TIDM95HX
RNS Number : 1306M
GFH Financial Group B.S.C
19 May 2022
NOTICE OF MEETING
THIS NOTICE IS IMPORTANT AND REQUIRES THE IMMEDIATE ATTENTION OF
CERTIFICATEHOLDERS. IF CERTIFICATEHOLDERS ARE IN ANY DOUBT AS TO
THE ACTION THEY SHOULD TAKE, THEY SHOULD SEEK THEIR OWN FINANCIAL
AND LEGAL AND SHARI'A ADVICE, INCLUDING IN RESPECT OF ANY TAX
CONSEQUENCES, IMMEDIATELY FROM THEIR BROKER, BANK MANAGER,
SOLICITOR, ACCOUNTANT OR OTHER INDEPENT FINANCIAL, TAX OR LEGAL
ADVISER.
GFH FINANCIAL GROUP B.S.C.
(the Obligor) NOTICE OF MEETING
of the holders of the outstanding U.S.$500,000,000 Trust
Certificates due 2025 (ISIN: XS2100582142) issued by GFH Sukuk
Company Limited (the Issuer) (the Certificates)
Outstanding
ISIN/Common Issuer face amount Consent Fee
Code
XS2100582142 GFH Sukuk U.S.$500,000,000 0.2 per cent. of
/ 210058214 Company the face amount of
Limited the Certificates
NOTICE IS HEREBY GIVEN that a meeting (the Meeting) of the
holders of the Certificates convened by the Obligor will be held
via teleconference. The Meeting will commence at 12.00 p.m. (London
time) on 13 June 2022 for the purpose of considering and, if
thought fit, passing the resolution set out below, which will be
proposed as an Extraordinary Resolution at the Meeting in
accordance with the Trust Deed (the Trust Deed) constituting the
Certificates dated 28 January 2020 as supplemented on 8 June 2020
made between the Obligor, the Issuer and Citibank, N.A., London
Branch (the Delegate).
The Meeting will be held over Zoom, failing which, a similar
electronic platform. Should technical difficulties arise during the
Meeting, Certificateholders who are entitled to attend the Meeting
will be provided with details of a fallback videoconference or
teleconference platform.
Capitalised terms used in this notice of meeting (the Notice)
and not otherwise defined herein shall have the meanings given to
them in the Consent Solicitation Memorandum dated 19 May 2022 (the
Consent Solicitation Memorandum), which is available for inspection
by Eligible Certificateholders (as defined below) on
https://deals.is.kroll.com/gfh/ (the Consent Website) up to and
including the date of the Meeting and at the Meeting (see "General"
below).
EXTRAORDINARY RESOLUTION
IN RESPECT OF THE U.S.$500,000,000 TRUST CERTIFICATES DUE
2025
"THAT this Meeting of the holders (together, the
Certificateholders) of the presently outstanding U.S.$500,000,000
Trust Certificates due 2025 (the Certificates) of GFH Sukuk Company
Limited (the Issuer), issued with the benefit of a trust deed dated
28 January 2020 as supplemented on 8 June 2020 made between GFH
Financial Group B.S.C. (GFH and the Obligor), the Issuer and
Citibank, N.A., London Branch (the Delegate) (the Trust Deed):
1. sanction, approve and assent to the following modification of
the Terms and Conditions of the Certificate (the Conditions):
Proposed Modifications and Rationale
I Summary of current provision of the Conditions
Condition 6(b)(iii)(b) (Obligor Covenants - Limitation
on Restricted Payments) (the Buy- Back Covenant)
currently provides that for as long as any Certificate
is outstanding, the Obligor shall not, and shall
ensure that none of its Subsidiaries will, directly
or indirectly,
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voluntarily purchase, redeem or otherwise acquire
or retire for value (i) more than 5% of the Capital
Stock of the Obligor; or (ii) other than in the ordinary
course of its investment business, the Capital Stock
of any of its Affiliates.
Summary of proposed modification of the Conditions
To delete the Buy-Back Covenant. A new maintenance
covenant shall be added as Condition 6(b)(xi) (Obligor
Covenants - Treasury Shares) such that the Obligor
shall covenant that for as long as any Certificate
is outstanding, it shall not at any time hold more
than 10% of the Capital Stock of the Obligor.
Rationale for modification
The rationale for this proposed deletion of the Buy-Back
Covenant is to align the Obligor Covenants with the
requirement under Bahraini listing rules that provides
that the Obligor may not, at any time, hold more
than 10% of its own shares.
This proposed deletion of the Buy-Back Covenant will
also give the Obligor more flexibility to undertake
share buy-back transactions related to, amongst other
things, as part of employee incentive and retention
schemes through which the Obligor acquires its shares
and transfers them to a trust on behalf of its employees,
to allow the Obligor to use its shares as full or
partial consideration for the acquisition of an asset
or other shares, and to provide market making and
liquidity provision services for its shares.
The new Condition 6(b)(xi) (Obligor Covenants - Treasury
Shares) is to be included to reflect Bahraini listing
rule requirements.
II Summary of current provision of the Conditions
Condition 6(b)(vii) (Obligor Covenants - Negative
Pledge) (the Negative Pledge Covenant) currently
provides that the Obligor covenants that for so long
as any Certificate is outstanding it shall not, and
shall procure that none of its Subsidiaries will,
create or permit to subsist any Security Interest
(other than a Permitted Security Interest) over any
of its or their assets to secure any Financial Indebtedness
unless at the same time or prior thereto, the Obligor's
obligations under the Transaction Documents are secured
equally and rateably therewith or have the benefit
of such other arrangement as may be approved by an
Extraordinary Resolution of Certificateholders, or
as Delegate in its discretion shall deem to be not
materially less beneficial to the interests of Certificateholders.
Summary of proposed modification of the Conditions
To amend the Negative Pledge Covenant so that the
restriction on securing any Financial Indebtedness
is amended to instead restrict securing any Relevant
Indebtedness and Relevant Sukuk Obligations, defined
as: "any present or future Indebtedness, which is
in the form of, or which is represented or evidenced
by, bonds, notes, debentures, debenture stock, loan
stock or other securities, which for the time being
are, or are intended to be, or are capable of being,
quoted, listed or dealt in or traded on any stock
exchange or over-the- counter or other securities
market" and "any Sukuk Obligation in respect of which
the relevant trust certificates or other securities
are, or are intended to be, or are capable of being,
quoted, listed or dealt in or traded on any stock
exchange or over-the-counter or other securities
market", respectively.
Rationale for modification
The rationale for this proposed modification is to
align the Negative Pledge Covenant with the form
of negative pledge covenant more commonly used in
capital markets transactions and to give the Obligor
greater flexibility to secure indebtedness for the
purposes of undertaking its business activities noting
that, pursuant to the Conditions, the Obligor is
already subject to a restriction on the incurrence
of financial indebtedness.
