by which it acceded to the terms of the Intercreditor Agreement, and an accession to the Fiducie. Pursuant to the notice given, the Company and the Parent each registered the Claimant as the bondholder in the Bonds Register that, under the terms and conditions of the bonds (set out later in this judgment), the Issuer was required to keep.

[19]The standstill period (which had been further extended) expired on 14 March 2025 but the Claimant forbore to enforce its rights.

[20]On 7 May 2025, the ultimate owners of Regera, FV Debt and the Claimant sold the Claimant to Azure Riviera Lending, LLC (“Azure”).

[21]On 13 May 2025, Aether sent letters to the Company, the Parent and the Defendant reserving the finance parties’ rights and confirming that the Claimant was prepared to forbear to enforce its rights until 23 May 2025, with no expectation of further delay.

[22]On 27 May 2025, Aether issued a demand notice, declaring all sums under the bonds to be due (though this was strictly unnecessary) and requiring payment by 10 am on 28 May 2025. When payment was not made, Aether, acting on the instructions of the Claimant under the Intercreditor Agreement, issued a notice of enforcement, giving notice that the Lux Share Pledge and the Lux Receivables Pledge had been enforced. The shares in the Parent were appropriated to the Claimant and immediately sold to Seaside Serenity Holding B.V. (“Seaside”), a company in the same group as Azure.

[23]Aether also gave notice to Aloe, on behalf of the Claimant, that a Triggering Event had occurred under the Fiducie and, exercising its voting rights to the shares of the Company, Aloe wrote to Mr Kadi dismissing him as President of the Company with immediate effect and appointing Mr Burgio as replacement.

[24]In response, the Defendant swiftly entered a request at the Tribunal de Commerce for authority to issue an urgent summons against Aloe, Aether, Azure and Seaside. On receipt of authority to issue, the Defendant started the Paris Proceedings against those respondents and served a summons on Aloe for a hearing on 12 June 2025.

[25]Before that hearing took place, the Claimant obtained an order in the High Court from Richard Smith J ordering the Defendant to take all steps within its power to obtain an adjournment of the Paris Proceedings. The Defendant did not comply with that order, but the Paris Proceedings were adjourned, despite its oral argument that they should be heard that day.

[26]On 26 June 2025, upon the Defendant agreeing to seek an adjournment of the next hearing date in Paris, I accepted an undertaking from it to take all steps within its power to pursue an adjournment of that hearing date, and I ordered an expedited trial of the matters that are now before me.

[27]Again, the Defendant did not comply with its undertaking, and the Claimant was forced to return to this court to seek an order that the Defendant write to the Tribunal de Commerce in specified terms, seeking an adjournment. Following an order of Thompsell J on 1 July 2025, the letter was finally written, and on 3 July 2025 the Paris Proceedings were adjourned to 12 November 2025.

[28]In the Paris Proceedings, the Defendant complains that the demand notice of 27 May 2025 was hurried, disproportionate and contradictory and in breach of the obligation of good faith; that it was issued by an agent (Aether) on behalf of the Claimant which was no longer the holder of the receivables; that notification of a Triggering Event under the Fiducie was unlawful, and so realisation by Aloe under the Fiducie was also unlawful and should be suspended, among other allegations.

[29]The relief sought by the Defendant in the Paris Proceedings is: i) Suspension of execution under the Fiducie, including any act or disposal taking place after 28 May 2025; ii) A declaration that the demand notice of 27 May 2025 was invalid; iii) An order against Aloe and any other holder of voting rights in the Company to abstain from any corporate decision; iv) Suspension of the notice of enforcement dated 28 May 2025 and of the effects of the execution that took place, including the removal of Mr Kadi; v) Returning the governance of the Company to the Defendant.

[30]As such, the Paris Proceedings were plainly a challenge to the entitlement of the Claimant to have enforced its security and to the validity of the particular steps by way of enforcement taken at its direction. The Claimant contends that the Paris Proceedings were a breach of the terms of the Additional Agreement, as amended by the Amendment Agreement. The Defendant disputes that, on its true construction, these Agreements prevented it from challenging, in the correct jurisdiction, the validity of enforcement action taken by the Claimant after 11 November 2024.

[31]I set out below the terms of the Standstill Agreement, the Additional Agreement and the Amendment Agreement that are most material to this question of interpretation.

The Standstill Agreement

[32]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.

[33]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. (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

[34]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.

[35]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.

[36]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.”

The Additional Agreement (as amended by the Amendment Agreement)

[37]I have referred already to the recital which explains that the “acknowledgments and undertakings” in this Agreement are given in consideration for the accommodations provided by FV Debt and Aether in the Standstill Agreement.

[38]Clause 4, headed “Creditworthiness”, states that:

“The Company Parties [the Company, the Parent and the Defendant] agree and acknowledge that the Parent and the Company: (a) failed to redeem the Bonds on their respective Maturity Dates and therefore that Events of Default are continuing under (among others) clause 21.1 (Non-Payment) of the T1 Terms and Conditions and clause 20.1 (Non-Payment) of the T2 Terms and Conditions; (b) have suspended making payments on certain of their debts, including in relation to the Bonds; and (c) but for the terms of the Standstill Agreement and unless the Bonds are redeemed in full prior to the termination of the Standstill Agreement, are unable to pay their debts as they fall due, including in relation to the Bonds.”

As under the Standstill Agreement, capitalised terms have the same meaning as in the Intercreditor Agreement. (a) failed to redeem the Bonds on their respective Maturity Dates and therefore that Events of Default are continuing under (among others) clause 21.1 (Non-Payment) of the T1 Terms and Conditions and clause 20.1 (Non-Payment) of the T2 Terms and Conditions; (b) have suspended making payments on certain of their debts, including in relation to the Bonds; and (c) but for the terms of the Standstill Agreement and unless the Bonds are redeemed in full prior to the termination of the Standstill Agreement, are unable to pay their debts as they fall due, including in relation to the Bonds.”

[39]It is not disputed that this important clause creates, and is intended to create, a contractual estoppel in relation to the past and continuing events of default, the current inability of the Company and the Parent to pay their debts as they fall due, and (unless full redemption takes place before the end of the standstill period) their future inability to pay their debts as they fall due. Notably, therefore, though an event of default under the bonds already existed, the Additional Agreement confers a further right on FV Debt and Aether in the event that that full redemption does not take place, namely the agreed occurrence of a Luxembourg Security Enforcement Event, as defined in the Intercreditor Agreement, being the insolvency of the Company and the Parent.

[40]To explain that, clause 10 of the Intercreditor Agreement entitles the majority senior creditors, in the event of any Transaction Security becoming enforceable in accordance with its terms, to instruct Aether to enforce or refrain from enforcing as they see fit, however, clause 10(b) states:

“Notwithstanding paragraph (a) above, the Instructing Group shall refrain from instructing the Security Agent to enforce a Luxembourg Transaction Security unless any Luxembourg Security Enforcement Event has occurred and is continuing.”

Clause 4(c) of the Additional Agreement therefore gave FV Debt and Aether the immediate right, once the standstill period had expired without the bonds having been redeemed in full, to enforce under the Lux Share Pledge and the Lux Receivables Pledge against the Parent, not just against the Company, and effectively admitted that right.

[41]The Defendant does not dispute that that is the effect of clause 4 of the Additional Agreement.

