TIDMBK75
RNS Number : 9993Q
Millshaw Sams No.1 Ld
23 October 2023
THIS NOTICE CONTAINS IMPORTANT INFORMATION OF INTEREST TO THE
REGISTERED AND BENEFICIAL OWNERS OF THE NOTES (AS DEFINED BELOW).
IF APPLICABLE, ALL DEPOSITARIES, CUSTODIANS AND OTHER
INTERMEDIARIES RECEIVING THIS NOTICE ARE REQUESTED TO PASS THIS
NOTICE TO SUCH BENEFICIAL OWNERS IN A TIMELY MANNER.
If you are in any doubt as to the action you should take, you
are recommended to seek your own financial, tax and legal advice
immediately from your stockbroker, bank manager, solicitor,
accountant or other financial adviser authorised under the
Financial Services and Markets Act 2000 (if you are in the United
Kingdom), or from another appropriately authorised independent
financial, tax or legal adviser and such other professional advice
from your own professional advisers as you deem necessary.
This Notice is addressed only to holders of the Notes (as
defined below) and persons to whom it may otherwise be lawful to
distribute it ("relevant persons"). It is directed only at relevant
persons and must not be acted on or relied on by persons who are
not relevant persons. Any investment or investment activity to
which this Notice relates is available only to relevant persons and
will be engaged in only with relevant persons.
If you have recently sold or otherwise transferred your entire
holding(s) of Notes referred to below, you should immediately
forward this document to the purchaser or transferee or to the
stockbroker, bank or other agent through whom the sale or transfer
was effected for transmission to the purchaser or transferee.
THIS NOTICE DOES NOT CONSTITUTE OR FORM PART OF, AND SHOULD NOT
BE CONSTRUED AS, AN OFFER FOR SALE, EXCHANGE OR SUBSCRIPTION OF, OR
A SOLICITATION OF ANY OFFER TO BUY, EXCHANGE OR SUBSCRIBE FOR, ANY
SECURITIES OF THE ISSUER OR ANY OTHER ENTITY IN ANY
JURISDICTION.
MILLSHAW SAMS NO.1 LIMITED
26 New Street
St. Helier
Jersey JE2 3RA
(the "Issuer")
NOTICE
to holders of the following notes of the Issuer
presently outstanding
GBP97,840,000 SAM Notes
due 2054
(the "Noteholders" and the "Notes", respectively)
Capitalised terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Deed of Master
Definitions dated 25 March 1999 (as amended and/or supplemented
from time to time, the "Deed of Master Definitions") and in the
Trust Deed constituting the Notes dated 25 March 1999 (as amended
and/or supplemented from time to time, the "Trust Deed").
NOTICE IS HEREBY GIVEN that, pursuant to the provisions of the
First Schedule (Provisions for Meetings of Noteholders) to the
Trust Deed, the following meeting of the Noteholders (the
"Meeting"), convened by the Issuer, will be held at 11:00 a.m. on
14 November 2023 at the offices of Ocorian (20 Fenchurch St, London
EC3M 3BY), for the purpose of considering and, if thought fit,
passing a resolution which will be proposed as an Extraordinary
Resolution in accordance with the provisions of the Trust Deed.
GENERAL
The purpose of the Meeting is for the Noteholders to consider,
and if thought fit approve, certain amendments to the Trust Deed
(the "Amendments"), including, without limitation, amendments to
the First Schedule (Provisions for Meetings of Noteholders) to the
Trust Deed (the "Meetings Schedule") and deemed amendments to the
terms and conditions of the Notes (each a "Condition", and together
the "Conditions"), in order to permit the passing of Extraordinary
Resolutions by means of a Written Resolution (as defined below),
and the giving of an Electronic Consent (as defined below), whether
in respect of a resolution or an Extraordinary Resolution, and
thereby simplifying the process by which Noteholder decisions may
be made or consents given. The Amendments also include amendments
to the Trust Deed and to the powers of the Noteholders exercisable
by way of Extraordinary Resolution. The Amendments are further
described below.
The effect of the Amendments, if passed, would be, among other
things, that a Written Resolution (as defined below) may be passed
with the consent of Noteholders of not less than 75 per cent. of
Principal Amount Outstanding of the Notes then outstanding and
without the remaining Noteholders receiving prior notice of such
Written Resolution.
In accordance with the usual practice, Apex Corporate Trustees
(UK) Limited (the "Trustee") expresses no opinion as to the merits
of the proposed Extraordinary Resolution and no views on whether
Noteholders would be acting in their best interests in voting for
or against the Extraordinary Resolution. The Trustee has not
verified any of the statements made or information contained in
this Notice. It has, however, authorised it to be stated that, on
the basis of the information contained in this Notice, it has no
objection to the Extraordinary Resolution being submitted to the
Noteholders for their consideration. The Trustee recommends that
Noteholders take their own advice on the merits of the
Extraordinary Resolution and the consequences of voting in favour
of, or against, the Extraordinary Resolution.
The attention of Noteholders is particularly drawn to the quorum
required for the Meeting which is set out in the section headed
"Voting and Quorum" below, and to the Issuer's understanding,
indicated in that same section, that Noteholders holding or
representing in aggregate at least 75 per cent. of the Principal
Amount Outstanding of the Notes have formed an ad hoc committee and
intend to attend the Meeting and approve the Extraordinary
Resolution set out herein. Noteholders are strongly urged either to
attend the Meeting or to take steps to be represented at the
Meeting, as referred to below, as soon as possible.
THE AMMENTS
The current position
Extraordinary Resolutions may only be passed at a physical
meeting of the Noteholders duly convened and held in accordance
with the provisions of the Trust Deed by a majority consisting of
not less than 75 per cent. of the persons voting thereat upon a
show of hands or if a poll be duly demanded, then by a majority
consisting of not less than 75 per cent. of the votes given on such
poll.
The powers of the Noteholders exercisable by way of
Extraordinary Resolutions include a power to assent to any
modification of the provisions contained in the Trust Deed, the
Notes or any Transaction Document which is proposed by the Issuer
or the Trustee, but no express power for the Noteholders, or any of
them, themselves to propose modifications to the Trust Deed, the
Notes or any Transaction Document, or to propose any compromise or
arrangement with the Issuer or with respect to the rights of the
Noteholders, or to require the Issuer or the Trustee (as
applicable) to obtain the prior approval from the Noteholders
(acting by Extraordinary Resolution) with respect to any dealings
with the assets and undertaking of the Issuer, including in the
context of any settlement, compromise or arrangement relating to or
affecting the Issuer's assets or undertaking, which, in each case,
has arisen in the context of actual or threatened litigation
against the Issuer by more than one Borrower (a "Claim
Settlement"). The powers of the Noteholders also include a power to
remove the Trustee at any time, for cause.
The proposed Amendments and their effect
The proposed Amendments include, without limitation, amendments
to the Meetings Schedule and deemed amendments to the Conditions in
order to permit the passing of Extraordinary Resolutions by means
of a Written Resolution, and the giving of an Electronic Consent,
whether in respect of a resolution or an Extraordinary
Resolution.