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III Summary of other consequential modifications of
the Conditions
To make other consequential modifications of the
Conditions, including:
A. amending the definition of "Permitted Security
Interest" to limit this to any Security Interest:
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(a) existing on 28 January 2020;
(b) existing on any property or assets prior to the
acquisition thereof by the Obligor or a Subsidiary
(as the case may be), provided that such Security
Interest was not created in contemplation of such
acquisition;
(c) created or outstanding with the approval of Certificateholders
by any Extraordinary Resolution;
(d) securing the Relevant Indebtedness or Relevant
Sukuk Obligation of any person and/or its Subsidiaries
existing at the time that such person is merged into
or consolidated with the Obligor or a Subsidiary
provided that such Security Interest was not created
in contemplation of such merger or consolidation
and does not extend to any other assets or property
of the Obligor or any Subsidiary; and
(e) comprising any extension, renewal of or substitution
for any Security Interest permitted by any of the
preceding paragraphs (a) to (d) above; provided that
with respect to any such Security Interest the principal
amount secured has not increased and the Security
Interest shall have not been extended to any additional
property (other than proceeds of the property in
question); and
B. adding definitions of Relevant Indebtedness, Relevant
Sukuk Obligation and Sukuk Obligation.
Rationale for modification
Such modifications of the Conditions are necessary
to implement the amendments set out in paragraph
II above.
in each case as fully set out and (where applicable) defined in
the Schedule to the Notice;
2. approve the Consent Solicitation to which this Extraordinary
Resolution relates as described in the Consent Solicitation
Memorandum, and its implementation on and subject to the conditions
set out in paragraphs 3 to 10 of this Extraordinary Resolution;
3. (subject to paragraph 4 of this Extraordinary Resolution)
approve, assent to, authorise, direct, request and empower:
(a) the execution of a second supplemental trust deed by the
Obligor, the Issuer and the Delegate (the Second Supplemental Trust
Deed) to effect the amendments and modifications referred to in
paragraph 1 of this Extraordinary Resolution, together with
consequential modifications of the Trust Deed, in the form or
substantially in the form of the drafts available on request from
the Tabulation Agent, with such amendments thereto (if any) as the
Delegate shall require or agree to; and
(b) each of the Obligor, the Issuer, the Delegate and the Agents
to execute and to do all such other deeds, instruments, acts and
things as may be necessary, desirable or expedient to carry out and
to give effect to this Extraordinary Resolution and the
implementation of the amendments and modifications referred to in
paragraph 1 of this Extraordinary Resolution;
4. discharges, holds harmless, disclaims and exonerates the
Delegate from all liability for which it may have become or may
become responsible under the Certificates or any document related
thereto in respect of any act or omission in connection with the
passing of this Extraordinary Resolution or its implementation, the
modifications referred to in this Extraordinary Resolution or the
implementation of those modifications or the executing of any
deeds, agreements, documents or instructions, the performance of
any acts, matters or things to be done to carry out and give effect
to the matters contemplated in the Notice or this Extraordinary
Resolution;
5. irrevocably waives any claim that the Certificateholders may
have against the Delegate arising as a result of any loss or damage
which the Certificateholders may suffer or incur as a result of the
Delegate acting upon this Extraordinary Resolution (including but
not limited to circumstances where it is subsequently
found that this Extraordinary Resolution is not valid or binding on the
Certificateholders) and the Certificateholders further confirm
that the Certificateholders will not seek to hold the Delegate
liable for any such loss or damage;
6. expressly agrees and undertakes to indemnify and hold
harmless the Delegate from and against all losses, liabilities,
damages, costs, charges and expenses which may be suffered or
incurred by them as a result of any claims (whether or not
successful, compromised or settled), actions, demands or
proceedings brought against the Delegate and against all losses,
costs, charges or expenses (including legal fees) which the
Delegate may suffer or incur which in any case arise as a result of
the Delegate acting in accordance with the Extraordinary Resolution
and the Trust Deed, including, without limitation, executing and
delivering the Second Supplemental Trust Deed;
7. (subject to paragraph 9 of this Extraordinary Resolution)
sanctions and assents to every abrogation, modification, compromise
or arrangement in respect of the rights of the Certificateholders
appertaining to the Certificates against the Obligor or the Issuer,
whether or not such rights arise under the Conditions or any other
documents involved in, resulting from or to be effected by the
amendments referred to in paragraph 1 of this Extraordinary
Resolution and their implementation;
8. discharges and exonerates the Obligor and the Issuer from all
liability for which they may have become or may become responsible
under the Certificates or any document related thereto in respect
of any act or omission in connection with the passing of this
Extraordinary Resolution or the executing of any deeds, agreements,
documents or instructions, the performance of any acts, matters or
things to be done to carry out and give effect to the matters
contemplated in the Notice or this Extraordinary Resolution;
9. declares that the implementation of this Extraordinary
Resolution shall be conditional on:
(a) the passing of this Extraordinary Resolution; and
(b) the quorum required for, and the requisite majority of votes
cast at, this Meeting being satisfied by Eligible
Certificateholders or waived by the Obligor in its sole discretion,
irrespective of any participation at this Meeting by Ineligible
Certificateholders and that, in the event that the Extraordinary
Resolution is passed at this Meeting but such condition is not
satisfied or waived by the Obligor in its sole discretion, the
chairman of this Meeting and the Delegate are hereby authorised,
directed, requested and empowered to adjourn this Meeting for such
period being not less than 14 days nor more than 42 days, and to
such place as may be appointed by the chairman of this Meeting and
approved by the Delegate, for the purpose of reconsidering
resolutions 1 to 9 of this Extraordinary Resolution with the
exception of this resolution 9(b) of this Extraordinary Resolution.