[42]Clause 5 of the Additional Agreement is headed “Co-operation regarding Enforcement Action”. Enforcement Action is a defined term and includes making a demand and, most relevantly, the taking of any steps to enforce or require the enforcement of any Transaction Security. Clause 5 provides: “Subject to the terms of the Standstill Agreement, the Company Parties:a. undertake to co-operate fully with the Bondholder and the Agent in relation to any Enforcement Action they may wish to take at any time (including without limitation any preparatory steps they may wish to take while the Standstill Agreement is in force);

b. agree and acknowledge that the Agent (acting on the instructions of the Instructing Group) may enforce or refrain from enforcing any Transaction Security as the Instructing Group sees fit, including as regards the sequencing of any enforcement steps in respect of any particular secured asset and any decision to enforce part but not all of the security created under any given Security Document;

c. agree and acknowledge that if the Agent (acting on the instructions of the Instructing Group) chooses, at its entire discretion, to enforce the first ranking Luxembourg law governed share pledge agreement dated 7 March 2023 over the shares in the Parent (the Lux Share Pledge) and/or the first ranking Luxembourg law governed receivables pledge agreement dated 7 March 2023 over all receivables owed by the Parent to Unik and Luminare (the Lux Receivables Pledge), it may take the following approach when appointing the "Expert" under clause 8(b) of each of the Lux Share Pledge and the Lux Receivables Pledge: i. to seek indications from CBRE France, Cushman & Wakefield France and Jones Lang LaSalle SAS (the Specified Real Estate Firms) whether they will be able to provide an independent valuation of the relevant Shares or Receivables (as defined in the Lux Share Pledge and the Lux Receivables Pledge respectively) that are the subject of Enforcement Action or, in the alternative, whether they will be able to provide an independent valuation of the underlying real estate assets held by the Company; and ii. if none of the Specified Real Estate Firms is able to provide an independent valuation of the relevant assets that are the subject of Enforcement Action, to appoint an independent auditor (reviseur d'entreprises), a reputable investment bank or a sales agent, in each case in its sole discretion, as the "Expert" with a Specified Real Estate Firm (or, if no Specified Real Estate Firm is able and willing to assist, such other valuation firm as the Agent may select in its sole discretion) providing an independent valuation of the underlying real estate assets held by the Company to inform the valuation of the Shares or Receivables (as the case may be); and

d. agree and acknowledge that no Company Party shall contest, or seek to contest or otherwise prevent, the validity of, or exercise by the Agent of its rights under, any Finance Document, including any Security Document, including, without limitation, the approach to the appointment of the "Expert" under the Lux Share Pledge and/or the Lux Receivables Pledge set out in paragraph (c) above, and the Company Parties hereby irrevocably release any rights or claims they may have now or in the future in this regard.” ………. i. to seek indications from CBRE France, Cushman & Wakefield France and Jones Lang LaSalle SAS (the Specified Real Estate Firms) whether they will be able to provide an independent valuation of the relevant Shares or Receivables (as defined in the Lux Share Pledge and the Lux Receivables Pledge respectively) that are the subject of Enforcement Action or, in the alternative, whether they will be able to provide an independent valuation of the underlying real estate assets held by the Company; and ii. if none of the Specified Real Estate Firms is able to provide an independent valuation of the relevant assets that are the subject of Enforcement Action, to appoint an independent auditor (reviseur d'entreprises), a reputable investment bank or a sales agent, in each case in its sole discretion, as the "Expert" with a Specified Real Estate Firm (or, if no Specified Real Estate Firm is able and willing to assist, such other valuation firm as the Agent may select in its sole discretion) providing an independent valuation of the underlying real estate assets held by the Company to inform the valuation of the Shares or Receivables (as the case may be); and

[43]Clause 6 of the Additional Agreement is headed “Exercise of rights under security documents”. It provides:

“The Company Parties agree and acknowledge (including without limitation for the purposes of clause 3.1 (Standstill) of the Standstill Agreement) that: a. because Events of Default are continuing, the Agent (as Pledgee under the Lux Share Pledge) is entitled to exercise, at its entire discretion, the voting rights in relation to the Shares in any manner it deems fit for the purpose of protecting and/or enforcing its rights under the Lux Share Pledge; b. notwithstanding the terms of the Standstill Agreement, the Agent (on the instructions of the Instructing Group) may wish, during the Standstill Period or otherwise, to exercise the voting rights in relation to the Shares to protect its rights; c. no Company Party shall contest, or seek to contest or otherwise prevent, the exercise by the Agent of the voting rights in relation to the Shares in accordance with the terms of the Lux Share Pledge and the Company Parties hereby irrevocably release any rights or claims they may have now or in the future in this regard; d. the Agent (as Pledgee under the Lux Share Pledge) may (during the Standstill Period or otherwise) enforce the security it holds in respect of the Shares exclusively held by Financiere Luminare S.a r.l. in the Parent (the Luminare Shares) only at any time following the occurrence of an Event of Default which is continuing; and e. the Pledgors (as defined in each of the Lux Share Pledge and the Lux Receivables Pledge) have irrevocably waived any right of recourse, right, action and claim that they may have, whether by way of subrogation or directly or of any other nature, against any Obligor and all or any of the direct and indirect subsidiaries of such Obligor, further to an enforcement of the relevant security by any means whatsoever.”

[44]It is notable (and, the Defendant submits, significant) that clause 5(a) is expressed as an undertaking to do something, namely to cooperate, in relation to future Enforcement Action, as defined. Clauses 5(b), (c) and (d), by contrast, are expressed as agreements and acknowledgements, rather than as undertakings; though clause 5(d) contains two parts: first, an agreement and acknowledgement that the Company Parties (the Company, the Parent and the Defendant) will not do certain things in future, including contesting or preventing the exercise of Aether’s security rights; and second, a release of existing or future rights “in that regard”. Which “regard” is being referred to in that second part of clause 5(d) is an important matter in dispute.

[45]All the contents of clause 5 are expressed to be subject to the terms of the Standstill Agreement, i.e. to the extent that the terms of the Standstill Agreement cut across the obligations or agreements in clause 5, these are qualified, to that extent only. However, clause 5(a) nevertheless requires the Company Parties to cooperate to a limited extent even during the standstill period.

[46]Clause 6, in contrast, contains matters agreed and acknowledged by the Company Parties for the purposes of the Standstill Agreement as well as the Additional Agreement, and include specific rights that FV Debt could exercise either during the standstill period or at any time, notwithstanding the Standstill Agreement. It also contains a waiver by the Defendant of rights of recourse against the Company and the Parent in consequence of any enforcement of its security.

[47]Clause 11 of the Additional Agreement states that:

“Subject to the terms of this Agreement, the Finance Documents remain in full force and effect.”

[48]Clauses 15 and 16, as inserted by the Amendment Agreement, state:

“15. Unless otherwise provided in this Agreement, a person who is not a Party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999. 16. If the Bondholder is assigning or transferring any of its rights or obligations under, and in accordance with the terms of, the Subscription Agreements, to another entity, the Bondholder and/or the Agent may assign or transfer (including by way of novation) any of its rights and/or obligations under this Agreement to such entity without the need for any consent from the Parties.”

Interpretation of clause 5 of the Additional Agreement

[49]The parties are agreed on the legal principles to be applied when interpreting the contracts in issue in this claim. Both referred me to the judgment of Popplewell J in Lukoil Asia Pacific Pte Ltd v Ocean Tankers (Pte) Ltd

[2018] EWHC 163 (Comm)

; [2018] 2 All ER (Comm) 108 at [8], which helpfully summarises the principles established by the very well-known House of Lords and Supreme Court decisions on interpretation of commercial contracts:

“The court's task is to ascertain the objective meaning of the language which the parties have chosen in which to express their agreement. The court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the parties to have meant. The court must consider the contract as a whole and, depending on the nature, formality and quality of drafting of the contract, give more or less weight to elements of the wider context in reaching its view as to the objective meaning of the language used. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other. Interpretation is a unitary exercise; In striking a balance between the indications given by the language and the implications of the competing constructions, the court must consider the quality of drafting of the clause and it must also be alive to the possibility that one side may have agreed to something which with hindsight did not serve his interest; Similarly, the court must not lose sight of the possibility that a provision may be a negotiated compromise hold that the negotiators were not able to agree more precise terms. This unitary exercise involves an iterative process by which each suggested interpretation is checked against the provisions of the contract and its commercial consequences are investigated. It does not matter whether the more detailed analysis commences would be factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.”

