| Tue 15 Nov 2011, 14:51 | | AFP - Alexander Forbes Preference Share Investments Limited - Notice of |
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AFP
AFP
AFP - Alexander Forbes Preference Share Investments Limited - Notice of
meeting of debenture holders
ALEXANDER FORBES PREFERENCE SHARE INVESTMENTS LIMITED
(Incorporated in the Republic of South Africa)
(Registration number 2006/031561/06)
Share code: AFP ISIN number: ZAE000098067
("the Issuer")
NOTICE OF MEETING OF DEBENTURE HOLDERS
In accordance with Clause 33 of the Debenture Trust Deed in respect of
Unsecured Debentures concluded between the Issuer and GMG Trust Company
(SA) Proprietary Limited (as trustee) dated 22 May 2007, as amended and
restated on 24 November 2009 (the Trust Deed), notice is hereby given by
the Issuer to the Debenture Holders that a meeting of Debenture Holders
will be held at Alexander Forbes Place in the Syringa Boardroom, 7th
Floor, 61 Katherine Street, Sandton, Johannesburg, South Africa, on 30
November 2011, at 10:00am for the purpose of considering and, if thought
fit, of passing with or without modification in the manner required for
the passing of Extraordinary Resolutions in terms of Clause 31 (Meetings
of Debenture Holders) of the Trust Deed as read with Schedule 1 of the
Trust Deed, the following resolutions:
1. AS EXTRAORDINARY RESOLUTION NO. 1
THAT the Issuer be authorised for purposes of Clause 6.3.2 of the
Debenture Trust Deed concluded between the Issuer and GMG Trust Company
(SA) Proprietary Limited (as trustee) dated 22 May 2007 (as amended and
restated on 24 November 2009) (the Trust Deed), to consent to the
following amendments to the Fourth Amended and Restated Bridge Loan
Agreement dated 5 August 2009 (as amended by an amendment agreement on 8
September 2009) concluded amongst, inter alia, Alexander Forbes Funding
Proprietary Limited and the Issuer (the HY Loan Agreement), being
amendments to material terms of the HY Loan Agreement in respect of
which the consent of the Issuer is required:
1.1 by the insertion of the words ", and must in the circumstances set
out in sub-paragraphs (iiA) and (iiB) below," after the words "entitled
to" in the first line of Section 2.4(d);
1.2 by the insertion of a new sub-paragraph (iiA) in Section 2.4
Interest: Default Interest, paragraph (d) (Deferred Interest) to read as
follows:
"BidCo or any other member of the Group has received a notice under
clause 22 of the Umbrella Agreement concluded amongst, inter alios,
Alexander Forbes Equity Holdings Proprietary Limited, Alexander Forbes
Limited, Alexander Forbes Risk and Insurance Services Proprietary
Limited, Alexander Forbes Risk and Insurance Services Proprietary
Limited, Alexander Forbes Compensation Technologies Proprietary Limited,
Alexander Forbes AfriNet Investments Proprietary Limited, Marsh
Proprietary Limited and Marsh Inc. (Umbrella Agreement) pursuant to
which BidCo or any other member of the Group may be liable for a
potential liability under clause 22 of the Umbrella Agreement; or"; and
1.3 by the insertion of a new sub-paragraph (iiB) in Section 2.4
Interest: Default Interest, paragraph (d) (Deferred Interest) to read as
follows:
"BidCo or any other member of the Group has fully and finally settled
any Relevant Claim (as defined in Article 38.28.1 of the Preference
Share Terms) arising pursuant to clause 22 of the Umbrella Agreement;
or"; and
1.4 by adding the following phrase at the end of Section 2.4(d), sub-
paragraph (vi):
", provided that, notwithstanding anything to the contrary in this
Section 2.4(d), where the Borrower has deferred payment of the Deferred
Interest Amount in the circumstances contemplated in sub-paragraph (iiA)
and/or sub-paragraph (iiB), the Borrower shall only be entitled to pay
such Deferred Interest Amount to the Lenders after it has received
written confirmation from BidCo, that BidCo (or any other member of the
Group) has fully and finally paid and settled the amount relating to any
claim arising under clause 22 of the Umbrella Agreement and that BidCo
has redeemed Preference Shares with an aggregate redemption amount equal
to the Actual Amount (as defined in Article 38.28.2 of the Preference
Share Terms) as contemplated in Article 38.28 of the Preference Share
Terms".
