THIS NOTICE IS IMPORTANT AND REQUIRES YOUR IMMEDIATE ATTENTION. IF YOU ARE IN ANY DOUBT ABOUT THE ACTION YOU SHOULD TAKE, YOU SHOULD CONSULT IMMEDIATELY YOUR STOCKBROKER, BANK MANAGER, SOLICITOR, ACCOUNTANT OR OTHER PROFESSIONAL ADVISER AUTHORISED UNDER THE FINANCIAL SERVICES AND MARKETS ACT 2000.
THIS NOTICE DOES NOT CONSTITUTE OR FORM PART OF, AND SHOULD NOT BE CONSTRUED AS, AN OFFER FOR SALE, EXCHANGE OR SUBSCRIPTION OF, OR A SOLICITATION OF ANY OFFER TO BUY, EXCHANGE OR SUBSCRIBE FOR, ANY SECURITIES OF THE ISSUER OR ANY OTHER ENTITY.
NOTICE OF MEETING
to each of the holders of the outstanding
U.S.$600,000,000 6.50 per cent. Guaranteed Notes due 2017 (the “Notes”)
(Regulation S Global Note ISIN: XS0850393264; Regulation S Global Note Common Code: 085039326; Rule 144A Global Note ISIN: US117381AA17; Rule 144A Global Note Common Code: 085043188; Rule 144A Global Note CUSIP: 117381AA1)
issued by Brunswick Rail Finance Limited (the “Issuer”) and unconditionally and irrevocably guaranteed by Brunswick Rail Limited (the “Parent”) and OOO Brunswick Rail
NOTICE IS HEREBY GIVEN that, pursuant to the provisions of Schedule 4 to the trust deed dated 1 November 2012 between the Issuer and Citibank, N.A., London Branch as trustee (the “Trustee”) for the holders of the Notes (the “Noteholders” ) (the “Trust Deed” ), such Trust Deed constituting the Notes, a meeting (the “Meeting”) of the Noteholders convened by the Issuer, a private limited liability company incorporated under the laws of Ireland, with registered number 518323, having its registered office at 2nd Floor, Palmerston House, Fenian Street, Dublin 2, Ireland will be held at 2 p.m. (London time) on 16 March 2016 at the offices of Akin Gump LLP, 41 Lothbury, London EC2R 7HF, United Kingdom for the purpose of considering and, if thought fit, passing the following resolution which will be proposed as an Extraordinary Resolution in accordance with the provisions of the Trust Deed. Unless the context otherwise requires, capitalised terms used in this notice shall bear the meanings given to them in the Trust Deed or the consent solicitation memorandum issued by the Issuer dated 19 February 2016 in relation to the Meeting (as applicable).
EXTRAORDINARY RESOLUTION
“THAT THIS MEETING (the “Meeting”) of the holders (the “Noteholders”) of the U.S.$600,000,000 6.50 per cent. Guaranteed Notes due 2017 (the “Notes”) issued by Brunswick Rail Finance Limited (the “Issuer”) pursuant to a trust deed dated 1 November 2012 between the Issuer and Citibank, N.A., London Branch as Trustee (the “Trustee”) (the “Trust Deed”), which Notes have been unconditionally and irrevocably guaranteed by Brunswick Rail Limited (the “Parent”) and OOO Brunswick Rail, by Extraordinary Resolution (as defined in the Trust Deed) HEREBY:
1.RESOLVES to assent to and approve the modification to the terms and conditions of the Notes set out in Schedule 3 (Terms and Conditions of the Notes) to the Trust Deed by:
(i) after the words “or, by reason of actual or anticipated financial difficulties, commences negotiations with its creditors generally with a view to a general rescheduling any of its Indebtedness” in Condition 9(e), inserting the following words: “(other than any such negotiations with all or any of the creditors of the Issuer or the Guarantors or their representatives at any time prior to the Condition 9(e) Termination Date including, without limitation, any commencement or alleged commencement of any such negotiations prior to the date, being [•] 2016, on which the Extraordinary Resolution approving the modification to Condition 9(e) by the insertion of this language in parentheses is passed)”; and
(ii) inserting the following definition into Condition 21 (Definitions) in correct alphabetical order: “Condition 9(e) Termination Date means the date specified in a written notice to the Issuer by the Trustee, acting upon the instructions in writing of Noteholders holding not less than U.S.$250,000,000 in principal amount of the Notes then outstanding (which instructions shall be conclusive and binding on all parties and all the Noteholders);”
