30 Aug 2022 16:02
THIS NOTICE IS IMPORTANT AND REQUIRES THE IMMEDIATE ATTENTION OF NOTEHOLDERS. IF NOTEHOLDERS ARE IN ANY DOUBT AS TO THE ACTION THEY SHOULD TAKE, THEY SHOULD SEEK INDEPENDENT ADVICE, INCLUDING AS TO ANY LEGAL, FINANCIAL OR TAX CONSEQUENCES, IMMEDIATELY FROM THEIR OWN BROKER, BANK MANAGER, SOLICITOR, ACCOUNTANT OR OTHER INDEPENDENT FINANCIAL, TAX OR LEGAL ADVISER. THIS NOTICE DOES NOT CONSTITUTE AN OFFER TO SELL, OR A SOLICITATION OF AN OFFER TO BUY, ANY SECURITY AND IS BEING SENT TO NOTEHOLDERS SOLELY IN THEIR CAPACITY AS SUCH IN CONNECTION WITH THE MEETING (AS DEFINED BELOW). THIS DOES NOT AFFECT THE RIGHT OF NOTEHOLDERS TO APPOINT A PROXY TO ATTEND AND VOTE AT THE MEETING IN ACCORDANCE WITH THE PROVISIONS OF THE TRUST DEED (AS DEFINED BELOW).
26 August 2022
GLOBAL PORTS (FINANCE) PLC(the "Issuer")
NOTICE OF MEETING
of the holders of its outstanding
U.S.$350,000,000 6.50 per cent. Guaranteed Notes due 2023 (the "Notes") issued by the Issuer and unconditionally and irrevocably guaranteed by Global Ports Investments PLC, First Container Terminal Incorporated, Joint-stock company "Petrolesport" and Vostochnaya Stevedoring Limited Liability Company (the "Guarantors")
(Regulation S ISIN: XS1405775450, Common Code: 140577545
Rule 144A ISIN: US37955KAC62, Common Code: 098266674)
Reference is made to the Consent Solicitation Memorandum dated 26 August 2022 (the "Memorandum") which relates, inter alia, to the Notes, which can be obtained by registering on the Consent Solicitation Website at https://www.i2capmark.com/event-details/75/Holder/global-ports-%28finance%29-plc.
NOTICE IS HEREBY GIVEN that a meeting (the "Meeting") of the holders of Notes (the "Noteholders"), which is hereby being convened by the Issuer, will be held at 4:00 p.m. (London time) on 19 September 2022 via teleconference (using a video enabled platform) with dial-in details to be provided by or on behalf of i2 Capital Markets Ltd (the "Information and Tabulation Agent") following its satisfaction of the identity of the Noteholders and their status as Noteholders as of 12 September 2022 for the purpose of considering and, if thought fit, passing the Extraordinary Resolutions to approve the Proposals as set out in the Memorandum.
Capitalised terms used but not defined in this Notice shall have the meanings given to them in the Memorandum and Trust Deed (the "Trust Deed") dated 22 September 2016 between the Issuer and BNY Mellon Corporate Trustee Services Limited (the "Trustee") as trustee for the Noteholders.
General
THE TRUSTEE HAS NOT BEEN INVOLVED IN THE FORMULATION OF THE EXTRAORDINARY RESOLUTIONS AND THE TRUSTEE EXPRESSES NO OPINION ON THE MERITS OF THE EXTRAORDINARY RESOLUTIONS OR ON WHETHER NOTEHOLDERS WOULD BE ACTING IN THEIR BEST INTERESTS IN APPROVING THE EXTRAORDINARY RESOLUTIONS, AND NOTHING IN THIS NOTICE SHOULD BE CONSTRUED AS A RECOMMENDATION TO NOTEHOLDERS FROM THE TRUSTEE TO VOTE IN FAVOUR OF, OR AGAINST, THE EXTRAORDINARY RESOLUTIONS. NOTEHOLDERS SHOULD TAKE INDEPENDENT FINANCIAL, TAX AND LEGAL ADVICE ON THE MERITS AND ON THE CONSEQUENCES OF VOTING IN FAVOUR OF, OR AGAINST, THE EXTRAORDINARY RESOLUTIONS, INCLUDING AS TO ANY LEGAL, FINANCIAL OR TAX CONSEQUENCES, IMMEDIATELY FROM THEIR OWN BROKER, BANK MANAGER, SOLICITOR, ACCOUNTANT, OR OTHER INDEPENDENT FINANCIAL, TAX OR LEGAL ADVISER. THE TRUSTEE HAS NOT REVIEWED, NOR WILL IT BE REVIEWING, ANY DOCUMENTS RELATING TO THE PROPOSALS.