The proposed Amendments also include:
(a) amendments to the Trust Deed for the benefit of the Trustee
in light of the proposed ability to pass Extraordinary Resolutions
other than at a physical meeting of the Noteholders duly convened
and held in accordance with the provisions of the Trust Deed;
(b) amendments to the Trust Deed (i) to require the Issuer to
obtain the prior written consent of the Noteholders, acting by
Extraordinary Resolution, to any request or proposal (irrespective
of the person making such request or proposal) to transfer, sell,
lend, part with or otherwise dispose of or deal with any of the
Issuer's assets or undertaking or any interest, estate, right,
title or benefit therein, or to grant any option or present or
future right to acquire any of its assets or undertaking or any
interest, estate, right, title or benefit therein (including,
without limitation, any request or proposal that the Issuer should
agree or give its consent to any Claim Settlement) save to the
extent permitted by the Trust Deed or the Transaction Documents,
and (ii) to require the Issuer, upon request, to promptly provide
evidence to the Trustee that it has obtained such consent;
(c) amendments to the Trust Deed so that if the Trustee is
requested to provide its consent to any matters which are the
subject of the Issuer's obligations described under paragraph
(b)(i) above, the Trustee may rely (without liability to any person
and without further enquiry) on the evidence provided to it by the
Issuer (described under paragraph (b)(ii) above) that the
Noteholders have provided their consent, acting by Extraordinary
Resolution; and
(d) amendments to the Trust Deed and the Conditions to include
power for the Noteholders, exercisable by Extraordinary
Resolution:
(i) to propose and/or sanction any compromise or arrangement
between the Issuer and the Noteholders;
(ii) to propose and/or sanction any modification, abrogation,
variation or compromise of, or arrangement in respect of, the
rights of the Noteholders against the Issuer or against any of
their property, whether such rights or property arise under the
Trust Deed, the Notes, the Transaction Documents or otherwise;
(iii) to propose and/or sanction any compromise or arrangement
between the Issuer and any other person (other than (X) a proposal
which falls within paragraph (iv) immediately below, and (Y) a
proposal by a Borrower which falls within paragraph (v) below)
which compromise or arrangement has arisen in the context of a
Claim Settlement and affects or (in the case of any proposal by any
Noteholders, in the written opinion of the Noteholders making any
such proposal) is reasonably likely to affect the property, rights
or assets of the Noteholders; and to require that the Issuer obtain
the prior written consent of the Noteholders, acting by
Extraordinary Resolution, to the giving of any consent or waiver
required to be obtained from the Issuer by any person, whether
under the Trust Deed, the Notes, the Transaction Documents or
otherwise, which consent or waiver affects or (in the written
opinion of two or more holders of at least 75 per cent. of the
Principal Amount Outstanding of the Notes then outstanding, as
evidenced to the Issuer) is reasonably likely to affect the
property, rights or assets of the Noteholders;
(iv) to consent to, and/or require the consent of the
Noteholders, acting by Extraordinary Resolution, to, any request or
proposal (irrespective of the person making such request or
proposal), other than a request or proposal which falls within
paragraph (v) immediately below, to transfer, sell, lend, part with
or otherwise dispose of or deal with (including, without
limitation, any request or proposal that the Issuer should agree or
give its consent to any settlement of any claim or any compromise
or arrangement with respect to or affecting) any of the Issuer's
assets or undertaking or any interest, estate, right, title or
benefit therein, or to grant any option or present or future right
to acquire any of its assets or undertaking or any interest,
estate, right, title or benefit therein, save to the extent
permitted by the Trust Deed or the Transaction Documents;
(v) to specify terms on which the Issuer may agree to any
proposal made by or on behalf of a Borrower or Borrowers arising in
the context of a Claim Settlement to redeem all amounts owing by
that Borrower or those Borrowers to the Issuer under the applicable
Offers, Mortgage Deeds and ancillary documents for an amount lower
than the sum of the applicable Loan Amount and Shared Appreciation
Amount, and to require that the consent of the Noteholders, acting
by Extraordinary Resolution, be obtained before the Issuer agrees
to any such proposal from a Borrower or Borrowers which falls
outside the terms specified in any Extraordinary Resolution passed
pursuant to this paragraph (v) and which remains in force as at the
date of any such proposal;
(vi) to propose any modification, variation or amendment, or
modifications, variations or amendments, of or to any of the
provisions contained in the Trust Deed, the Notes and any of the
Transaction Documents, or in any other agreement, deed or document
entered into by the Issuer and/or the Trustee in connection with
the Trust Deed, the Notes or any Transaction Document, and power to
direct, request, empower and authorise the Issuer and/or the
Trustee (as applicable to any such proposal) to consent to, concur
in and execute all such documents necessary to give effect to any
such proposal and any Extraordinary Resolution and to take all
steps necessary, desirable or expedient to carry out or give effect
to any such proposal or Extraordinary Resolution;
(vii) to direct, request, empower and authorise the Issuer and
the Trustee to waive any requirement, restriction or condition
precedent as set forth in the Trust Deed, the Notes or the
Transaction Documents, in order to give effect to any Extraordinary
Resolution;
(viii) to discharge and exonerate the Trustee from all
liabilities for which it may be or become responsible under the
Trust Deed, the Notes or the Transaction Documents in respect of
any act or omission for which it may otherwise become responsible,
or in respect of any requirement, restriction or condition
precedent set forth in the Trust Deed, the Notes or the Transaction
Documents, in each case arising in connection with or as a
consequence of any Extraordinary Resolution or the implementation
of any Extraordinary Resolution;
(ix) to remove the Trustee (whether in its capacity as note
trustee under the Trust Deed, security trustee under the Deed of
Charge, or both), without cause, and to approve the appointment of
a replacement Trustee; and
(x) to amend the proviso to the powers of the meeting (which is
the mechanism by which a higher quorum requirement applies to
Noteholder meetings where the subject matter of an Extraordinary
Resolution includes, in relation to the Notes, any Basic Terms
Modification (as defined in Clause 6(B) of the Meetings Schedule))
to remove the requirement for the Trustee to form an opinion that
the relevant modification or alteration is being proposed by the
Issuer as a result of, or in order to avoid, an Event of
Default.
The effects of the Amendments include, amongst other things,
that:
-- a Written Resolution may be passed with the consent of
Noteholders of not less than 75 per cent. of the Principal Amount
Outstanding of the Notes then outstanding either:
o if instigated by two or more holders of not less than 75 per
cent. of the Principal Amount Outstanding of the Notes then
outstanding, without the remaining Noteholders receiving prior
notice of such Written Resolution; or
o if instigated by the Issuer or the Trustee, having first
agreed the terms of the proposed Written Resolution with two or
more holders of not less than 75 per cent. of the Principal Amount
Outstanding of the Notes then outstanding, either individually or
as members of a committee of holders.
-- an Electronic Consent instigated by the Issuer or the
Trustee, where the terms of the proposed resolution have been
notified to the Noteholders through the relevant Clearing Systems,
may be passed with the consent of Noteholders of (i) 50.1 per cent.
of the aggregate Principal Amount Outstanding of the Notes then
outstanding in the case of any resolution other than an
Extraordinary Resolution; and (ii) not less than 75 per cent. of
the aggregate Principal Amount Outstanding of the Notes then
outstanding, in the case of an Extraordinary Resolution.
-- the Issuer must (i) obtain the prior written consent of the
Noteholders, acting by Extraordinary Resolution, to any request or
proposal, arising in the context of a Claim Settlement, that the
Issuer should agree or give its consent to any settlement of any
claim, compromise or arrangement with respect to or affecting the
Issuer's assets or undertaking save, in each case, to the extent
permitted by the Trust Deed or the Transaction Documents but
subject to the limitations to be imposed on the Issuer by the
amendments proposed in this Notice of Meeting, and (ii) upon
request, promptly provide evidence to the Trustee that it has
obtained such consent.
-- if the Trustee is requested to provide its consent to any
matters which are the subject of the Issuer's obligation to obtain
the prior written consent of the Noteholders described above, the
Trustee may rely (without liability to any person and without
further enquiry) on the evidence provided to it by the Issuer that
the Noteholders have provided their consent, acting by
Extraordinary Resolution.
-- the Noteholders, acting by Extraordinary Resolution, may (i)
propose and/or sanction any compromise or arrangement between the
Issuer and the Noteholders; (ii) propose and/or sanction any
modification, abrogation, variation or compromise of, or
arrangement in respect of, the rights of the Noteholders against
the Issuer or any of their property; (iii) give their prior written
consent to any request or proposal to deal with any of the Issuer's
assets or undertaking, including any request or proposal that the
Issuer should agree or give its consent to any settlement of any
claim, compromise or arrangement with respect to or affecting the
Issuer's assets or undertaking save, in each case, to the extent
permitted by the Trust Deed or the Transaction Documents but
subject to the limitations to be imposed on the Issuer by the
amendments proposed in this Notice of Meeting; and (iv) propose
modifications, variations or amendments of or to the Trust Deed,
the Notes and the Transaction Documents, and direct, request,
authorise and empower the Issuer and the Trustee to (among other
actions) take such steps as are necessary, desirable or expedient
to carry out or give effect to any such request or proposal,
subject, in the case of the Trustee, to discharging and exonerating
the Trustee, in customary manner, from all liabilities for which it
may be or become responsible under the Transaction Documents
arising in connection with or as a consequence of any such
Extraordinary Resolution or its implementation.
-- the Noteholders may, by Extraordinary Resolution, approve the
removal of the person from time to time acting as Trustee, without
cause, and approve the appointment of a replacement Trustee.
-- where the subject matter of an Extraordinary Resolution
includes, in relation to the Notes, any Basic Terms Modification
(as defined in Clause 6(B) of the Meetings Schedule), the Trustee
does not need to form an opinion that the relevant modification or
alteration is being proposed by the Issuer as a result of, or in
order to avoid, an Event of Default. The requirement in Clause 6(B)
of the Trust Deed for the relevant modification to be approved by
an Extraordinary Resolution (passed in accordance with paragraph
6(B) of the Meetings Schedule) remains.
Noteholders should note that although the proposed amendments to
the powers exercisable by Extraordinary Resolution include powers
for the Noteholders to propose modifications, variations or
amendments to the Trust Deed, the Notes and the Transaction
Documents, no such modifications, amendments or variations may be
made unless the parties to the affected documents agree to make
them.
Amendments to the Trust Deed
The Issuer proposes that:
Clause 1.1(b) (Definitions) of the Trust Deed should be amended
to include a new paragraph, as follows:
"Claim Settlement means any settlement, compromise or
arrangement relating to or affecting the Issuer's assets or
undertakings, which, in each case, has arisen in the context of
actual or threatened litigation against the Issuer by more than one
Borrower."
