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Notice of noteholder meeting for approval of amendments to the Programme Memorandum
BAYPORT SECURITISATION (RF) LIMITED
(Incorporated with limited liability in the Republic of South Africa under Registration Number
2008/003557/06
Formerly called BAYPORT SECURITISATION (PROPRIETARY) LIMITED Registration Number
2008/003557/07)
(the “Issuer”)
JSE alpha code BIBAY
REQUEST TO NOTEHOLDERS TO PROVIDE CONSENTS IN RESPECT OF:
(1) THE AMENDMENT OF THE SPECIAL CONDITION IN THE MEMORANDUM OF
INCORPORATION
(2) THE EXECUTION OF THE TRANSACTIONS/ACTIONS ADDED TO THE SPECIAL
CONDITION
(3) THE INTRODUCTION OF TUTARI AS AN ADDITIONAL ORIGINATOR
(4) THE SUBSCRIPTION OF THE PREFERENCE SHARE TO BE ISSUED BY TUTARI
(5) THE REPURCHASE OF A PREFERENCE SHARE AND THE REISSUE THEREOF TO
THE ORIGINATOR
(6) THE ESTABLISHMENT OF THE LIQUIDITY RESERVE
(7) THE ACQUISITION OF THE SHARES IN ZENTHYME
(8) THE RELEASE OF THE COLLECTIONS ACCOUNTS FROM THE OPERATION OF
THE SECURITY CESSION AND THE OUT-AND-OUT CESSION OF THOSE
ACCOUNTS
(9) A REDUCTION IN THE MANAGEMENT FEE
(10) THE AMENDMENT OF THE FINANCIAL COVENANTS
(11) THE AMENDMENT OF THE TRANSACTION DOCUMENTS
(12) THE AMENDMENT OF THE PROGRAMME MEMORANDUM
1. NOTICE AND PURPOSE
1.1. In accordance with Conditions 17 and 21 of the Conditions of the Notes, the Issuer
hereby gives notice that a meeting ("Meeting") of the holders of all the Notes
("Noteholders") issued by the Issuer under the Issuer’s asset backed securities
programme (the "Programme") pursuant to which the Issuer may from time to
time issue notes ("Notes") in terms of a programme memorandum dated
20 May 2011 ("Programme Memorandum"), will be held on 11 December 2015 at
09h00, at Atlantic Imbizo, 3rd Floor, Clock Tower Offices Clock Tower Silo Centre,
V&A Waterfront, Cape Town and via teleconference or videoconference at Bayport
House, 23A 10th Avenue, Rivonia, Johannesburg for the purposes of considering,
and, if deemed fit, passing, with or without modification, the Special Resolutions
set out under D below (on the same or similar terms as set out) for the
amendment of the Programme.
1.2. Capitalised terms and expressions used in this notice and not otherwise defined
herein, shall have the meanings ascribed to such terms and expressions in the
Programme Memorandum.
1.3. A copy of this notice of Meeting, has been delivered to the Central Securities
Depository, the Participants and the JSE for communication by them to the holders
of Beneficial Interests in the Notes in uncertificated form in accordance with
Condition 17.2 of the Conditions of the Notes.
2. INTRODUCTION
2.1. On 20 May 2011, Bayport Securitisation (RF) LTD (“the Issuer”) established its
Asset-Backed Note Programme (the “Programme”) pursuant to a programme
memorandum dated 20 May 2011 as supplemented by the Supplements thereto
dated 22 September 2011, 25 April 2012, 31 July 2012, 28 June 2013, 10
September 2013 and 23 May 2014 (the “Programme Memorandum”). With effect
from 28 June 2013, the nominal amount of the Programme was increased from
R4,400,000,000.00 to R10,000,000,000.00.
2.2. On or about 27 March 2015, the Issuer amended the Security Trust Deed by the
amendment of the Bad and Doubtful Debt Policy attached thereto as Annexure
1.2.9 and accordingly amended the Security Trust Deed. A Special Majority of
Funders, as required in terms of paragraph 11.1.1.6 and 11.1.1.7 of the Terms and
Conditions contained in the Programme Memorandum, consented to the
amendments.
2.3. Capitalised terms used in this request for consent shall, unless otherwise defined in
this request, bear the meanings ascribed to such terms in the section of the
Programme Memorandum headed “Glossary of Definitions”.
2.4. The CSD is requested to seek the required consents, detailed in paragraphs 3 to 14
below, of the holders of the Beneficial Interest in relation to Notes issued by the
Issuer and/or the required consent of the relevant Participant(s) of such Beneficial
Interest holder’s, in accordance with the Applicable Procedures.
