Suncap SCOOP S.A.
acting in relation to its Compartment E
7, Grand Rue
RCS Luxembourg: B191977
6 December 2019
Convening Notice - Noteholder meeting to be held on 19 December 2019 10:30 AM
The Issuer hereby announces that the Noteholder meeting of 4 December 2019 was not quorate and therefore adjourned (the "First Meeting
"). The Issuer therefore gives notice to the holders of its:
ALPHA FX INDEX LINKED NOTES 2026 (ISIN XS1545830256)
of, and convenes all such holders to, a second Noteholder meeting to be held at Sofitel Luxembourg Europe, 4 rue de fort Niedergrünewald, L - 2226 Luxembourg, Grand Duchy of Luxembourg, on Thursday, 19 December 2019 at 10:30 am (the "Meeting
") in accordance with Condition 12.1 (Meetings of the Noteholders
) of the terms and conditions of the Notes (the "Conditions
") and Schedule 6 (Provisions for meetings of the Noteholders
) of the Agency Agreement.
The agenda of the Meeting (identical to the agenda of the First Meeting) shall be the following:
- Extension of the Early Redemption Date and appointment of a Noteholder representative
- Modification to the Conditions (Early Redemption)
- Modification to the Conditions (Purchase of Notes)
- Cancellation of purported Early Redemption
- Authority of the Investment Manager
- Cancellation of transfer instructions
- Exchange or sale of Notes
- Administrative Matters
This section sets out the background information provided to the Noteholders in connection with the First Meeting (please see the wording in italics below).
The Noteholders should note that the initially proposed extension of the Early Redemption Date (as defined and described in paragraph A below) will no longer be possible, given that the proposed date for such extension and the deadline for implementing the Restructuring (as defined below) (18 December 2019) will already have passed when the Meeting will take place (19 December 2019). Consequently, the first point on the agenda and the corresponding resolution have become without object.
In respect of paragraph B below, the Issuer reiterates that, contrary to the vdH Items (as defined below) and the proposed resolutions relating thereto (resolutions 2 to 8), none of the parties (i.e. the Noteholders and the Issuer) has the right to unilaterally amend the Conditions or any other document in relation to the Notes. Following the termination of the Index (as defined below), the Investment Management Agreement became without object and, for the avoidance of doubt, was in addition formally terminated with effect as of 29 November 2019.
* * *
"On 4 November 2019, the Issuer was informed of the termination of the Alpha FX Index (the "Index") with immediate effect.
On 5 November 2019, the Issuer exercised its Early Redemption Option pursuant to Condition 5.2 (a) (ii) and notified the Noteholders accordingly. The Early Redemption Date with respect to the Notes is set to occur on 5 December 2019 at the latest (the "Early Redemption").
The Issuer wishes to submit to a vote of the Noteholders to push back the Early Redemption Date (the "Extension") to Wednesday, 18 December 2019 (the "Extended Early Redemption Date") in view of determining whether a restructuring of the debt represented by the Notes in the manner set out hereafter (the "Restructuring") can be agreed with the different stakeholders.
The Restructuring would comprise the following steps:
- Extension of the Early Redemption Date
"The Issuer may at any time redeem the Notes in exchange for other financial instruments on terms approved by the Noteholders (or a committee/committee(s) representing their interests) pursuant to an Extraordinary Resolution in accordance with Condition 12.1 and the Agency Agreement."
- Issue by a Luxembourg securitisation company (the "New Issuer") of notes (i) substantially on the same terms as the Notes and (ii) linked to an index substantially replicating the Index (the "New Notes");
- Subscription by the Issuer of the New Notes (the "Subscription");
- Transfer of all of the Issuer's assets (including, without limitation, any Collateral Assets, any Hedging Assets and any cash standing to the credit of the Issuer's accounts) to the New Issuer in payment of the Subscription (the "Transfer");
- Amendment of the Conditions (the "Amendment") to permit the redemption of the Notes in exchange of the New Notes by including the following new Condition 5.2 (c) (Early Redemption in kind) in the Conditions:
For the avoidance of doubt, the Issuer is supportive of the Restructuring, subject to (i) having received satisfactory evidence of the settlement of all costs, expenses and fees incurred by the Issuer, Oaklet S.A. as corporate service provider to the Issuer ("Oaklet LU"), Oaklet GmbH acting as Calculation Agent and Index Sponsor ("Oaklet DE"), and their respective directors, managers, employees, agents and representatives (collectively, the "Relevant Persons") in connection with the Notes and the proposed Restructuring, (ii) appropriate hold harmless and indemnity arrangements to be agreed with all relevant parties in the context of the Notes, (iii) the discharge of the Relevant Persons in connection with the Notes and the proposed Restructuring and (iv) the cooperation of all relevant parties, including any party holding assets on behalf of, or for the account of the Issuer (collectively, the "CPs").
