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EMII - Notice requesting Written Consent from all Noteholders and the Group 1 Noteholders
Emira Property Fund Limited
(Incorporated in the Republic of South Africa)
(Registration number 2014/130842/06)
(Approved as a REIT by the JSE)
Company code: EMII
Bond Code: EPF017 ISIN: ZAG000153966
Bond Code: EPF018 ISIN: ZAG000156118
Bond Code: EPF021 ISIN: ZAG000170614
Bond Code: EPF023 ISIN: ZAG000179540
(“Emira” or the “Issuer”)
NOTICE REQUESTING WRITTEN CONSENT FROM ALL NOTEHOLDERS AND THE GROUP 1
NOTEHOLDERS
1. Pursuant to Condition 18 of the Terms and Conditions of the Notes (the Notes), the Issuer hereby
gives notice requesting written consent from:
1.1 the holders of all the outstanding Notes (the Noteholders) issued by the Issuer under its
R5,000,000,000 Domestic Medium Term Note Programme, and
1.2 the holders of all the outstanding Group 1 Notes (Group 1 Noteholders) held under Stock
Codes EPF017, EPF018, EPF021 and EPF023, issued by the Issuer under its R5,000,000,000
Domestic Medium Term Note Programme;
respectively, of the written Extraordinary Resolutions proposed by the Issuer described below.
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 13 March 2019 (the Programme
Memorandum), read with the Applicable Pricing Supplements for the Notes.
3. The record date to be recorded in the Register to receive this notice of request for written
consent, and to vote on the proposed written Extraordinary Resolutions, is the date of
publication of this notice on the Stock Exchange News Service (SENS) of the JSE Limited (JSE) on
12 November 2021 ("SENS").
WHEREAS
4. In terms of Condition 20.13 of the Terms and Conditions of the Notes, Condition 24.12 the Notes
held under Stock Code EPF017 and Condition 25.12 of the Notes held under Stock Codes EPF018,
EPF021 and EPF023, the Noteholders are required to sign the written Extraordinary Resolutions,
attached as Schedule 1 to the notice delivered by Strate Proprietary Limited (“STRATE”), and
deliver a signed copy thereof, as set out in paragraph 10 below, by no later than 17h00 on 10
December 2021, being 20 Business Days after the date of publication of this notice on SENS.
AND FURTHER WHEREAS
5. ALL OUTSTANDING NOTES
5.1 In respect of all the outstanding Notes issued by the Issuer under its R5,000,000,000
Domestic Medium Term Note Programme, the Issuer wishes to:
(a) amend Condition 9.5.10.9 of the Terms and Conditions in the Programme
Memorandum, by replacing the definition of Property Portfolio with the new
definition as set out in Extraordinary Resolution 1. The rationale is to amend the
definition of Property Portfolio used in the Loan to Value Ratio to better reflect the
business activities of the Issuer as it has evolved its business;
(b) subject to the passing of Extraordinary Resolution 1, amend Condition 9.5.10.9 of the
Terms and Conditions in the Programme Memorandum, by replacing the definition of
Total Debt with the new definition as set out in Extraordinary Resolution 2. The
rationale is to amend the definition of Total Debt used in the Loan to Value Ratio so
as to bring it more in line with the wider definitions used in general banking covenants;
and
(c) subject to the passing of Extraordinary Resolution 1, add a new Condition 9.8 to the
Terms and Conditions in the Programme Memorandum to include a redemption event
relating to a breach of the Group Interest Cover Ratio as set out in Extraordinary
Resolution 3. The rationale is to include an additional redemption event relating to a
breach of the Group Interest Cover Ratio so as to provide an income-based covenant
in line with other general banking covenants.
6. NOTES HELD UNDER STOCK CODES EPF017, EPF018, EPF021 AND EPF023
6.1 In respect of the Notes held under Stock Codes EPF017, EPF018, EPF021 and EPF023, the
Issuer wishes to:
(a) amend the relevant Finance Documents to allow Group 1 Notes to be issued in an
amount of more than R500,000,000. The rationale is to enable secured Notes to be
issued for more than R500,000,000; and
(b) amend the percentage applicable to the Loan to Valuation Ratio (Group 1) of the
Group 1 Property Portfolio, from 40% to 60%, by amending such Covenant in the
Terms and Conditions of the Group 1 Notes accordingly. The rationale is to increase
the amount of funding that can be raised through the issue of secured Notes relative
to the property portfolio securing those Notes, so as to bring it in line with general
banking secured covenant ratios.
7. REQUEST
7.1 In the case of paragraph 5 above, the Issuer requests the Noteholders to approve, by
written Extraordinary Resolution of the Noteholders of all outstanding Notes, the
Extraordinary Resolution set out below, for the reasons set out in paragraph 5 above.