3. FIRST CONSENT REQUIRED
3.1. In terms of the provisions of Article 1 of the special conditions forming part of the
Issuer’s constitutional documents, the Issuer may not amend the special condition
in its memorandum of association (now known as the Memorandum of
Incorporation), without the prior written consent of a Special Majority or a Special
Resolution.
3.2. Currently, the special condition contains restrictive conditions applicable to the
Issuer.
3.3. The Noteholders are requested to consent to the amendment of the special
condition by the addition of the following specific transactions or actions:
3.3.1. the conclusion of the written agreements entitled the “Tutari Sale of
Claims Agreement”, the “Collections SPV Common Terms Agreement” the
“Collections SPV Account Bank Agreement”, the “Consent Cancellation”
and the “Collections SPV Administration Agreement” (collectively the
“Tutari Transaction Documents”);
3.3.2. the subscription of a preference share to be issued by Tutari;
3.3.3. the acquisition, by way of donation by BML, of the shares in Zenthyme
with the effect that the Issuer has a subsidiary;
3.3.4. the execution of a release of cession agreement with the Security Trustee,
in terms of which the Security Trustee releases the Collections Accounts
from the operation of the Security Cession; and
3.3.5. the conclusion of an out-and-out cession agreement with the Collections
SPV in terms of which it cedes the Collections Accounts to the Collections
SPV;
3.4. It is intended that paragraph 2 of the special condition be amended to require the
prior written consent of a Special Majority or Special Resolution.
3.5. Noteholders are requested to give their consent to the amendment of the Issuer’s
constitutional documents in the manner set out substantially in the form of the
draft special resolution to be marked Annexure 1 as read with Schedule A to be
circulated to Noteholders within 10 (ten) Business Days prior to the meeting to be
held on 11 December 2015.
3.6. The Memorandum of Incorporation is available for inspection at the Specified Office
of the Issuer.
4. SECOND CONSENT REQUIRED
4.1. Following receipt of the consents above, paragraph 2 of the special condition
contained in the Memorandum of Incorporation, requires the prior written consent
of a Special Majority or a Special Resolution for the conclusion of and
implementation of the following category of transactions:
4.1.1. the acquisition by the Issuer of a subsidiary; through the acquisition by the
Issuer of the shares in Zenthyme; and
4.1.2. selling or disposing of its assets; by the execution of an out-and-out
cession with the Collections SPV in terms of which the Issuer cedes the
Collections Accounts (in terms of an out-and-out cession) to the
Collections SPV.
4.2. Following the addition of the transactions to Article 1 of the special condition as
contained in 2 above, Noteholders are requested to give their consent to:
4.2.1. the execution and implementation by the Issuer of the Tutari Transaction
Documents;
4.2.2. the subscription of a preference share to be issued by Tutari;
4.2.3. the execution and implementation of the release of cession agreement
with the Security Trustee, in terms of which the Security Trustee releases
the Collections Accounts from the operation of the Security Cession; and
4.2.4. the repurchase by the Issuer of a Preference Share and the re-issue
thereof to the Originator.
4.3. Noteholders are requested to give their consent to the above transactions in the
manner set out substantially in the form of the draft special resolution marked
Annexure 1 and the draft agreements to be circulated to Noteholders within 10
(ten) Business Days prior to the meeting of Noteholders on 11 December 2015.
5. THIRD CONSENT REQUIRED
5.1. It is intended that Tutari be incorporated into the structure as an additional
originator in terms of which Tutari acquires Loan Claims from the Originator with
the intention of on-selling certain of those Loan Claims to the Issuer.
5.2. In order to give effect to the above, it is intended that the Issuer conclude the
Tutari Transaction Documents.
5.3. In terms of the Tutari Transaction Documents, Tutari will on-sell certain of the Loan
Claims which it acquires from the Originator to the Issuer and the Collections SPV
will be appointed by the Originator as collections agent to receive the payments
made by Borrowers in respect of the Loan Claims.
5.4. Noteholders are requested to give their consent to the introduction of Tutari as an
additional Originator and to their inclusion as a Secured Creditor.
6. FOURTH CONSENT REQUIRED
6.1. It is intended that the Issuer subscribe for a preference share to be issued by
Tutari with the result that the Issuer will be entitled to participate in the profits of
Tutari.
6.2. Noteholders are requested to give their consent to the subscription by the Issuer of
a preference share to be issued by Tutari. The rights and privileges attaching to the
preference share shall be circulated to Noteholders within 10 (ten) Business Days
prior to the meeting of Noteholders on 11 December 2015.
7. FIFTH CONSENT REQUIRED
7.1. It is intended that the Originator make an equity investment of R1.3 billion in the
Issuer.