[50]It is material that the Agreements in issue are carefully drawn, and obviously drafted by experts, bearing the name of Allen Overy Shearman Sterling LLP on their front pages. This is not a case in which the express language used in the documents can be given less weight, on the basis that they are poorly or inexpertly drafted, unless a particular mistake in the wording is obvious. No one has identified such a mistake, other than as to the numbering of a clause.

[51]There is no relevant factual matrix to take into account in this case other than that which is obvious from the nature of the Subscription Agreements, the security structure for the bonds, and the default that is recorded in the terms of the Standstill Agreement and the Additional Agreement. Ms Proia, who made a witness statement on behalf of the Defendant, attempted to give some evidence about the way in which the Additional Agreement came into existence alongside the Standstill Agreement, and what its purpose was, but I agree with Ms Boase KC that this evidence is inadmissible. Mr Craig KC did not contend the contrary, and I therefore ignore that part of her evidence.

[52]On that basis, the starting point in construing the relevant provisions of the Standstill and Additional Agreements must be the language of those agreements and whether, in the limited factual context that I have described, there is any ambiguity, latent or patent. However, I have in mind and will apply the principles that Popplewell J explains, bearing in mind the consequences of the alternative constructions and the limits on any assumption that can be made about any negotiations that led to the Agreements.

[53]A further relevant aspect when considering the commercial sense of the rival constructions is whether the Defendant can be taken to have given up valuable legal rights, including recourse to the court, or courts, in case of future dispute, and whether the language is sufficiently clear to require that conclusion. Both sides referred me in this regard to the judgment of Lord Leggatt in Triple Point Technology Inc v PTT Public Co Ltd

[2021] UKSC 29

;

[2021] AC 1148

at [108]-[111]. In that case, the Supreme Court considered the interpretation of a liquidated damages clause and a cap on recoverable damages. One question was whether the cap applied to loss caused by failure to comply with an implied duty to carry out work with reasonable care and skill. Lord Leggatt (with whom Lord Burrows agreed) identified, among his reasons for holding that the cap did not so apply, the fact that the parties had not used clear words to exclude a remedy that would otherwise be available as a matter of law.

[54]The principle is summarised in a decision of Andrew Burrows QC, sitting as a deputy High Court judge in Federal Republic of Nigeria v JP Morgan Chase Bank NA [2019] 1 CLC 207, which was approved by Lord Leggatt:

“Applying the modern approach, the force of what was the contra proferentem rule is embraced by recognising that a party is unlikely to have agreed to give up a valuable right that it would otherwise have had without clear words. And as Moore-Bick LJ put it in the Stocznia case, at para 23, ‘The more valuable the right, the clearer the language will need to be’. So, for example, clear words will generally be needed before a court will conclude that the agreement excludes a party’s liability for its own negligence.”

[55]In short, the Defendant says that there is insufficiently clear language to enable the court to conclude that it agreed to give up its rights to take a future dispute about the lawfulness of enforcement action to the Tribunal de Commerce de Paris or the courts of Luxembourg, as the case may be.

[56]The Claimant’s case is that the effect of clause 5 is spelled out in clear language, and that the extent of the concessions made by the Company Parties is unsurprising, given the position that they were in November 2024 when the Standstill and Additional Agreements were made. There was admitted default, and they were unable to repay the debt and redeem without refinancing, which they were attempting to do. That would either be successful, in which case the bonds would be redeemed in full and there would be no enforcement, or it would fail, in which case the Company Parties had no defence to any enforcement that FV Debt wished to pursue, at its choice, from the various options available to it under the Security Documents. By the Standstill Agreement, FV Debt had agreed to give time for the refinancing to be concluded. In return, it was obtaining further valuable rights in the event that it was not paid off and enforcement was needed.

[57]The Claimant argues that the effect of clause 5(a) is that the Company Parties are obliged to cooperate, not just by taking active steps to collaborate on Enforcement Action, when called upon to do so, as the Defendant suggests, but also by desisting from doing things that would undermine, obstruct or prevent the Company Parties from exercising their rights in relation to any Enforcement Action that they chose to pursue. That is, they submit, the natural way of reading an obligation to cooperate fully in relation to matters that were principally to be done by others, using the extensive rights that they had. There is no temporal limitation on the scope of the obligation, depending on when the Enforcement Action was or will be taken or the time at which the rights to be enforced accrued.

[58]The Claimant argues that although clause 5(b) is expressed as an agreement and acknowledgment, it is not merely a statement intended to give rise to a contractual estoppel but also includes a negative obligation on the Defendant, namely that it must not contend to the contrary. Further, the issues of sequencing or partial enforcement specifically referred to in this clause are only instances of a greater range of enforcement measures, as denoted by the word “including”, and are not the entire scope of the clause.

[59]Clause 5(d), submits the Claimant, falls into two parts, the first of which is a promise as to the future conduct of the Company Parties, namely that they will not challenge the exercise or validity of rights under any Finance Document – which again includes one specific instance of what they must not contest, but which is not the whole scope of the clause. The second part is a release of concomitant rights or claims, present or future, that the Defendant may have “in this regard”. This is not limited to any rights that FV Debt already had at the date of the agreement, and the release in the second part of the clause applies, generally, to any rights or claims that the Defendant might otherwise have to challenge exercise or validity of FV Debt’s rights, not just to the additional right conferred by clause 5(c).

[60]The effect, the Claimant says, is that by bringing the Paris Proceedings seeking to undo or stay the execution that Aether and Aloe carried out on its behalf, the Defendant is in breach of clauses 5(a) (because it has done something to seek to undermine Enforcement Action that the Claimant and Aether had taken), 5(b) (by contending that Aether and Aloe on behalf of the Claimant were not entitled to enforce Transaction Security in the way that they did), and clause 5(d) (by contesting the validity and effect of the exercise by Aether of rights under the Lux Share Pledge and the Lux Receivables Pledge).

[61]The Defendant’s case is that the Claimant’s interpretation of clause 5 is far too broad, and that it amounts to the Company Parties surrendering all their future rights to challenge, in Paris or Luxembourg, any wrongful exercise in future of the rights conferred by the Finance and Security Documents. The Defendant argues that such a surrender of all ability to control what FV Debt and Aether do, whether that is in accordance with the rights conferred by the Finance and Security Documents or not, is most improbable, and that the language of clause 5 is nowhere near clear enough for the court to conclude that it has that far-reaching effect.

[62]To support this case, the Defendant advanced a different interpretation of clause 5, which it contends that the language expresses, thereby demonstrating that there is not the clarity required to conclude that the Defendant was giving up its right to raise any excessive or unlawful action in accordance with the jurisdiction clauses.

[63]In that regard, the Defendant emphasised clause 11 of the Additional Agreement and argued that the parties were thereby asserting the primacy of the terms of the Finance Documents and the importance of not derogating from the overseas jurisdiction choice that the parties made in those documents.

[64]I am not persuaded by this particular point. First, the effect of clause 11 is that the Finance Documents continue to apply to regulate the relationship of the Bondholder, the Agent and the Company Parties but subject to the terms of the Additional Agreement. If the Additional Agreement cuts across the terms of the Finance Documents, they are overridden to that extent. Thus, if under the Additional Agreement the Company Parties agree not to raise a challenge to any purported exercise of rights arising from the Finance Documents, the ability that the Defendant would otherwise have to assert unlawful exercise of those rights is excluded, by their agreement. (There is no suggestion that the Finance Documents cannot be varied by agreement, or can only be varied in an agreement governed by French law.). Whether an assertion of unlawful exercise could otherwise have been raised in Paris or Luxembourg matters not if the right to do has been released.