2. RESOLVES to authorise, direct, request and empower the Trustee to concur in and execute a supplemental trust deed in order to effect the modifications to the terms and conditions of the Notes set out in paragraph 1 of this Extraordinary Resolution in the form of the draft produced to this Meeting for the purposes of identification, with such amendments, if any, as the Trustee may require or agree and to concur in, approve, and execute and do all such deeds, instruments, acts and things that may be necessary or desirable to give effect to the implementation of this Extraordinary Resolution; and
3. RESOLVES to discharge and exonerate the Trustee from all liability for which it may have become or may become liable under the Trust Deed or the Notes or the Deeds of Guarantee in respect of any act or omission including without limitation in connection with this Extraordinary Resolution or its implementation, such modifications or the implementation of those modifications.
Unless the context otherwise requires, capitalised terms used in this Extraordinary Resolution shall bear the meanings given to them in the Trust Deed.”
Documents Available for Inspection
Copies of the Trust Deed, the Deeds of Guarantee, the Agency Agreement and the draft Supplemental Trust Deed between the Issuer and the Trustee providing for the modifications referred to in paragraph 1 of the Extraordinary Resolution are available for inspection during normal business hours on any weekday (Saturdays, Sundays, bank and other public holidays excepted) at the specified office of the Information and Tabulation Agent, being at the date hereof Tankerton Works, 12 Argyle Walk, London WC1H 8HA, United Kingdom, and at the specified office of the Principal Paying Agent, and copies of such documents will be available at the Meeting.
General
The attention of Noteholders is particularly drawn to the quorum required for the Meeting and for an adjourned Meeting which is set out in “Voting and Quorum” below. Having regard to such requirements, Noteholders are strongly urged to attend the Meeting or take steps to be represented at the Meeting, as referred to below, as soon as possible.
The Trustee does not express any views or opinion as to the merits of the Extraordinary Resolution but the Trustee has authorised it to be stated that it has no objection to the Extraordinary Resolution being submitted to Noteholders for their consideration. The Trustee has not been involved in negotiating the Extraordinary Resolution and does not make any representation that all relevant information has been disclosed to the Noteholders in or pursuant to the Notice of Meeting. Noteholders who are unsure of the impact of the Extraordinary Resolution should seek their own independent financial, legal and tax advice, as appropriate.
The Issuer and the Parent will bear certain legal, accounting and other professional fees and expenses associated with the Extraordinary Resolution.
In accordance with normal practice, the Trustee has not been involved in the formulation of the Extraordinary Resolution and the Trustee expresses no views or opinion on the merits of the Extraordinary Resolution but has authorised it to be stated that it has no objection to the Extraordinary Resolution being submitted to Noteholders for their consideration. Noteholders should take their own independent financial, legal and tax advice on the merits and on the consequences of voting in favour of the Extraordinary Resolution, including any tax consequences.Accordingly, Noteholders who are unsure of the impact of the Extraordinary Resolution should seek their own independent financial, legal and tax advice.Voting and Quorum
The relevant provisions governing the convening and holding of the Meeting are set out in Schedule 4 to the Trust Deed, copies of which are available for inspection as referred to above.