Noteholders may obtain a copy of the Memorandum from the Information and Tabulation Agent, the contact details for whom are set out below. A Noteholder will be required to produce evidence satisfactory to the Information and Tabulation Agent as to its status as a Noteholder or a person acting on behalf of or in the interests of a Noteholder and that it is a person to whom it is lawful to send the Memorandum and to make an invitation pursuant to the Proposals under applicable laws before being sent a copy of the Memorandum.
Copies of this Notice, the Memorandum and the Trust Deed will also be available at the Consent Solicitation Website.
The attention of Noteholders is particularly drawn to the procedures for voting, quorum and other requirements for the passing of the Extraordinary Resolutions at the Meeting or any meeting held following any adjournment of the Meeting, which are set out at "Voting and Quorum" below. Having regard to such requirements, Noteholders are strongly urged either to attend the Meeting or to take steps to be represented at the Meeting as soon as possible.
Extraordinary Resolutions
Extraordinary Resolution No. 1 (the Resignation and Appointment Extraordinary Resolution)
The Issuer hereby requests that the holders of the Notes presently outstanding, pursuant to the provisions of Schedule 3 (Provisions for Meetings of Noteholders) of the Trust Deed:
1. approve and agree to the Resignation and Appointment (including, for the avoidance of doubt, the appointment of i2 Capital Trust Corporation Ltd as New Trustee);
2. agree, authorise and direct the Original Trustee, the New Trustee, the Principal Paying Agent, the Issuer, the Transfer Agent, the Registrar and the Guarantors as necessary, to enter into the relevant Amendment Documents as may be necessary to document the Resignation and Appointment in such forms as may be agreed by them;
3. authorise, direct, ratify, sanction, request, instruct and empower the Original Trustee and the New Trustee to concur in and, without the need for any further consent or approval, to take steps as may be necessary or desirable in the Original Trustee's or the New Trustee's sole discretion to carry out and give effect to the Resignation and Appointment;
4. discharge, indemnify and exonerate the Original Trustee, the Principal Paying Agent, the Transfer Agent, the Registrar and the New Trustee (as the case may be) from all liability for which it may have become or may become responsible under the transaction documents relating to the Notes, or the Notes in respect of any act or omission in connection with this Extraordinary Resolution or its implementation;
5. acknowledge and agree that nothing contained herein shall impair the rights of the Original Trustee or the New Trustee to seek reimbursement of or indemnification against all losses, liabilities, damages, costs, charges and expenses incurred by the Original Trustee or the New Trustee which are available to the Original Trustee or will, following its appointment, be available to the New Trustee under the terms of the Trust Deed;
6. assent, approve and acknowledge that the Original Trustee, the Principal Paying Agent, the Registrar, the Transfer Agent and the New Trustee are hereby authorised and instructed not to obtain any legal opinions in connection with this Extraordinary Resolution, and that neither of them will be liable to any Noteholder for the failure to do so or for any consequences from following this instruction;
7. waive any actual or potential breaches of the Trust Deed and Terms and Conditions of the Notes and any deficiencies (including those related to the approval of the regulations for holding of the Meeting in virtual format or the nomination of the chairman of the Meeting) that might formally occur as a result of this Extraordinary Resolution being adopted on the basis of the procedures set out in the Consent Solicitation Memorandum dated 26 August 2022 (the "Memorandum") and ratify any and all such breaches and/or deficiencies and instruct the New Trustee to waive the same and treat this Extraordinary Resolution as a valid one despite any such breaches or deficiencies having occurred;
8. irrevocably waive any claim that the Noteholders may have against the Original Trustee, the Principal Paying Agent, the Transfer Agent, the Registrar and the New Trustee arising as a result of any loss or damage which it may suffer or incur as a result of any of them acting upon this Extraordinary Resolution (including but not limited to circumstances where it is subsequently found that there is a defect in the passing of this resolution or that this resolution is not valid or binding on the Noteholders) and further confirm that the Noteholders will not seek to hold any of them liable for any such loss or damage;
9. agree that terms used, but not defined in this Extraordinary Resolution, shall have the meanings ascribed to them in the Memorandum; and
10. agree that this Extraordinary Resolution of the Noteholders shall be binding on all Noteholders.