Clause 12 (Covenants by the Issuer) of the Trust Deed should be
amended to include a new paragraph (v) in Clause 12.1, as
follows:
"(v) it shall obtain the prior written consent of the
Noteholders, acting by Extraordinary Resolution, to any request or
proposal (irrespective of the person making such request or
proposal) to transfer, sell, lend, part with or otherwise dispose
of or deal with any of the Issuer's assets or undertaking or any
interest, estate, right, title or benefit therein, or to grant any
option or present or future right to acquire any of its assets or
undertaking or any interest, estate, right, title or benefit
therein (including, without limitation, any request or proposal
that the Issuer should agree or give its consent to any Claim
Settlement) save to the extent expressly permitted by this Trust
Deed or the Transaction Documents; provided that, in any
circumstance in which the Issuer is required to obtain the prior
written consent of the Noteholders, acting by Extraordinary
Resolution, under or pursuant to this paragraph (v), the Issuer
shall, upon request, promptly provide evidence to the Trustee that
it has obtained such consent."
Clause 15(d) (Provisions Supplemental to the Trustee Act 1925)
of the Trust Deed should be amended as marked in red below:
"the Trustee shall not be responsible for having acted upon any
resolution purporting to have been passed at any meeting of the
Noteholders in respect whereof minutes have been made and signed or
upon any resolution (including, without limitation, a Written
Resolution) purported to have been signed , or any Electronic
Consent given even though it may subsequently be found that there
was some defect in the constitution of such meeting or the passing
of such resolution (including, without limitation, Written
Resolution) or the giving of such Electronic Consent or the
requisite number of Noteholders did not sign the same or that for
any reason such resolution (including, without limitation, Written
Resolution) or Electronic Consent was not valid or binding upon the
Noteholders."
Clause 16 (Trustee's Obligations and Assumptions) of the Trust
Deed should be amended to include a new Clause 16.11, as
follows:
"16.11 If the Trustee is requested to provide its consent to any
matters which are the subject of the Issuer's obligations under
Clause 12.1(v), the Trustee may rely (without liability to any
person and without further enquiry) on the evidence provided to it
by the Issuer pursuant to Clause 12.1(v), as applicable, that the
Noteholders have provided their consent, acting by Extraordinary
Resolution, in accordance with the provisions of Clause 12.1(v), as
applicable."
Clause 21.3 of the Trust Deed should be amended as marked in red
below:
"A trustee of these presents may retire at any time on giving
not less than three months' prior notice to the Issuer without
assigning any reason and without being responsible for any
liabilities occasioned by such retirement. The Trustee , whether
acting in its capacity as note trustee under these presents or as
security trustee under and pursuant to the Deed of Charge, or in
both capacities, may be removed at any time by an Extraordinary
Resolution of the Noteholders, without cause. In the event of the
only trustee, in any capacity, being removed by Extraordinary
Resolution, the Issuer undertakes that it will use its best
endeavours to procure that a new trustee of these presents and/or a
new security trustee for the purpose of holding, for its own
account and as trustee for the other Secured Creditors, the
security interests created by or pursuant to the Deed of Charge, be
appointed as soon as reasonably practicable thereafter. Any such
new trustee or security trustee shall be a Trust Corporation or
such other person as is approved by the Noteholders, acting by
Extraordinary Resolution. The retirement or removal of any such
trustee which would result in there being no Trust Corporation as a
trustee of these presents shall not become effective until a
successor Trust Corporation or other person approved by the
Noteholders, acting by Extraordinary Resolution, is appointed."
Amendments to the Meetings Schedule
The Issuer proposes that:
(i) Paragraph 6(B) of the Meetings Schedule should be amended by deleting the following sentence:
"An Extraordinary Resolution must be passed at a meeting of the
Noteholders to sanction any Basic Terms Modification.",
and inserting the following in substitution therefor:
"An Extraordinary Resolution required in order to sanction any
Basic Terms Modification must be passed at a meeting of the
Noteholders or by way of Written Resolution (as defined below) or,
if proposed by the Issuer or the Trustee, by way of Electronic
Consent (as defined below) of Noteholders of not less than 75 per
cent. of the aggregate Principal Amount Outstanding of the Notes
then outstanding."
Noteholders should be aware that the effect of this change would
be that substantial changes affecting the Notes (including the
commercial terms) would be capable of being effected by Written
Resolution or Electronic Consent, while currently these changes
must be passed at a Meeting of Noteholders. In addition, as a
result of the proposed introduction of a Written Resolution
procedure (as described below), these changes may not be notified
to all Noteholders as a class.
(ii) Paragraph 18 of the Meetings Schedule should be amended as
marked in red below:
"A meeting of Noteholders , a Written Resolution and an
Electronic Consent of Noteholders of not less than 75 per cent. of
the aggregate Principal Amount Outstanding of the Notes then
outstanding, shall in addition to all other powers (but without
prejudice to any powers conferred on other persons by these
presents or the Deed of Charge) have the following powers
exercisable only by Extraordinary Resolution, namely:
[sub-paragraphs (a) to (b) to be deleted, and the following
sub-paragraphs to be inserted in substitution therefor; changes to
existing sub-paragraphs (a) and (b) are shown in green and
strikethrough. ]
(a) power to propose and/or sanction any compromise or
arrangement proposed to be made between the Issuer and the
Noteholders;
(b) power to propose and/or sanction any modification,
abrogation, variation or compromise of, or arrangement in respect
of, the rights of the Noteholders against the Issuer or against any
of their property, whether such rights shall arise under these
presents, the Notes , the Transaction Documents or otherwise;
[insert new sub-paragraphs (c),(d) and (e) as follows]:
(c) power to propose and/or sanction any compromise or
arrangement between the Issuer and any other person arising in the
context of a Claim Settlement (other than a proposal falling within
sub-paragraph (d) immediately below), which compromise or
arrangement affects or (in the written opinion of the Noteholders
passing any such Extraordinary Resolution) is reasonably likely to
affect the property, rights or assets of the Noteholders; and to
require that the Issuer obtain the prior written consent of the
Noteholders, acting by Extraordinary Resolution, to the giving of
any consent or waiver required to be obtained from the Issuer by
any person, whether under the Trust Deed, the Notes, the
Transaction Documents or otherwise, which consent or waiver affects
or (in the written opinion of two or more holders of at least 75
per cent. of the Principal Amount Outstanding of the Notes then
outstanding, as evidenced to the Issuer) is reasonably likely to
affect the property, rights or assets of the Noteholders;
(d) power to consent to, and/or require the consent of the
Noteholders, acting by Extraordinary Resolution, to, any request or
proposal (irrespective of the person making such proposal), to
transfer, sell, lend, part with or otherwise dispose of or deal
with any of the Issuer's assets or undertaking or any interest,
estate, right, title or benefit therein, or to grant any option or
present or future right to acquire any of its assets or undertaking
or any interest, estate, right, title or benefit therein
(including, without limitation, any request or proposal that the
Issuer should agree or give its consent to any Claim Settlement),
save to the extent permitted by the Trust Deed or the Transaction
Documents;
(e) power to specify terms on which the Issuer may agree to any
proposal made by or on behalf of a Borrower or Borrowers arising in
the context of a Claim Settlement to redeem all amounts owing by
that Borrower or those Borrowers to the Issuer under the applicable
Offers, Mortgage Deeds and ancillary documents for an amount lower
than the sum of the applicable Loan Amount and Shared Appreciation
Amount, and to require that the consent of the Noteholders, acting
by Extraordinary Resolution, be obtained before the Issuer agrees
to any such proposal from a Borrower or Borrowers which falls
outside the terms specified in any Extraordinary Resolution passed
pursuant to this paragraph (e) and which remains in force as at the
date of any such proposal;
[existing sub-paragraph (c) to remain but renumbered as (f);
existing sub-paragraph (d) to be deleted, and the following
sub-paragraph (g) to be inserted in substitution therefor; changes
to existing sub-paragraph (d) are shown in green and
strikethrough]
(g) power to assent to any modification of the provisions
contained in this Deed these presents , the Notes or any other
Transaction Document which shall be proposed by the Issuer or the
Trustee;
[existing sub-paragraph (e) to be deleted and the following
sub-paragraphs to be inserted immediately after new sub-paragraph
(g)]
(h) power to propose any modification, variation or amendment,
or modifications, variations or amendments, of or to the provisions
contained in these presents, the Notes and any of the Transaction
Documents, or in any other agreement, deed or document entered into
by the Issuer and/or the Trustee in connection with the Trust Deed,
the Notes or any Transaction Document, and power to direct,
request, empower and authorise the Issuer and/or the Trustee (as
applicable to any such proposal) to consent to, concur in and
execute all such documents as may be necessary to give effect to
any such proposal and any Extraordinary Resolution and to take all
steps necessary, desirable or expedient to carry out or give effect
to any such proposal or Extraordinary Resolution;
(i) power to direct, request, empower and authorise the Issuer
and/or the Trustee to waive any requirement, restriction or
condition precedent as set forth in these presents, the Notes or
the Transaction Documents, in order to give effect to any
Extraordinary Resolution;
(j) [renumbered current sub-paragraph (f)] power to appoint any
persons to a committee or committees to represent the interests of
the Noteholders and to confer upon such committee or committees any
powers or discretions which the relevant Noteholders could
themselves exercise by Extraordinary Resolution;
(k) [renumbered current sub-paragraph (g)] power to give any
authority, direction or sanction which under the provision of these
presents or the Notes is required to be given by Extraordinary
Resolution;
(l) [delete current sub-paragraph (h) and replace with the
following] power to remove any trustee for the time being under
these presents and/or under the Deed of Charge, without cause, and
to approve a person proposed to be appointed a new trustee under
these presents and/or the Deed of Charge;
(m) [delete current sub-paragraph (i) and replace with the
following] power to discharge and exonerate the Trustee from all
liabilities for which it may be or become responsible under these
presents, the Notes and the Transaction Documents in respect of any
act or omission for which it may otherwise become responsible, or
in respect of any requirement, restriction or condition precedent
set forth in these presents, the Notes or the Transaction
Documents, in each case arising in connection with or as a
consequence of any Extraordinary Resolution or the implementation
of any Extraordinary Resolution. "
The Proviso to Paragraph 18 of the Meetings Schedule shall be
amended as shown below in strikethrough:
" PROVIDED THAT no modification or alteration as is referred to
in paragraph 6(B) shall be effective unless (i) the Trustee is of
the opinion that such modification or alteration is being proposed
by the Issuer as a result of, or in order to avoid, an Event of
Default and (ii) the modification is approved by an Extraordinary
Resolution passed in accordance with paragraph 6(B). "
The effect of the amendment to the Proviso to Paragraph 18 of
the Meetings Schedule is that where the subject matter of an
Extraordinary Resolution is a Basic Terms Modification, as
described in Paragraph 6(B) of the Meetings Schedule, the relevant
quorum and voting requirements will continue to apply but there
will, if the amendments proposed are approved, be no requirement to
obtain the opinion of the Trustee that the modification or
alteration the subject of that meeting (which is, in each case, a
Basic Terms Modification) is being proposed by the Issuer as a
result of, or in order to avoid, an Event of Default.