Should the Noteholders not vote in favour of the Extension, the Early Redemption Date will, as announced previously, occur on 5 December 2019 at the latest.
Should the Noteholders vote in favour of the Extension, the Issuer will confirm whether the CPs have been satisfied at the latest on 16 December 2019 by making a further announcement to the Noteholders. For the avoidance of doubt, if the Noteholders vote in favour of the Extension, but the CPs are not timely satisfied, the Extended Early Redemption will occur on the Extended Early Redemption Date.
- Redemption of the Notes in exchange for the New Notes to be transferred by the Issuer to the Noteholders (the "Redemption");
- Cancellation of the Notes (the "Notes Cancellation").
Separately, vdH representing Noteholders holding 81.3% in principal amount of the Notes requested to the Issuer to submit the items listed on the agenda under numbers 2 to 8 (the "vdH Items") to the vote of the Noteholders.
For the avoidance of doubt, the vdH Items and the proposed resolutions relating thereto have been prepared under the sole responsibility of vdH and the Issuer disclaims any liability in this respect.
The Issuer would point out that, contrary to the vdH Items and the proposed resolutions relating thereto, (i) none of the parties involved (the Noteholders, the Issuer, the Investment Manager) has the right to unilaterally amend the Conditions, the Investment Management Agreement or any other document in relation to the Notes, or to unilaterally revoke the Early Redemption.
The Issuer's rights in this respect, and in particular its right not to consent, are reserved.
Should the Noteholders approve the vdH Items without the Issuer also consenting, the Early Redemption Date will, as announced previously, occur on 5 December 2019 at the latest.
- Noteholder meeting requested by von der Heydt & Co. AG ("vdH") representing Noteholders holding 96.8% in principal amount of the Notes
At the Meeting, Noteholders will be asked to consider and if thought fit pass the following resolutions (noting (i) that the resolutions produced below are in identical terms as the resolutions that were submitted previously for the purposes of the First Meeting, but (ii) that Resolution 1, as set out above in the "Background" section, has become without object):
Resolution 1 - Extension of the Early Redemption Date
IT IS RESOLVED THAT:
The Noteholders do hereby:
Resolution 2 - Modification to the Conditions (Early Redemption)
- Consent to the Extension.
- Appoint a Noteholder representative (committee(s) representing their interests) to discuss and agree the proposed Restructuring with the Issuer and all other relevant persons, to execute any and all documents and instruments in relation to the proposed Restructuring and its implementation, and generally to do all such things and take all such actions as it may deem necessary, useful or desirable in connection with any of the foregoing.
IT IS RESOLVED THAT:
The Conditions be and are hereby modified pursuant to Clause 12.1 of the Conditions and the relevant provisions of the Agency Agreement by:
- Inserting a new Condition 5.2A as follows:
"Notwithstanding any other provision of these Conditions, any purported exercise by the Issuer of its discretion to effect an Early Redemption under Conditions 5.2 or 5.3 shall be subject to and conditional upon the Issuer obtaining the prior written approval of the Investment Manager, which approval shall not be unreasonably withheld or delayed
- Inserting a new Condition 5.2B as follows:
"The Investment Manager shall have full authority on behalf of the Noteholders to determine the date (if any) for an Early Redemption and to take such other measures in relation to such Early Redemption as the Investment Manager considers to be in the best interests of Noteholders
- Inserting a new Condition 5.2C as follows:
"The Investment Manager is authorised at any time and in its absolute discretion to issue a notice to Noteholders and the Issuer stating that an Early Redemption shall take place on the date specified by the Investment Manager. In this event, the Early Redemption shall proceed as if the Issuer had issued an Issuer Notice under Condition 5.2(a).
- Inserting a new Condition 5.2D as follows:
"Any Early Redemption initiated by the Investment Manager under Condition 5.2C may (in the absolute discretion of the Investment Manager) be effected by a redemption in specie, such that instead of receiving an amount of cash upon redemption of the Notes, the Noteholders will receive new notes or other securities which are linked to the Alpha FX Index Index or to a substantially equivalent index.
