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Notice of Amendments to the Published Business Rescue Plan
Comair Limited
(Incorporated in the Republic of South Africa)
(Registration Number: 1967/006783/06)
ISIN: ZAE00002983
Share Code: COM
(“Comair” or “the Company”)
NOTICE OF AMENDMENTS TO THE PUBLISHED BUSINESS RESCUE PLAN
1. Shareholders of the Company (“Shareholders”) are hereby advised that a Notice of
Amendments to the Comair Business Rescue Plan has been published, the details of which
are contained in this announcement.
2. Capitalised terms used but not defined in this notice, shall bear the meaning as defined in the
Business Rescue Plan, as amended on 17 September 2020, and Adopted on
18 September 2020, and amended thereafter as set out in the Status Report dated
30 November 2020 ("the Plan").
3. The Plan provides at paragraph 13.5 that "[if] the Business Rescue Plan requires amendment
and the amendment is materially prejudicial to certain creditors but not to others, then the
approval of that amendment will be procured in writing from those that have been so
prejudiced.".
4. The BRPs of the Company, with the knowledge and consent of the Investors, hereby notify
Affected Persons of the following amendments to the Plan:
Clause of the Adopted Amendment
Business Rescue Plan
Paragraph 1.3.21 Replace the definition of "Creditors" with the following words:
"means any creditors, whether Disputed Creditors or
Contingent Creditors, with a monetary claim against the
Company"
New Paragraph 6.6.9.2.3 Insert a new paragraph 6.6.9.2.3 after paragraph 6.6.9.2.2
with the following words:
"Performance by the Company under certain agreements will
result in significant hardship to the Company, which poses a
threat to the future viability of the Company. Accordingly, the
BRPs are hereby empowered and the Company has taken or
intends to take such steps as may be necessary to cancel
and/or reject, inter alia, the following agreements and/or any
obligations thereunder:
6.6.9.2.3.1 the Purchase Agreement PA-04055, as revised,
between the Company and the Boeing Company in
relation to Boeing-Model 737-8 Max Aircraft,
concluded in or about September 2013, together with
the letter agreements, supplemental agreements, and
the Aircraft General Terms Agreement;
6.6.9.2.3.2 the term sheet for the operation lease of one with A320
CEO concluded on or about 13 January 2019 between
SIM International B.V, as lessor, and the Company, as
lessee, together with any agreements between the
parties that may have been concluded pursuant
thereto;
6.6.9.2.3.3 other onerous long term contracts, if any, to be
identified,
and, upon notice of cancellation or rejection the contractual
counterparty is required to submit a provisional claim for
damages (if applicable) under the agreement in accordance
with the procedure set out in paragraph 11.3"
New paragraph 6.6.9.2A Insert a new paragraph 6.6.9.2A in between new paragraph
6.6.9.2.3 and paragraph 6.6.9.3 with the following words:
"Repudiation of Contracts – Performance by the Company
under certain agreements will result in significant hardship to
the Company, which poses a threat to the future viability of
the Company. Accordingly, the Company will no longer
perform under the following agreements:
6.6.9.2A.1 the lease agreements, as revised, between HPF
Properties Proprietary Limited, as lessor, and the
Company, as lessee, in respect of shop 1, 6, and
8 of the Gautrain Hotel on the corner of Rivonia
and West Streets, Sandton (previously Slow in
the City) and shop 19 on retail level 1 in Sandton
Eye on the corner of Rivonia and West Streets,
Sandton (previously known as The Course
Restaurant); and
6.6.9.2A.2 other onerous long term contracts, if any, to be
identified,
and, the counterparty to such agreements would be entitled
to submit a claim for damages under the cancelled
agreement in accordance with the procedure set out in
paragraph 11.3"
Paragraph 6.9.2.5 Revise paragraph 6.9.2.5 to read:
"The Company shall establish a reserve for Disputed Claims
that have not been determined prior to the Payment Date
and maintain the reserve until such time as the claim has
been determined in terms of paragraph 11. If a Disputed
Claim has been accepted, the Company shall pay to such
Creditor the Distribution to which it would have been entitled
had its Claim been accepted before the Payment Date."
