QUEEN'S BENCH DIVISION
COMMERCIAL COURT
Strand, London, WC2A 2LL |
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B e f o r e :
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ASTOR MANAGEMENT AG (formerly known as MRI Holding AG) ASTOR RESOURCES AG (formerly known as MRI Resources AG) |
Claimants |
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ATALAYA MINING PLC (formerly known as Emed Mining Public Limited) ATALAYA RIOTINTO MINERA SL (formerly known as Emed Tartessus SL) EMED HOLDINGS (UK) LIMITED EMED MARKETING LIMITED |
Defendants |
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Simon Browne-Wilkinson QC and Alexander Milner (instructed by Fieldfisher LLP) for the Defendants
Hearing date: 24 March 2017
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Crown Copyright ©
Mr Justice Leggatt:
Introduction
Form of declarations
"1. On a true construction of clause 6(g)(iv)(A) of the Master Agreement, until such time as the Consideration (including the Deferred Consideration) has been paid to the Claimants in full, the Second Defendant must not make, declare or pay any dividend or distribution or make any repayment or other payment in respect of loans from members of the EMED Group ("EMED Group Loans") (other than as required for up to US$10 million per annum in aggregate for EMED Group expenses (excluding dividends or any other distributions to the shareholders of the First Defendant) related to matters other than the project ("EMED Group Expenses")), nor borrow or agree to borrow any amount other than pursuant to the Senior Debt Facility or EMED Group Loans without the prior written consent of the Claimants (not to be unreasonably withheld or delayed).
2. On a true construction of clause 6(g)(iv)(B) of the Master Agreement, the Second Defendant must apply any excess cash (after payment of operating expenses and sustaining capital expenditure for the Project, debt service requirements under the Senior Debt Facility and US$10 million per annum for EMED Group Expenses (without double counting EMED Group Expenses taken into account under clause 6(g)(iv)(A) of the Master Agreement)) to pay any outstanding amounts of the Consideration due to the Claimants (including the Deferred Consideration and amounts payable under the Loan Assignment) early."
The defendants' application for permission to appeal
"In short, if the defendants' construction is correct, the Project is stultified: cash will accumulate in the hands of EMED Tartessus from sales of copper which EMED Tartessus can do nothing with unless it opts to pay the Deferred Consideration to Astor. That makes no commercial sense."