(iii) Paragraph 19 of the Meetings Schedule should be amended as
marked in red below:
"Subject to the provisos to paragraph 18 above, any resolution
passed at a meeting of the Noteholders duly convened and held in
accordance with these presents , or by way of Written Resolution or
by Electronic Consent given by the requisite majority of
Noteholders shall be binding upon all the Noteholders each
Noteholder whether present or not present at such meeting and
whether or not voting, or whether or not it participated in such
Written Resolution or Electronic Consent, and whether or not voting
and irrespective of its effect upon such person; and, in each such
case, each Noteholders shall be bound to give effect to such
resolution accordingly and the passing of any such resolution shall
be conclusive evidence that the circumstances justify the passing
thereof. Notice of the result of the voting on any resolution duly
considered by the Noteholders shall be published in accordance with
Condition 15 of the Notes by the Issuer within fourteen (14) days
of such result being known PROVIDED THAT the non-publication of
such notice shall not invalidate such resolution."
(iv) Paragraph 20 of the Meetings Schedule should be amended as
marked in red below:
"The expression Extraordinary Resolution when used in these
presents means a resolution passed : (i) at a meeting of the
Noteholders duly convened and held in accordance with the
provisions herein contained by a majority consisting of not less
than 75 per cent, of the persons voting thereat upon a show of
hands or if a poll be duly demanded then by a majority consisting
of not less than 75 per cent, of the votes given on such poll ;
(ii) by way of Written Resolution; or (iii) by way of Electronic
Consent. "
(v) The Meetings Schedule should be amended by the addition of
the following two new paragraphs (the numbering of, and references
to, the current paragraphs 21 and 22 of the Meetings Schedule shall
be accordingly updated to 23 and 24 throughout):
"21. The expression Written Resolution means a resolution in
writing signed by or on behalf of two or more holders of not less
than 75 per cent. of the Principal Amount Outstanding of the Notes
then outstanding, whether contained in one document or several
documents in the same form, each signed by or on behalf of one or
more such holders of the Notes.
A Written Resolution may be instigated either:
(i) by two or more holders of not less than 75 per cent. of the
Principal Amount Outstanding of the Notes then outstanding
delivering such Written Resolution to the Issuer and/or the Trustee
and, for the avoidance of doubt, prior notice of such Written
Resolution (or the subject matter of such Written Resolution) is
not required to be given to the Noteholders as a class;
or
(ii) by the Issuer or the Trustee, having first agreed the terms
of the proposed Written Resolution with two or more holders of not
less than 75 per cent. of the Principal Amount Outstanding of the
Notes then outstanding, either individually or as members of a
committee of holders established by way of Extraordinary Resolution
or otherwise.
For the purpose of determining whether a Written Resolution has
been validly passed, the Issuer and the Trustee shall be entitled
to rely (and shall not be responsible for any liability occasioned
by so doing) on any consent or instructions given in writing
directly to the Issuer and/or the Trustee, as the case may be, by
accountholders in the Clearing Systems (as defined below) with
entitlements to the Permanent Global Note held by or on behalf of
the Clearing Systems and/or, where the accountholders hold any such
entitlement on behalf of another person, on written consent from or
written instruction by the person for whom such entitlement is
ultimately beneficially held, whether such beneficiary holds
directly with the accountholder or via one or more intermediaries
and provided that, in each case, the Issuer or (where the consent
or instructions are given directly to the Trustee but not to the
Issuer) the Trustee has obtained commercially reasonable evidence
to ascertain the validity of such holding and has taken reasonable
steps to ensure that such holding does not alter following the
giving of such consent or instruction and prior to the effecting or
implementation of such consent or instruction. Any Written
Resolution passed in such manner shall be binding on all
Noteholders, even if the relevant consent or instruction proves to
be defective. As used in this paragraph, "commercially reasonable
evidence" includes any certificate or other document issued by the
Clearing Systems and/or issued by an accountholder of them or an
intermediary in a holding chain, in relation to the holding of
interests in the Notes. Any such certificate or other document
shall, in the absence of manifest error, be conclusive and binding
for all purposes and the Issuer and/or the Trustee shall not be
liable for acting thereon. Any such certificate or other document
may comprise any form of statement or print out of electronic
records provided by the relevant clearing system (including
Euroclear's EasyWay or Clearstream, Luxembourg's Xact Web Portal)
in accordance with its usual procedures and in which the
accountholder of a particular principal or principal amount of the
Notes is clearly identified together with the amount of such
holding. Neither the Issuer nor the Trustee shall be liable to any
person by reason of having accepted as valid or not having rejected
any certificate or other document to such effect purporting to be
issued by any such person and subsequently found to be forged or
not authentic.
A Written Resolution shall take effect as an Extraordinary
Resolution and shall be binding on all Noteholders, whether or not
they participated in such Written Resolution."
The effect of the proposed Paragraph 21(i) is that a Written
Resolution may be passed with the consent of Noteholders of not
less than 75 per cent. of Principal Amount Outstanding of the Notes
then outstanding and without the remaining Noteholders receiving
prior notice of such Written Resolution .
The effect of the proposed Paragraph 21(ii) is that, where a
Written Resolution is proposed by the Issuer or the Trustee, such
Written Resolution may be pre-approved by two or more holders of
not less than 75 per cent. of the Principal Amount Outstanding of
the Notes then outstanding, therefore, not requiring the
publication, or approval, of such Written Resolution to, or of,
further Noteholders.
This approach only applies to Written Resolutions proposed by
the Issuer or the Trustee, and is intended to facilitate the
ability of the Issuer or the Trustee to propose a Written
Resolution in circumstances where the background information
relevant to such proposal is sensitive or confidential (for
example, where it pertains to any litigation settlement for which
the Issuer may seek, or be required to seek, the prior consent of
the Noteholders), the Issuer may do so without wider publication of
such information.
" 22. For so long as all outstanding Notes are represented by
the Permanent Global Note and held within the clearing systems
operated by Euroclear (currently known as Euroclear Bank S.A./N.V.,
as operator of the Euroclear System) or Clearstream, Luxembourg
société anonyme (as successor to the business of Cedelbank) (the
"Clearing Systems"), in respect of any resolution (including,
without limitation, an Extraordinary Resolution) proposed by the
Issuer or the Trustee, where the terms of the proposed resolution
have been notified to the Noteholders through the relevant Clearing
Systems as provided in sub-paragraphs (i) and/or (ii) below, each
of the Issuer and the Trustee shall be entitled to rely upon
approval of such resolution proposed by the Issuer or the Trustee
(as the case may be) given by way of electronic consents
communicated through the electronic communications systems of the
relevant Clearing System in accordance with their operating rules
and procedures by or on behalf of the holders of not less than (a)
50.1 per cent. of the aggregate Principal Amount Outstanding of the
Notes then outstanding in the case of any resolution other than an
Extraordinary Resolution, and (b) 75 per cent. of the aggregate
Principal Amount Outstanding of the Notes then outstanding, in the
case of an Extraordinary Resolution (the "Required Proportion")
(each such electronic consent given by at least the Required
Proportion applicable to a proposed resolution being an "Electronic
Consent" with respect to that resolution) by close of business on
the Relevant Date (as defined below). Any resolution passed by way
of Electronic Consent shall be binding on all Noteholders, even if
the electronic consents used to determine that the Electronic
Consent had been given prove to be defective. Neither the Issuer
nor the Trustee shall be liable or responsible to anyone for such
reliance.