At any such adjournment of this Meeting, two or more persons being
or representing Certificateholders holding or representing not less
than 25 per cent. in face amount of the Certificates for the time
being outstanding shall form a quorum and a majority in favour
consisting of at least 75 per cent. of the votes cast at such
adjourned meeting shall have the power to pass such Extraordinary
Resolution, and this condition set out in this paragraph 9(b) will
be satisfied if the quorum required for, and the requisite majority
of votes cast at, such adjourned Meeting are satisfied by Eligible
Certificateholders or waived by the Obligor in its sole discretion
irrespective of any participation at the adjourned Meeting by
Ineligible Certificateholders;
(c) the execution and delivery of the Second Supplemental Trust Deed; and
(d) the Obligor not having previously terminated the Consent
Solicitation in accordance with the provisions for such termination
set out in this Consent Solicitation Memorandum;
10. acknowledges that the following terms, as used in this
Extraordinary Resolution, shall have the meanings given below:
Conditions means the terms and conditions of the Certificates as
set out in schedule 2 of the Trust Deed;
Consent Solicitation means the invitation by the Obligor to all
Eligible Certificateholders to consent to the Proposal as described
in the Consent Solicitation Memorandum and as the same may be
amended in accordance with its terms;
Consent Solicitation Memorandum means the consent solicitation
memorandum dated 19 May 2022 prepared by the Obligor in relation to
the Consent Solicitation;
Eligible Certificateholder means each Certificateholder who is
(a) outside the United States and a person other than a U.S. person
(as defined in Regulation S of the Securities Act), and (b) an
eligible counterparty or a professional client (each as defined in
MiFID II) and, if applicable and acting on a non-discretionary
basis, who is acting on behalf of a beneficial owner that is also
an eligible counterparty or a professional client in each case in
respect of the Certificates, (c) an eligible counterparty (as
defined in the COBS) or a professional client (as defined in UK
MiFIR) and, if applicable and acting on a non-discretionary basis,
who is acting on behalf of a beneficial owner that is also an
eligible counterparty or a professional client, in each case in
respect of the Certificates and (d) otherwise a person to whom the
Consent Solicitation can be lawfully made and that may lawfully
participate in the Consent Solicitation;
Ineligible Certificateholder means each Certificateholder who is
not an Eligible Certificateholder; and
Securities Act means the U.S. Securities Act of 1933, as
amended; and
11. agrees that capitalised terms in this document where not
defined herein shall have the meanings given to them in the Consent
Solicitation Memorandum (a copy of which is available for
inspection as referred to in the Notice)."
CONSENT SOLICITATION
The Obligor has invited eligible holders of the Certificates
(the Consent Solicitation) to consent to the approval, by
Extraordinary Resolution at the Meeting, of the modification of the
Conditions relating to the Certificates as described in paragraph 1
of the Extraordinary Resolution as set out above (as fully set out
and (where applicable) defined in the Schedule to this Notice) and
consequential modifications of the Trust Deed, all as further
described in the Consent Solicitation Memorandum (as defined in
paragraph 10 of the Extraordinary Resolution set out above).
The Consent Solicitation is only being made, and the Consent
Solicitation Memorandum and any other documents or materials
relating to the Consent Solicitation are only for distribution or
to be made available to Eligible Certificateholders (as defined in
paragraph 10 of the Extraordinary Resolution set out above).
Subject to the restrictions described in the previous paragraph,
Eligible Certificateholders may obtain, from the date of this
Notice, a copy of the Consent Solicitation Memorandum at the
Consent Website and from the Tabulation Agent, the contact details
for which are set out below. In order to receive a copy of the
Consent Solicitation Memorandum, a Certificateholder will be
required to provide confirmation as to his or her status as an
Eligible Certificateholder.
Pursuant to the Consent Solicitation, each Eligible
Certificateholder from whom a valid Consent Instruction (as defined
in the Consent Solicitation Memorandum) in favour of the
Extraordinary Resolution is received by the Tabulation Agent by the
deadline specified in the Consent Solicitation Memorandum will,
subject to the conditions set out in the Consent Solicitation
Memorandum, be eligible to receive payment of an amount equal to
0.2 per cent. of the face amount of the Certificates that are the
subject of such Consent Instruction (the Consent Fee), all as more
fully described in the Consent Solicitation Memorandum.
INELIGIBLE CERTIFICATEHOLDERS
Submission of Ineligible Certificateholder Instructions
In respect of the Certificates held through Euroclear Bank SA/NV
(Euroclear) or Clearstream Banking, SA (Clearstream, Luxembourg),
the submission of Ineligible Certificateholder Instructions will be
deemed to have occurred upon receipt by the Tabulation Agent from
Euroclear or Clearstream, Luxembourg, as applicable, of a valid
instruction (an Ineligible Certificateholder Instruction) submitted
in accordance with the requirements of Euroclear or Clearstream,
Luxembourg, as applicable. Each such Ineligible Certificateholder
Instruction must specify, among other things, the aggregate face
amount of the
Certificates to which such Ineligible Certificateholder
Instruction relates, and that the Ineligible Certificateholder
wishes to instruct the Registered Holder to appoint one or more
representatives of the Tabulation Agent to attend the Meeting (and
any adjourned Meeting) and to vote in favour of or against the
Extraordinary Resolution. The receipt of such Ineligible
Certificateholder Instruction by Euroclear or Clearstream,
Luxembourg, as applicable, will be acknowledged in accordance with
the standard practices of Euroclear or Clearstream, Luxembourg, as
applicable, and will result in the blocking of the Certificates in
the relevant Ineligible Certificateholder's account with Euroclear
or Clearstream, Luxembourg, as applicable, so that no transfers may
be effected in relation to such Certificates until the earlier of
(i) the date on which the relevant Ineligible Certificateholder
Instruction is validly revoked, in the limited circumstances in
which such revocation is permitted (including their automatic
revocation on the termination of the Consent Solicitation); (ii)
the conclusion of the Meeting (or, if applicable, the conclusion of
any adjourned Meeting); and (iii) the termination of the Consent
Solicitation. By submitting an Ineligible Certificateholder
Instruction in the relevant clearing system, the Ineligible
Certificateholder will also be deemed to consent to the relevant
clearing system to provide details concerning the identity of its
Direct Participant, including the name and account number, to the
Obligor, the Issuer, the Delegate, the Agents and the Tabulation
Agent.
Only Direct Participants (as defined under "Voting and Quorum"
below) may submit Ineligible Certificateholder Instructions. Each
beneficial owner of Certificates who is an Ineligible
Certificateholder and is not a Direct Participant, must arrange for
the Direct Participant through which such beneficial owner of
Certificates who is an Ineligible Certificateholder holds its
Certificates to submit an Ineligible Certificateholder Instruction
on its behalf to Euroclear or Clearstream, Luxembourg, as
applicable, before the deadlines specified by the relevant clearing
system.