Resolution 3 - Modification to the Conditions (Purchase of Notes)
IT IS RESOLVED THAT:
The Conditions be and are hereby modified pursuant to Clause 12.1 of the Conditions and the relevant provisions of the Agency Agreement by inserting a new Condition 5.4A as follows:
"Notwithstanding any other provision of these Conditions, the Issuer shall not purchase any Notes under Condition 5.4 without the prior written approval of the Investment Manager, which approval shall not be unreasonably withheld or delayed.
Resolution 4 - Cancellation of Early Redemption
IT IS RESOLVED THAT:
Resolution 5 - Authority of the Investment Manager
- The Issuer's exercise on 4 November 2019 of its Early Redemption option under Clause 5.2(ii) (the 'Early Redemption') be and is hereby declared for all the purposes of the Notes to be null and void in all respects.
- The Issuer be and is hereby instructed by Noteholders to withdraw the Early Redemption in its entirety, with immediate effect.
- The Issuer be and is hereby instructed by Noteholders immediately to withdraw and cancel of any and all demands or instructions of the Issuer included in the Early Redemption. Within two (2) business days of the date of this Resolution, the Issuer shall confirm in writing to the Investment Manager that it has complied with the Instructions of the Noteholders.
IT IS RESOLVED THAT:
The Noteholders do hereby declare and confirm that:
Resolution 6 - Cancellation of transfer instructions
- The Investment Manager has full and exclusive authority to deal with the Managed Account, as defined in the Investment Management Agreement between the Issuer and the Investment Manager (the 'IMA') and to issue instructions to the Bank, provided only that the Investment Manager shall ensure that the legitimate Costs of the Issuer are paid from the Managed Account, as contemplated in Clause 2.2(e) of the IMA.
- Subject only to any transfer request relating to the legitimate Costs of the Issuer, the Investment Manager shall have specific authority in its discretion to cancel any and all outstanding instructions or transfer requests made by the Issuer, whether before or after the date of this Resolution. On the instructions of the Investment Manager, the Issuer shall immediately confirm in writing to the Bank that relevant transfer requests or instructions have been cancelled.
IT IS RESOLVED THAT:
Resolution 7 - Exchange or sale of Notes
- The transfer instructions given by the Issuer to the Bank on or about 16 October 2019 and all other purported transfer instructions prior to the date of this Resolution (together, the 'Transfer Instructions') be and are hereby declared to be null and void for all the purposes of the Notes and the IMA.
- The Issuer be and is hereby instructed by Noteholders to revoke and withdraw the Transfer Instructions with immediate effect and to write immediately to the Bank (in terms satisfactory to the Investment Manager) confirming that this has been done.
IT IS RESOLVED THAT:
Resolution 8 - Administrative Matters
- The Investment Manager be and is hereby authorised to take any and all steps which in the opinion of the Investment Manager are or may be necessary or appropriate to effect any exchange or sale of the Notes; or the conversion of the Notes into, or the cancellation of the Notes in consideration of notes or other securities of any company which are linked to the Alpha FX Index or to a substantially equivalent index, plus an element of cash if and to the extent deemed necessary or appropriate by the Investment Manager in its absolute discretion.
- At the option of the Investment Manager, any such arrangement as described in the previous paragraph shall be the means by which an Early Redemption is effected on the initiative of the Investment Manager under Conditions 5.2C and 5.2D.
- In any such case, the Issuer shall be obliged to cooperate fully with the Investment Manager and shall promptly take all necessary or appropriate steps to implement the said arrangement strictly in accordance with the instructions of the Investment Manager.
IT IS RESOLVED THAT:
The Issuer be and is hereby instructed by the Noteholders to prepare and circulate an amended and updated version of the Conditions as soon as reasonably practicable and in any event within 14 days of the date of this Resolution.