(i) When a proposal for a resolution to be passed as an
Electronic Consent has been made, at least 7 Business Days' notice
(exclusive of the day on which the notice is given and of the day
on which affirmative consents will be counted) shall be given to
the Noteholders through the relevant Clearing System(s). The notice
shall specify, in sufficient detail to enable Noteholders to give
their consents in relation to the proposed resolution, the method
by which their consents may be given (including, where applicable,
blocking of their accounts in the relevant Clearing System(s)) and
the time and date (the "Relevant Date") by which their consents
must be received in order for them to be validly given, in each
case subject to and in accordance with the operating rules and
procedures of the relevant Clearing System(s).
(ii) If, on the Relevant Date on which the consents requested in
respect of an Electronic Consent are first counted, such consents
do not equal or exceed the applicable Required Proportion, the
resolution shall, if the party proposing such resolution (the
"Proposer") so determines, be deemed to be defeated. Such
determination shall be notified in writing to the other party to
the Trust Deed. Alternatively, the Proposer may give a further
notice to the Noteholders that the resolution will be proposed
again for the purpose of seeking an Electronic Consent on such date
and for such period as shall be agreed with the Trustee (unless the
Trustee is the Proposer). Any such notice must inform Noteholders
that insufficient consents were received in relation to the
original resolution and the information specified in sub-paragraph
(i) above. For the purpose of such further notice, references to
"Relevant Date" shall be construed accordingly.
For the avoidance of doubt, an Electronic Consent may only be
used in relation to a resolution proposed by the Issuer or the
Trustee which is not then the subject of a meeting that has been
validly convened in accordance with paragraphs 3 and 4 above,
unless that meeting is or shall be cancelled or dissolved.
An Electronic Consent shall take effect as an ordinary
resolution or an Extraordinary Resolution, as applicable, and shall
be binding on all Noteholders, whether or not they participated in
such Electronic Consent."
The effect of the proposed Paragraph 22 is that, in respect of a
resolution proposed by the Issuer or the Trustee only, Noteholders
of not less than 50 per cent. of the aggregate Principal Amount
Outstanding of the Notes then outstanding may approve such
resolution by way of electronic consents, unless that resolution is
an Extraordinary Resolution. In the case of an Extraordinary
Resolution, Noteholders of not less than 75 per cent. of the
aggregate Principal Amount Outstanding of the Notes then
outstanding may approve such Extraordinary Resolution by way of
electronic consents.
Amendments to the Fourth Schedule to the Trust Deed and to the
Conditions
The Issuer proposes that:
(i) the final paragraph under the heading "Global Notes", and
immediately before the heading "Security" on the second page of the
Fourth Schedule (Terms and Conditions of the Notes) to the Trust
Deed should be amended as marked in red below:
"Any notice to Noteholders in respect of Notes represented by
Global Notes shall be deemed to have been duly given if sent to
Euroclear (currently known as Euroclear Bank S.A./N.V., as operator
of the Euroclear System) or Clearstream Luxembourg société anonyme
(as successor to the business of Cedelbank) (as applicable) and
shall be deemed to have been given on the date which such notice
was so sent."
(ii) Condition 3.1(Covenants) of the Conditions (as set out in
the Fourth Schedule (Terms and Conditions of the Notes) to the
Trust Deed) should be amended to insert immediately after Condition
3.1.3 (Disposal of Assets) the new Condition 3.1.4 set out below,
and the current Conditions 3.1.4, 3.1.5, 3.1.6 and 3.1.7 set out in
the Fourth Schedule (Terms and Conditions of the Notes) to the
Trust Deed shall be accordingly updated to Conditions 3.1.5, 3.1.6,
3.1.7 and 3.1.8:
"3.1.4 Settlement of claims
agree or give its consent to any request or proposal arising in
the context of a Claim Settlement (as defined below) that it should
agree or give its consent to the settlement of any claim,
compromise or arrangement with respect to or affecting the Issuer's
assets or undertaking without obtaining the prior written consent
of the Noteholders acting by Extraordinary Resolution, save, in
each case, to the extent permitted by the Trust Deed or the
Transaction Documents, provided that in the case of any discrepancy
between the covenants given by the Issuer in the Trust Deed with
respect to any such request or proposal and the terms of the
Transaction Documents, the provisions of the Trust Deed shall
prevail. "Claim Settlement" shall mean any settlement, compromise
or arrangement relating to or affecting the Issuer's assets or
undertakings, in each case, which has arisen in the context of
actual or threatened litigation against the Issuer by more than one
Borrower."
(iii) Condition 12(a) of the Conditions (as set out in the
Fourth Schedule (Terms and Conditions of the Notes) to the Trust
Deed) should be amended as marked in red below:
"[...] The majority required for an Extraordinary Resolution
shall be 75 per cent. of the votes cast on that resolution. An
Extraordinary Resolution may also be passed: (i) by way of Written
Resolution; or (iii) by way of Electronic Consent of Noteholders of
not less than 75 per cent. of the aggregate Principal Amount
Outstanding of Notes then outstanding. "
(iv) Condition 12 of the Conditions (as set out in the Fourth
Schedule (Terms and Conditions of the Notes) to the Trust Deed)
should be amended by the addition of the following two new
paragraphs (the numbering of, and references to, the current
paragraphs 12(b), 12(c), 12(d) and 12(e) of the Fourth Schedule
(Terms and Conditions of the Notes) to the Trust Deed shall be
accordingly updated to paragraphs 12(d), 12(e), 12(f) and 12(g)
throughout):
"12(b). The expression Written Resolution means a resolution in
writing signed by or on behalf of two or more holders of not less
than 75 per cent. of the Principal Amount Outstanding of the Notes
then outstanding, whether contained in one document or several
documents in the same form, each signed by or on behalf of one or
more such holders of the Notes.
A Written Resolution may be instigated either:
(i) by two or more holders of not less than 75 per cent. of the
Principal Amount Outstanding of the Notes then outstanding
delivering such Written Resolution to the Issuer and/ or the
Trustee and, for the avoidance of doubt, prior notice of such
Written Resolution (or the subject matter of such Written
Resolution) is not required to be given to the Noteholders as a
class;
or
(ii) by the Issuer or the Trustee, having first agreed the terms
of the proposed Written Resolution with two or more holders of not
less than 75 per cent. of the Principal Amount Outstanding of the
Notes then outstanding, either individually or as members of a
committee of holders established by way of Extraordinary Resolution
or otherwise.
For the purpose of determining whether a Written Resolution has
been validly passed, the Issuer and the Trustee shall be entitled
to rely (and shall not be responsible for any liability occasioned
by so doing) on any consent or instructions given in writing
directly to the Issuer and/or the Trustee, as the case may be, by
accountholders in the Clearing System (as defined below) with
entitlements to the Permanent Global Note held by or on behalf of
the Clearing Systems and/or, where the accountholders hold any such
entitlement on behalf of another person, on written consent from or
written instruction by the person for whom such entitlement is
ultimately beneficially held, whether such beneficiary holds
directly with the accountholder or via one or more intermediaries
and provided that, in each case, the Issuer or (where the consent
or instructions are given directly to the Trustee but not to the
Issuer) the Trustee has obtained commercially reasonable evidence
to ascertain the validity of such holding and has taken reasonable
steps to ensure that such holding does not alter following the
giving of such consent or instruction and prior to the effecting or
implementation of such consent or instruction. Any Written
Resolution passed in such manner shall be binding on all
Noteholders, even if the relevant consent or instruction proves to
be defective. As used in this paragraph, "commercially reasonable
evidence" includes any certificate or other document issued by the
Clearing Systems and/or issued by an accountholder of them or an
intermediary in a holding chain, in relation to the holding of
interests in the Notes. Any such certificate or other document
shall, in the absence of manifest error, be conclusive and binding
for all purposes and the Issuer and/or the Trustee shall not be
liable for acting thereon. Any such certificate or other document
may comprise any form of statement or print out of electronic
records provided by the relevant clearing system (including
Euroclear's EasyWay or Clearstream, Luxembourg's Xact Web Portal)
in accordance with its usual procedures and in which the
accountholder of a particular principal or principal amount of the
Notes is clearly identified together with the amount of such
holding. Neither the Issuer nor the Trustee shall be liable to any
person by reason of having accepted as valid or not having rejected
any certificate or other document to such effect purporting to be
issued by any such person and subsequently found to be forged or
not authentic.
A Written Resolution shall take effect as an Extraordinary
Resolution and shall be binding on all Noteholders, whether or not
they participated in such Written Resolution."
The effect of the proposed Condition 12(b)(i) is that a Written
Resolution may be passed with the consent of Noteholders of not
less than 75 per cent. of Principal Amount Outstanding of the Notes
then outstanding and without the remaining Noteholders receiving
prior notice of such Written Resolution .
The effect of the proposed Condition 12(b)(ii) is that, where a
Written Resolution is proposed by the Issuer or the Trustee, such
Written Resolution may be pre-approved by two or more holders of
not less than 75 per cent. of the Principal Amount Outstanding of
the Notes then outstanding, therefore, not requiring the
publication, or approval, of such Written Resolution to, or of,
further Noteholders.