7.2. In order to facilitate this investment, the Issuer shall repurchase a Preference
Share in its issued share capital at a subscription price of R1.00 (being the par
value of that share) from the Originator.
7.3. After such repurchase, the Issuer shall issue that Preference Share to the
Originator at a par value of R1.00 and share premium of R1 299 999 999 to be
discharged by a reduction of a corresponding portion of the Originator’s Current
Account Claim against the Issuer.
7.4. Noteholders are requested to give their consent to the repurchase by the Issuer of
a Preference Share and the reissue thereof to the Originator in order to facilitate
the equity investment to be made by the Originator.
8. SIXTH CONSENT REQUIRED
8.1. Following the investment by the Originator, it is further intended that R250 million
of the R1.3 billion equity investment be maintained as a Liquidity Reserve to be
utilized for the purpose of remedying the occurrence of a Credit Event. The
Liquidity Reserve will also be subject to release in the event that the Originator
ceases to originate Loan Claims.
8.2. Noteholders are requested to give their consent to the establishment of the
Liquidity Reserve.
9. SEVENTH CONSENT REQUIRED
9.1. It is intended that BML donate its shares in Zenthyme Investments Proprietary
Limited, a wholly-owned subsidiary of BML, to the Issuer with the result that the
Issuer will have a subsidiary.
9.2. Zenthyme Investments Proprietary Limited holds shares in Hollard Business
Associates Pty Ltd (1998/025618/07) (“HBA”), a Hollard Group company. HBA
receives the credit life insurance premiums in respect of the Loan Claims and pays
the claims and related commissions, costs and taxes due. All residual insurance
profits in excess of the minimum liquidity requirements are then paid as dividends
to shareholders. Zenthyme Investments Proprietary Limited as the beneficial
shareholder receives the cash paid profit dividends from HBA.
9.3. Noteholders are requested to give their consent to the acquisition by the Issuer of a
subsidiary.
10.EIGHTH CONSENT REQUIRED
10.1. In terms of the Security Trust Deed (and as repeated as Condition 10.3.7 of the
Terms and Conditions contained in the Programme Memorandum), the Issuer may
not participate in any variation, amendment or consensual cancellation of any of
the Transaction Documents (other than the Programme Memorandum and/or the
applicable pricing supplements which may be varied or amended in accordance
with the provisions of the Programme Memorandum and the JSE Debt Listings
Requirements), without the prior written consent of a Special Majority of Funders.
10.2. It is intended that the Issuer cede, as an out-and-out cession, the Collections
Accounts to the Collections SPV.
10.3. In order to facilitate this cession of the Collections Accounts the Security Trustee
must release the Collection Accounts from the operation of the Security Cession
executed by the Issuer in favour of the Security Trustee.
10.4. Immediately after the release of the cession of the Collections Accounts by the
Security Trustee to the Issuer,
10.4.1. the Issuer shall cede all its rights in and to the Collections Accounts to the
Collections SPV (in terms of an out-and-out cession); and
10.4.2. the Issuer shall cede and pledge its claim against the Collections SPV in
respect of the amounts collected by the Collections SPV on behalf of the
Issuer in respect of the Loan Claims to the Security Trustee in securitatem
debiti as security for its obligations to the Security Trustee under the
Indemnity, by amending the Security Cession.
10.5. The aforesaid transfers are all subject to the execution of the above agreements
and those agreements becoming unconditional in accordance with their terms.
10.6. Noteholders are requested to give their consent to the Trustee for the release of
the Collections Accounts from the operation of the Security Cession and the cession
by the Issuer of its claims against the Collections SPV in respect of amounts
received in respect of the Loan Claims.
11.NINTH CONSENT REQUIRED
11.1. It is intended that the management fee be reduced from 1.35% to 0.5%. it is
further intended that in the event that the Originator elects to wind down the
Programme by ceasing to originate Loan Claims, the management fee will be
further reduced to and capped at 0.35% per month of the aggregate value of the
Portfolio.
11.2. Noteholders are requested to give their consent to the reduction of the
management fee.
12.TENTH CONSENT REQUIRED
12.1. It is intended that the Financial Covenants be amended in the following respects:
12.1.1. a reduction of the Senior Debt to Net Qualifying Asset Value from 72.5%
to 70%;
12.1.2. an increase in the Equity invested in the Issuer by the Originator with an
aggregate value of not less than 22.5% of the Portfolio, in respect of the
period from 31 January 2016; and
12.1.3. the introduction of the new Financial Covenant to be known as the
Liquidity Reserve of R250 million in respect of the period from 31 January
2016.