By delivering, or arranging for the delivery on its behalf, of
an Ineligible Certificateholder Instruction in accordance with the
procedures described below, a Certificateholder shall (A) waive its
right to attend and vote (or be represented (via teleconference))
at the Meeting (as the consequence of the eligibility condition set
out in the Extraordinary Resolution is that the Extraordinary
Resolution will only be implemented where it is passed irrespective
of any participation at the Meeting by Ineligible
Certificateholder, such that the attendance (via teleconference)
and voting at the Meeting by an Ineligible Certificateholder will
be of no consequence for such implementation) and (B) agree with,
and acknowledge, represent, warrant and undertake, to the Obligor,
the Issuer, the Tabulation Agent, the Delegate and the Agents, the
following at
(i) the time of submission of such Ineligible Certificateholder
Instruction, (ii) the Expiration Deadline and
(iii) the time of the Meeting and the time of any adjourned
Meeting (and if a Certificateholder or Direct Participant is unable
to make any such agreement or acknowledgement or give any such
representation, warranty or undertaking, such Certificateholder or
Direct Participant should contact the Tabulation Agent immediately)
that:
(a) it is an Ineligible Certificateholder;
(b) it is not a person or entity (a Person): (a) that is, or is
directly or indirectly owned or controlled by a Person that is,
described or designated in (i) the most current "Specially
Designated Nationals and Blocked Persons List" (which as at the
date hereof can be found at:
https://www.treasury.gov/ofac/downloads/sdnlist.pdf ) or (ii) the
Foreign Sanctions Evaders List (which
as at the date hereof can be found at: https://www.treasury.gov/ofac/downloads/fse/fselist.pdf ) or (iii) the most current "Consolidated list of persons, groups and entities subject to EU financial sanctions" (which as at the date hereof can be found at:
https://eeas.europa.eu/headquarters/headquarters-
homepage_en/8442/Consolidated%20list%20of%20sanctions ); or (b)
that is otherwise the subject of any sanctions administered or
enforced by (i) the United States government; (ii) the United
Nations; (iii) the European Union (or any of its member states);
(iv) the United Kingdom; (v) any other equivalent governmental or
regulatory authority, institution or agency which administers
economic, financial or trade sanctions; or (vi) the respective
governmental institutions and agencies of any of the foregoing
including, without limitation, the Office of Foreign Assets Control
of the US Department of the Treasury, the United States Department
of State, the United States Department of Commerce and Her
Majesty's Treasury (each a Sanctions Authority), other than solely
by virtue of their inclusion in: (i) the most current "Sectoral
Sanctions Identifications" list (which
as at the date hereof can
be found at:
https://www.treasury.gov/ofac/downloads/ssi/ssilist.pdf ) (the SSI
List), (ii) Annexes 3, 4, 5 and 6 of Council Regulation No.
833/2014, as amended by Council Regulation No. 960/2014 (the EU
Annexes ), or (iii) any other list maintained by a Sanctions
Authority, with similar effect to the SSI List or the EU
Annexes;
(c) it has undertaken all appropriate analysis of the
implications of the Consent Solicitation without reliance on the
Obligor, the Issuer, the Delegate, the Agents and the Tabulation
Agent;
(d) it has observed the laws of all relevant jurisdictions,
obtained all requisite governmental, exchange control or other
required consents, complied with all requisite formalities and paid
any issue, transfer or other taxes or requisite payments due from
it in each respect in connection with its Ineligible
Certificateholder Instruction and/or the Extraordinary Resolution
in any jurisdiction and that it has not taken or omitted to take
any action in breach of the representations or which will or may
result in the Obligor, the Issuer, the Delegate, the Agents, the
Tabulation Agent or any other person acting in breach of the legal
or regulatory requirements of any such jurisdiction in connection
with any votes in favour of or votes against the Extraordinary
Resolution;
(e) its Ineligible Certificateholder Instruction is made on the
terms and conditions set out in this Notice and therein;
(f) its Ineligible Certificateholder Instruction is being
submitted in compliance with the applicable laws or regulations of
the jurisdiction in which the Direct Participant or beneficial
owner of Certificates is located or in which it is resident or
located and no registration, approval or filing with any regulatory
authority of such jurisdiction is required in connection with such
Ineligible Certificateholder Instruction;
(g) none of the Obligor, the Issuer, the Delegate, the Agents
and the Tabulation Agent nor any of their respective directors,
officers, employees, agents or affiliates (including any directors,
officers, employees or agents of such affiliates) has given it any
information with respect to the Consent Solicitation or the
Extraordinary Resolution save as expressly set out in the Consent
Solicitation Memorandum and this Notice nor has any of them
expressed any opinion about, or made any undertaking,
representation or warranty (express or implied) in respect of, the
terms of the Consent Solicitation or Extraordinary Resolution or
made any recommendation to it as to whether it should vote in
favour of or against (or how to vote in respect of) the
Extraordinary Resolution and it has made its own decision with
regard to voting on the Extraordinary Resolution based on
financial, tax or legal advice it has deemed necessary to seek;
(h) no information has been provided to it by the Obligor, the
Issuer, the Delegate, the Agents or the Tabulation Agent, or any of
their respective directors, officers, employees, agents or
affiliates (including any directors, officers, employees or agents
of such affiliates), with regard to the tax consequences for
Certificateholders arising from the participation in the Consent
Solicitation or the implementation of the Extraordinary Resolution,
and it acknowledges that it is solely liable for any taxes and
similar or related payments imposed on it under the laws of any
applicable jurisdiction as a result of its submission of an
Ineligible Certificateholder Instruction, and agrees that it will
not and does not have any right of recourse (whether by way of
reimbursement, indemnity or otherwise) against the Obligor, the
Issuer, the Delegate, the Agents or the Tabulation Agent, or any of
their respective officers, employees, agents or affiliates, or any
other person in respect of such taxes and payments;
(i) it holds and will hold, until the earlier of (i) the date on which its Ineligible Certificateholder Instruction is validly revoked, in the limited circumstances in which such revocation is permitted; and (ii) the conclusion of the Meeting (or, if applicable, the conclusion of any adjourned Meeting), the Certificates blocked in the relevant Clearing System and, in accordance with the requirements of, and by the deadline required by, the relevant Clearing System, it has submitted, or has caused to be submitted, an Ineligible Certificateholder Instruction to the relevant Clearing System to authorise the blocking of such Certificates with effect on and from the date of such submission so that no transfers of such Certificates may be effected until the occurrence of any of the events listed in (i) or (ii) above;
(j) by blocking Certificates in the relevant Clearing System, it
will be deemed, in the case of a Direct Participant, to consent to
the relevant Clearing System providing details concerning its
identity (including the name and account number of the Direct
Participant) to the Obligor, the Issuer, the Delegate, the Agents
and the Tabulation Agent;
(k) it gives instructions to the Registered Holder for the
appointment of one or more representatives of the Tabulation Agent
as its proxy to vote in respect of the Extraordinary Resolution at
the Meeting and any adjourned Meeting in the manner specified in
the Ineligible Certificateholder Instruction in respect of all of
the Certificates in its account blocked in the relevant Clearing