This approach only applies to Written Resolutions proposed by
the Issuer or the Trustee, and is intended to facilitate the
ability of the Issuer or the Trustee to propose a Written
Resolution in circumstances where the background information
relevant to such proposal is sensitive or confidential (for
example, where it pertains to any litigation settlement for which
the Issuer may seek, or be required to seek, the prior consent of
the Noteholders) without wider publication of such information.
" 12(c). For so long as all outstanding Notes are represented by
the Permanent Global Note and held within the clearing systems
operated by Euroclear (currently known as Euroclear Bank S.A./N.V.,
as operator of the Euroclear System) or Clearstream, Luxembourg
société anonyme (as successor to the business of Cedelbank) (the
"Clearing Systems"), in respect of any resolution (including,
without limitation, an Extraordinary Resolution) proposed by the
Issuer or the Trustee, where the terms of the proposed resolution
have been notified to the Noteholders through the relevant Clearing
Systems as provided in sub-paragraphs (i) and/or (ii) below, each
of the Issuer and the Trustee shall be entitled to rely upon
approval of such resolution proposed by the Issuer or the Trustee
(as the case may be) given by way of electronic consents
communicated through the electronic communications systems of the
relevant Clearing System in accordance with their operating rules
and procedures by or on behalf of the holders of not less than (a)
50.1 per cent. of the aggregate Principal Amount Outstanding of the
Notes then outstanding in the case of any resolution other than an
Extraordinary Resolution, and (b) 75 per cent. of the aggregate
Principal Amount Outstanding of the Notes then outstanding, in the
case of an Extraordinary Resolution (the "Required Proportion")
(each such electronic consent given by at least the Required
Proportion applicable to a proposed resolution being an "Electronic
Consent" with respect to that resolution) by close of business on
the Relevant Date (as defined below). Any resolution passed by way
of Electronic Consent shall be binding on all Noteholders, even if
the electronic consents used to determine that the Electronic
Consent had been given prove to be defective. Neither the Issuer
nor the Trustee shall be liable or responsible to anyone for such
reliance.
(i) When a proposal for a resolution to be passed as an
Electronic Consent has been made, at least 7 Business Days' notice
(exclusive of the day on which the notice is given and of the day
on which affirmative consents will be counted) shall be given to
the Noteholders through the relevant Clearing System(s). The notice
shall specify, in sufficient detail to enable Noteholders to give
their consents in relation to the proposed resolution, the method
by which their consents may be given (including, where applicable,
blocking of their accounts in the relevant Clearing System(s)) and
the time and date (the "Relevant Date") by which their consents
must be received in order for them to be validly given, in each
case subject to and in accordance with the operating rules and
procedures of the relevant Clearing System(s).
(ii) If, on the Relevant Date on which the consents requested in
respect of an Electronic Consent are first counted, such consents
do not equal or exceed the applicable Required Proportion, the
resolution shall, if the party proposing such resolution (the
"Proposer") so determines, be deemed to be defeated. Such
determination shall be notified in writing to the other party to
the Trust Deed. Alternatively, the Proposer may give a further
notice to the Noteholders that the resolution will be proposed
again for the purpose of seeking an Electronic Consent on such date
and for such period as shall be agreed with the Trustee (unless the
Trustee is the Proposer). Any such notice must inform Noteholders
that insufficient consents were received in relation to the
original resolution and the information specified in sub-paragraph
(i) above. For the purpose of such further notice, references to
"Relevant Date" shall be construed accordingly.
For the avoidance of doubt, an Electronic Consent may only be
used in relation to a resolution proposed by the Issuer or the
Trustee which is not then the subject of a meeting that has been
validly convened in accordance with paragraphs 3 and 4 above,
unless that meeting is or shall be cancelled or dissolved.
An Electronic Consent shall take effect as an ordinary
resolution or an Extraordinary Resolution, as applicable, and shall
be binding on all Noteholders, whether or not they participated in
such Electronic Consent."
The effect of the proposed Condition 12(c) is that, in respect
of a resolution proposed by the Issuer or the Trustee only,
Noteholders of not less than 50 per cent. of the aggregate
Principal Amount Outstanding of the Notes then outstanding may
approve such resolution by way of electronic consent, unless that
resolution is an Extraordinary Resolution. In the case of an
Extraordinary Resolution, Noteholders of not less than 75 per cent.
of the aggregate Principal Amount Outstanding of the Notes then
outstanding may approve such Extraordinary Resolution by way of
electronic consents.
EXTRAORDINARY RESOLUTIONS
THAT this meeting (the "Meeting") of the Noteholders of the
GBP97,840,000 SAM Notes due 2054 of Millshaw SAMS No. 1 Limited
(the "Notes" and the "Issuer" respectively) constituted by the note
trust deed dated 25 March 1999 (the "Trust Deed") and originally
made between the Issuer and Royal Exchange Trust Company Limited as
the trustee (the "Trustee") as amended and/or supplemented from
time to time, hereby:
1. irrevocably approves the amendment and modification of the
Trust Deed and amendments to the terms and conditions of the Notes
set out in the Fourth Schedule (Terms and Conditions of the Notes)
to the Trust Deed (the "Conditions") as follows in order to permit
the passing of Extraordinary Resolutions by means of a Written
Resolution or by means of an Electronic Consent:
a) Clause 15(d) (Provisions Supplemental to the Trustee Act
1925) of the Trust Deed shall be amended as marked in red
below:
"the Trustee shall not be responsible for having acted upon any
resolution purporting to have been passed at any meeting of the
Noteholders in respect whereof minutes have been made and signed or
upon any resolution (including, without limitation, a Written
Resolution) purported to have been signed or any Electronic Consent
given even though it may subsequently be found that there was some
defect in the constitution of such meeting or the passing of such
resolution (including, without limitation, Written Resolution) or
the giving of such Electronic Consent or the requisite number of
Noteholders did not sign the same or that for any reason such
resolution (including, without limitation, Written Resolution) or
Electronic Consent was not valid or binding upon the
Noteholders."
b) The First Schedule (Provisions for Meetings of Noteholders)
to the Trust Deed and Condition 12 of the Conditions shall be
amended in the manner described in the Notice convening the Meeting
to permit the passing of an Extraordinary Resolution by way of
Written Resolution, where the expression "Written Resolution" means
a resolution in writing signed by or on behalf of two or more
holders of not less than 75 per cent. of the Principal Amount
Outstanding of the Notes then outstanding, whether contained in one
document or several documents in the same form, each signed by or
on behalf of one or more such holders of the Notes. A Written
Resolution may be instigated either:
(i) by two or more holders of not less than 75 per cent. of the
Principal Amount Outstanding of the Notes then outstanding
delivering such Written Resolution to the Issuer and/or the Trustee
and, for the avoidance of doubt, prior notice of such Written
Resolution (or the subject matter of such Written Resolution) is
not required to be given to the Noteholders as a class; or
(ii) by the Issuer or the Trustee, having first agreed the terms
of the proposed Written Resolution with two or more holders of not
less than 75 per cent. of the Principal Amount Outstanding of the
Notes then outstanding, either individually or as members of a
committee of holders established by way of Extraordinary Resolution
or otherwise.
c) The First Schedule (Provisions for Meetings of Noteholders)
to the Trust Deed and Condition 12 of the Conditions shall be
amended in the manner described in the Notice convening the Meeting
to permit the passing of an Extraordinary Resolution by way of
Electronic Consent, where the expression "Electronic Consent" means
approval of such Extraordinary Resolution, proposed by the Issuer
or the Trustee and notified to the Noteholders through the relevant
clearing system(s), given by way of electronic consents
communicated through the electronic communications systems of the
clearing system(s) in accordance with their operating rules and
procedures by or on behalf of the holders of (i) not less than 50
per cent. of the aggregate Principal Amount Outstanding of the
Notes then outstanding, in the case of any resolution other than an
Extraordinary Resolution, and (ii) not less than 75 per cent. of
the aggregate Principal Amount Outstanding of the Notes then
outstanding, in the case of an Extraordinary Resolution.
