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CANCELLATION OF S380487 EPF006 and EPF007 - Notice of Meeting of the Holders of all the outstanding Group 1 Notes
Emira Property Fund Limited
(Incorporated in the Republic of South Africa)
(Registration number 2014/130842/06)
Company code: EMII
(Approved as a REIT by the JSE)
ISIN EPF006: ZAG000128828
ISIN EPF007: ZAG000128836
(“Emira” or “the Issuer”)
NOTICE OF A MEETING OF THE HOLDERS OF ALL THE OUTSTANDING GROUP 1
NOTES ISSUED BY EMIRA PROPERTY FUND LIMITED UNDER ITS R5,000,000,000
DOMESTIC MEDIUM TERM NOTE PROGRAMME
1. Pursuant to Condition 24 of the Terms and Conditions of the Group 1 Notes, the Issuer
hereby gives notice that a meeting of the holders (the "Group 1 Noteholders") of all the
outstanding senior secured Notes issued by the Issuer under its R5,000,000,000 domestic
medium term note programme, being the Notes of Series 21 and Series 22 (the "Group 1
Notes"), will be held on 27 January 2017 at 14h00 at the offices of Emira Property Fund
Limited, 1st Floor, Optimum House, Epsom Downs Office Park, 13 Sloane Street,
Bryanston, 2191 (the "Group 1 Noteholders Meeting") at which the resolutions set out
below will be considered and, if deemed fit, passed with or without modification.
2. Unless otherwise defined, words and expressions used in this notice will bear the same
meanings as in the programme memorandum of the Issuer dated 1 July 2015 (the
"Programme Memorandum"), read with the Applicable Pricing Supplements for the
Group 1 Notes.
WHEREAS
3. In terms of Condition 24.4 of the Terms and Conditions of the Group 1 Notes, written
notice of a meeting of the Group 1 Noteholders is to be given to the Group 1 Noteholders
at least 10 days prior to the meeting unless the Group 1 Noteholders holding at least 90%
of the aggregate Outstanding Principal Amount of the Group 1 Notes agree in writing to a
shorter notice period. The meeting convened in terms of this notice will be convened with
the required notice of at least 10 days.
AND FURTHER WHEREAS
4. The current security structure for the Group 1 Notes caters for Properties owned by
Freestone Property Investments Proprietary Limited ("FPI") to be included in the Group 1
Property Portfolio and be subject to the Security Documents which provide the security to
the Group 1 Noteholders, as described in Appendix "B" to the Applicable Pricing
Supplements.
5. The Issuer wishes to amplify the security structure to cater for Properties owned by the
Issuer itself and by other Subsidiaries of the Issuer to be included in the Group 1 Property
Portfolio and be subject to the Security Documents which provide the security to the Group
1 Noteholders.
6. The Issuer therefore requests the Group 1 Noteholders to approve, by Extraordinary
Resolution, the resolutions set out below.
7. An Extraordinary Resolution of the Group 1 Noteholders means a resolution passed at a
properly constituted meeting of the Group 1 Noteholders, by a majority consisting of not
less than 66,67% of the votes cast at a poll by members of the Group 1 Noteholders,
present in person or by proxy.
8. Proxies (for use by holders of Group 1 Notes held in certificated form)
8.1 In terms of Condition 24.10, a Group 1 Noteholder entitled to attend and vote at a
meeting of the Group 1 Noteholders is entitled to appoint a proxy to act on his behalf
in connection with such meeting.
8.2 A person appointed to act as proxy need not be a Group 1 Noteholder.
8.3 A form of proxy ("proxy form") attached as Schedule "1" is enclosed for those of the
Group 1 Noteholders who wish to be represented by proxy at the meeting.
8.4 Please note that the proxy form should be deposited at the Specified Office of the
Issuer or at the Specified Office of the Transfer Agent, as the case may be, not less
than 24 hours before the time appointed for holding the meeting or adjourned
meeting of the Group 1 Noteholders specified above.