2. AS EXTRAORDINARY RESOLUTION NO. 2
THAT the Issuer be authorised for purposes of Clause 6.3.2 of the Trust
Deed to consent to the following amendments to the HY Loan Agreement,
being amendments to material terms of the HY Loan Agreement in respect
of which the consent of the Issuer is required:
2.1 by amending the definition of "Interest Rate" by deleting the
following words "the Interest Payment Date immediately preceding" in
part (i) of that definition, and by deleting the following words "the
Interest Payment Date immediately preceding" in part (ii) of that
definition, so that the definition of "Interest Rate" after the
amendments reads as follows:
""Interest Rate" means (i) for the period commencing on the Closing Date
and ending on the day before the 3rd anniversary of the Closing Date, a
fixed rate per annum of 16,8%, and (ii) with effect from the 3rd
anniversary of the Closing Date, a rate equal to the aggregate of the
Prime Rate plus 3%, unless otherwise permitted by the Exchange Control
Department of the South African Reserve Bank and agreed between the
Lenders and the Borrower.";
3. AS EXTRAORDINARY RESOLUTION NO. 3
THAT the Trust Deed be amended by inserting the phrase ", at the
Issuer`s election either, as soon as reasonably practicable, or" after
the words "as applicable, in cash" in the fourth line of clause 11.5 of
the Trust Deed.
The amendment agreement to the Trust Deed is available for inspection by
the debenture holders of Issuer at the Issuer`s principle place of
business, being:
3rd floor, 200 on Main, Corner Main and Bowwood Roads, Claremont, 7708,
South Africa,
or at Alexander Forbes Place, 7th Floor, 61 Katherine Street, Sandton,
Johannesburg, South Africa.
A Debenture Holder entitled to attend and vote at the meeting is
entitled to appoint one or more proxies to attend and vote in his stead.
A proxy need not also be a Debenture Holder. A proxy form is annexed to
this Notice for use by the Debenture Holder, as Annexure A, if required.
Proxy forms must be received at the registered office of Computershare
Investor Services Proprietary Limited and copies thereof faxed or
emailed to the Trustee in the manner set out in Annexure A annexed
hereto not less than 48 hours before the date of the meeting.
Shareholders dematerialized in STRATE Limited should provide their
voting instructions to their CSD participant or Broker, in accordance
with their mandates.
For background information on the Extraordinary Resolution No.1,
Extraordinary Resolution No.2 and Extraordinary Resolution No.3, please
see Annexure B attached hereto.
This Notice is being delivered to Computershare Investor Services
Proprietary Limited and the JSE Limited in accordance with Clause 31
(Meetings of Debenture Holders) of the Trust Deed as read with Schedule
1 of the Trust Deed and Clause 33 (Notices to Debenture Holders) of the
Trust Deed.
SIGNED at ............on this the .......day of ..........2011.
For and on behalf of
ALEXANDER FORBES PREFERENCE SHARE INVESTMENTS LIMITED
...........................
Name:
Capacity: Director
Who warrants his authority hereto
ANNEXURE A
ALEXANDER FORBES PREFERENCE SHARE INVESTMENTS LIMITED
(Registration No. 2006/031561/06)
(the Issuer)
FORM OF PROXY
For use by Debenture Holders of the Issuer at a meeting (the Meeting) of
Debenture Holders to be held at Alexander Forbes Office, Syringa
Boardroom, 7th Floor, 61 Katherine Street, Sandton, Johannesburg, South
Africa, on 30 November 2011, at 10.00am.
I/We .............................................being a Debenture
Holder of the Issuer hereby appoint (see note
1):..............................................
1. or failing him/her
2. or failing him/her
3. the chairman of the Meeting,
as my/our proxy to act for me/us and on my/our behalf at the Meeting
which will be held for the purpose of considering and, if deemed fit,
passing, with or without modification, the resolution(s) to be proposed
thereat and at any adjournment thereof, and to vote for and/or against
the resolution(s) and/or abstain from voting in respect of the
resolution(s), in accordance with the following instructions (see notes
attached):
For Against Abstain
(insert (insert
amount amount of
of Debenture
Debentur s voting
es against)
voting
for)
Extraordinary Resolution No 1
Extraordinary Resolution No 2
Extraordinary Resolution No 3
SIGNED at.............on .................2011
Signature
(Assisted by me (where applicable))
A Debenture Holder entitled to attend and vote is entitled to appoint a
proxy to attend, speak and on a poll vote in his/her stead at the
Meeting and such proxy need not also be a Debenture Holder.