2. irrevocably approves the amendment and modification of the Trust Deed as follows:
a) Clause 12 (Covenants by the Issuer) of the Trust Deed shall
be amended to include a new paragraph (v) in Clause 12.1, as
follows:
"(v) it shall obtain the prior written consent of the
Noteholders, acting by Extraordinary Resolution, to any request or
proposal (irrespective of the person making such proposal) to
transfer, sell, lend, part with or otherwise dispose of or deal
with any of the Issuer's assets or undertaking or any interest,
estate, right, title or benefit therein (including, without
limitation, any request or proposal that the Issuer should agree or
give its consent to any Claim Settlement), or to grant any option
or present or future right to acquire any of its assets or
undertaking or any interest, estate, right, title or benefit
therein save to the extent permitted by this Trust Deed or the
Transaction Documents; provided that, in any circumstance in which
the Issuer is required to obtain the prior written consent of the
Noteholders, acting by Extraordinary Resolution, under or pursuant
to this paragraph (v), the Issuer shall, upon request, promptly
provide evidence to the Trustee that it has obtained such
consent."
b) Clause 16 (Trustee's Obligations and Assumptions) of the
Trust Deed shall be amended to include a new Clause 16.11, as
follows:
"If the Trustee is requested to provide its consent to any
matters which are the subject of the Issuer's obligations under
Clause 12.1(v), the Trustee may rely (without liability to any
person and without further enquiry) on the evidence provided to it
by the Issuer pursuant to Clause 12.1(v) that the Noteholders have
provided their consent, acting by Extraordinary Resolution, in
accordance with the provisions of Clause 12.1(v)."
a) Clause 21.3 of the Trust Deed shall be amended as marked in red below:
"A trustee of these presents may retire at any time on giving
not less than three months' prior notice to the Issuer without
assigning any reason and without being responsible for any
liabilities occasioned by such retirement. The Trustee , whether
acting in its capacity as note trustee under these presents or as
security trustee under or pursuant to the Deed of Charge, or in
both capacities, may be removed at any time by an Extraordinary
Resolution of the Noteholders, without cause. In the event of the
only trustee, in any capacity, being removed by Extraordinary
Resolution, the Issuer undertakes that it will use its best
endeavours to procure that a new trustee of these presents and/or a
new security trustee for the purpose of holding, for its own
account and as trustee for the other Secured Creditors, the
security interests created by or pursuant to the Deed of Charge, be
appointed as soon as reasonably practicable thereafter. Any such
new trustee or security trustee shall be a Trust Corporation or
such other person as is approved by the Noteholders, acting by
Extraordinary Resolution. The retirement or removal of any such
trustee which would result in there being no Trust Corporation as a
trustee of these presents shall not become effective until a
successor Trust Corporation or other person approved by the
Noteholders, acting by Extraordinary Resolution, is appointed .
"
b) paragraph 18 of the First Schedule to the Trust Deed shall be
amended as marked in red below:
"A meeting of Noteholders shall, in addition to all other powers
(but without prejudice to any powers conferred on other persons by
these presents or the Deed of Charge) have the following powers
exercisable only by Extraordinary Resolution:
(a) power to propose and/or sanction any compromise or
arrangement proposed to be made between the Issuer and the
Noteholders;
(b) power to propose and/or sanction any modification,
abrogation, variation or compromise of, or arrangement in respect
of, the rights of the Noteholders against the Issuer or against any
of their property whether such rights shall arise under these
presents, the Notes, any Transaction Document or otherwise;
(c) power to propose and/or sanction any compromise or
arrangement between the Issuer and any other person arising in the
context of a Claim Settlement (other than a proposal falling within
sub-paragraph (d) immediately below) which compromise or
arrangement affects or (in the written opinion of the Noteholders
passing any such Extraordinary Resolution) is reasonably likely to
affect the property, rights or assets of the Noteholders; and to
require that the Issuer obtain the prior written consent of the
Noteholders, acting by Extraordinary Resolution, to the giving of
any consent or waiver required to be obtained from the Issuer by
any person, whether under the Trust Deed, the Notes, the
Transaction Documents or otherwise, which consent or waiver affects
or (in the written opinion of two or more holders of at least 75
per cent. of the Principal Amount Outstanding of the Notes then
outstanding, as evidenced to the Issuer) is reasonably likely to
affect the property, rights or assets of the Noteholders;
(d) power to consent to, and/or require the consent of the
Noteholders, acting by Extraordinary Resolution, to, any request or
proposal (irrespective of the person making such request or
proposal), to transfer, sell, lend, part with or otherwise dispose
of or deal with any of the Issuer's assets or undertaking or any
interest, estate, right, title or benefit therein (including,
without limitation, any request or proposal that the Issuer should
agree or give its consent to any Claim Settlement), or to grant any
option or present or future right to acquire any of its assets or
undertaking or any interest, estate, right, title or benefit
therein, save to the extent permitted by the Trust Deed or the
Transaction Documents;
(e) power to specify terms on which the Issuer may agree to any
proposal made by or on behalf of a Borrower or Borrowers arising in
the context of a Claim Settlement to redeem all amounts owing by
that Borrower or those Borrowers to the Issuer under the applicable
Offers, Mortgage Deeds and ancillary documents for an amount lower
than the sum of the applicable Loan Amount and Shared Appreciation
Amount, and to require that the consent of the Noteholders, acting
by Extraordinary Resolution, be obtained before the Issuer agrees
to any such proposal from a Borrower or Borrowers which falls
outside the terms specified in any Extraordinary Resolution passed
pursuant to this paragraph (e) and which remains in force as at the
date of any such proposal;
(f) power to sanction any scheme or proposal by the Issuer for
the exchange, substitution or sale of the Notes for, or the
conversion of the Notes into or the cancellation of the Notes in
consideration of , shares, stock, notes, bonds, debentures,
debenture stock and/or other obligations and/or securities of the
Issuer or any other body corporate now formed or hereafter to be
formed or for or into or in consideration of cash, or partly for or
into or in consideration of such shares, stock, notes, bonds,
debentures, debenture stock and/or other obligations and/or
securities as aforesaid and partly for or in consideration of
cash;
(g) power to assent to any modification of the provisions
contained in these presents, the Notes or any other Transaction
Document which shall be proposed by the Issuer or the Trustee;
(h) power to authorise the Trustee to concur in and execute all
such documents and do all such acts and things as may be necessary
to carry out and give effect to any Extraordinary Resolution; power
to propose any modification, variation or amendment, or
modifications, variations or amendments, of or to the provisions
contained in these presents, the Notes and any of the Transaction
Documents, or in any other agreement, deed or document entered into
by the Issuer and/or the Trustee in connection with the Trust Deed,
the Notes or any Transaction Document, and power to direct,
request, empower and authorise the Issuer and/or the Trustee (as
applicable) to consent to, concur in and execute all such documents
as may be necessary to give effect to any such proposal and any
Extraordinary Resolution and to take all steps necessary, desirable
or expedient to carry out or give effect to any such proposal or
Extraordinary Resolution;
(i) power to direct, request, empower and authorise the Issuer
and/or the Trustee to waive any requirement, restriction or
condition precedent as set forth in these presents, the Notes or
the Transaction Documents, in order to give effect to any
Extraordinary Resolution;
(j) power to appoint any persons to a committee or committees to
represent the interests of the Noteholders and to confer upon such
committee or committees any powers or discretions which the
relevant Noteholders could themselves exercise by Extraordinary
Resolution;
(k) power to give any authority, direction or sanction which
under the provision of these presents or the Notes is required to
be given by Extraordinary Resolution;
(l) power to approve a person proposed to be appointed a new
trustee under these presents and to remove any trustee for the time
being hereof; power to remove any trustee for the time being under
these presents and/or under the Deed of Charge, without cause, and
to approve a person proposed to be appointed a new trustee under
these presents and/or the Deed of Charge;
(m) power to discharge and exonerate the Trustee from any
liability in respect of any act or omission for which the Trustee
may have become responsible under these presents or the Notes .
power to discharge and exonerate the Trustee from all liabilities
for which it may be or become responsible under these presents, the
Notes and the Transaction Documents in respect of any act or
omission for which it may otherwise become responsible, or in
respect of any requirement, restriction or condition precedent set
forth in these presents, the Notes or the Transaction Documents, in
each case arising in connection with or as a consequence of any
Extraordinary Resolution or the implementation of any Extraordinary
Resolution.
PROVIDED THAT no such modification or alteration as is referred
to in paragraph 6(B) shall be effective unless (i) the Trustee is
of the opinion that such modification or alteration is being
proposed by the Issuer as a result of, or in order to avoid, an
Event of Default and (ii) the modification is approved by an
Extraordinary Resolution passed in compliance with paragraph
6(B);"
3. irrevocably approves the amendments to the Fourth Schedule to
the Trust Deed and to the Conditions whereby:
a) the final paragraph under the heading "Global Notes", and
immediately before the heading "Security" on the second page of the
Fourth Schedule (Terms and Conditions of the Notes) to the Trust
Deed shall be amended as marked in red below:
"Any notice to Noteholders in respect of Notes represented by
Global Notes shall be deemed to have been duly given if sent to
Euroclear (currently known as Euroclear Bank S.A./N.V., as operator
of the Euroclear System) or Clearstream Luxembourg société anonyme
(as successor to the business of Cedelbank) (as applicable) and
shall be deemed to have been given on the date which such notice
was so sent."; and
(b) Condition 3.1 shall be amended to insert immediately after
Condition 3.1.3 (Disposal of Assets) a new Condition 3.1.4 set out
below, and the current Conditions 3.1.4, 3.1.5, 3.1.6 and 3.1.7 of
the Fourth Schedule (Terms and Conditions of the Notes) to the
Trust Deed shall be accordingly deemed updated to Conditions 3.1.5,
3.1.6, 3.1.7 and 3.1.8:
"3.1.4 Settlement of claims
agree or give its consent to any request or proposal arising in
the context of a Claim Settlement (as defined below) that it should
agree or give its consent to the settlement of any claim,
compromise or arrangement with respect to or affecting the Issuer's
assets or undertaking without obtaining the prior written consent
of the Noteholders acting by Extraordinary Resolution, save, in
each case, to the extent permitted by the Trust Deed or the
Transaction Documents, provided that in the case of any discrepancy
between the covenants given by the Issuer in the Trust Deed with
respect to any such request or proposal and the terms of the
Transaction Documents, the provisions of the Trust Deed shall
prevail. " Claim Settlement" means any settlement, compromise or
arrangement relating to or affecting the Issuer's assets or
undertakings, in each case, which has arisen in the context of
actual or threatened litigation against the Issuer by more than one
Borrower."