The Notes are currently held in the form of a Regulation S global note (the “Regulation S Global Note”) and a Rule 144A global note (the “Rule 144A Global Note” and, together with the Regulation S Global Note, the “Global Notes”). The Regulation S Global Note is registered in the name of Citibank, N.A., London Branch (in such capacity, the “Regulation S Registered Holder”) as a common depositary or nominee for Euroclear Bank SA/NV (“Euroclear”) and Clearstream Banking, société anonyme (“Clearstream, Luxembourg”). The Rule 144A Global Note is registered in the name of Cede & Co. as nominee for the Depository Trust Company (“DTC” and, together with Euroclear and Clearstream, Luxembourg, the “Clearing Systems” and each a “Clearing System”). Each person (a “Beneficial Owner”) who is the owner of a particular principal amount of the Notes, as shown in the records of Euroclear, Clearstream, Luxembourg or their respective accountholders (“Accountholders”) or as shown in the records of DTC or DTC’s participants (“DTC Participants”), should note that such person will not be a Noteholder for the purposes of this Notice and will only be entitled to attend and vote at the Meeting or appoint a proxy to do so in accordance with the procedures set out below, except that DTC Participants who have been appointed proxies by DTC may attend and vote at the meeting of Noteholders. Accordingly, Beneficial Owners should convey their voting instructions, directly or through the Accountholder or DTC Participant through whom they hold their interest in the Notes, to Euroclear or Clearstream, Luxembourg or DTC, as the case may be, in accordance with their respective procedures or arrange by the same means to be appointed a proxy or sub-proxy.
Only the Regulation S Registered Holder (being the nominee for the common depositary for Euroclear and Clearstream, Luxembourg in the case of the Regulation S Global Note) and a DTC Participant (in the case of the Rule 144A Global Note) are entitled to complete a form of proxy or sub-proxy, as the case may be. A form of proxy or a form of sub-proxy is not required to be completed by Beneficial Owners or Accountholders through Euroclear and Clearstream, Luxembourg; those holders must vote or instruct electronically in accordance with the procedures of the Clearing Systems. The forms of proxy and forms of sub-proxy will be made available to the Regulation S Registered Holder, the Principal Paying Agent and the Registrar (for DTC Participants).
1. Voting ProceduresNotes held through Euroclear and Clearstream, Luxembourg
The Regulation S Registered Holder may by instrument in the English language in the form available from the specified office of the Registrar or the Principal Paying Agent (a “form of proxy” ) specified below and signed by the Regulation S Registered Holder or, in the case of a corporation, executed under its seal or signed on its behalf by its duly appointed attorney or a duly authorised officer of the corporation, and delivered to the specified office of the Registrar or the Principal Paying Agent at least 48 hours before the time fixed for the Meeting, appoint any person (a “proxy”) to act on his or its behalf in connection with the Meeting.
A proxy so appointed, so long as such appointment remains in force, shall be deemed, for all purposes in connection with the Meeting, to be the holder of the Notes to which such appointment relates and the Regulation S Registered Holder shall be deemed for such purposes not to be the holder.
The Beneficial Owner in respect of the Notes can request through its Accountholder for the Regulation S Registered Holder to appoint the Information and Tabulation Agent or any two of its respective employees as proxies to cast the votes relating to the Notes in which he has an interest at the Meeting.
Alternatively, Beneficial Owners and Accountholders in respect of the Notes who wish a different person to be appointed as their proxy to attend and vote at the Meeting should contact the relevant Clearing System to make arrangements for such person to be appointed as a proxy (by the Regulation S Registered Holder) in respect of the Notes in which they have an interest for the purposes of attending and voting at the Meeting.
In either case, Beneficial Owners must have made arrangements to vote with the relevant Clearing System by no later than 48 hours before the time fixed for the Meeting and within the relevant time limit specified by the relevant Clearing System and request or make arrangements for the relevant Clearing System to block the Notes in the relevant Accountholder’s account and to hold the same to the order or under the control of the Principal Paying Agent or the Registrar.