7.2 In the case of paragraph 6 above, the Issuer requests the Group 1 Noteholders to approve,
by written Extraordinary Resolution of the Group 1 Noteholders of that Class of Notes, the
Extraordinary Resolutions set out below, for the reasons set out in paragraph 5 above.
8. DEFINITION OF EXTRAORDINARY RESOLUTION
8.1 In the case of paragraph 5 above, in terms of Condition 20.13, a written Extraordinary
Resolution of the Noteholders of all the outstanding Notes, means a resolution in writing
submitted to the Noteholders of the Notes, entitled to exercise voting rights in relation to
the resolution, and signed by Noteholders holding at least 66.67% of the outstanding
Nominal Amount of the Notes, within 20 Business Days after the written resolution was
submitted to such Noteholders.
8.2 In the case of paragraph 6 above, in terms of Condition 24.12 of the Notes held under Stock
Code EPF017 and Condition 25.12 of the Notes held under Stock Codes EPF018, EPF021
and EPF023, a written Extraordinary Resolution of the Noteholders of the Class of Notes,
means a resolution in writing submitted to the Group 1 Noteholders of that Class of Notes,
entitled to exercise voting rights in relation to the resolution, and signed by the Group 1
Noteholders holding at least 66.67% of the outstanding Principal Amount of the Class of
Notes, within 20 Business Days after the written resolution was submitted to such
Noteholders.
8.3 In accordance with Condition 21, none of the Issuer or any Subsidiary will have any voting
rights in respect of Notes which are beneficially held by or on behalf of the Issuer or any
Subsidiary.
AND WHEREAS
9. If approved, the amendments to the Finance Documents will be effected by executing an
amendment agreement to that Finance Document, the amendments to the Applicable Pricing
Supplements of the relevant Notes will be effected by way of a supplement to that Applicable
Pricing Supplement and the amendment to Condition 9.5.10.9 of the Programme Memorandum
will be effected by way of a supplement to the Programme Memorandum. The draft amendment
agreements and supplements will be made available on the website of the Issuer at
https://emira.co.za/portfolio-item/dmtn/ on the date of publication of this notice on SENS.
10. SUBMISSION OF SIGNED RESOLUTION BY NOTEHOLDERS
10.1 Each Noteholder is required to sign the written resolution and deliver a signed copy
thereof, by no later than 17h00 on 10 December 2021, by e-mail to:
(a) the relevant Central Securities Depository Participant of that Noteholder (that
provided the Noteholder with this notice); and
(b) the Issuer, c/o Rand Merchant Bank, a division of FirstRand Bank Limited, for
the attention of Delia Patterson at the following e-mail address:
delia.patterson@rmb.co.za.
10.2 On receipt of the signed written resolution from each Noteholder, the relevant Central
Securities Depository Participant is required to notify STRATE of the Noteholder’s vote for,
against or abstaining from voting in respect of the written resolution together with the
outstanding Nominal Amount of the Notes held and voted on by that Noteholder in the
signed written resolution, by e-mail to Strate-CDAdmin@strate.co.za by no later than 10
December 2021.
IT IS RESOLVED BY WRITTEN RESOLUTION THAT:
1. EXTRAORDINARY RESOLUTION NUMBER 1 OF THE NOTEHOLDERS OF ALL OUTSTANDING
NOTES - AMENDMENT TO CONDITION 9.5.10.9 (PROPERTY PORTFOLIO VALUE)
Pursuant to Condition 19.2 of the Terms and Conditions in the Programme Memorandum, the
Noteholders approve the amendment of Condition 9.5.10.9 of the Terms and Conditions in
the Programme Memorandum, by the deletion of Condition 9.5.10.9 and the replacement
thereof with the following, on the basis that the strike-through text is deleted:
9.5.10.9 Property Portfolio Value means the aggregate of (a) the Open Market Value of
Investment Property; (b) the value of the equity accounted property investments of
the Emira Property Fund Group in associates and joint ventures; (c) the market value
of listed securities owned by the Emira Property Fund Group in companies, the
nature of business of which is property investment; and (d) the market value of loans
receivable, in each case, determined with reference to the interim and audited
financial statements, and where the aggregate of (i) the value of the equity
accounted property investments by the Emira Property Fund Group in associates and
joint ventures and (ii) the market value of loans receivable is limited to 20% (twenty
percent) of the total assets of the Emira Property Fund Group;
2. EXTRAORDINARY RESOLUTION NUMBER 2 OF THE NOTEHOLDERS OF ALL OUTSTANDING
NOTES - SUBJECT TO THE PASSING OF EXTRAORDINARY RESOLUTION 1, AMENDMENT TO
CONDITION 9.5.10.10 (TOTAL DEBT)
Pursuant to Condition 19.2 of the Terms and Conditions in the Programme Memorandum, and