System;
(l) it acknowledges that all authority conferred or agreed to be
conferred pursuant to these acknowledgements, representations,
warranties and undertakings and every obligation of the
Certificateholder offering to vote on the Extraordinary Resolution
shall to the extent permitted by applicable law be binding upon the
successors, assigns, heirs, executors, trustees in bankruptcy and
legal representatives of the Certificateholder voting on the
Extraordinary Resolution and shall not be affected by, and shall
survive, the death or incapacity of the Certificateholder voting on
the Extraordinary Resolution, as the case may be;
(m) it acknowledges that the Certificates have not been and will
not be registered under the Securities Act, or the Certificates
laws of any state or other jurisdiction of the United States, and
may not be offered or sold in the United States, its territories or
possessions or to, or for the account or benefit of, U.S. persons,
unless an exemption from the registration requirements of the
Securities Act is available (terms used in this and the following
paragraph, unless otherwise specified, are used as defined in
Regulation S);
(n) it acknowledges that the Tabulation Agent and any of its
directors, officers, employees, agents or affiliates (including any
directors, officers, employees or agents of such affiliates) may
possess information not known to it. It agrees that any such person
shall have no liability with respect to the non-disclosure of any
such information;
(o) it agrees to ratify and confirm each and every act or thing
that may be done or effected by the Obligor, the Issuer, the
Delegate, the Agents, any of their respective directors, officers,
employees, agents or affiliates or any person nominated by the
Obligor in the proper exercise of his or her powers and/or
authority hereunder;
(p) it agrees to do all such acts and things as shall be
necessary and execute any additional documents deemed by the
Obligor to be desirable, in each case, to perfect any of the
authorities expressed to be given hereunder and also appoints the
Tabulation Agent as its authorised attorney to do so on its
behalf;
(q) it will, upon request, execute and deliver any additional
documents and/or do such other things deemed by the Obligor to be
necessary or desirable to effect delivery of the Ineligible
Certificateholder Instruction or to evidence such power and
authority;
(r) it acknowledges that none of the Obligor, the Issuer, the
Delegate, the Tabulation Agent, the Agents or any of their
respective affiliates, directors, officers, employees or agents has
made any recommendation as to whether to vote on the Extraordinary
Resolution and it represents that it has made its own decision with
regard to voting on the Extraordinary Resolution based on any
independent legal, financial, tax or other advice that it has
deemed necessary to seek;
(s) it is not a person from whom it is unlawful to seek approval of the Proposal; and
(t) the terms and conditions of the Consent Solicitation shall
be deemed to be incorporated in, and form a part of, the Ineligible
Certificateholder Instruction which shall be read and construed
accordingly and that the information given by or on behalf of such
Certificateholder in the Ineligible Certificateholder Instruction
is true and will be true in all respects at the time of the Meeting
(or any adjourned Meeting).
GENERAL
Copies of (i) the Trust Deed and this Notice; and (ii) the
current draft of the Second Supplemental Trust Deed, are also
available for inspection by Certificateholders on and from the date
of this Notice up to (and including) the Expiration Deadline, on
the website of the Tabulation Agent
(https://deals.is.kroll.com/gfh/)
and on request from the Tabulation Agent. Any revised version of
the draft Second Supplemental Trust Deed made available as
described above and marked to indicate changes to the draft made
available on the date of this Notice will supersede the previous
draft of the Second Supplemental Trust Deed and Certificateholders
will be deemed to have notice of any such changes. It shall not be
possible to make any amendments to the terms of the Extraordinary
Resolution.
The attention of Certificateholders is particularly drawn to the
procedures for voting, quorum and other requirements for the
passing of the Extraordinary Resolution at the Meeting or any
meeting held following any adjournment of the Meeting, which are
set out in "Voting and Quorum" below. Having regard to such
requirements, Certificateholders are strongly urged to take steps
to be represented at the Meeting (by way of submitting Consent
Instructions or Ineligible Certificateholder Instructions) as soon
as possible.
In accordance with normal practice, none of the Tabulation
Agent, the Delegate or the Agents have been involved in the
formulation of the Extraordinary Resolution, the Consent
Solicitation or the proposed amendments referred to in the
Extraordinary Resolution set out above.
None of the Tabulation Agent, the Delegate, any Agent or any of
their respective agents, officers, employees, directors or
affiliates expresses any opinion on, and makes no representations
as to the merits of, the Extraordinary Resolution or the Consent
Solicitation or makes any recommendation whether Certificateholders
should participate in the Consent Solicitation or otherwise
participate at the Meeting.
Nothing in this Notice should be construed as a recommendation
to Certificateholders from the Tabulation Agent, the Delegate, the
Agents or any of their respective agents, officers, employees,
directors or affiliates to vote in favour of, or against, the
Extraordinary Resolution or to participate in the Consent
Solicitation. None of the Tabulation Agent, the Delegate, the
Agents or any of their respective agents, officers, employees,
directors or affiliates makes any representation that all relevant
information has been disclosed to Certificateholders in or pursuant
to this Notice, the Consent Solicitation Memorandum or
otherwise.
Certificateholders should take their own independent legal,
financial, tax, Shari'a or other advice on the merits and the
consequences of voting in favour of the Extraordinary Resolution,
including any tax consequences, and on the impact of the
implementation of the Extraordinary Resolution. Nothing contained
in the Consent Solicitation Memorandum is, or shall be relied upon
as, a promise or representation by the Tabulation Agent, the
Delegate, the Agents or any of their respective agents, officers,
employees, directors or affiliates as to the past, present or
future.
VOTING AND QUORUM
Certificateholders who have submitted and not revoked (in the
limited circumstances in which such revocation is permitted) a
valid Consent Instruction or Ineligible Certificateholder
Instruction in respect of the Extraordinary Resolution by 12.00
p.m. (London time) on 10 June 2022 (the Expiration Deadline), by
which they will have given instructions for the appointment of one
or more representatives of the Tabulation Agent as their proxy to
vote in favour of or against (as specified in the Consent
Instruction or the Ineligible Certificateholder Instruction) the
Extraordinary Resolution at the Meeting (or any adjourned Meeting),
need take no further action to be represented at the Meeting (or
any such adjourned Meeting).
Certificateholders who have not submitted or have submitted and
subsequently revoked (in the limited circumstances in which such
revocation is permitted) a Consent Instruction or Ineligible
Certificateholder Instruction in respect of the Extraordinary
Resolution should take note of the provisions set out below
detailing how such Certificateholders can attend or take steps to
be represented (via teleconference) at the Meeting (references to
which, for the purpose of such provisions, include, unless the
context otherwise requires, any adjourned Meeting) .
1. Subject as set out below, the provisions governing the
convening and holding of the Meeting are set out in schedule 3 to
the Trust Deed, copies of which are available from the date of this
Notice to the conclusion of the Meeting (or any adjourned Meeting)
as referred to above. For the purposes of the Meeting, a
Certificateholder means a Direct Participant.