12.2. Noteholders are requested to give their consent to the amendment of the Financial
Covenants.
13.ELEVENTH CONSENT REQUIRED
13.1. In terms of the restrictions contained in the Security Trust Deed, and repeated in
Condition 10.3.7 of the Terms and Conditions contained in the Programme
Memorandum, the Issuer may not participate in any variation, amendment or
consensual cancellation of any of the Transaction Documents (other than the
Programme Memorandum and/or the Applicable Pricing Supplements which may be
varied or amended in accordance with the provisions of the Programme
Memorandum and the JSE Debt Listings Requirements), without the prior written
consent of a Special Majority of Funders.
13.2. The Issuer proposes making changes to the Security Trust Deed, the Guarantee,
the Sale of Claims Agreement, the Management Agreement, the Standby
Administration Agreement, the Security Cession and any other Transaction
Documents as may be required in order to give effect to the transactions/actions in
2 and 3 above, subject to a Special Majority of Funders approving the amendment
of the agreements by:
13.2.1. the inclusion of Tutari into the structure as an additional originator in
terms of which Tutari acquires Loan Claims from the Originator with the
intention of on-selling certain of those Loan Claims to the Issuer;
13.2.2. the inclusion of Tutari as a Secured Creditor and the consequential
amendment of the Priority of Payments;
13.2.3. the release by the Security Trustee of the Collections Accounts in order to
facilitate the out-and-out cession of those accounts by the Issuer to the
Collections SPV;
13.2.4. any consequential amendments as may be required to give effect to the
specified transactions or actions in 2 above;
13.2.5. the amendment of the Financial Covenants as contemplated in 10 above.
13.3. Noteholders are requested to give their consent to the above amendments in the
manner set out substantially in the form of the special resolution annexed hereto
marked Annexure 1 read with the marked-up draft of the agreements to be
circulated to Noteholders within 10 (ten) Business Days prior to the meeting of
Noteholders on 11 December 2015.
13.4. The existing Transaction Documents are available for inspection at the Specified
Office of the Issuer.
14.TWELFTH CONSENT REQUIRED
14.1. Pursuant to the amendments to be effected to the Transaction Documents, the
Issuer intends amending the Programme Memorandum in the following respects -
14.1.1. by the consolidation of the supplements thereto dated 22 September
2011, 25 April 2012, 31 July 2012, 28 June 2013, 10 September 2013 and
23 May 2014 and the consent of Noteholders obtained on or about 27
March 2015 in terms of which the Bad and Doubtful Debt Policy attached
to the Security Trust Deed was amended;
14.1.2. the inclusion of Tutari into the structure as an additional originator in
terms of which Tutari acquires Loan Claims from the Originator with the
intention of on-selling certain of those Loan Claims to the Issuer;
14.1.3. the inclusion of Tutari as a Secured Creditor and the consequential
amendment of the Priority of Payments;
14.1.4. the appointment by the Originator of the Collections SPV as collections
agent to receive the payments made by Borrowers in respect of the Loan
Claims;
14.1.5. the reduction in the management fee contemplated in 10 above;
14.1.6. the amendment of the Financial Covenants as contemplated in 11 above;
and
14.1.7. all other consequential amendments required to give effect to the
amendments made to the Transaction Documents.
14.2. Noteholders are requested to give their consent to the amendment of the
Programme Memorandum in the manner set out substantially in the form of the
draft special resolution marked Annexure 1 read with the marked-up draft of the
Programme Memorandum to be circulated to Noteholders within 10 (ten) Business
Days prior to the meeting of Noteholders on 11 December 2015.
15.WHO MAY ATTEND AND VOTE?
Attending in person or by proxy
As the holder of Notes issued in the Issuer:
- you may attend the Meeting in person; or
- alternatively, you may appoint not more than one proxy to represent you at the
Meeting. If you intend on appointing a proxy, please complete the attached proxy
form, which forms part of this notice of meeting, and return it in accordance with the
instructions contained in the proxy form set out in Annexure A. Failure to meet these
requirements may render the proxy form ineffective.
A proxy need not be a Noteholder in the Issuer.
16.CHAIRPERSON
The chairperson of the Meeting will be Paul Tindle.
17.IDENTIFICATION
All Noteholders will be required to provide reasonably satisfactory identification to the
chairperson of the Meeting in order to participate in and vote at the Meeting.