subject to the passing of Extraordinary Resolution 1, the Noteholders approve the amendment
of Condition 9.5.10.10 of the Terms and Conditions in the Programme Memorandum, by the
deletion of Condition 9.5.10.10 and the replacement thereof with the following:
9.5.10.10 Total Debt means all interest-bearing borrowings (in whichever form and including,
without limitation, note issuances or any other instrument evidencing Financial
Indebtedness) of the Borrower and derivative liabilities net of derivative assets
excluding trade creditors and other payables and tax payable, less cash and cash
equivalents, (each calculated on the basis of the Emira Property Fund Group
financial statements),
where
Financial Indebtedness means any indebtedness, including for or in respect of:
a) moneys borrowed or credit granted;
b) any amount raised by acceptance under any acceptance
credit facility or dematerialised equivalent;
c) any amount raised pursuant to any note purchase facility
or the issue of bonds, notes, debentures, loan stock or
any similar instrument;
d) the amount of any liability in respect of any lease or hire
purchase contract which would, in accordance with IFRS,
be treated as a finance or capital lease;
e) receivables sold or discounted (other than any
receivables to the extent they are sold on a non recourse
basis);
f) any amount raised under any other transaction (including
any forward sale or purchase agreement) of a type not
referred to in any other paragraph of this definition
having the commercial effect of a borrowing;
g) any derivative transaction entered into in connection
with protection against or benefit from fluctuation in any
rate or price (and, when calculating the value of any
derivative transaction, only the marked to market value
(or, if any actual amount is due as a result of the
termination or close out of that derivative transaction,
that amount) shall be taken into account);
h) any amount raised by the issue of shares which are
redeemable;
i) any counter indemnity obligation in respect of a
guarantee, indemnity, bond, standby or documentary
letter of credit or any other instrument issued by a bank
or financial institution; and
j) the amount of any liability in respect of any guarantee or
indemnity for any of the items referred to in a) to i) above.
3. EXTRAORDINARY RESOLUTION NUMBER 3 OF THE NOTEHOLDERS OF ALL OUTSTANDING
NOTES –SUBJECT TO THE PASSING OF EXTRAORDINARY RESOLUTION 1, NEW CONDITION 9.8
(REDEMPTION EVENT RELATING TO A BREACH OF THE GROUP INTEREST COVER RATIO)
Pursuant to Condition 19.2 of the Terms and Conditions in the Programme Memorandum, and
subject to the passing of Extraordinary Resolution 1, the Noteholders approve the inclusion of
the new Condition 9.8 in the Terms and Conditions in the Programme Memorandum as
follows, and the consequential re-numbering of the remaining provisions of Condition 9:
9.8 Redemption in the event of a breach of the Group Interest Cover Ratio
9.8.1) The Issuer shall for so long as any Note remains Outstanding, at all times ensure that
the Group Interest Cover Ratio shall be at least 2.00 times, or such other percentage as
indicated in the Applicable Pricing Supplement (the Group Interest Cover Ratio).
9.8.2) The Issuer shall within 90 (ninety days) after each Measurement Date, test the Group
Interest Cover Ratio as at each Measurement Date by reference to the audited
consolidated financial statements of the Issuer on that date, or, if not available, then the
unaudited consolidated financial statements of the Issuer on that date.
9.8.3) In the event of any dispute in respect of any calculation relating to the Group Interest
Cover Ratio, such dispute shall be determined by the Issuer’s independent auditors, acting
as experts and not as arbitrators (taking into account these Terms and Conditions), whose
determination will, in the absence of manifest error, be final and binding on the Issuer and
the Noteholders. The cost of such independent auditors in resolving such dispute shall be
borne by the Issuer.
9.8.4) A compliance certificate in respect of the Group Interest Cover Ratio, signed by 2
(two) directors of the Issuer, will be available for inspection by the Noteholders, during
normal office hours, at the registered office of the Issuer as set out at the end of the
Programme Memorandum, within 90 (ninety days) of each Measurement Date.
9.8.5) A Breach Event shall occur if at any time while any Note remains Outstanding the
Group Interest Cover Ratio is less than the required threshold contemplated in Condition
9.8.1 above.
9.8.6) Promptly upon the Issuer becoming aware that a Breach Event has occurred, the
Issuer shall give a notice to the Noteholders (Breach Notice) in accordance with Condition
18 (Notices) of such breach and outline the procedure for exercising the option contained
in Condition 9.8.7 below.