The Issuer hereby requires the Noteholders to acknowledge, confirm and agree that:
1. each of the Noteholders shall promptly, and in any event within 3 Russian business days from the relevant request from the Issuer and/or any Guarantor, furnish to the Issuer and/or such Guarantor (as applicable), all documents relating to the acquisition and ownership of the Notes which the respective Noteholder holds and such other documents and information, including in relation to the withholding tax and KYC, as may be reasonably requested by the Issuer and/or any Guarantor;
2. the terms of this Extraordinary Resolution have not been formulated by the Original Trustee who expresses no view on them, and nothing in this Extraordinary Resolution or otherwise should be construed as a recommendation to the Noteholders from the Original Trustee to either approve or reject this Extraordinary Resolution;
3. the Original Trustee has not been involved in the formulation of this Extraordinary Resolution and that, in accordance with normal practice, the Original Trustee expresses no opinion on the merits (or otherwise) of this Extraordinary Resolution;
4. the Original Trustee is not responsible for the accuracy, completeness, validity or correctness of the statements made and documents referred to in this Extraordinary Resolution or any omissions from this Extraordinary Resolution;
5. the Noteholders have consulted their own independent legal and/or financial advisers and conducted such due diligence as they consider necessary or appropriate for the purposes of considering this Extraordinary Resolution;
6. the Noteholders have formed their own view in relation to the actions arising out of this Extraordinary Resolution without any reliance on the Original Trustee or its advisers;
7. the Original Trustee has not given (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success profitability, return, performance result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise), of this Extraordinary Resolution; and
8. the Noteholders are sophisticated investors familiar with transactions similar to their investment in the Notes and persons submitting Voting Instructions are acting for their own account or on account of Noteholders eligible to submit such Voting Instructions, and have made their own independent decisions in respect of the passing of this Extraordinary Resolution and have delivered this resolution with full understanding of all the terms, conditions and risks associated with or that exist or may exist now or in the future in connection with this Extraordinary Resolution and they confirm that they are capable of assuming and are willing to assume (financially or otherwise) those risks.
This Extraordinary Resolution and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
Extraordinary Resolution No. 2 (the Amendments Extraordinary Resolution)
The Issuer hereby requests that the holders of the Notes presently outstanding, pursuant to the provisions of Schedule 3 (Provisions for Meetings of Noteholders) of the Trust Deed:
1. approve and agree to the Amendments and consent to the Amendments, including, inter alia, the New Payment Mechanics and Simplified Cancellation, and agree that the Amendments shall become binding on the Noteholders, the Guarantors, the Issuer, the Principal Paying Agent, the Registrar, the Transfer Agent and the New Trustee regardless of whether or not the relevant Amendment Documents relating to the Notes necessary to document the Amendments are executed, and waive any actual or potential breaches that might formally occur as a result of the Guarantors or the Issuer making any payments or arranging for any payments to be made in accordance with the New Payment Mechanics or treating any Notes as Designated Notes in accordance with Simplified Cancellation to the extent such New Payment Mechanics or Simplified Cancellation is not formalised by way of executing such Amendment Documents;
2. agree, authorise and direct the New Trustee, the Principal Paying Agent, the Issuer, the Guarantors, the Transfer Agent, and the Registrar to enter into the relevant Amendment Documents as may be necessary to document the Amendments in such forms as may be agreed by them;
3. authorise, direct, ratify, sanction, request, instruct and empower the New Trustee to concur in and, without the need for any further consent or approval, to take steps as may be necessary or desirable in the New Trustee's sole discretion to carry out and give effect to the Proposals in this Extraordinary Resolution and to refrain from taking any steps which may conflict with, or be prejudicial to, the Proposals in this Extraordinary Resolution;
4. discharge and exonerate the Principal Paying Agent, the Registrar, the Transfer Agent and the New Trustee (as the case may be) from all liability for which it may have become or may become responsible under the transaction documents relating to the Notes, or the Notes in respect of any act or omission in connection with this Extraordinary Resolution or its implementation;
5. acknowledge and agree that nothing contained herein shall impair the rights of the New Trustee to seek reimbursement of or indemnification against all losses, liabilities, damages, costs, charges and expenses incurred by the New Trustee which are available to the New Trustee under the terms of the Trust Deed;