2. The Certificates are represented by a global certificate held
by and registered in the name of a nominee for a common depositary
for Euroclear and Clearstream, Luxembourg. For the purposes of this
Notice, a Direct Participantmeans each person who is for the time
being shown in the
records of Euroclear and/or Clearstream, Luxembourg as the
holder of a particular face amount of the Certificates.
A Direct Participant or beneficial owner of the Certificates
wishing to attend (via teleconference) and vote at the Meeting and
any adjourned Meeting in person must produce at the Meeting a valid
form of voting certificate or certificates, unless such holder has
already validly submitted a Consent Instruction or Ineligible
Certificateholder Instruction which has been received by the
Tabulation Agent by the Expiration Deadline. A Direct Participant
may obtain a form of voting certificate in respect of its
Certificates from the specified office of the Transfer Agent by
arranging (through its Direct Participant if it is not itself a
Direct Participant) for its Certificates to be blocked in an
account with Euroclear or Clearstream, Luxembourg not later than 24
hours before the time fixed for the Meeting (or, if applicable, the
conclusion of any adjourned Meeting) and within the relevant time
limit specified by Euroclear or Clearstream, Luxembourg, as the
case may be.
A Direct Participant or beneficial owner may by an instrument in
writing in the English language signed by or on behalf of such
Direct Participant or beneficial owner and delivered to the
specified office of the Transfer Agent on a business day falling
not less than 24 hours before the time fixed for the relevant
Meeting (or any adjourned such Meeting), appoint any person (a
proxy ) to act on his or its behalf in connection with the Meeting
(or any adjourned such Meeting).
Any Direct Participant or beneficial owner which is a
corporation may, by delivering to the specified office of the
Transfer Agent not less than 24 hours before the time fixed for the
Meeting (or any adjourned such Meeting) a certified copy of a
resolution of its directors or other governing body (with, if it is
not in English, a certified translation into English), authorise
any person to act as its representative (a representative) in
connection with the Meeting (or any adjourned such Meeting).
Any proxy or representative so appointed shall so long as such
appointment remains in full force be deemed, for all purposes in
connection with the relevant Meeting (or any adjourned such
Meeting), to be the holder of the Certificates to which such
appointment relates and the holder of the Certificates shall be
deemed for such purposes not to be the holder.
A Direct Participant or beneficial owner must request (through
its Direct Participant if it is not itself a Direct Participant)
the relevant clearing system to block the Certificates in its
account and to hold the same to the order or under the control of
the Transfer Agent not later than 24 hours before the time
appointed for holding the Meeting (or any adjourned such Meeting)
in order to obtain forms of proxy. Such blocking instruction shall
require the Registered Holder to appoint a proxy as described above
and should provide the name, address, telephone number, email
address and passport or identification number of the proxy or
representative.
Certificates blocked will not be released until the earlier of
(i) the conclusion of the Meeting (or, if applicable, the
conclusion of any adjourned Meeting); (ii) (A) in respect of voting
certificate(s), the surrender to the Transfer Agent of such voting
certificate(s) and notification by the Transfer Agent to the
relevant clearing system of such surrender or the compliance in
such any other manner with the rules of the relevant clearing
system relating to such surrender; or (B) the date on which the
relevant electronic blocking instruction is validly revoked
(including its automatic revocation on the termination of the
related Consent Solicitation); and (iii) not less than 24 hours
before the time for which the Meeting (or, if applicable, any
adjourned Meeting) is convened, the notification in writing of any
revocation of a Direct Participant's previous instructions to the
Registered Holder and the same then being notified in writing by
the Registered Holder, the Transfer Agent to the Obligor at least
24 hours before the time appointed for holding the Meeting and such
Certificates ceasing in accordance with the procedures of the
relevant clearing system and with the agreement of the relevant
Paying Agent to be held to its order or under its control.
A separate voting certificate or proxy appointment must be
completed on behalf of each beneficial owner of the Certificates
wishing to attend (via teleconference) the meeting in person (or
appoint one or more representatives (other than the Tabulation
Agent) as its proxy to attend (via teleconference) and vote at the
Meeting on its behalf). Each such voting certificate or proxy
appointment should also provide the name, address, telephone
number, email address and passport or identification number of the
relevant attendee(s).
It is a term of the Consent Solicitation that voting
certificates and proxy appointments are irrevocable except in the
limited circumstances in which revocation is permitted, as provided
in this Consent Solicitation Memorandum.
Certificateholders should note that voting certificates obtained
and proxy appointments made in respect of a Meeting shall remain
valid for any adjourned Meeting.
In light of coronavirus (COVID-19), it is inadvisable to hold
the Meeting at a physical location. Accordingly, in accordance with
the provisions of the Trust Deed, further regulations regarding the
holding of the Meeting have been prescribed to facilitate the
Meeting (and any adjourned meeting) being held via teleconference.
The Meeting will not be convened at a physical location. Any
Certificateholders who indicate to the Tabulation Agent that they
wish to attend the teleconference for the Meeting (and any
adjourned such Meeting) in person or by proxy other than the
Tabulation Agent will be provided with further details about
attending the Meeting (and any adjourned such Meeting). The Meeting
will be held over Zoom, failing which, a similar electronic
platform. Should technical difficulties arise during the Meeting,
Certificateholders who are entitled to attend the Meeting will be
provided with details of a fallback videoconference or
teleconference platform.
All references in this Notice to attendance or voting "in
person" shall refer to the attendance or voting at the Meeting by
way of the teleconference facility.
3. The quorum required at the Meeting is two or more persons
present and holding or representing not less than 75 per cent. in
face amount of the Certificates for the time being outstanding. If
a quorum is not present within 15 minutes after the time appointed
for the Meeting, the Meeting will be adjourned for a period being
not less than 14 days and not more than 42 days and at a place
appointed by the Chairman and the Extraordinary Resolution will be
considered at such adjourned Meeting (notice of which will be given
to the Certificateholders in accordance with the Conditions and the
Trust Deed). The quorum at any such adjourned Meeting will be two
or more persons being or representing Certificateholders holding or
representing not less than 25 per cent. in face amount of the
Certificates for the time being outstanding. To be passed at such
adjourned Meeting, the Extraordinary Resolution requires a majority
in favour consisting of at least 75 per cent. of the votes cast at
such adjourned Meeting. The holding of any adjourned Meeting will
be subject to the Obligor giving at least 10 clear days' notice in
accordance with the Conditions and the Trust Deed that such
adjourned Meeting is to be held.
4. Every question submitted to a Meeting shall be decided in the
first instance by a show of hands.