An Accountholder whose Notes have been blocked will thus be able to procure that an electronic voting instruction (a “Voting Instruction”) is given in accordance with the procedures of the relevant Clearing System to the Principal Paying Agent and the Information and Tabulation Agent. Voting Instructions must comply with and be transmitted in accordance with the usual procedure of the relevant Clearing System, so as to be received by a Clearing System sufficiently in advance of the Expiration Time, or by such earlier deadline as may be imposed by the relevant Clearing System. Beneficial Owners and Accountholders should take steps to inform themselves of and to comply with the particular practice and policy of the relevant Clearing System. Voting Instructions should clearly specify whether the Noteholder wishes to vote in favour of or against the Extraordinary Resolution.
Any Note(s) so held and blocked for either of these purposes will be released to the Accountholder by the relevant Clearing System on the earlier of (i) the conclusion of the Meeting (or, if later, any adjourned such Meeting) and (ii) upon such Note(s) ceasing in accordance with the procedures of the relevant Clearing System and with the agreement of the Principal Paying Agent or the Registrar to be held to its order or under its control; provided, however, in the case of (ii) above, that if the Beneficial Owner or Accountholder has caused a proxy to be appointed in respect of such Note(s), such Note(s) will not be released to the relevant Accountholder unless and until the Issuer and the Principal Paying Agent have each received notice of the necessary revocation of or amendment to such proxy.
Any Voting Instructions given or forms of proxy submitted may not be revoked during the period starting 48 hours before the time fixed for the Meeting and ending at the conclusion of such Meeting. Any holder of Notes as to which a Voting Instruction has been given may revoke such Voting Instruction as to such Notes or any portion of such Notes (in integral multiples of U.S.$1,000) by delivering a written notice of revocation or a changed Voting Instruction bearing a date later than the date of the prior Voting Instruction to the relevant Clearing System(s) no later than 48 hours before the time fixed for the Meeting, or by such earlier deadline as may be imposed by the relevant Clearing System. To be effective, a notice of revocation must be in a format customarily used by the Clearing Systems.
Beneficial Owners are advised to check with the bank, securities broker, Accountholder, Clearing System or other intermediary through which they hold their Notes whether such intermediary applies different deadlines for any of the events specified.
Notes held through DTC
The procedures under this section assume that, in accordance with its usual procedures, Cede & Co. appoints the DTC Participants as its proxies under an omnibus proxy (the “Omnibus Proxy”) in respect of the principal amount of the Notes shown on its records as being held by them (their “Recorded Principal Amount”) at 5 p.m. (EST) on 9 March 2016 (the “Record Date”).
DTC Participants
DTC Participants may, in respect of their Recorded Principal Amount, either (i) attend and vote at the Meeting if they are individuals or (ii) appoint any two employees of the Information and Tabulation Agent (nominated by the Information and Tabulation Agent) as their sub-proxies to attend and vote at the Meeting on their behalf or (iii) appoint any other person (including Beneficial Owners of the Notes) as a sub-proxy to attend and vote at the Meeting on their behalf.
Only those DTC Participants shown in DTC’s records on the Record Date as holding the Recorded Principal Amount will be entitled to vote on the Extraordinary Resolution or appoint sub-proxies to enable their votes and those of Beneficial Owners who hold their Notes through DTC Participants to be cast in respect of their Recorded Principal Amount.
Beneficial Owners
A Beneficial Owner in respect of the Notes who is not a DTC Participant and who does not wish to attend the Meeting may arrange for the votes relating to the Notes of which he is a Beneficial Owner to be cast at the Meeting by requesting the DTC Participant through whom he holds his Notes to appoint a sub-proxy to attend and vote at the Meeting in accordance with the Beneficial Owner’s instructions provided that the Notes in respect of which the sub-proxy is to be given are Notes in respect of which the DTC Participant was appointed as a proxy under the Omnibus Proxy.