18.VOTING
With regard to the consents sought in paragraphs 3 to 14 above, the Issuer requires a
resolution at a properly constituted meeting of Funders, upon a poll, by a majority
consisting of not less than 75% (seventy five percent) of the votes cast at such poll by
the Funders present in person or by proxy, provided that for so long as there is any
amount outstanding in respect of the Senior Debt, such resolution has received the
affirmative vote of Senior Debt Funders present and voting at the meeting who, on a
poll, would between them hold not less than 75% of the votes of all the Senior Debt
Funders present at the meeting and voting. The Noteholder in respect of Notes held in
the Central Securities Depository in uncertificated form shall vote on behalf of the
holders of Beneficial Interest in such Notes on any resolution proposed to be passed at
the Meeting in accordance with the instructions to the Central Securities Depository or its
nominee from the holders of Beneficial Interests conveyed through the Participants and
in accordance with the Applicable Procedures.
19.EFFECTIVE DATE
The consents required in respect of the amendments above shall be effective from the
date of its passing.
By order of the board of the Company.
Director
20 November 2015
Debt Sponsor: The Standard Bank of South Africa Limited
Natalie Di-Sante
(011) 721 6125
Natalie.Di-Sante@standardbank.co.za
ANNEXURE A
FORM OF PROXY
BAYPORT SECURITISATION (RF) LIMITED
(Incorporated with limited liability in the Republic of South Africa under Registration Number
2008/003557/06
Formerly called BAYPORT SECURITISATION (PROPRIETARY) LIMITED Registration Number
2008/003557/07)
(the “Issuer”)
REQUEST TO NOTEHOLDERS TO PROVIDE CONSENTS IN RESPECT OF:
(1) THE AMENDMENT OF THE SPECIAL CONDITION IN THE MEMORANDUM OF
INCORPORATION
(2) THE EXECUTION OF THE TRANSACTIONS/ACTIONS ADDED TO THE SPECIAL
CONDITION
(3) THE INTRODUCTION OF TUTARI AS AN ADDITIONAL ORIGINATOR
(4) THE SUBSCRIPTION OF THE PREFERENCE SHARE TO BE ISSUED BY TUTARI
(5) THE REPURCHASE OF A PREFERENCE SHARE AND THE REISSUE THEREOF TO
THE ORIGINATOR
(6) THE ESTABLISHMENT OF THE LIQUIDITY RESERVE
(7) THE ACQUISITION OF THE SHARES IN ZENTHYME
(8) THE RELEASE OF THE COLLECTIONS ACCOUNTS FROM THE OPERATION OF
THE SECURITY CESSION AND THE OUT-AND-OUT CESSION OF THOSE
ACCOUNTS
(9) A REDUCTION IN THE MANAGEMENT FEE
(10) THE AMENDMENT OF THE FINANCIAL COVENANTS
(11) THE AMENDMENT OF THE TRANSACTION DOCUMENTS
(12) THE AMENDMENT OF THE PROGRAMME MEMORANDUM
For use by the holders of the Notes, at a meeting of all the holders of the Notes issued
by the Issuer under its asset backed securities programme, to be held on
11 December 2015 at 09h00, at Atlantic Imbizo, 3rd Floor, Clock Tower Offices Clock
Tower Silo Centre, V&A Waterfront, Cape Town and via teleconference or
videoconference at Bayport House, 23A 10th Avenue, Rivonia, Johannesburg.
We, [INSERT NAME], in our capacity as the duly authorised representative of the
holders of the Notes, as set out in the schedule below, and representing, in aggregate,
the holders of –
ZAR_______________________ Class A Notes;
ZAR_______________________ Class B Notes;
ZAR_______________________ Class C Notes; and
ZAR_______________________ Class D Notes, appoint:
1. ………….……………………………………………………………………………………………….. or failing him,
2. the chairman of the meeting,
as our proxy to act for us and on our behalf at the meeting which will be held for the
purpose of considering, and if deemed fit, passing, with or without modification the the
amendments proposed thereat and at any adjournment thereof; and to vote for and/or
against the amendments and/or abstain from voting in respect of the Notes registered in
the names of the holders of the Notes on whose behalf we are acting as their duly
authorised representatives,
such Notes bearing the Stock Codes as recorded in the schedule below,
in accordance with the following instructions:
Number of Votes
For Against Abstain
Amendment No. 1
Amendment No. 2
Amendment No. 3
Amendment No. 4
Amendment No. 5
Amendment No. 6
Amendment No. 7
Amendment No. 8
Amendment No. 9
Amendment No. 10
Amendment No. 11
Amendment No. 12
Signed at_________________on_____________________2015
__________________________
Name:
duly authorised thereto
Beneficial holder Class of Value of Percentage
Notes Notes
Date: 20/11/2015 03:05:00 Produced by the JSE SENS Department. The SENS service is an information dissemination service administered by the JSE Limited ('JSE').
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