VOTING INSTRUCTIONS AND PRACTICAL INFORMATION
In accordance with Clause 3.2 of Schedule 6 (Provisions for meetings of the Noteholders
) of the Agency Agreement, the Issuer hereby informs the Noteholders of the following:
- Global Note - voting certificate
A holder of a Note (not being a Note in respect of which instructions have been given to the Paying Agent in accordance with the next paragraph) may procure the delivery of a voting certificate in respect of that Note by giving notice to the relevant clearing system specifying by a name a person (an "Identified Person
") (which need not be the holder him- or herself) to collect the voting certificate and attend and vote at the Meeting. The voting certificate will be made available at or shortly before the start of the Meeting by the Paying Agent against presentation by the Identified Person of the form of identification previously notified by the holder to the relevant clearing system. The relevant clearing system may prescribe forms of identification (including, without limitation, passports) which it considers to be appropriate for these purposes. Subject to receipt by the Paying Agent from the relevant clearing system, no later than 24 hours before the time for which the Meeting is convened, of notification of the principal amount of the Notes to be represented by any voting certificate and the form of identification against presentation of which the voting certificate should be released, the Paying Agent shall, without any obligation to make any further enquiry, make available voting certificates against presentation of forms of identification corresponding to those notified.
- Global Note - block voting instructions
- A holder of a Note (not being a Note in respect of which a voting certificate has been issued) may require the Paying Agent to issue a block voting instruction in respect of the Note by first instructing the relevant clearing system to procure that the votes attributable to the holder's Note should be cast at the Meeting in a particular way in relation to the resolutions to be put to the Meeting. Any such instruction shall be given in accordance with the rules of the relevant clearing system then in effect. Subject to receipt by the Paying Agent, no later than 24 hours before the time for which the Meeting is convened, of (i) instructions from the relevant clearing system, (ii) notification of the principal amount of Notes in respect of which instructions have been given and (iii) the manner in which the votes attributable to the Notes should be cast, the Paying Agent shall, without obligation to make any further enquiry, attend the meeting and cast the votes in accordance with those instructions.
- A certified copy of each block voting instruction shall (if so requested by the Issuer) be deposited with the Issuer before the start of the Meeting or adjourned meeting but the Issuer shall not as a result be obligated to investigate or be concerned with the validity of or the authority of the proxies named in the block voting instruction.
- Any vote given in accordance with the terms of a block voting instruction shall be valid notwithstanding the previous revocation or amendment of the block voting instruction or of any of the instructions of the relevant Noteholder or the relevant clearing system (as the case may be) pursuant to which is was executed provided that no indication in writing of any revocation or amendment has been received from the Paying Agent by the Issuer at the registered office by the time being 24 hours before the time appointed for holding the Meeting or adjourned meeting at which the block voting instruction is to be used.
Please refer to the attached "Practical information sheet
" and its appendices ("Physical access card access
" and "Proxy Form
") for further details.
Unless otherwise defined herein, capitalised terms used in this notice shall have the meaning given to them in the Conditions. The following terms and expressions have the shall have the following meaning:
" means a period of 24 hours including all or part of a day on which banks are open for business both in the place where the Meeting is to be held (i.e. Luxembourg-City) and the place where the Paying Agent has its specified office (i.e. Luxembourg-City) (disregarding for this purpose the day on which the Meeting is to be held);
" means the paying agency agreement dated 24 September 2018 between the Paying Agent and the Issuer in respect of the Notes;
"block voting instruction
" means an English language document issued by the Paying Agent and dated which:
- relates to a specified principal amount of Notes and the Meeting (or adjourned meeting) of the Noteholders;
- states that the Paying Agent has been instructed (either by the holders of the Notes or by a relevant clearing system) to attend the Meeting and procure that the votes are attributable to the Notes are cast at the Meeting in accordance with the instructions given;
- identifies with regard to each resolution to be proposed at the Meeting the principal amount of Notes in respect of which instructions have been given that the votes attributable to them should be cast in favour of the resolution and the principal amount of Notes in respect of which instructions have been given that the votes attributable to them should be cast against the resolution; and
- states that one or more named person (each a proxy) is or are authorised by the Paying Agent to cast the votes attributable to the Notes identified in accordance with the instructions referred to in (c) as set out in the bock voting instruction;
" means Banque et Caisse d'Epargne de l'Etat, Luxembourg
"relevant clearing system
" means, in respect of the Notes, all of which are represented by a Global Note, Clearstream Banking SA; and
" means an English language certificate issued by the Paying Agent and dated in which it is stated that the bearer of the voting certificate is entitled to attend and vote at the meeting and any adjourned meeting in respect of the Notes represented by the certificate.
LEI Number (Suncap SCOOP S.A.): 222100BK1QIGT3R0P692
Suncap SCOOP S.A.
acting in relation to its Compartment E