8.5 For the avoidance of doubt, please note that all voting rights to be exercised in
respect of Group 1 Notes held in uncertificated form, may be exercised only by Strate
Proprietary Limited for the holders of Beneficial Interests in such Group 1 Notes, in
accordance with the Applicable Procedures. If the Central Securities Depository
Participant ("CSDP") of a holder of Beneficial Interests does not contact such holder,
then such holder is advised to contact such holder's CSDP and provide such CSDP
with the holder's voting instructions.
IT IS RESOLVED THAT:
1. EXTRAORDINARY RESOLUTION NUMBER 1 OF THE GROUP 1 NOTEHOLDERS -
APPROVAL OF THE AMENDMENT OF THE DESCRIPTION OF THE SECURITY
STRUCTURE AND OF THE DEFINITIONS IN CONDITION 26 OF THE GROUP 1 NOTES
IT IS RESOLVED THAT:
Pursuant to Condition 19.3 of the Terms and Conditions of the Group 1 Notes, the Group
1 Noteholders approve:
a) the amendment of the description of the security structure in respect of the Group 1
Notes, as set out in Appendix "B" to the Applicable Pricing Supplements of the Group 1
Notes, by the adoption of the revised description of the security structure as set out in
Schedule 2 to this notice; and
b) the amendment of the definitions in Condition 26 of the Group 1 Notes, as set out in
Appendix "C" to the Applicable Pricing Supplements of the Group 1 Notes, by the
adoption of the revised definitions set out in Schedule 3 to this notice.
2. EXTRAORDINARY RESOLUTION NUMBER 2 OF THE GROUP 1 NOTEHOLDERS -
AMENDMENT OF THE MORTGAGE BOND SPV GUARANTEE
IT IS RESOLVED THAT:
Pursuant to Clause 6.4.13 of the Trust Deed, the Group 1 Noteholders approve the
amendment of the Mortgage Bond SPV Guarantee dated 14 August 2015, between the
Mortgage Bond SPV and the Trustee, as follows:
a) by the deletion from Clause 1.4 of the definitions of Counter-Indemnity Agreement,
Finance Documents, Obligors and Subsidiary Guarantor, since each of these terms
bears the meanings ascribed to them in the Terms and Conditions of the Group 1
Notes, as amended or supplemented from time to time;
b) by the deletion of the definition in Clause 1.4.7 of Group 1 Notes and the replacement
thereof with the following definition:
"Group 1 Notes means the Group 1 Notes issued by the Issuer in respect of
Series 21 and Series 22 of the Issuer's domestic medium term note programme,
read together with the applicable pricing supplements in respect of such Group 1
Notes, or, if the indebtedness of the Issuer under such Group 1 Notes is
refinanced at any time, any new financial indebtedness entered into in connection
with that refinancing, and designated as such in the applicable pricing
supplements;"
c) by the deletion of the reference to "the Counter-Indemnity Agreement" wherever it
appears in the Mortgage Bond SPV Guarantee and the replacement thereof with "each
Counter-Indemnity Agreement";
d) by the deletion of Clause 2.2 and the replacement thereof with the following new Clause
2.2:
"Each Obligor which has Properties included in the Group 1 Property Portfolio will
enter into a Counter-Indemnity Agreement in favour of the Mortgage Bond SPV
and provide security in support thereof."
e) by the deletion in Clause 3.1.1 (c) of the reference to "Counter-Indemnity Agreement"
and the replacement thereof with "indemnity".