Paragraph 8.5.6 Revise paragraph 8.5.6 to read:
The BRPs acknowledge that the Investors will procure that
an offer ("Offer") to acquire the remaining 1% of the shares
in the Company, be implemented by one of a number of
possible mechanisms, including a scheme of arrangement,
will (i) be made be made as soon as is practicable; and (ii)
include, an application to terminate the listing of all the
Company shares from the main board of the JSE. For the
purposes of procuring the passing of the necessary
resolutions by the Company’s shareholders to achieve the
aforegoing, the BRPs confirm they have already received
irrevocable undertakings from certain material shareholders
of the Company and undertake to use their Best Efforts to the
extent that it is within their power so to do to assist the
Investors to procure the support of additional shareholders
so that the requisite majority can be obtained for the passing
of all resolutions required to achieve the aforegoing."
Paragraph 11.1 Insert "and the Company's counterclaims, if any", after the
words "Disputed Claims"
Paragraph 11.2 Insert "and the Company's counterclaims, if any", after the
words "Disputed Claims"
Paragraph 11.3.1 Insert "and the Company's counterclaims, if any", after the
words "Disputed Claims"
Paragraph 11.3.2 Insert the following sentence at the end of paragraph 11.3.2:
"Notwithstanding a Disputed Creditor's deemed
abandonment of its Disputed Claims, as such, the Company
may continue to prosecute its counterclaims, if any, against
that Disputed Creditor, and may accordingly request the
chairman of AFSA or its successor in title, to nominate an
arbitrator to decide the Company's counterclaims"
Revised paragraph 11.3.4 Revise paragraph 11.3.4 to read:
"To the extent that the arbitrator as nominated refuses to act
or is not available to act, the Disputed Creditor must within 7
days of receiving notice of the arbitrator's refusal or
unavailability, request AFSA to appoint an alternate arbitrator
until one such arbitrator is available, and is agreeable, to act.
Should the Disputed Creditor not request AFSA to appoint an
alternate arbitrator, within the period allowed, then the
Disputed Creditor shall be deemed to have abandoned its
Claim and will not, in terms with section 154 of the
Companies Act, be able to enforce any Claim that, that
creditor believes is owed to it by the Company.
Notwithstanding a Disputed Creditor's deemed abandonment
of its Disputed Claims, as such, the Company may continue
to prosecute its counterclaims, if any, against that Disputed
Creditor, and may accordingly request the chairman of AFSA
or its successor in title to appoint an alternate arbitrator until
one such arbitrator is available, and is agreeable, to decide
the Company's counterclaims
5. THESE AMENDMENTS MUST BE APPROVED BY CREDITORS IN WRITING IN TERMS
OF SECTION 152(2) OF THE COMPANIES ACT, AS READ WITH PARAGRAPH 13.5 OF
THE PLAN, BY INDICATING ON OR BEFORE 29 MARCH 2021 IN AN EMAIL TO
creditorsvoting@comair.co.za WHETHER OR NOT THEY SUPPORT THESE
AMENDMENTS. IF SUCH A VOTE IS CAST BY EMAIL UNDER POWER OF ATTORNEY
OR ON BEHALF OF A COMPANY, SUCH AUTHORITY (I.E. POWER OF ATTORNEY (FOR
AN INDIVIDUAL) OR AUTHORISING RESOLUTION (FOR A JURISTIC PERSON), AS
APPLICABLE) MUST ACCOMPANY THE EMAIL.
6. In order to vote as such on these amendments to the Business Rescue Plan a Creditor must
have submitted a Claim or provisional Claim by 24 MARCH 2021, and the amount of any such
Claim will carry a voting interest as assessed and estimated by the BRPs based on the
Company's books and records, but, in no event, shall a Claim (including a provisional Claim,
a Contingent Claim or a Disputed Claim) carry a voting interest less than R1.00. Therefore, if
there are Creditors, including Contingent Creditors and Disputed Creditors, who believe they
have a Claim against Comair, but have not yet submitted their Claim, then they are requested
to please download and complete the Claim Form at https://www.comair.co.za/business-
rescue/creditor-claims, and to submit it to creditorclaims@comair.co.za.
7. In this regard, such Claims may be accepted or rejected by the BRPs either provisionally (for
purposes only to allow a Creditor to vote on this amendment and without prejudice to the BRPs
rights under paragraphs 6.9, 7.3.1.1 and the Dispute Resolution Mechanism set out in the
Plan), or finally.