Forms of Sub-Proxy
A Beneficial Owner of Notes held through a DTC Participant who intends to submit a vote in respect of the Extraordinary Resolution must instruct such DTC Participant to complete and sign a form of sub-proxy (a “Form of Sub-Proxy”) in relation to the Extraordinary Resolution with respect to such Notes and deliver it to the Information and Tabulation Agent.
If a voting instruction contained in a Form of Sub-Proxy (a “Form of Sub-Proxy Instruction”) relates to fewer than all Notes held through a DTC Participant, the DTC Participant must indicate the aggregate amount (in integral multiples of U.S.$1,000) of such Notes to which such Form of Sub-Proxy Instruction relates. Otherwise, such Form of Sub-Proxy Instruction will be deemed to relate to all such Notes.
Giving a Form of Sub-Proxy Instruction will not affect a Noteholder’s right to sell or transfer the Notes. All Forms of Sub-Proxy Instructions validly delivered to and received by the Information and Tabulation Agent (and not revoked) on or before the Expiration Time will be effective notwithstanding a transfer of such Notes subsequent to the Record Date, unless the Noteholder validly revokes such Form of Sub-Proxy Instruction on or before the Expiration Time by following the procedures set forth below.
A Beneficial Owner in respect of the Notes who is (i) not a DTC Participant and who wishes to attend and vote at the Meeting in person or (ii) the representative of a DTC Participant who is not an individual but which wishes its representative to attend and vote at the meeting in person must ensure that the DTC Participant through whom he holds his Notes appoints a sub-proxy in accordance with the Beneficial Owner’s instructions, provided that the Notes in respect of which the sub-proxy is to be given are Notes in respect of which the relevant DTC Participant was appointed as a proxy under the Omnibus Proxy.
Revocation of Forms of Sub-Proxy Instructions
Any Form of Sub-Proxy Instruction given may not be revoked during the period starting 48 hours before the time fixed for the Meeting and ending at the conclusion of such Meeting. Any holder of Notes as to which a Form of Sub-Proxy Instruction has been given may revoke such Form of Sub-Proxy Instruction as to such Notes or any portion of such Notes (in integral multiples of U.S.$1,000) by delivering a written notice of revocation or a duly executed Form of Sub-Proxy containing a changed Form of Sub-Proxy Instruction in respect of such Notes bearing a date later than the date of the prior Form of Sub-Proxy containing a Form of Sub-Proxy Instruction in respect of such Notes to the Information and Tabulation Agent no later than 48 hours before the time appointed for holding the Meeting. To be effective, a notice of revocation must be in writing and delivered by the relevant DTC Participants by registered mail, hand delivery, overnight courier or by e-mail or facsimile (with an original delivered subsequently) to the Information and Tabulation Agent at its address, e-mail address or facsimile number set forth below on or before the Expiration Time.
General
Beneficial Owners are advised to check with the bank, securities broker, DTC Participant, DTC or other intermediary through which they hold their Notes whether such intermediary applies different deadlines for any of the events specified.
2. Quorum Requirements: The Extraordinary Resolution may only be considered at the Meeting if the Meeting is quorate. The Meeting will be quorate if two or more persons being entitled to vote (whether as a Noteholder or as proxy, sub-proxy or representative) are present at the Meeting who hold or represent the requisite principal amount of outstanding Notes for the quorum requirement (as set out below across from “Original Meeting”). If the Meeting is not quorate, it will be adjourned to a later time and date. When the Meeting resumes following adjournment, the Trust Deed makes provision for a lower quorum requirement (as set out below across from “Adjourned Meeting”).
No business (except choosing a chairman) shall be transacted at the Meeting unless a quorum is present at the commencement of business. If a quorum is not present within 15 minutes from the time initially fixed for the Meeting, it shall, if convened on the requisition of Noteholders or if the Issuer and the Trustee agree, be dissolved. In any other case the Meeting shall be adjourned until such date not less than 14 days nor more than 42 days later, and time and place as the chairman may decide. If a quorum is not present within 15 minutes from the time fixed for the Adjourned Meeting, the Adjourned Meeting shall be dissolved.