3. EXTRAORDINARY RESOLUTION NUMBER 3 OF THE GROUP 1 NOTEHOLDERS -
AMENDMENT OF THE FPI COUNTER INDEMNITY AGREEMENT
IT IS RESOLVED THAT:
Pursuant to Clause 6.4.13 of the Trust Deed, the Group 1 Noteholders approve the
amendment of the Counter-Indemnity Agreement dated 14 August 2015, between FPI and
the Mortgage Bond SPV, as follows:
a) by the deletion from Clause 1.4 of the definitions of Obligors, since this term bears the
meaning ascribed to it in the Mortgage Bond SPV Guarantee (or incorporated therein
by reference from the Terms and Conditions of the Group 1 Notes), as amended or
supplemented from time to time;
b) by the deletion in Clause 3.3.2 of the reference to "Counter-Indemnity Agreement" and
the replacement thereof with "indemnity".
4. EXTRAORDINARY RESOLUTION NUMBER 4 OF THE GROUP 1 NOTEHOLDERS -
AMENDMENT OF THE FPI SUBSIDIARY GUARANTEE
IT IS RESOLVED THAT:
Pursuant to Clause 6.4.13 of the Trust Deed and Clause 11 of the Subsidiary Guarantee
dated 14 August 2015, granted by FPI to the Group 1 Noteholders, the Group 1
Noteholders approve the amendment of the Subsidiary Guarantee, as follows, by the
deletion of the definition of Group 1 Notes and the replacement thereof with the following
definition:
"Group 1 Notes means the Group 1 Notes issued by the Issuer in respect of
Series 21 and Series 22 of the Issuer's domestic medium term note programme,
read together with the applicable pricing supplements in respect of such Group 1
Notes, or, if the indebtedness of the Issuer under such Group 1 Notes is
refinanced at any time, any new financial indebtedness entered into in connection
with that refinancing, and designated as such in the applicable pricing
supplements;"
…………………………………………………………………
BY ORDER OF THE BOARD OF THE ISSUER
SCHEDULE 1 TO THE NOTICE OF MEETING
EMIRA PROPERTY FUND LIMITED
Registration Number 2014/130842/06
(the "Issuer")
FORM OF PROXY
For use by the holders of all the outstanding Group 1 Notes (the "Group 1 Notes") issued by the Issuer
under its R5,000,000,000 domestic medium term note programme (the "Group 1 Noteholders"), at a
meeting of the Group 1 Noteholders to be held on 27 January 2017 at 10h00 at the offices of Rand
Merchant Bank, a division of FirstRand Bank Limited, 1 Merchant Place, Corner Fredman Drive and
Rivonia Road, 2196 (the "Group 1 Noteholders Meeting").
Capitalised words and phrases used in this form will, unless otherwise defined, bear the same meanings
as in the programme memorandum of the Issuer dated 1 July 2015, read with the Applicable Pricing
Supplements for the Group 1 Notes (the "Programme Memorandum").
I/We ………………………………………………………………… being the holder(s) of Group 1 Notes in an
Outstanding Principal Amount of ZAR …………………….., appoint the chairman of the meeting, as
my/our proxy to act for me/us and on my/our behalf at the Group 1 Noteholders Meeting which will be
held for the purpose of considering, and if deemed fit, passing, with or without modification, the
resolutions to be proposed thereat and at any adjournment thereof; and to vote for and/or against the
resolutions and/or abstain from voting in respect of …………………….. [all/insert number] Group 1 Notes
registered in my/our names(s), in accordance with the following instructions:
Number of Votes
For Against Abstain
EXTRAORDINARY RESOLUTION NUMBER 1 OF THE GROUP
1 NOTEHOLDERS - APPROVAL OF THE AMENDMENT OF
THE DESCRIPTION OF THE SECURITY STRUCTURE AND OF
THE DEFINITIONS IN CONDITION 26 OF THE GROUP 1
NOTES
EXTRAORDINARY RESOLUTION NUMBER 2 OF THE GROUP
1 NOTEHOLDERS - AMENDMENT OF THE MORTGAGE BOND
SPV GUARANTEE
EXTRAORDINARY RESOLUTION NUMBER 3 OF THE GROUP
1 NOTEHOLDERS - AMENDMENT OF THE FPI COUNTER
INDEMNITY AGREEMENT
EXTRAORDINARY RESOLUTION NUMBER 4 OF THE GROUP
1 NOTEHOLDERS - AMENDMENT OF THE FPI SUBSIDIARY
GUARANTEE
SCHEDULE 2 TO THE NOTICE OF MEETING
APPENDIX "B" TO THE APPLICABLE PRICING SUPPLEMENT
SECURITY STRUCTURE
All the Notes of Group 1 share in the same security.