Unless a poll is (before, or on the declaration of the result
of, the show of hands) demanded by the chairman of the Meeting, the
Issuer, the Obligor, the Delegate or one or more persons
representing 2 per cent. of the face amount of the Certificates
outstanding, a declaration by the chairman of the Meeting that a
resolution has or has not been passed shall be conclusive evidence
of the fact without proof of the number or proportion of the votes
cast in favour of or against it.
At the Meeting (a) on a show of hands every person who is
present in person and produces a voting certificate or is a proxy
or representative shall have one vote and (b) on a poll every
person who is so present shall have one vote in respect of each
U.S.$1,000 in face amount of the Certificates so produced or
represented or for which it is a proxy or representative. Without
prejudice to the obligations of proxies, a person entitled to more
than one vote need not use them all or cast them all in the same
way.
5. To be passed at the Meeting, the Extraordinary Resolution
requires a majority in favour consisting of at least 75 per cent.
of the votes cast. If passed, the Extraordinary Resolution will be
binding on all Certificateholders, whether or not present at the
Meeting and whether or not voting in favour of or against of the
Extraordinary Resolution.
Certificateholders should contact the following for further
information:
Tabulation Agent
Kroll Issuer Services Limited
Email : gfh@is.kroll.com
Consent Website : https://deals.is.kroll.com/gfh/
Attention: Jacek Kusion
The Shard
32 London Bridge Street London SE1 9SG
Telephone: +44 20 7704 0880
This Notice is given by GFH Financial Group B.S.C. Dated: 19 May
2022
SCHEDULE TO THE NOTICE OF MEETING
Proposed deletions are shown as a strikethrough; and proposed
additions are shown in underline
NEW TERMS AND CONDITIONS OF THE CERTIFICATES
GFH Sukuk Company Limited (in its capacities as issuer and as
trustee, as applicable, the "Trustee") has issued certificates (the
"Certificates") in an aggregate face amount of
U.S.$500,000,000.
The Certificates are constituted by a trust deed dated 28
January 2020 between the Trustee, GFH Financial Group B.S.C. (the
"Obligor") and Citibank N.A., London Branch as the Trustee's
delegate (the "Delegate", which expression shall include all
persons for the time being the delegate or delegates under the
Trust Deed) (the "Original Trust Deed") as supplemented by a first
supplemental trust deed (the "First Supplemental Trust Deed") dated
8 June 2020 and a second supplemental trust deed dated [ ] 2022
(the "Second Supplemental Trust Deed", and together with the
Original Trust Deed and the First Supplemental Trust Deed, the
"Trust Deed").
An Agency Agreement (the "Original Agency Agreement") dated 28
January 2020 has been entered into in relation to the Certificates
between the Trustee, the Obligor, the Delegate, Citibank N.A.,
London Branch as initial principal paying agent and the other
agents named in it, as supplemented by a Supplemental Agency
Agreement dated 8 June 2020 (the "Supplemental Agency Agreement"
and, together with the Original Agency Agreement, the "Agency
Agreement"). The principal paying agent, the other paying agents,
the registrar and the transfer agents are referred to below
respectively as the "Principal Paying Agent", the "Paying Agents"
(which expression shall include the Principal Paying Agent), the
"Registrar" and the "Transfer Agents" (which expression shall
include the Registrar), and together the "Agents".
These terms and conditions (the "Conditions") include summaries
of, and are subject to, the detailed provisions of the Trust Deed,
which includes the form of Certificates referred to below, the
Agency Agreement and the remaining Transaction Documents (as
defined below). The Certificateholders are bound by, and are deemed
to have notice of, all the provisions applicable to them in the
Transaction Documents. Copies of the Transaction Documents are
available for inspection and collection during usual business hours
at the principal office of the Delegate and at the specified office
of the Principal Paying Agent.
Each initial Certificateholder, by its acquisition and holding
of its interest in a Certificate, shall be deemed to authorise and
direct the Trustee, on behalf of the Certificateholders: (a) to
apply the proceeds of the issue of the Certificates (the
"Proceeds") towards (i) an amount equal to not less than 51 per
cent. of the aggregate face amount of the Certificates to acquire
Real Estate Assets from Harbour North 2b Real Estate S.P.C. owned
by GFH Asset Company, Harbour East 3 Real Estate S.P.C. owned by
GFH Asset Company, South East Real Estate S.P.C. and Delmon Lost
Paradise Project Company 2 S.P.C. and the Additional Wakala Assets
from Harbour North 1 Real Estate S.P.C. owned by GFH Asset Company
and Delmon Lost Paradise Project Company 1 Spc, in each case
pursuant to the Purchase Agreement (as defined below) and (ii) an
amount equal to no more than 49 per cent. of the aggregate face
amount of the Certificates for the purchase of commodities to be
sold to the Obligor pursuant to the Murabaha Agreement (each
defined term as set out below) and (b) to enter into each
Transaction Document to which it is a party, subject to the
provisions of the Trust Deed and these Conditions.
1 INTERPRETATION
Unless defined herein or the context otherwise requires,
capitalised words and expressions used but not defined herein shall
have the meaning given to them in the Trust Deed and the Agency
Agreement. In addition, for the purposes of these Conditions, the
following expressions have the following meanings:
"Additional Wakala Assets" has the meaning given to it in the
purchase Agreement;
"Affiliate" means, with respect to any specified Person: (a) any
other Person directly or indirectly controlling or controlled by or
under direct or indirect common control with such specified Person;
or (b) any other Person that owns, directly or indirectly through
one or more Subsidiaries, 20 per
cent., or more of any class of such specified Person's Capital
Stock, and, for the purposes of this definition, control, when used
with respect to any specified Person, means the power to direct the
management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise; and the terms controllingand controlledhave meanings
correlative to the foregoing;
"Affiliate Transaction" has the meaning given to it in Condition
6(b)(v);
"Applicable Accounting Standards" means either the Financial
Accounting Standards issued by the Accounting and Auditing
Organisation for Islamic Financial Institutions or International
Financial Reporting Standards;
"Asset Sale" means any sale, sale and lease back, transfer or
other disposition by any member of the Group of all or any of the
legal or beneficial interest in any Capital Stock or any property
or assets of any member of the Group (either in one transaction or
in a series of related transactions at the same time or over a
period of time) to any Person who is not a member of the Group,
provided that none of the following transactions shall be deemed to
be an Asset Sale:
(a) any single transaction or series of related transactions
that involves assets or Capital Stock having a Fair Market Value of
less than U.S.$25,000,000;
(b) the sale, lease or transfer of investment assets (including
any corporate investments or real estate investments) of the
Obligor or any of its Subsidiaries in the ordinary course of their
investment business;
(c) a transfer of assets between or among the Obligor and its Subsidiaries;
(d) an issuance of Capital Stock by a Subsidiary of the Obligor
to the Obligor or to a Subsidiary of the Obligor or an issuance of
Capital Stock by the Obligor to any Person;
(e) the sale, lease or other transfer of services or accounts
receivable in the ordinary course of business;
(f) any sale or other disposition of damaged, worn-out or
obsolete assets in the ordinary course of business (including the
abandonment or other disposition of intellectual property that is,
in the reasonable judgment of the Obligor, no longer economically
practicable to maintain or useful in the conduct of the business of
the Obligor and its Subsidiaries taken as a whole);
(g) the granting of any Permitted Security Interest;
(h) any surrender or waiver of contract rights or settlement,
release, recovery on or surrender of contract, tort or other claims
in the ordinary course of business; or
(i) any transfer or disposition of assets by the Obligor or any
Subsidiary in accordance with the terms of the Certificates and the
Transaction Documents.