9.8.7) If a Breach Event occurs at any time while any Note remains Outstanding and
following receipt of a Breach Notice, then, provided the Noteholders have:
(i) in terms of Condition 18 (Notices) issued a notice to convene a meeting of
Noteholders within 15 (fifteen) days of the Breach Event; and
(ii) resolved in terms of Condition 20 (Meetings of Noteholders) by way of
Extraordinary Resolution to redeem the Notes of that Class of Noteholders,
the Issuer shall redeem all Notes held by that Class of Noteholders at its Early Redemption
Amount calculated in accordance with Condition 9.9 (Early Redemption Amounts),
together with accrued interest (if any) within 15 (fifteen) days of having received a written
notice from that Class of Noteholders to redeem such Notes.
9.8.8) The option in Condition 9.8.7 above shall be exercisable by a Class of Noteholders
by the delivery of a written notice (a Breach of Group Interest Cover Ratio Redemption
Notice) to the Issuer at its registered office within 30 (thirty) days after the occurrence of
the Breach Event, unless prior to the delivery by that Noteholder of its Breach of Group
Interest Cover Ratio Redemption Notice the Issuer gives notice to redeem the Notes.
9.8.9) For the purposes of this Condition 9.8 (Redemption in the event of a breach of the
Group Interest Cover Ratio):
Group Interest Cover Ratio means, in respect of any period, EBITDA divided by Net Interest
Paid for that period.
EBIDTA means net income before Net Interest Paid, taxation, depreciation and amortisation,
excluding income from revaluation of properties, straight-line rental adjustments and
abnormal items including those within the income from equity-accounted investments.
Net Interest Paid means all the interest paid, including all and any interest obligations or
other obligations (excluding any marked-to-market valuation swaps) which are in
substance of a substantially similar nature to interest which are payable in terms of any
off- balance sheet financing structure, less interest received by it.
Measurement Date means the Issuer’s financial half year date or financial year end, as the
case may be.
Measurement Period means each period of 6 (six) months ending on a Measurement
Date.
4. EXTRAORDINARY RESOLUTION NUMBER 4 OF THE GROUP 1 NOTEHOLDERS OF THE
OUTSTANDING NOTES HELD UNDER STOCK CODES EPF017, EPF018, EPF021 AND EPF023 –
AMENDMENT OF THE FINANCE DOCUMENTS TO ALLOW GROUP 1 NOTES TO BE ISSUED IN AN
AMOUNT OF MORE THAN R500,000,000
Pursuant to Clause 6.4.13 of the Trust Deed and Condition 24.13 of the Group 1 Notes held
under Stock Code EPF017 and Condition 25.13 of the Group 1 Notes held under Stock Codes
EPF018, EPF021 and EPF023 and the terms of the relevant Finance Documents, the Group 1
Noteholders approve the amendment of (i) the Subsidiary Guarantee granted by FPI to the
Group 1 Noteholders, (ii) the Mortgage Bond SPV Guarantee, and (iii) the Trust Deed, by the
deletion of the definition of Group 1 Notes in each such Finance Document and the replacement
thereof with the following definition of Group 1 Notes:
"Group 1 Notes means each Tranche of Notes issued under the Programme sharing in
the same security and designated as a Group 1 Note in its Applicable Pricing Supplement"
5. EXTRAORDINARY RESOLUTION NUMBER 5 OF THE GROUP 1 NOTEHOLDERS OF THE
OUTSTANDING NOTES HELD UNDER STOCK CODES EPF017, EPF018, EPF021 AND EPF023 –
AMENDMENT OF THE PERCENTAGE APPLICABLE TO THE LOAN TO VALUATION RATIO (GROUP
1) OF THE GROUP 1 PROPERTY PORTFOLIO
Pursuant to Condition 19.2 of the Terms and Conditions in the Programme Memorandum, the
Group 1 Noteholders approve the amendment to Condition 25.1 of the Group 1 Notes held under
Stock Code EPF017 and Condition 26.1 of the Group 1 Notes held under Stock Codes EPF018,
EPF021 and EPF023, by the deletion of Condition 25.1 of the Group 1 Notes held under Stock
Code EPF017 and Condition 26.1 of the Group 1 Notes held under Stock Codes EPF018, EPF021
and EPF023 and the replacement thereof with the following Condition, such that the reference
in such Condition to 40% is changed to 60%:
"The Issuer must ensure that the Loan to Valuation Ratio (Group 1) of the Group 1
Property Portfolio does not exceed 60% at any time, based on the most recent Open
Market Valuation."
By order of the board of the Issuer
12 November 2021
Debt Sponsor
RAND MERCHANT BANK (A division of FirstRand Bank Limited)
Date: 12-11-2021 12:30:00
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