6. assent, approve and acknowledge that the Principal Paying Agent, the Registrar, the Transfer Agent and the New Trustee are hereby authorised and instructed not to obtain any legal opinions in connection with this Extraordinary Resolution, and that neither of them will be liable to any Noteholder for the failure to do so or for any consequences from following this instruction;
7. waive any actual or potential breaches of the Trust Deed and Terms and Conditions of the Notes and any deficiencies (including those related to the approval of the regulations for holding of the Meeting in virtual format or the nomination of the chairman of the Meeting) that might formally occur as a result of this Extraordinary Resolution being adopted on the basis of the procedures set out in the Consent Solicitation Memorandum dated 26 August 2022 (the "Memorandum") and ratify any and all such breaches and/or deficiencies and instruct the New Trustee to waive the same and treat this Extraordinary Resolution as a valid one despite any such breaches or deficiencies having occurred;
8. irrevocably waive any claim that the Noteholders may have against the Original Trustee, the Principal Paying Agent, the Registrar, the Transfer Agent and the New Trustee arising as a result of any loss or damage which it may suffer or incur as a result of any of them acting upon this Extraordinary Resolution (including but not limited to circumstances where it is subsequently found that there is a defect in the passing of this resolution or that this resolution is not valid or binding on the Noteholders) and further confirm that the Noteholders will not seek to hold any of them liable for any such loss or damage;
9. agree that terms used, but not defined in this Extraordinary Resolution, shall have the meanings ascribed to them in the Memorandum; and
10. agree that this Extraordinary Resolution of the Noteholders shall be binding on all Noteholders.
The Issuer hereby requires the Noteholders to acknowledge, confirm and agree that:
1. each of the Noteholders shall promptly, and in any event within 3 Russian business days from the relevant request from the Issuer and/or any Guarantor, furnish to the Issuer and/or such Guarantor (as applicable), all documents relating to the acquisition and ownership of the Notes which the respective Noteholder holds and such other documents and information, including in relation to the withholding tax and KYC, as may be reasonably requested by the Issuer and/or any Guarantor;
2. the terms of this Extraordinary Resolution have not been formulated by the Original Trustee who expresses no view on them, and nothing in this Extraordinary Resolution or otherwise should be construed as a recommendation to the Noteholders from the Original Trustee to either approve or reject this Extraordinary Resolution;
3. the Original Trustee has not been involved in the formulation of this Extraordinary Resolution and that, in accordance with normal practice, the Original Trustee expresses no opinion on the merits (or otherwise) of this Extraordinary Resolution;
4. the Original Trustee is not responsible for the accuracy, completeness, validity or correctness of the statements made and documents referred to in this Extraordinary Resolution or any omissions from this Extraordinary Resolution;
5. the Noteholders have consulted their own independent legal and/or financial advisers and conducted such due diligence as they consider necessary or appropriate for the purposes of considering this Extraordinary Resolution;
6. the Noteholders have formed their own view in relation to the actions arising out of this Extraordinary Resolution without any reliance on the Original Trustee or its advisers;
7. the Original Trustee has not given (directly or indirectly through any other person) any assurance, guarantee, or representation whatsoever as to the expected or projected success profitability, return, performance result, effect, consequence or benefit (including legal, regulatory, tax, financial, accounting or otherwise), of this Extraordinary Resolution; and
8. the Noteholders are sophisticated investors familiar with transactions similar to their investment in the Notes and persons submitting Voting Instructions are acting for their own account or on account of Noteholders eligible to submit such Voting Instructions, and have made their own independent decisions in respect of the passing of this Extraordinary Resolution and have delivered this resolution with full understanding of all the terms, conditions and risks associated with or that exist or may exist now or in the future in connection with this Extraordinary Resolution and they confirm that they are capable of assuming and are willing to assume (financially or otherwise) those risks.
This Extraordinary Resolution and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
Voting and Quorum
The provisions governing the convening and holding of a meeting of the Noteholders are set out in the Trust Deed, a copy of which is available for inspection by the Noteholders as referred to above.