[65]However, the question of whether the language used is sufficiently clear to justify a conclusion that the Defendant has indeed contracted out of recourse to the courts remains for decision.

[66]As to that, the Defendant contends that there is a clear distinction in clause 5 between those parts of it that amount to obligations and those parts that are only an agreement and acknowledgement, which give rise to a contractual estoppel as to the matters agreed and acknowledged but not to an obligation, whether negative or positive. The Defendant points to the difference in the language used by the draftsman, in both the Standstill Agreement and the Additional Agreement, between matters that a party “agrees” or “undertakes” and matters that are “acknowledged” or “agreed and acknowledged”. Mr Craig argued that the words “agree and acknowledge” are consistently used to indicate a matter which amounts to no more than a contractual estoppel, preventing a party from asserting the contrary in any further proceedings but not amounting to an obligation not to bring proceedings. Such an estoppel may, he said, be as to a past, existing or future state of affairs.

[67]Thus, while the express undertaking in clause 5(a) to cooperate fully with the Bondholder and the Agent in relation to any Enforcement Action is admitted to create an obligation, the Defendant contends that the rest of clause 5 does not.

[68]As to clause 5(a), the Defendant argues that the obligation to cooperate extends only to cooperating before (not after) FV Debt or Aether conducts any Enforcement Action, and only where what is required is some positive collaboration on the part of a Company Party. Thus, to the extent that the Claimant has already taken Enforcement Action, as they arguably did (though the Defendant denies the validity of it) on 27 and 28 May 2025, the obligation in clause 5(a) no longer bites on the Company Parties unless and until the Claimant needs some further collaborative effort to conduct further Enforcement Action. There was therefore nothing in clause 5(a) to prevent the Defendant from commencing the Paris Proceedings, seeking to challenge the validity of, or to undo, the steps that Aether and Aloe took on and after 28 May 2025.

[69]I unhesitatingly reject that argument. There is nothing in the language of clause 5(a) to restrict the obligation to cooperate to positive collaboration prior to Enforcement Action being taken, nor does it make commercial sense. The words in parenthesis (“including without limitation any preparatory steps they may wish to take while the Standstill Agreement is in force”) do not define the extent of the obligation but spell out something that is included in it. They are there in clause 5(a) because otherwise cooperation on preparatory steps would be caught by the opening words of clause 5 (“Subject to the terms of the Standstill Agreement”). The inclusion of those words recognises that preparatory steps prior to enforcement are within the obligation but does not limit the obligation to such steps – which is really the effect of the Defendant’s argument. The words “including without limitation” are unambiguous, and the reason for the inclusion of the words in parenthesis is clear.

[70]Further, the words “any Enforcement Action they may wish to take” do not limit the obligation to a point in time when the Enforcement Action has not yet been carried out. They signify that the obligation bites on any future Enforcement Action, given the existence of the rights that FV Debt already had at the date of the Additional Agreement but which could not be enforced during the standstill period. If the Defendant were right in its interpretation of clause 5(a), the Defendant would be free to challenge any Enforcement Action after the event, in court proceedings or otherwise, which is self-evidently not what the clause intends.

[71]I agree with the Claimant that the obligation to cooperate fully includes an obligation not to derogate from Enforcement Action in any way after it has been taken.

[72]The Defendant’s next argument is that the obligation in clause 5(a) only applies in relation to valid Enforcement Action, and does not apply to invalid enforcement or other actions. Accordingly, there is nothing in clause 5(a) to prevent the Defendant from asserting in proceedings that what was done was not valid Enforcement Action.

[73]If, at the time of the Additional Agreement, there could be seen to be doubt about what would happen in future and whether it could be enforced under the Finance or Security Documents, there might be force in this point. But the circumstances at the date of the Additional Agreement were quite different, namely that an Event of Default was admitted and rights to enforce had already indubitably accrued. Further, by the terms of the Additional Agreement, the Company Parties were accepting that if the bonds were not redeemed at the end of the standstill period, there would thereupon be a Luxembourg Security Enforcement Event, which would entitle FV Debt, by simple notice, to the full range of enforcement options. Either the refinancing would be in place or the Company and the Parent were insolvent and that was the end. What the Defendant needed was time, and that FV Debt agreed to give it, but at a price that would facilitate its enforcement if refinancing failed.

[74]In those circumstances, I cannot accept the argument that any rights conferred on FV Debt and Aether by clause 5(a) were subject to proof by them (and therefore always liable to challenge by the Defendant) that what was done by way of Enforcement Action was or was not lawful. To construe the clause in that way would deprive it of much of its commercial effect, once it is accepted that it extends, as it does, to anything done by the Company Parties after Enforcement Action is taken to attempt to undermine its effect. Although that means that the Company Parties were giving up their rights of recourse to the court to adjudicate on the lawfulness of what FV Debt or Aether might do, both the language and the circumstances are sufficiently clear, in my judgment, that that is what was being agreed as the price of giving the Defendant the chance to refinance its subsidiaries’ debts.

[75]Further, the Claimant accepts that the restriction on challenging Enforcement Action could not, as a matter of interpretation, prevent challenge to conduct which is fraudulent or dishonest. That concession is obviously appropriately made. Nor, the Claimant accepts, could it extend to seeking to prevent something that is manifestly not Enforcement Action as defined at all.

[76]If the Claimant is right, the Company Parties were nevertheless giving up the right to challenge any action by FV Debt or Aether in the course of purported Enforcement Action on the basis that it was invalid formally, or by being a breach of a term of the Finance and Security Documents, or as being unlawful in some other respect. Recognising that clear language is needed for such a conclusion, I do however conclude that that is exactly what was being done, in order for the Company Parties to have a final chance to redeem the bonds. It is a conclusion supported by the other terms of the Additional Agreement, particularly clause 5(d), when properly construed, and the admitted circumstances of the Company Parties at the date when it was made.

[77]As to clause 5(b), the Defendant’s case is that it does not give rise to an obligation, as previously explained, and that, if it does, it is limited to the sequencing of enforcement steps or partial enforcement. Although words such as “agrees and acknowledges” often signify a fact that is intended to take effect only as a contractual estoppel, those words do not necessarily have that effect. Whether they do or not is likely to depend on the substance of the matter stated. Here, that matter is the ability of Aether to enforce any Transaction Security as it sees fit. That is a right already provided by the Intercreditor Agreement. It may be that there was perceived to be uncertainty about the extent of the rights granted by it, or that FV Debt wanted clarification. There is therefore, to that extent, agreement as to future rights that FV Debt or Aether would have, but it does not appear to me that clause 5(b) imposes any obligation on the Company Parties separately from clause 5(a), nor did it need to do so. I therefore agree with the Defendant that clause 5(b) takes effect as a contractual estoppel as to the matters stated in it.

[78]Turning to clause 5(d), it is common ground that it is to be read in two parts, the first concerned with contesting or preventing the exercise of rights under Finance or Security Documents, and the second with releasing certain rights or claims.

[79]The Defendant’s case is as follows. The first part is only an agreement and acknowledgment, to take effect as a contractual estoppel as to the exercise of rights that the Agent actually had, under the Finance Documents, and which had accrued at the date of the Additional Agreement. These include, specifically, the way in which a valuer may be appointed as provided in clause 5(c), and that is the sole subject matter of the release in the second part of the clause. Clause 5(d) does not grant FV Debt or Aether any further rights except immunity from challenge to the exercise of the new right conferred by clause 5(c), and there is nothing to prevent the Defendant from challenging or seeking to prevent the exercise of rights that FV Debt and Aether do not have under the Finance Documents (i.e. from asserting that the exercise of rights was unlawful). The Defendant argues that “the rights” referred to must be present rights, acknowledged in the Additional Agreement, as these are more likely to be the subject of a contractual estoppel than unknown future rights. The Defendant would therefore not be precluded from maintaining in proceedings that any rights that were asserted to have accrued after the date of the Additional Agreement had not validly accrued, or indeed that any accrued rights were not being validly exercised.