SECURITY IN FAVOUR OF THE GROUP 1 NOTEHOLDERS
MORTGAGE BOND SPV GUARANTEE
The Mortgage Bond SPV will bind itself under an irrevocable guarantee to the Trustee, acting
on behalf of the Group 1 Noteholders, pursuant to the terms and conditions stated in the
Mortgage Bond SPV Guarantee. Pursuant to such Mortgage Bond SPV Guarantee, the
Mortgage Bond SPV will undertake in favour of the Trustee, acting on behalf of the Group 1
Noteholders, to pay it the full amount then owing to it by an Obligor, if an Acceleration Notice is
delivered following an event of default under the Group 1 Notes or a Subsidiary Guarantee. The
liability of the Mortgage Bond SPV pursuant to the Mortgage Bond SPV Guarantee will be
limited in the aggregate to the net amount recovered by the Mortgage Bond SPV from each
Obligor arising out of each Counter-Indemnity Agreement and, if necessary, the Security
Documents referred to below.
COUNTER INDEMNITY AGREEMENTS
Each Obligor which has Properties included in the Group 1 Property Portfolio will execute a
Counter-Indemnity Agreement, indemnifying the Mortgage Bond SPV in respect of claims that
may be made against the Mortgage Bond SPV arising out of the Mortgage Bond SPV
Guarantee. An Obligor shall not be entitled to refuse to make payment under the Counter-
Indemnity Agreement to the Mortgage Bond SPV by reason of the fact that the Mortgage Bond
SPV has not paid the claims of the Trustee under the Mortgage Bond SPV Guarantee nor shall
an Obligor be entitled to refuse to make payment by reason of the fact that the liability of the
Mortgage Bond SPV in respect of any such Mortgage Bond SPV Guarantee is limited in the
manner set out in the Mortgage Bond SPV Guarantee.
SECURITY
In accordance with each Mortgage Bond, each Obligor mortgages its properties in the Group 1
Property Portfolio to the Mortgage Bond SPV, as security for the obligations of that Obligor to
the Mortgage Bond SPV under the relevant Counter-Indemnity Agreement or acts of guarantee
executed by the Subsidiary Guarantor or given by the Mortgage Bond SPV on behalf of that
Obligor. In accordance with each Security Cession, each Obligor cedes in security to the
Mortgage Bond SPV, as security for its obligations under the relevant Counter Indemnity
Agreement, its rights, title and interest in and to the Tenant Lease Agreements, the Lease
Payments and other claims against Tenants under such Tenant Lease Agreements, the Rent
Collections Accounts and all monies in such bank accounts from time to time, the Property
Management Agreements, the Insurance Policies and Insurance Proceeds and the Related
Security in respect of each Property (all as defined in the relevant Security Cession).