The quorum required at each original Meeting shall be at least two Voters (as defined in the Trust Deed) representing or holding, (i) with respect to the Resignation and Appointment Extraordinary Resolution, more than half of the aggregate principal amount of the outstanding Notes; and (ii) with respect to the Amendments Extraordinary Resolution, not less than three quarters of the aggregate principal amount of the outstanding Notes. If any Meeting is adjourned through want of a quorum, the quorum required at such adjourned Meeting shall be two or more Voters representing or holding, (i) with respect to the Resignation and Appointment Extraordinary Resolution, the fraction of the aggregate principal amount of the outstanding Notes represented or held by the Voters actually present at the Meeting, and, (ii) with respect to the Amendments Extraordinary Resolution, not less than one quarter of the aggregate principal amount of the outstanding Notes. In each case, a single Voter representing or holding the aggregate principal amount of the outstanding Notes required for the quorum for the relevant Extraordinary Resolution shall be deemed to be two Voters for the purpose of forming a quorum.
If within 15 minutes after the time fixed for any Meeting a quorum is not present, then (unless the Issuer, the Guarantors and the Trustee otherwise agree), it shall be adjourned for such period (which shall be not less than 14 days and not more than 42 days) and to such place as the Chairman determines; provided, however, that:
i. the Meeting shall be dissolved if the Issuer, the Guarantors and the Trustee together so decide; and
ii. no Meeting may be adjourned more than once for want of a quorum.
The chairman may with the consent of (and shall if directed by) the Meeting adjourn the Meeting from time to time and from place to place, but no business shall be transacted at any adjourned Meeting except business which might lawfully have been transacted at the Meeting from which the adjournment took place.
Paragraph 6 (Notice) of Schedule 3 (Provisions for Meetings of Noteholders) of the Trust Deed shall apply to any Meeting which is to be resumed after adjournment for want of a quorum save that:
i. 10 days' notice (exclusive of the day on which the notice is given and of the day on which the Meeting is to be resumed) shall be sufficient; and
ii. the notice shall specifically set out the quorum requirements which will apply when the Meeting resumes.
It shall not be necessary to give notice of the resumption of a Meeting which has been adjourned for any other reason.
To be passed, the Extraordinary Resolutions must be passed at the Meeting duly convened and held in accordance with the provisions of Schedule 3 (Provisions for Meetings of Noteholders) of the Trust Deed by a majority of not less than three quarters of the votes cast.
Noteholders should note these quorum requirements and should be aware that, if the Noteholders either present or appropriately represented at the Meeting are insufficient to form a quorum for the Extraordinary Resolution, such Extraordinary Resolution (and consequently, the relevant aspects of the Proposals) cannot be formally considered thereat.
Pursuant to the provisions of Schedule 3 (Provisions for Meetings of Noteholders) of the Trust Deed, each question submitted to the Meeting shall be decided in the first instance by a show of hands, unless a poll is validly demanded before or at the time that the result is declared.
A demand for a poll shall be valid if it is made by the chairman, the Issuer, the Guarantors, the Trustee or one or more Noteholders representing or holding not less than one fiftieth of the aggregate principal amount of the outstanding Notes. The poll may be taken immediately or after such adjournment as the chairman directs. But any poll demanded on the election of the chairman or on any question of adjournment shall be taken at the Meeting without adjournment. A valid demand for a poll shall not prevent the continuation of the Meeting for any other business as the chairman directs.
The Issuer hereby demands that each question submitted to the Meeting shall be decided by a poll.
At any Meeting every person who is so present shall have, on a poll, one vote in respect of U.S.$1,000 in aggregate face amount of outstanding Note(s) represented or held by him. A Voter shall not be obliged to exercise all the votes to which he is entitled or to cast all the votes which he exercises in the same way. In the case of a voting tie the chairman shall have a casting vote.
An Extraordinary Resolution shall be binding upon all Noteholders, whether or not present or represented at such Meeting, and each of the Noteholders shall be bound to give effect to it accordingly. Notice of the result of every vote on an Extraordinary Resolution shall be given to the Noteholders, the Registrar and the Paying Agents (with a copy to the Issuer, the Guarantors and the Trustee) within 14 days of the conclusion of the Meeting.
This notice and any non-contractual obligations arising out of, or in connection with, it shall be governed by, and shall be construed in accordance with, English law.
This Notice is given by the Issuer. Noteholders should contact the following for further information:
The Information and Tabulation Agent:
i2 Capital Markets Ltd.
Kemp House, 128 City Road
London, EC1V 2NX, United Kingdom
Email: globalports@i2capmark.com
Phone: +44 203 633 1212
Website: https://www.i2capmark.com/event-details/75/Holder/global-ports-%28finance%29-plc