[80]Among the rights that had not accrued by the date of the Additional Agreement were rights pursuant to a Luxembourg Security Enforcement Event, since that would not arise until the expiry of the standstill period without payment in full, pursuant to clause 4(c). The right to appoint a valuer under the Lux Share Pledge or the Lux Receivables Pledge had not arisen, therefore. However, the Defendant’s argument is that an estoppel arises in relation to, among other things, the approach to the appointment of the expert valuer, and that the release in the second part of clause 5(d) relates to that specific matter.

[81]In my judgment, the Defendant’s argument is ultimately self-defeating in trying to limit the application of clause 5(d). It does not make sense that it applies only to existing rights, including specifically the appointment of an expert valuer when no such right has yet accrued. Nor does a distinction between existing and future rights make commercial sense when the expiry of the standstill period without full repayment would give rise to a Luxembourg Security Enforcement Event, entitling FV Debt to instruct Aether to enforce under clause 10 of the Intercreditor Agreement as it saw fit. Indeed, all that FV Debt had to do under the Fiducie was to instruct Aether to notify Aloe of a Triggering Event (non-payment of the debt was sufficient) in the model form of notification (clause 12.1(b) and Annex 11 to the Fiducie). It is only on the date of notification of the Triggering Event that, under that clause, the Event and any enforcement are deemed to have occurred.

[82]It can therefore be seen that there were important rights that would accrue, either automatically or upon service of a unilateral notice by Aether, upon expiry of the standstill period, and yet the Defendant says that clause 5(d) was not affording FV Debt even the benefit of an estoppel in relation to them, much less an obligation not to challenge their exercise. This strikes me as commercially highly improbable, and the interpretative gymnastics that the Defendant has to perform to reach that conclusion are a considerable stretch from the natural meaning of the words in their factual context.

[83]In my judgment, clause 5(d) of the Additional Agreement means what it says, and has (and was intended to have) a wide effect. An agreement that something shall not be “contest[ed] or otherwise prevent[ed]” does not, despite the use of the words “agree and acknowledge”, have effect only as a contractual estoppel. It does not only prevent the Company Parties in future from contesting that rights were not validly executed but obliges the Company Parties not to seek to prevent the exercise by the Agent of its rights under any Finance Document. It therefore creates a binding obligation that the Company Parties were to perform.

[84]Read in that way, the first part of the clause fits the natural reading of the words in the second part, an irrevocable release of “any rights or claims they may have now or in the future in this regard”. I cannot accept that the second part of the clause is directed only to the provisions of clause 5(c) and 5(d) relating to the appointment of the Expert. This argument fails to give any weight to the words “including, without limitation”, which introduce the extended rights to appoint the Expert and which make it clear that it is an example of a broader category that has gone before, namely the exercise of enforcement rights. The specific example of appointment of the Expert might have been included in clause 5(d) to avoid doubt, because, prior to the Additional Agreement, the provisions of clause 5(c) were not included in any Finance Document – though, admittedly, clause 10 of the Additional Agreement does designate it as a Finance Document, so that including the example in clause 5(d) was strictly unnecessary.

[85]However, I do not accept that the second part of clause 5(d) serves only to exclude the ability of the Company Parties to challenge the exercise of the additional right conferred by clause 5(c), as the Defendant submits. This is not the natural reading, and it does not make literal sense (because there were no such rights then existing under the Lux Share Pledge or the Lux Receivables Pledge) or commercial sense (if it is providing a waiver of the right to object to one aspect only of the whole process of valuing the shares in the Parent or the receivables). Although the natural wording of the clause makes it wide in its effect, and excludes the right to challenge the exercise of rights under the Finance Documents in overseas jurisdictions, I consider that to be the right interpretation of clause 5(d) for reasons the same as those I have given in relation to clause 5(a), namely that this was the price of the last chance that the Company Parties were being given to refinance and discharge the debt.

[86]That conclusion is not undermined by the contents of clause 6, which Mr Craig suggested would be otiose if clause 5 were given the wide meaning for which the Claimant contends. Clause 6 principally confers rights that can be exercised during the standstill period, unlike clause 5, which (with one limited exception) is subject to the terms of the Standstill Agreement. These clause 6 rights are rights to vote the shares of the Parent to protect Aether’s rights, separate rights granted in relation to the shares of FL, subject to an exclusivity period and the rights in clause 7, and a waiver of the Defendant’s rights of recourse to its subsidiaries.

Breach of the Additional Agreement

[87]In view of the conclusions that I have reached, above, the Defendant is clearly in breach of clauses 5(a) and 5(d) of the Additional Agreement by doing things that obstruct rather than cooperate with the Enforcement Action that Aether and Aloe took, and by seeking to contest the validity of the exercise by Aether of its rights under the Finance Documents.

Does the Claimant have the benefit of the obligations in the Additional Agreement?

[88]The Bondholder, as defined in the Additional Agreement (as amended), is FV Debt, and the Agent is Aether. There is no reference to successors in title or interest.

[89]However, clause 16 now provides that the Bondholder may assign or transfer any of its rights under the Additional Agreement to another entity, without the need for any consent from the parties, if it is assigning or transferring any of its rights “under and in accordance with the terms of the Subscription Agreements”.

[90]Mr Craig submitted, by reference to the speech of Lord Browne-Wilkinson in Linden Gardens Trust Ltd v Lenesta Sludge Disposal Ltd

[1994] 1 AC 85

at p.108F, that on the true interpretation of the Amendment Agreement there could be no valid assignment of FV Debt’s contractual rights under that Agreement unless the specified conditions for a valid transfer were complied with, and Ms Boase (rightly) did not dissent from that proposition.

[91]Accordingly, since there is no challenge otherwise to the assignment of the benefit of the Amendment Agreement, the issue is whether FV Debt (itself a valid assignee of the rights of Regera under both Subscription Agreements) transferred to the Claimant its rights under and in accordance with the two Subscription Agreements.

[92]The Subscription Agreements are governed by French law, but there is no plea that French law differs in any material respect from English law so far as interpretation of the agreements is concerned. Although in his skeleton argument Mr Craig did suggest that effect should be given to the Tribunal de Commerce exclusive jurisdiction clauses in the Subscription Agreements and Transfer Agreements, so that only that court can decide who was the Bondholder under those Agreements, it was not a point that he pursued in oral argument.

[93]The Additional Agreement, like the Standstill Agreement, incorporates the meanings of defined terms in the terms and conditions of the Subscription Agreements. In view of that, and the fact that the Additional Agreement and the Amendment Agreements are governed by English law and have exclusive jurisdiction agreements in favour of the courts of England, it seems to me that the parties to the Additional Agreement and the Amendment Agreements must be taken implicitly to have agreed that the English courts have jurisdiction to decide:(a) any question as to the meaning of terms of the Subscription Agreements, as necessary for them to determine the meaning of the Agreements governed by English law, and

(b) as a consequence of clause 16 of the Additional Agreement (as amended), any issue that it is necessary to decide in order to decide whether the benefit of the Additional Agreement was lawfully assigned to the Claimant. The centre of gravity of this claim is undoubtedly the Additional Agreement, not the Subscription Agreements. It is not a commercially sensible intention to impute to the parties that a dispute under clause 16 of the Additional Agreement could not be resolved without adjourning for parallel proceedings in Paris to resolve a part of the same dispute: see BNP Paribas SA v Trattamento Rifuti Metropolitana SpA

[2019] EWCA Civ 768

;

[2020] 1 All ER 762

at [65]-[68], per Hamblen LJ.