NOTES
1. A Debenture Holder may insert the name of a proxy in the space
provided, with or without deleting "the chairman of the
Meeting". The person whose name stands first on the form of
proxy and who is present at the Meeting will be entitled to
act as proxy to the exclusion of those whose names follow.
2. A Debenture Holder`s instructions to the proxy must be
indicated by way of a cross in the space provided and
inserting the amount of Debentures voting for and against, or
abstaining in the space provided. Failure to comply with the
above will be deemed to authorise the chairman of the Meeting,
if he/she is the authorised proxy, to vote in favour of the
resolution at the Meeting, or any other proxy, to vote in
favour of the resolution at the Meeting, or any other proxy to
vote or to abstain from voting at the Meeting as he/she deems
fit, in respect of all the Debenture Holder`s votes
exercisable thereat.
3. The form of proxy must be lodged with Computershare Investor
Services Proprietary Limited (Computershare) and GMG Trust
Company (SA) Proprietary Limited as trustee under the Trust
Deed in respect of Unsecured Debentures (the Trustee), as
follows:
3.1 in respect of Computershare, either:
3.1.1 the original form of proxy may be lodged at the registered address
of Computershare, 70 Marshall Street, Johannesburg, 2001, South Africa
(marked for the attention of Ms I van Schoor) not less than 48 (forty-
eight) hours before the time for holding the Meeting; or
3.1.2 a copy of the proxy form may be faxed or emailed to Computershare
(for the attention of Ms I Van Schoor at fax number :(+27)(011)6885238
or email address issy.vanschoor@computershare.co.za) not less than 48
(forty-eight) hours before the time for holding the Meeting with the
original proxy form to be lodged with Computershare at the address
specified in 3.1.1 above; and
3.2 in respect of the Trustee:
3.2.1 a copy of the proxy may be lodged at the registered address of the
Trustee, 3rd floor, 200 on Main, Corner Main and Bowwood Roads,
Claremont, 7708, South Africa (marked for the attention of Ms Sally
Clifton) not less than 48 (forty-eight) hours before the time for
holding the Meeting; or
3.2.2 a copy of the proxy form may be faxed or emailed to the Trustee
(for the attention of Ms Sally Clifton at fax number +27 86 649 2700
or email address: sally@gmgtrust.co.za) not less than 48 (forty-eight)
hours before the time for holding the Meeting.
4. The completion and lodging of this form of proxy will not preclude
the Debenture Holder from attending the Meeting and speaking and voting
in person thereat to the exclusion of any proxy appointed in terms
hereof, should such Debenture Holder wish to do so.
ANNEXURE B
Background information to Extraordinary Resolution No. 1
Reference is made to the SENS Announcement available on the JSE
Limited`s website at http://www.jse.co.za entitled "Terms announcement
regarding a transaction between Alexander Forbes Limited and Marsh and
withdrawal of cautionary announcement" released on 1 September 2011.
Defined terms used and not defined in this Annexure B shall bear the
meaning given in the SENS Announcement released on 1 September 2011.
In terms of the documents governing the rights and privileges of the
holders (the Senior Preference Shareholders) of cumulative redeemable
preference shares issued by Alexander Forbes Acquisition Proprietary
Limited (AF Acquisition), all proceeds from disposal must be offered to
the Senior Preference Shareholders for purposes of redeeming the
preference shares.