4. irrevocably authorises, empowers and directs the Trustee:
(a) to enter into and perform its obligations under a deed
supplemental to the Trust Deed to effect the modifications referred
to in paragraphs 1, 2 and 3 of this Extraordinary Resolution in the
form of the draft produced to the Meeting; and
(b) to concur in, execute and do all such other deeds,
agreements, instruments, acts and things considered by it in its
sole discretion to be necessary, desirable, expedient or
appropriate to carry out and give effect to this Extraordinary
Resolution;
5. declares that the Trustee shall have no liability to
Noteholders for its acts or omissions in furtherance of this
Extraordinary Resolution;
6. sanctions and assents to every amendment and modification of
the provisions of the Trust Deed and/or the Conditions involved or
affected by the implementation of this Extraordinary Resolution;
and
7. waives irrevocably any claim that the Noteholders may have
against the Trustee or its directors, officers and employees
arising as a result of any loss or damage which any Noteholder may
suffer or incur as a result of the Trustee or its directors,
officers and employees acting upon this Extraordinary Resolution
(including, without limitation, circumstances where it is
subsequently found that this Extraordinary Resolution is not valid
or binding on the Noteholders or that there is a defect in the
passing of this Extraordinary Resolution) and further confirms that
the Noteholders will not seek to hold the Trustee or its directors,
officers and employees liable for any such loss or damage and that
the Trustee and its directors, officers and employees shall not be
responsible to any person for acting upon this Extraordinary
Resolution.
Capitalised terms used in this Extraordinary Resolution and not
defined have the meaning given to them in the Notice to Noteholders
dated 23 October 2023 convening the Meeting, or in the Trust Deed
(including the Conditions) and the Deed of Master Definitions
referred to in the Trust Deed.
VOTING AND QUORUM
The relevant provisions governing the convening and holding of
the Meeting are set out in the First Schedule (Provisions for
Meetings of Noteholders) of the Trust Deed (the "Meetings
Schedule").
(A) Voting Certificates: A Noteholder who wishes to vote and be
represented at the Meeting, may request that the Principal Paying
Agent records his wish to attend and vote or be represented in a
voting certificate ("Voting Certificate"), by depositing their
Notes with the Principal Paying Agent not later than 48 hours
before the time fixed for the Meeting. A Voting Certificate shall
be valid until the conclusion of the Meeting (including any
adjourned Meeting). So long as the Voting Certificate is valid, the
bearer thereof shall be deemed to be the Noteholder to which it
relates for all purposes in connection with such Meeting.
(B) Block Voting Instruction: A Noteholder who wishes to be
represented at a meeting and vote in a specific way in regards to
the proposed resolution can instruct the Principal Paying Agent not
later than 48 hours before the time fixed for the Meeting that the
voting rights attributed to their Notes should be cast by their
proxy in line with their instructed preference ("Block Voting
Instruction"). A Noteholder can only change their instructions up
to 48 hours before the Meeting. A Block Voting Instruction shall be
valid until the conclusion of the Meeting (including any adjourned
meeting). A Noteholder can also surrender a Block Voting
Instruction up to 48 hours before the Meeting and the Principal
Paying Agent must give notice to the Issuer of this surrender.
Each Noteholder should note that the deadlines set by the
Clearing System for the submission of their Voting Certificates and
Block Voting Instructions may be earlier than the time set out in
this Notice, and each Noteholder who wishes to vote should check
the relevant Clearing System's procedures and deadlines ahead of
the Meeting.
Any beneficial owner of Notes who is not a direct participant in
the Clearing Systems must contact its broker, dealer, bank,
custodian, trust company or other nominee to arrange for the
accountholder in the relevant Clearing System, through which it
holds Notes to ask for their Voting Certificate or Block Voting
Instruction in accordance with the requirements of the relevant
Clearing System and procure that the Notes are blocked in
accordance with the normal procedures of the relevant Clearing
System and the deadlines imposed by such Clearing System.
By providing a Voting Certificate or Block Voting Instruction as
described above, each beneficial owner of the Notes authorises the
Clearing Systems at which their account is maintained to disclose
to the Issuer, the Trustee and their respective legal advisers
confirmation that they are the beneficial owner of the relevant
Notes.
Quorum Requirements : The Extraordinary Resolution may only be
considered at the Meeting if the Meeting is quorate.
The Issuer has determined that the modifications to be
implemented pursuant to the Extraordinary Resolution do not
constitute a Basic Terms Modification as defined in paragraph 6(B)
of the Meetings Schedule.
The quorum requirements are:
Meeting Quorum Requirement
To pass an Extraordinary Two or more persons holding or representing
Resolution at the Meeting. in aggregate no less than 75 per cent.
of the Principal Amount Outstanding of
the Notes.
--------------------------------------------
To pass an Extraordinary One or more persons being or representing
Resolution at an adjourned the Noteholders whatever the Principal
Meeting. Amount Outstanding of the Notes may be
held or represented.
--------------------------------------------
For the above purposes, the Principal Amount Outstanding of a
Note means the principal amount of that Note upon issue less the
aggregate amount of all Principal Payments in respect of that Note
which has become due and payable (whether or not paid) prior to the
date of the Meeting.
Voting Procedure: In line with paragraphs 10 to 17 of the
Meetings Schedule voting will in the first instance be decided by a
show of hands. A poll can be requested by the Issuer, the Trustee,
the Chairman or any Noteholder or representative present before or
after the result of the vote is declared, subject to the contents
of paragraph 11 of the Meetings Schedule. In the case of equality
of votes, the Chairman on a show of hands and on a poll will have a
casting vote, in accordance with paragraph 10 of the Meetings
Schedule. It will be a condition of the Chairman's appointment that
a poll be demanded.
The Issuer understands that, since the publication of the RNS on
23 August 2022, Noteholders holding or representing in aggregate at
least 75 per cent. of the Principal Amount Outstanding of the Notes
have formed an ad hoc committee. Further, it is the Issuer's
understanding that the members of the ad hoc committee intend to
attend the Meeting and approve the Extraordinary Resolution set out
herein.
Any Extraordinary Resolution duly passed by the Noteholders will
be binding upon all Noteholders, whether or not they were present
or represented at the Meeting and whether or not they voted at the
Meeting.
Adjournment : If within 30 minutes after the time appointed for
the Meeting, a quorum is not present, the Meeting will be
adjourned. A further Notice will then be published stating the
date, time and place of the adjourned meeting. Such Notice will be
published no less than 14 days before the stated date of the
adjourned meeting. This adjourned meeting must take place no less
than 14 days and no more than 42 days from the originally scheduled
Meeting, in accordance with the Meetings Schedule.
Notices : Notice of the result of every vote on a resolution
duly considered by the Noteholders will be published in accordance
with the Conditions and given to the Noteholders within 14 days of
the conclusion of the Meeting. Failure to do so shall not
invalidate the resolution.
DOCUMENTS AVAILABLE FOR INSPECTION
Noteholders may, at any time prior to the Meeting, obtain copies
of the documents set out below by requesting access to the document
vault by emailing Millshaw@arnoldporter.com :
-- the Offering Circular dated 17 March 1999;
-- the Trust Deed dated 25 March 1999;
-- the Paying Agency Agreement dated 25 March 1999;
-- the Mortgage Sale Agreement dated 25 March 1999;
-- the Mortgage Administration Agreement dated 25 March 1999;
-- the Guaranteed Investment Contract dated 25 March 1999;
-- the Deed of Charge and Assignment dated 25 March 1999;
-- the Bank Accounts Agreement dated 25 March 1999;
-- the Deed of Master Definitions dated 25 March 1999; and
-- the form of Supplemental Trust Deed to be proposed for approval at the Meeting.
This Notice is given by
MILLSHAW SAMS NO.1 LIMITED
as Issuer
Dated 23 October 2023
26 New Street
St. Helier
Jersey JE2 3RA
Attention: Millshaw SAMS No.1 Limited - the Company
Secretary
Facsimile: 01534 814815
Email: shane.hollywood@ocorian.com
Any questions in connection with the mechanics of the Meeting
and voting should be addressed to the Issuer at the above address.
Further, any questions as to the contents of this Notice and/or the
Extraordinary Resolution should be given to the Issuer in writing
or via email at least 48 hours before the scheduled Meeting time.
Such questions will then be answered during the course of the
Meeting.
This information is provided by RNS, the news service of the
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END
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(END) Dow Jones Newswires
October 23, 2023 08:01 ET (12:01 GMT)
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