SCHEDULE 3 TO THE NOTICE OF MEETING
APPENDIX "C" TO THE APPLICABLE PRICING SUPPLEMENT
ADDITIONAL DEFINITIONS IN RESPECT OF THE GROUP 1 NOTES
The terms and conditions set out in the programme memorandum are amended in relation to
the notes of this tranche by the insertion of the following additional condition 26 (additional
definitions in respect of the group 1 notes):
26. Condition 26 – Additional definitions in respect of the group 1 notes
Terms and expressions set out below will have the meanings set out below in the Terms
and Conditions of the Notes of this Tranche:
26.1 Counter-Indemnity Agreement means, in respect of each Obligor, the counter-
indemnity agreement concluded between that Obligor and the Mortgage Bond SPV,
pursuant to which that Obligor indemnifies and holds the Mortgage Bond SPV
harmless in respect of claims made against the Mortgage Bond SPV under the
Mortgage Bond SPV Guarantee;
26.2 FPI means Freestone Property Investments (Proprietary) Limited, a private company
incorporated in accordance with the laws of South Africa, registration number
2005/022554/07;
26.3 Finance Documents means:
26.3.1 the Trust Deed;
26.3.2 the Terms and Conditions of the Group 1 Notes;
26.3.3 each Subsidiary Guarantee;
26.3.4 the Security Documents; and
26.3.5 any other document which is from time to time designated by the Trustee (on
behalf of the Group 1 Noteholders) and the Issuer as a Finance Document,
and Finance Document means any of them, as the context may require;
26.4 Group 1 Noteholders means the holders of the Group 1 Notes;
26.5 Group 1 Notes means the Notes issued by the Issuer in respect of Series 21 and
Series 22 of the Issuer's domestic medium term note programme, read together with
the applicable pricing supplements in respect of such Notes, or, if the indebtedness of
the Issuer under such Notes is refinanced at any time, any new financial
indebtedness entered into in connection with that refinancing, and designated as
such in the applicable pricing supplements;
26.6 Group 1 Property Portfolio means those Properties in the Property Portfolio which
provide security in respect of the Group 1 Notes, listed in a schedule provided to the
Trustee on the Issue Date, as such schedule may be updated from time to time,
including following any disposal of, addition to or substitution of, the Properties in
accordance with the provisions Condition 25 of the Group 1 Notes;
26.7 Institute of Valuers means The South African Institute of Valuers, founded in 1909,
the national society of professional real estate valuers, or its successor;
26.8 Loan to Valuation Ratio (Group 1) means at any time, in respect of the Group 1
Notes, the ratio as expressed as follows:
Loan to Valuation Ratio (Group 1) = L divided by V
Where:
L = the aggregate Outstanding Principal Amount of the Group 1 Notes; and
V = the amount of the most recent Open Market Valuation of all the Properties in
the Group 1 Property Portfolio;
26.9 Mortgage Bond means, in respect of each Property, a first-ranking continuing
covering mortgage bond (whether a principal bond or collateral bond)(or such lower
ranking continuing covering mortgage bond provided that all higher ranking mortgage
bonds are or will be registered in favour of the Mortgage Bond SPV) registered in
favour of the Mortgage Bond SPV over such Property (or the long term lease or sub-
lease in respect of such Property, as the case may be), securing the obligations of
the relevant Obligor to the Mortgage Bond SPV under the relevant Counter-Indemnity
Agreement to which that Obligor is a party;
26.10 Mortgage Bond SPV means Freestone Mortgage Bond SPV Series 1 (RF)
Proprietary Limited, a company duly incorporated in accordance with the laws of
South Africa, registration number 2004/000792/07;
26.11 Mortgage Bond SPV Guarantee means the guarantee issued by the Mortgage Bond
SPV in favour of the Trustee, on behalf of the Group 1 Noteholders, for the
obligations of the Obligors under the Finance Documents ;
26.12 Obligors means the (i) Issuer and (ii) each Subsidiary of the Issuer that has
executed a Counter-Indemnity Agreement pursuant to which that Subsidiary
indemnifies and holds the Mortgage Bond SPV harmless in respect of claims made
against the Mortgage Bond SPV under the Mortgage Bond SPV Guarantee, and
"Obligor" means any one of them, as the context requires
26.13 Open Market Valuation means in respect of the Properties in the Group 1 Property