As a condition to granting their consent to the Proposed Transaction and
to allowing a portion of the disposal proceeds from the Proposed
Transaction to be paid to Alexander Forbes Funding Proprietary Limited
(its holding company) for the purposes set out below, the Senior
Preference Shareholders require, amongst others, that the Fourth Amended
and Restated Bridge Loan Agreement dated 5 August 2009 (as amended by an
amendment agreement dated 8 September 2009) concluded amongst, inter
alia, Alexander Forbes Funding Proprietary Limited and the Issuer (the
HY Loan Agreement), be amended in the form set out in Extraordinary
Resolution No. 1 above. This dispensation was agreed to by the Senior
Preference Shareholders on the condition that should any guarantee or
warranty claim against any subsidiary of Alexander Forbes Equity
Holdings Proprietary Limited arise in respect of the Proposed
Transaction subsequent to the implementation of the sale, the interest
due on the high yield loan will be deferred in order to ensure that cash
is retained in the Issuer or its subsidiaries in an amount which is
sufficient to settle such claim. In addition, AF Acquisition must offer
to the Senior Preference Shareholders to redeem preference shares in an
amount equal to such claim, before any interest payments on the high
yield loan may resume. The effect of the amendments set out in
Extraordinary Resolution No 1 is that, in the event of a claim arising
pursuant to the Proposed Transaction, the relative credit exposure of
the Senior Preference Shareholders to AF Acquisition is restored to what
it would have been had they received all proceeds from the disposals
pursuant to the Proposed Transaction.
The Senior Preference Shareholders have agreed that, upon amendment of
the HY Loan Agreement as set out in Extraordinary Resolution No. 1 above
and certain other conditions being fulfilled, the Senior Preference
Shareholders will permit AF Acquisition to distribute a portion of the
proceeds received by AF Acquisition from the Proposed Transaction to
Alexander Forbes Funding Proprietary Limited (the HY Borrower), being
the borrower under the HY Loan Agreement, to enable the HY Borrower to
pay amounts owing by it under the HY Loan Agreement to the lenders.
The HY Borrower intends utilising the portion of the proceeds received
by it from the Proposed Transaction to pay amounts owing by it under the
HY Loan Agreement. The Issuer is a lender under the HY Loan Agreement
and will accordingly receive its pro rata portion of the amounts paid by
the HY Borrower under the HY Loan Agreement.
The Issuer will use the proceeds received by it from the payment made
under the HY Loan Agreement to pay capitalised interest on the
Debentures in accordance with Clause 11 (Interest on Debentures and
Issue of New Debentures) of the Trust Deed.
Background information to Extraordinary Resolution No. 2
The definition of "Interest Rate" in the HY Loan Agreement provides that
the interest rate payable on the high yield term loan is 16.8% until the
Interest Payment Date immediately before the third anniversary of the
Closing Date (as defined in the HY Loan Agreement, being 2 June 2012)
which Interest Payment Date falls on 18 December 2011, after which the
interest rate will reduce to the prime rate applicable from time to
time, plus 3%. The South African Reserve Bank (SARB) has granted its
approval that the interest rate may be 16.8% until the third anniversary
of the Closing Date, being 2 June 2012. The definition of "Interest
Rate" is being made to ensure that the higher rate of 16.8% applies to
the high yield term loan for the period until 2 June 2012 (as approved
by the SARB), as opposed to 18 December 2011, as per the current HY Loan
Agreement.
Background information to Extraordinary Resolution No. 3
The Issuer would like to be able to use interest and/or any other
amounts paid in cash to the Issuer on any debenture assets during any
interest period to pay to each Debenture Holder its pro rata share of
such interest or other amounts, as applicable, in cash, at the Issuer`s
election, as soon as reasonably practicable, or on the interest payment
date falling on the last day of such interest period. The current
wording in the Trust Deed permits the Issuer to use the interest and/or
other amounts paid in cash to the Issuer on any debenture asset to pay
to each Debenture Holder its pro rata share only on the next interest
payment date (as opposed to allowing the Issuer to use these amounts to
pay to each Debenture Holder its pro rata portion as soon as reasonably
practicable), which is too restrictive.
Sponsor
RAND MERCHANT BANK (a division of FirstRand Bank Limited)
Date: 15/11/2011 14:51:56 Produced by the JSE SENS Department.
The SENS service is an information dissemination service administered by the
JSE Limited (`JSE`). The JSE does not, whether expressly, tacitly or
implicitly, represent, warrant or in any way guarantee the truth, accuracy or
completeness of the information published on SENS. The JSE, their officers,
employees and agents accept no liability for (or in respect of) any direct,
indirect, incidental or consequential loss or damage of any kind or nature,
howsoever arising, from the use of SENS or the use of, or reliance on,
information disseminated through SENS.