The quorum requirement is as follows:
Meeting
Quorum Requirement
Original Meeting
Two or more persons holding or representing a clear majority in principal amount of the Notes for the time being outstanding.
Adjourned Meeting
Two or more persons holding or representing Noteholders whatever the principal amount of Notes held or represented.
3. Voting and Representation: Each question submitted to the Meeting shall be decided by a poll.
A poll shall be taken in such manner and (subject as provided below) either at once or after such adjournment as the chairman directs. The results of the poll shall be deemed to be the resolution of the Meeting as at the date it was taken. A demand for a poll shall not prevent the Meeting continuing for the transaction of business other than the question on which it has been demanded.
A poll demanded on the election of the chairman or on a question of adjournment shall be taken at once.
At the Meeting, every person who is so present shall have one vote in respect of U.S.$1,000 in principal amount of each Note so held or owned or in respect of which he is a proxy, sub-proxy or representative.
The holder of the Regulation S Global Note will be treated as being two persons for the purposes of any quorum requirements of, or the right to demand a poll at, the Meeting, and in the Meeting as having one vote in respect of each Note for which the Regulation S Global Note is exchangeable.
The holder of the Rule 144A Global Note will be treated as being two persons for the purposes of any quorum requirements of, or the right to demand a poll at, the Meeting and in the Meeting as having one vote in respect of each Note for which the Rule 144A Global Note is exchangeable.
Any vote given in accordance with the terms of a form of proxy shall be valid notwithstanding the previous revocation or amendment of the form of proxy or any of the Noteholders’ instructions pursuant to which it was executed, provided that no intimation in writing of such revocation or amendment shall have been received by the Principal Paying Agent at its registered office or by the chairman of the Meeting, in each case at least 48 hours before the commencement of the Meeting.
In case of equality of votes the chairman of the Meeting shall have a casting vote in addition to the vote or votes (if any) to which he may be entitled as a Noteholder, proxy or representative.
4. Voting Majority Requirements: For the Extraordinary Resolution to be duly passed, it must be passed at a meeting of the Noteholders duly convened and quorate (as set out in paragraph 2 above) and held in accordance with the provisions of Schedule 4 of the Trust Deed by the affirmative vote of holders of outstanding Notes present in person or represented by proxy, sub-proxy or representative owning in the aggregate not less than 75 per cent. in principal amount of the outstanding Notes owned by the Noteholders who are so present or represented at the meeting.
5. The Extraordinary Resolution Shall be Binding: If passed, the Extraordinary Resolution will be binding upon all Noteholders, whether or not they were present or represented at the Meeting and whether or not they voted at the Meeting.
6. Governing Law: This notice, and any non-contractual obligations arising out of or in connection with it, is governed by, and shall be construed in accordance with, English law.
7. Notice: This Notice is given by the Issuer.
Noteholders who wish to obtain further information should contact the Information and Tabulation Agent:
Lucid Issuer Services Limited
Tankerton Works
12 Argyle Walk
London WC1H 8HA
United Kingdom
Fax: + 44 20 7067 9098
Email: brunswickrail@lucid-is.com
Attention: Victor Parzyjagla / Paul Kamminga
The Principal Paying Agent with respect to the Notes is:
Citibank, N.A., London Branch
13th Floor, Citigroup Centre
Canada Square, Canary Wharf
London E14 5LB
United Kingdom
Fax: +44 20 7500 5877
Attention: Agency and Trust
The Registrar with respect to the Notes is:
Citibank, N.A., London Branch
13th Floor, Citigroup Centre
Canada Square, Canary Wharf
London E14 5LB
United Kingdom
Fax: +353 1 642 2201
Attention: A&T Registrar
This notice is given by:
Brunswick Rail Finance Limited
2nd Floor, Palmerston House
Fenian Street
Dublin 2
Ireland
19 February 2016