Portfolio, the annual property valuation undertaken and prepared at the instance of
the Issuer in regard to all the Properties in the Group 1 Property Portfolio, which in
relation to a minimum of 1/3 of the Properties in the Group 1 Property Portfolio, shall
be undertaken by a Valuer or Valuers appointed by the Issuer and conducted in
accordance with the valuation methodology approved by the Institute of Valuers from
time to time; provided that in respect of any 3 year period all of the Properties in the
Group 1 Property Portfolio will have been valued, in accordance with the valuation
methodology approved by the Institute of Valuers from time to time or such other
methodology approved in writing by Valuers approved by the Issuer;
26.14 Property means a property in the Property Portfolio;
26.15 Property Portfolio means the fixed, immovable properties registered in the name of
an Obligor (in each case, as sole owner or co-owner, as the case may be) or in
respect of which that Obligor has registered leasehold rights, from time to time;
26.16 Principal Amount means, in relation to any Note, the nominal amount of that Note,
being the amount on the Issue Date equivalent to the Specified Denomination set out
in the Applicable Pricing Supplement;
26.17 Secured Creditors means the Group 1 Noteholders, represented by the Trustee;
26.18 Security Cession means:
26.1.1 in respect FPI, the written agreement entitled "Cession in Security" entered into
between FPI and the Mortgage Bond SPV on 13 June 2006, as amended,
pursuant to which FPI cedes in security to the Mortgage Bond SPV, as security
for its obligations under the Counter Indemnity Agreement to which it is a party,
its rights, title and interest in and to the Tenant Lease Agreements, the Lease
Payments and other claims against Tenants under such Tenant Lease
Agreements, the Rent Collections Accounts and all monies in such bank
accounts from time to time, the Property Management Agreements, the
Insurance Policies and Insurance Proceeds and the Related Security in respect
of each Property (all as defined therein); and
26.1.2 in respect of each other Obligor that is party to a Counter-Indemnity Agreement,
the agreement entered into between that Obligor and the Mortgage Bond SPV,
pursuant to which that Obligor cedes in security to the Mortgage Bond SPV, as
security for its obligations under the Counter Indemnity Agreement to which it is
a party, its rights, title and interest in and to the Tenant Lease Agreements, the
Lease Payments and other claims against Tenants under such Tenant Lease
Agreements, the Rent Collections Accounts and all monies in such bank
accounts from time to time, the Property Management Agreements, the
Insurance Policies and Insurance Proceeds and the Related Security in respect
of each Property (all as defined therein);
26.19 Security Documents means:
26.19.1 the Mortgage Bond SPV Guarantee;
26.19.2 each Counter-Indemnity Agreement;
26.19.3 each Security Cession;
26.19.4 each Mortgage Bond; and
26.19.5 any other document which is from time to time designated by the Trustee (on
behalf of the Group 1 Noteholders) and the Issuer as a Security Document;
26.20 Subsidiary Guarantee means, in respect of each Subsidiary Guarantor, the
guarantee granted by that Subsidiary Guarantor for the payment obligations of the
Issuer under the Group 1 Notes;
26.21 Subsidiary Guarantor means each Subsidiary of the Issuer that has executed a
Subsidiary Guarantee pursuant to which that Subsidiary guarantees the payment
obligations of the Issuer under the Group 1 Notes;
26.22 Trustee means the trustee for the time being of the Emira Note Trust, acting on
behalf of and for the benefit of the Group 1 Noteholders, which shall initially be TMF
Corporate Services (South Africa) Proprietary Limited (Registration number
2006/013631/07), a company duly registered and incorporated in accordance with the
company laws of South Africa; and
26.23 Valuer means an accredited property valuer registered as such in terms of the
Valuer's Act, 1982, who is independent of the Issuer and any Property Manager.
13 January 2017
Debt Sponsor
Rand Merchant Bank (A division of FirstRand Bank Limited)
Date: 16/01/2017 07:04:59 Produced by the JSE SENS Department. The SENS service is an information dissemination service administered by the JSE Limited ('JSE').
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