[94]The relevant provisions of the Parent (T2) Subscription Agreement are the following, so far as material: i) Clause7.1 Transfer by the Bondholders “(a) Subject to Paragraph (b) below, at any time after the completion of the Issue, a Bondholder which irrespective of whether it subscribed to such Bonds or whether it has acquired Bonds from another Bondholder (an “Existing Bondholder”) may assign or transfer (including by way of novation) any Bonds together with any of its rights as Bondholders (including its voting rights) and/or any obligations under this Agreement in such capacity and the other Finance Documents to any person (a “New Bondholder”, or a “Transferee”) with the Issuer’s prior consent (not to be unreasonably withheld, save if to an Industry Competitor). By way of exception, a Bondholder may transfer any Bonds without the Issuer’s prior consent:

(i) to any of the Original Subscribers’ Affiliated Entities or any existing Bondholder; or

(ii) if an Event of Default has occurred and for so long as it is continuing, save for any transfer to an Industry Competitor.” (i) to any of the Original Subscribers’ Affiliated Entities or any existing Bondholder; or (ii) if an Event of Default has occurred and for so long as it is continuing, save for any transfer to an Industry Competitor.” ii) Clause

7.2 Conditions of Transfer “(a) An assignment or transfer pursuant to Clause 7 will only be effective on: (i) receipt by the Administrative Agent [Aether] of written confirmation from the Transferee (in form and substance satisfactory to the Administrative Agent) that the Transferee will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it was an original Bondholder; (ii) compliance with the procedure set out in, and execution of all documents referred to in, Clause 7.5 (Procedure for transfer);……” (i) receipt by the Administrative Agent [Aether] of written confirmation from the Transferee (in form and substance satisfactory to the Administrative Agent) that the Transferee will assume the same obligations to the other Finance Parties and the other Secured Parties as it would have been under if it was an original Bondholder; (ii) compliance with the procedure set out in, and execution of all documents referred to in, Clause 7.5 (Procedure for transfer);……” iii) Clause 7.5 Procedure for Transfer “(a) Subject to the conditions set out in this Clause 7 (Transfers by the Bondholders) and subject to any applicable law or regulation regarding procedures for specific transfer of rights, obligations and/or Bonds is effected as against the Finance Parties in accordance with paragraphs (c) below when: (i) the Administrative Agent executes an otherwise duly completed Transfer Agreement delivered to it by the Transferor and the Transferee, provided that the Administrative Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Agreement; and (ii) unless he is already a party thereto, the Transferee has executed all documentation required for it to accede as a party to this Agreement and the Intercreditor Agreement … ……… (c) As from the transfer date …. (i) to the extent that in the transfer certificate the Transferor seeks to transfer its rights and its obligations under the Finance Documents or the Bonds and in respect of the Transaction Security, the Transferor shall be discharged to the extent provided for in the Transfer Agreement from further obligations towards each of the Issuer and the other Finance Parties under the Finance Documents and in respect of the Transaction Security and the Issuer and the other Finance Parties hereby consent to such discharge; (ii) the rights and/or obligations of the Transferor with respect to the Issuer, together with the Transferor’s rights and benefits under all Transaction Security granted by the Issuer, and the Bonds shall be transferred to the Transferee, to the extent provided for in the Transfer Agreement;

(iii) each of the Agents, the Transferee and the other Bondholders, shall acquire the same rights and assume these same obligations between themselves and in respect of the Transaction Security and the Bonds as they would have had had the Transferee been an Existing Bondholder, as relevant, with the rights, and all obligations acquired or assumed by it as a result of the transfer and to that extent each of the Agents, the Transferee, the other Bondholders and the Transferor shall be released from further obligations to each other under the Finance Documents; and

(iv) Unless he's already a Party hereto in that capacity, the Transferee shall become a Party to this Agreement as a ‘Bondholder’ ….

(v) The Transferee shall become a Party to the Intercreditor Agreement as a ‘Senior Bondholder’.” (i) the Administrative Agent executes an otherwise duly completed Transfer Agreement delivered to it by the Transferor and the Transferee, provided that the Administrative Agent shall, subject to paragraph (b) below, as soon as reasonably practicable after receipt by it of a duly completed Transfer Agreement appearing on its face to comply with the terms of this Agreement and delivered in accordance with the terms of this Agreement, execute that Transfer Agreement; and (ii) unless he is already a party thereto, the Transferee has executed all documentation required for it to accede as a party to this Agreement and the Intercreditor Agreement … (i) to the extent that in the transfer certificate the Transferor seeks to transfer its rights and its obligations under the Finance Documents or the Bonds and in respect of the Transaction Security, the Transferor shall be discharged to the extent provided for in the Transfer Agreement from further obligations towards each of the Issuer and the other Finance Parties under the Finance Documents and in respect of the Transaction Security and the Issuer and the other Finance Parties hereby consent to such discharge; (ii) the rights and/or obligations of the Transferor with respect to the Issuer, together with the Transferor’s rights and benefits under all Transaction Security granted by the Issuer, and the Bonds shall be transferred to the Transferee, to the extent provided for in the Transfer Agreement; (iii) each of the Agents, the Transferee and the other Bondholders, shall acquire the same rights and assume these same obligations between themselves and in respect of the Transaction Security and the Bonds as they would have had had the Transferee been an Existing Bondholder, as relevant, with the rights, and all obligations acquired or assumed by it as a result of the transfer and to that extent each of the Agents, the Transferee, the other Bondholders and the Transferor shall be released from further obligations to each other under the Finance Documents; and (iv) Unless he's already a Party hereto in that capacity, the Transferee shall become a Party to this Agreement as a ‘Bondholder’ …. (v) The Transferee shall become a Party to the Intercreditor Agreement as a ‘Senior Bondholder’.” iv) Clause 7.6 Copy of Transfer Agreement or Bondholder Accession Agreement to the Issuer “(a) The Administrative Agent shall, as soon as reasonably practicable after it has executed the same, send to the Issuer a copy of each Transfer Agreement or Accession Agreement. (b) The Administrative Agent, acting for this purpose as the agent of the Issuer, shall maintain at its address each of the documents referred to in paragraph (a) above. (c) The Issuer shall immediately reflect each transfer of Bonds in the Bonds Register upon receipt of a relevant Transfer Agreement and, within five (5) Business Days as from the Administrative Agent request, provide the Administrative Agent with a copy of the updated Bonds Register.”

[95]The terms of the Company (T1) Subscription Agreement are materially identical and do not need to be set out here. The same arguments and conclusions apply to both Subscription Agreements.

[96]FV Debt as Bondholder was entitled to transfer the Bonds under each Subscription Agreement to the Claimant and to do so without the Issuers’ consent(a) because the Claimant was at the time of the transfer one of Regera’s Affiliated Entities and

(b) because an Event of Default had occurred (non-payment) and was continuing, and the Claimant was not an Industry Competitor, as defined. The effectiveness of the transfer was dependent on compliance with clause 7.5 and the execution of all documents required in that clause, including in particular a Transfer Agreement.

[97]“Transfer Agreement" is defined in the terms and conditions of the Bonds, in Schedule 3 to the Subscription Agreements, as meaning: “… an agreement substantially in the form set out in Schedule C (Form of Transfer Agreement) or any other form agreed between the Administrative Agent and the Issuer.” (underlining added)

[98]Schedule C is a form of transfer agreement which states that it is made between four parties: the Issuer, the Administrative Agent, the Transferor Bondholder and the Transferee Bondholder. It provides for the transfer of an identified number of bonds on a specified date, and ancillary matters. By the use of square brackets in paragraph (f)(ii), it provides some alternative confirmations of the status of the Transferee Bondholder, so far as the payment of interest and fees is concerned. The form ends with space for signature on behalf of each of the four parties.

