Sandmann loses case against DAE

THE HAGUE — Executive Niek Sandmann has lost the case against owner Arnold Leonora of airline company Dutch Antilles Express (DAE).

In summary proceedings, Sandmann had demanded a bank guarantee of 3 million dollars from Leonora, but yesterday the judge in Amsterdam decided Sandmann had no right to demand this because his claim conflicts with another agreement between Korpodeko and DAE. Sandmann was aware of this, the judge stated in his decision.

The demand from Sandmann, founder of DAE, was based on an agreement of December 10th 2010, in which Leonora is personally held responsible to repay Sandmann two interest-free loans (each worth 1.5 million dollars) within twelve months. The loan has the form of two buildings in Pietermaai and the Breedestraat in Punda, which are indirectly in Sandmann’s possession and are part of Sandmann selling DAE to Leonora’s Antilles Aero Holdings the day before. To be on the safe side, also the company DAE stands surety for repayment of the loan, something the judge finds remarkable considering the financial situation of the company was already bad at the time.
 
The judge ruled that the agreement of December 10th, actually due to that surety of DAE, conflicted with two agreements of three months earlier, namely on September 7th 2010. On that day, Korpodeko had lent DAE almost 2 million euros and stipulated in an agreement that DAE could not stand surety for other loans without Korpodeko’s permission. Sandmann and his investment company BBPM were not a direct party with that agreement, but another agreement though with Korpodeko that their claims on DAE were subordinate to the claim of Korpodeko on DAE. “This makes a reasonable case that Sandmann (…) had been entirely aware of the insisted prohibition in that agreement where DAE was not to commit themselves towards third parties through surety or guarantee without Korpodeko’s permission”, said the judge. “By including in the SPA (Share Purchase Agreement, (editorial office)), by means of the suretyship agreement, the condition that DAE would stand surety for Leonora fulfilling his (payment) obligations (…) – whilst Sandmann should or could have known that with that DAE would violate their obligations towards Korpodeko – Sandmann acts contrary to good faith, by now tackling DAE as guarantor on fulfilling the obligation”, said the judge in his verdict. That conclusion was sufficient for the judge to dismiss Sandmann’s claim in summary proceedings. The demand from Korpodeko to nullify the agreement for the suretyship of DAE was left outside consideration, just like the conclusion of the Curaçao court on May 12th 2011 that the sale of Sandmann’s buildings to DAE had not gone through. “With that, the claim to have DAE issue a bank guarantee for the benefit of Sandmann (…) lacks a valid basis”, the judge remarked.
 
The verdict from the Amsterdam court contradicts the verdict from the Curaçao judge, who ruled that Leonora had to issue a bank guarantee of 1.5 million dollars on the day one applied for moratorium or bankruptcy of DAE or otherwise on December 6th 2010 at the latest. Leonora left the island on the day of the verdict or shortly before.


11 January 2012 

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