8. THE DATE FOR THE SUBMISSION OF CLAIMS HAS BEEN EXTENDED. THIS NOTICE IS
ACCORDINGLY BEING SENT TO ALL AFFECTED PERSONS.
IF YOU HAVE NOT FILED A CLAIM AND PROVIDED SUFFICIENT
DOCUMENTATION TO PROVE YOUR CLAIM AGAINST THE
COMPANY, YOUR MUST FILE YOUR CLAIMS OR YOUR RIGHTS
MAY BE MATERIALLY AFFECTED BY THE PLAN.
9. All Creditors, including Contingent Creditors and Disputed Creditors, who are not reflected in
Annexure B to the Plan, as amended, and who have not yet lodged their Claims against the
Company, are required to provisionally lodge such Claims (with supporting documentation for
each such claim) by no later than 24 March 2021.
IF YOU FAIL TO FILE A CLAIM, YOUR CLAIM WILL BE EXPUNGED
AND YOU MAY BE FOREVER BARRED FROM ENFORCING YOUR
CLAIM AGAINST THE COMPANY.
10. If, once such Claims have been finally accepted either by the BRPs or as a consequence of
the Dispute Resolution Mechanism, the BRPs will be required to amend Annexure B to the
Plan, and where an amendment to Table 1 of the Plan may or may not also be necessary, as
follows:
in terms of paragraph 13.2 of the Plan, the BRPs may in their sole and absolute
discretion, amend, modify or vary any provision of the Plan, provided that (i) any
amendment will not be materially prejudicial to any of the Affected Persons; (ii) at all
times the BRPs act reasonably, and (iii) with the knowledge and consent of the Investors,
which shall not be unreasonably withheld or delayed by the Investors. For purposes of
determining a materially prejudicial outcome, paragraph 13.1 of the Plan provides that
an outcome that results in Distributions to Creditors that would be less than the estimated
liquidation dividend to as calculated by PWC and set out in Table 1, would be considered
to be materially prejudicial;
if the Plan requires an amendment that is materially prejudicial to certain creditors, but
not to others, then the approval of that amendment will be procured by the BRPs in
writing from those creditors that have been so prejudiced, pursuant to paragraph 13.5 of
the Plan; or
in terms of paragraph 13.6 of the Plan, if an amendment to the Plan will be materially
prejudicial and the provisions of paragraph 13.5 of the Plan are either not applicable, or
not met, then such amendments will be considered at a meeting of all Creditors and will
be subject to the same voting threshold as was required for adoption of the Plan.
11. All creditors are reminded that all notices and the Plan, as amended, may be viewed on
Comair's website by following this link: https://www.comair.co.za/business-rescue.
05 March 2021
Sponsor
PSG Capital
IMPORTANT NOTICE TO FOREIGN SHAREHOLDERS AND PROSPECTIVE INVESTORS
FOREIGN SHAREHOLDERS AND PROSPECTIVE INVESTORS IN COMAIR LIMITED (“COMAIR”) SHOULD NOTE
THAT, IN ORDER TO ENABLE COMAIR (AS A LICENSED AIR SERVICES OPERATOR IN SOUTH AFRICA) TO REMAIN
COMPLIANT WITH THE FOREIGN OWNERSHIP RESTRICTION CONTAINED SECTIONS 16(4)(c) AND 19(a) OF THE
AIR SERVICES LICENSING ACT, NO. 115 OF 1990, THE VOTING RIGHTS OF FOREIGN SHAREHOLDERS MAY BE
DECREASED PROPORTIONATELY SUCH THAT THE VOTING RIGHTS OF FOREIGN SHAREHOLDERS DO NOT, IN
AGGREGATE, EXCEED 24.99%. FOREIGN SHAREHOLDERS AND PROSPECTIVE INVESTORS ARE REFERRED TO
THE COMAIR’S MEMORANDUM OF INCORPORATION AND WEBSITE (www.comair.co.za) FOR FURTHER
DETAILS. IF FOREIGN SHAREHOLDERS OR PROSPECTIVE INVESTORS ARE IN ANY DOUBT AS TO WHAT ACTION
TO TAKE THEY SHOULD SEEK ADVICE FROM THEIR BROKER, ATTORNEY OR OTHER PROFESSIONAL ADVISER.
Date: 05-03-2021 04:24:00
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