The High Court in Fons HF (liquidation) v. Corporal Ltd and another  All ER (D) 292 (Jun) have decided that a mortgage on securities issued by a company does not extend to the rights of a company under a shareholder loan contract. The Court found that the loan contract does not constitute a „guarantee“ or „debt“ and is therefore not part of the assets defined as „shares“ in the mortgage. „A credit facility is a type of loan made in a business or business context, including revolving credits, long-term loans, committed facilities, letters of credit and most retail accounts,“ according to Investopedia, the $1.4 billion in this case is located in two credit facilities between CMS Energy and Consumers. Both have five-year maturities that expire on June 5, 2023, with one-year extension options each. In 2007 and 2008, Fons hf (in liquidation) („Fons“) as a shareholder of Corporal Limited („Corporal“) provided two unsecured loans (the „shareholder loans“). In 2008, Fons made available to Kaupthing Bank Luxembourg S.A. („Kaupthing“) a royalty for its shares in Corporal (the „Lot“), in order to guarantee the debt of Kaupthing Bank Luxembourg S.A. („Kaupthing“).
The benefit of the levy was transferred to Pillar Securitisation SARL („pillar“). The charge was described on the front page as „Legal Charge over Shares.“ The pricing clause included a tax as the first mortgage on „shares“ and „distribution rights.“ The definition of „shares“ was as follows: „All shares (if any) as defined in Schedule 1 (shares) as well as all other shares, stocks, bonds, bonds, warrants, coupons or other securities held from time to time or in the future by the Corporal Chargor or any other action, shares, bonds, bonds, bonds, warrants, coupons or other securities held from time to time or in the future by the Corporal Chargor or any other action , shares, bonds, warrants, coupons or other securities held from time to time by the Corporal Chargor.“ The Court examined various authorities that examined the importance of „titles“ and „bonds.“ The judge found that most common law definitions for „securities“ refer to „documents or instruments that are either transferable, or even bearer, or have at least a formality or quality that can be dismantled to facilitate the application of certain underlying rights.“ With respect to „bonds,“ he referred to Pollock MR`s statement in Lemon v Austin Friars Investment Trust Ltd  J. 1, which referred to an instrument intended to „record debt, record the source from which that debt must be liquidated and demonstrate that the holders of the certificates are holders of a series and that they must be paid pari passu and that their names must be entered in a register.“ This underestimates that the recognition of debt may be the primary qualification of an obligation, but that it is not sufficient, in itself, to constitute another indicator. He considered that the businessman`s ordinary lawyer would be surprised to hear a simple loan contract called „obligation“ and concluded that the term should not extend to a simple loan contract without it being clearly stated that the parties were considering such an interpretation. Comment The question of whether a loan contract could constitute a „debt“ has been controversial for some time. While a lot of things will depend on the context, it`s a pretty robust rebuttal of the arguments he makes. Facilities contracts include provisions such as: Syndicated loans are loans offered by a group of lenders – called „syndi cats“ – who work together to provide funds to a borrower.