[99]“Bondholder” is defined in the terms and conditions of the Bonds as meaning:

“… from time to time, the person whose name appears on the Bonds Register as holder of that Bond, and ‘Bondholders’ means all or any of them as the context may require.” “Bonds Register” is defined as having the meaning ascribed in clause 2.3, which states: “(a) The Issuer shall at all times keep at its registered office, a register (the ‘Bonds Register’) showing: (i) the Bonds issuance as at the Issue Date; (ii) all transfers, redemptions and changes of ownership in respect of the Bonds occurring after the Issue Date; and (iii) the names and addresses of the Bondholders. (b) The Issuer shall make the Bonds Register readily available to the Bondholders (or to any person authorized by any of them) for inspection and for the taking of copies of it.” “(a) The Issuer shall at all times keep at its registered office, a register (the ‘Bonds Register’) showing: (i) the Bonds issuance as at the Issue Date; (ii) all transfers, redemptions and changes of ownership in respect of the Bonds occurring after the Issue Date; and (iii) the names and addresses of the Bondholders. (b) The Issuer shall make the Bonds Register readily available to the Bondholders (or to any person authorized by any of them) for inspection and for the taking of copies of it.”

[100]The Defendant’s argument is simple: the two Transfer Agreements, which purported to transfer the bonds from FV Debt to the Claimant, were not substantially in the form set out in Schedule C, because the Parent and the Company were not parties to them, as Issuers, nor were they signed on behalf of them, and no other form was agreed by either Issuer. Accordingly, the conditions for the effective transfer of the Bonds under clause 7.2(a)(ii) of the Subscription Agreements have not been satisfied and transfer of the Bonds was ineffective in law. That means that there could be no valid assignment of the rights of FV Debt in the Additional Agreement, as the condition for assignment of such rights was not met, and so the Claimant is neither “the Bondholder” nor entitled to sue on clause 5 of the Additional Agreement.

[101]The Claimant’s answer to that argument is two-fold: i) By virtue of the state of the Bonds Register kept by the Parent and the Company, the Claimant is the Bondholder for the purposes of the Subscription Agreements and the Additional Agreement, and therefore can sue on the obligations in the Additional Agreement. ii) The Transfer Agreements were substantially in the form of Schedule C, even though they did not include each Issuer as a party, because FV Debt was entitled to transfer the bonds without the prior consent of the Issuer, by reason of the application of two exceptions to the general rule requiring consent, and so there was no need for the Issuer to be a party to the Transfer Agreement and each was, accordingly, substantially in the form of Schedule C.

[102]In my judgment, the Claimant is wrong on the first point but right on the second point.

[103]In view of(a) the definitions of “Bondholder” and “Bonds Register” in the terms and conditions of the Subscription Agreements and

(b) the state of the Bonds Register in the custody of each Issuer, the Claimant is the Bondholder for the purposes of the Subscription Agreements. However, the “Bondholder” as defined in the Additional Agreement is FV Debt. The identity of the Bondholder is not in any event the relevant question under clause 16 of the Additional Agreement, as amended, which is whether the condition for assignment by FV Debt as Bondholder under the Additional Agreement was met. The condition was assignment or transfer of FV Debt’s rights or obligations “under, and in accordance with the terms of, the Subscription Agreements”. That depends on whether the transfer to the Claimant satisfied the conditions in clause 7 of the Subscription Agreement, the relevant one of which was the execution of a Transfer Agreement, not on whether the Claimant was the “Bondholder” as defined by it.

[104]On the “substantially” point, Ms Boase sought to rely on the fact that the transfers from Regera to FV Debt similarly did not include the Issuers as parties, but nonetheless the transfers were registered by both Issuers in the Bonds Registers. Further, the identity of FV Debt as Bondholder was conclusively affirmed by the terms of the Standstill Agreement and the Additional Agreement, and the Claimant has been registered as Bondholder. While the conduct of the parties after the date of the contract is not relevant to the interpretation of the contract, these facts are some evidence that there was nothing substantially missing from the form of the Transfer Agreements that caused any problem for the Issuers. The Claimant also notes that the Defendant does not maintain in the Paris Proceedings that the transfers to the Claimant were ineffective for want of a valid Transfer Agreement.

[105]Ms Boase argued that in Schedule C, although the Issuer is identified as a party, it has no role under the terms of the Transfer Agreement, nor does it take any benefit or burden of the other terms that are agreed, or make or receive any assurance or acknowledgment. It was therefore only necessary or appropriate for the Issuer to be a party where the general rule on transfer applied and the Issuer’s consent was required. Signing the Transfer Agreement conclusively records the Issuer’s agreement to the transfer. But where such consent is not required – because the transferee is an affiliate or because an event of default had occurred and is continuing – no purpose is served by the Issuer being a party to the Transfer Agreement.

[106]On this, Mr Craig sought to argue that the Subscription Agreements distinguished between the Issuer’s “prior consent” to a proposed transfer (clause 7.1(a)), without which the matter could not proceed to documentation and completion, and the Issuer’s agreement to the Transfer Agreement itself, which was always required, even if, as here, the Bondholder could transfer as of right. I do not consider that that is what is meant by “prior consent”. It signifies only that consent is needed prior to the transfer taking effect. If the Issuer did sign the Transfer Agreement, it could not argue that it had not given its prior consent. If, as the Defendant suggests, consent to the terms of the transfer was required even in a case where prior consent was not needed, the benefit of being able to transfer the bonds without consent would have been illusory, as the Issuer could always desist from signing the Transfer Agreement.

[107]As for the form of the Transfer Agreements that FV Debt, the Claimant and Aether executed, Mr Craig made two points on the content of Schedule C that he said supported a conclusion that the Issuer had to be a party. First, the square brackets in paragraph (f)(ii) show that the parties gave thought to where alternatives might be appropriate, but they did not so indicate in relation to the presence of the Issuer as a party. Second, the ability of Aether and the Issuer to agree on a different form means that without the agreement of the Issuer there could not be a different version of the form in Schedule C.

[108]I do not accept those arguments. The alternatives in paragraph (f)(ii) relate to the identity and tax status of the transferee, so they serve a particular purpose in terms of providing information that the Issuer and Agent needed to have. This does not mean that the parties gave prior thought to all potential alternatives to the wording or content of Schedule C. While the parties to the Subscription Agreements could have used square brackets to indicate that in some cases the Issuer need not be a party, the fact that they did not do so is not conclusive of the question.

[109]As to the ability to use a different form with the consent of the Issuer, this does not assist on the meaning of “substantially in the same form set out in Schedule C”. FV Debt, the Claimant and Aether did not need to agree a different form with the Issuers if the form that they used was substantially the same as Schedule C.

[110]Mr Craig referred to Venture North Sea Gas Ltd v Nuon Exploration & Production UK Ltd

[2010] EWHC 204 (Comm)

, a decision of Gross J, on the question of whether a joint operating agreement was in substantially the form of a draft agreement required by a share purchase agreement. He said that the comparison was one to be made overall: do the differences amount to material changes having regard to the agreement as a whole, and having regard to its intended contractual effect. That was a case in which the parties were to enter into an executory agreement, and so the effect of the contract, in terms of its performance, was accepted to be of importance.

[111]Other authorities exist on the meaning of “substantially in the form of”, or cognate expressions such as “a form to substantially the same effect”, which are found in many statutory instruments that prescribe forms of notice, in other areas of law. See, e.g., Panayi v Roberts

(1993) 25 HLR 421

and Sabella Ltd v Montgomery

[1998] 1 EGLR 65

, where the question was whether omitted or wrong information, where it was the purpose of the form to convey information, meant that the notice given was not substantially to the same effect.

[112]In the context of Schedule C, the form in question is primarily transactional, being an agreement to sell and buy bonds, but also serves to record the fact of the transfer, provide information about the transferee, and regulate the position in terms of rights and obligations as between transferor and transferee. Those are distinct functions of the form and a form that did not effectively perform those functions would not be substantially in the form of Schedule C. Putting it into my own words, the question of whether the Transfer Agreements that were executed were substantially in the form specified requires an assessment of whether the changes impaired in any material way the functions that the form was intended to perform. That is to be determined by comparing the two versions, identifying to what extent the omitted or changed content affected those purposes, and if so in what ways, and then deciding whether, overall, despite the omissions or changes, the Transfer Agreements were in substance as effective for its purposes as the terms of Schedule C.

[113]The only change relied on is the omission of the Issuer as a party. Its omission had no impact whatsoever on the sale and purchase, or the particulars or terms of the transfer that were recorded, or the rights and obligations between the transferor and transferee. The information that the Transfer Agreements recorded and provided was unaffected.

[114]The omission of the Issuer could only materially affect the transfer if either its consent to the transfer was required or if it had to be a party in order to agree the terms, or take the benefit of matters agreed. I have already explained that consent to the transfer was not required. None of the terms of Schedule C are agreements by, with or for the benefit of the Issuer. Mr Craig argued that the burden under a contract cannot be assigned without the agreement of the party to whom the obligation is owed, and that that was the purpose of the Issuer being a party. However, there is no attempt in Schedule C to remove the burden of any obligations owed to the Issuer by the transferor and to transfer them to the transferee.

[115]The transfer that takes place is defined in clause 7.5(c) of the Subscription Agreements (set out above) and takes effect to the extent specified in Schedule C. As a consequence of the transfer, the transferee agrees to become a party to the Subscription Agreement, as well as accede to the Intercreditor Agreement. It is therefore wrong to say that the transfer of obligations that the Bondholder owes to the Issuer depends on the Issuer being a party to the Transfer Agreement. Rather, the transfer is completed, pursuant to the terms of the Subscription Agreement, when the ordre de mouvement de titres is provided to the Issuer by the Administrative Agent and the Issuer registers the transferee as Bondholder, which it agrees by clause 7.6 of the Subscription Agreement to do.

[116]The Defendant has not relied on any provision of French law to the contrary.

[117]Accordingly, I reject the argument that the Issuer needed to be a party to the Transfer Agreement in order to transfer the burden of the Subscription Agreements to the Claimant. One would have thought that if that was understood to be the case, objection (or at least a question) would have been raised upon the transfers to FV Debt and to the Claimant before they were each registered by the Company and the Parent, but that did not happen.

[118]I can discern no respect in which the Transfer Agreements, as executed, were less effective or informative than a Schedule C transfer executed by the Issuer too would have been. The Transfer Agreements as executed were therefore substantially in the form of Schedule C even though the Company and the Parent did not execute them.

[119]There was therefore a valid transfer to the Claimant of rights and/or obligations under, and in accordance with the terms of, the Subscription Agreements, within the meaning of clause 16 of the Additional Agreement, as amended, and the transfer to the Claimant of the benefit of the Additional Agreement without consent was accordingly valid and effective. As from 26 February 2025, the Claimant had the benefit of the Company Parties’ obligations under clause 5 of the Additional Agreement and was able by these proceedings to enforce them.

Relief

[120]The Defendant does not dispute, in the event of my finding for the Claimant on both principal issues, that there should be a declaration, as prayed in the Particulars of Claim, that its instigation and pursuit of the Paris Proceedings is in breach of the Additional Agreement.

[121]What is disputed is whether the Claimant should be granted a final injunction ordering the Defendant to withdraw the Paris Proceedings.

[122]The Claimant argued that although an injunction is always a discretionary remedy, damages will not in principle be and are not in this case an adequate remedy, and that injunctive relief should generally be granted to enforce a negative contractual stipulation unless there is good reason why it should not be. The Court is simply enforcing what the parties agreed that the Defendant should not do.

[123]The Defendant advanced three arguments why the proceedings (which allege unlawful steps taken by Aether) should not be restrained.

[124]First, there is no agreement in clause 5 of the Additional Agreement or elsewhere that Aether can take unlawful action. By granting the injunction, the Court would therefore potentially be giving the Claimant and Aether carte blanche to act unlawfully, by breaching the terms of the Security Documents. (Although the Defendant has made this allegation in the Paris Proceedings, it is strongly disputed by the Claimant.).

[125]Second, it can be seen as unconscionable to deprive the Defendant of a fundamental right of access to the Courts. Unconscionability is one of the circumstances in which a court may (or should) desist from enforcing a negative obligation by injunction.

[126]Third, as a matter of comity, this Court should not prevent a foreign court from adjudicating on the merits of the Defendant’s case there, when the parties have chosen that jurisdiction and when it may be appropriate for the foreign court to prevent a breach of local law.

[127]The difficulty with each of these arguments is that I have already concluded against the Defendant that by the terms of the Additional Agreement it agreed not to challenge Aether’s enforcement under the terms of the Security Documents. It thereby gave up any challenge to enforcement, whether in France, Luxembourg or England, in the event that it was unable to conclude refinancing before the expiry of the standstill period. Whether or not what Aether has done is contrary to the terms of the security documents (which is disputed), the Defendant agreed not to challenge enforcement, as the price of being granted further time to redeem FV Debt’s bonds.

[128]If the argument is presented in terms of a contractual party surrendering the ability to have its rights protected in the chosen jurisdiction, the case naturally sounds more credible than if it is described as the Defendant being given a final chance to avoid insolvency and winding up of its affairs in circumstances where FV Debt could immediately have enforced and brought about those consequences. Having concluded that the language of the Additional Agreement is clear enough to have that effect, it cannot be said that the effect is so oppressive that the court should refuse to enforce the agreement. Nor can it be said that it is unconscionable for the court to enforce what the parties have agreed.

[129]I do not accept that the absence from the Additional Agreement of the equivalent of clause 7 of the Standstill Agreement (specific performance) gives any indication that the parties considered that damages would be an adequate remedy for breach of clause 5 of the Additional Agreement. On the undisputed evidence of Mr Burgio, in his second witness statement dated 15 August 2025, I am also satisfied that damages would not be an adequate remedy for the potential harm to the investment and confusion, and damage to the brand, that would be caused by what might be a temporary reversal of the change of operational control of the hotel.

[130]As for comity, this Court fully respects the autonomy of the Tribunal de Commerce and has not determined issues that are subject to its exclusive jurisdiction, only issues where, as a result of the Additional and Amendment Agreements, there is jurisdiction in this court. The injunction sought is not directed at the Tribunal but at the Defendant, in just the same way as was the interim injunction that required the Defendant to take all steps within its power to adjourn the hearing in Paris. While a final injunction will require the Defendant to withdraw those proceedings entirely, this is no different in principle from an anti-suit injunction, which prevents a respondent from pursuing proceedings in their preferred jurisdiction.

[131]One difference from such a case is that these parties did choose the Tribunal de Commerce as the exclusive jurisdiction for disputes about the Subscription Agreement, the Transfer Agreements and the Fiducie. However, those jurisdiction agreements were necessarily overlain by the subsequent agreement by Company Parties not to contest or prevent Enforcement Action by Aether and to cooperate with the Claimant and Aether in relation to Enforcement Action. In this case, the parties have agreed that the issues should not be litigated at all, not merely that they should not be litigated in particular jurisdictions, and in my judgment the same result should follow.

[132]Accordingly, I will grant a final injunction against the Defendant requiring it to withdraw the Paris Proceedings.

Cited in 1 later judgment

Unik Bond SA v Catbalogan Holdings SaRL 2025