"Authorised Signatory" has the meaning given to it in the Trust
Deed;
"Business Day" means a day (other than a Saturday or a Sunday)
on which commercial banks and foreign exchange markets settle
payments in London and New York;
"Calculation Amount" means U.S.$1,000;
"Capital Regulations" means, at any time, the regulations,
requirements, guidelines and policies relating to capital adequacy
then in effect in the Kingdom of Bahrain, including those of the
Financial Regulator;
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however
designated, whether voting or non-voting) of such Person's equity,
including any preferred stock of such person, whether outstanding
on 28 January 2020 or issued after the date thereof, including
without limitation, all series and classes of such Capital
Stock;
"Certificateholder" or "holder" has the meaning given to it in
Condition 2;
"Consolidated Net Worth" means the Consolidated Total Assets of
the Group less the Consolidated Total Liabilities of the Group;
"Consolidated Profit" means the consolidated profit for the
period of the Group determined by reference to the most recently
available audited or auditor reviewed consolidated financial
statements of the Group prepared in accordance with the Applicable
Accounting Standards;
"Consolidated Total Assets" means, at any time, the total assets
of the Group as determined by reference to the most recently
available audited or auditor reviewed consolidated financial
statements of the Group prepared in accordance with the Applicable
Accounting Standards;
"Consolidated Total Income" means, at any time, the consolidated
total income of the Group as determined by reference to the most
recently available audited or auditor reviewed consolidated
financial statements of the Group prepared in accordance with the
Applicable Accounting Standards;
"Consolidated Total Liabilities" means, at any time, the total
liabilities of the Group as determined by reference to the most
recently available audited or auditor reviewed consolidated
financial statements of the Group prepared in accordance with the
Applicable Accounting Standards;
"Corporate Services Agreement" means the corporate services
agreement entered into between the Trustee, the Trustee
Administrator and the Obligor on 28 January 2020;
"Customer Deposits" means any amounts collected from potential
or actual purchasers or lessees of real estate (or from a person
acting on behalf of such purchasers or lessees) by a member of the
Group in the ordinary course of its day to day real estate and
development activities;
"Day Count Fraction" has the meaning given to it in Condition
7(b); "Deferred Sale Price" has the meaning given to it in the
Murabaha Agreement; "Delegation" has the meaning given to it in
Condition 15(a);
"Dispute" has the meaning given to it in Condition 20(b);
"Dissolution Date" means, as the case may be,
(a) the Scheduled Dissolution Date;
(b) any Early Tax Dissolution Date;
(c) any Total Loss Event Dissolution Date; or
(d) any Dissolution Event Redemption Date;
"Dissolution Distribution Amount" means, in relation to each
Certificate to be redeemed on the relevant Dissolution Date, the
sum of:
(a) the outstanding face amount of such Certificate; and
(b) any due and unpaid Periodic Distribution Amounts for such
Certificate; "Dissolution Event" means an Obligor Event or a
Trustee Event;
"Dissolution Event Redemption Date" has the meaning given to it
in Condition 12(a); "Dissolution Notice" has the meaning given to
it in Condition 12(a);
"Early Tax Dissolution Date" has the meaning given to it in
Condition 8(b);
"Excluded Representations" means any representations given by
the Obligor to the Trustee and/or the Delegate pursuant to the
Transaction Documents;
"Exercise Notice" means an exercise notice given pursuant to the
terms of the Purchase Undertaking or the Sale and Substitution
Undertaking (as the case may be);
"Exercise Price" has the meaning given to it in the Purchase
Undertaking or the Sale and Substitution Undertaking (as the case
may be);
"Extraordinary Resolution" has the meaning given to it in the
Trust Deed;
"Fair Market Value" means, with respect to any Capital Stock,
asset or property, the sale or investment value that would be paid
in an arm's-length transaction between an independent, informed and
willing seller or counterparty under no compulsion to sell or
transact and an independent, informed and willing buyer or investor
under no compulsion to buy or invest;
"Financial Indebtedness" means any indebtedness for or in
respect of:
(a) moneys borrowed and debit balances at banks or other financial institutions;
(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 such person's
accounting principles used in preparation of its most recent
financial statements, 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, sale and saleback arrangement
or securitisation) 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 shall be taken into account);
(h) 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 in
respect of any person's indebtedness for any of the items referred
to in paragraphs (a) to
(g) above (inclusive) and paragraphs (i) to (k) below
(inclusive) of this definition;
(i) any amount of any liability under an advance or deferred
purchase agreement if one of the primary reasons behind the entry
into the agreement is to raise finance or to finance the
acquisition or construction of an asset or service;
(j) any obligations incurred in respect of any Islamic financing arrangements; and
(k) (without double counting) the amount of any liability in
respect of any guarantee or indemnity for any of the items referred
to in paragraphs (a) to (j) (inclusive) above,
but shall not include any indebtedness in respect of Customer
Deposits;
"Financial Regulator" means the Central Bank of Bahrain or any
successor entity having primary bank supervisory authority over the
Obligor or KHCB in the Kingdom of Bahrain;
"Fitch" means Fitch Ratings Ltd;
"Full Reinstatement Value" has the meaning given to it in the
Servicing Agency Agreement; "Group" means the Obligor and its
Subsidiaries;
"Independent Qualified Party" means an investment banking firm,
accounting firm, firm of surveyors or appraisal firm of
international standing; provided, however, that such firm is not an
Affiliate of the Obligor;
"Investment Grade Status" has the meaning given to it in
Condition 6(b)(xii); "Investment Grade Status Period" has the
meaning given to it in Condition 6(b)(xii); "ISM" means the London
Stock Exchange plc's International Securities Market;
"KHCB" means Khaleeji Commercial Bank BSC;
"Lease Agreement" means the lease agreement dated 8 June 2020
and entered into between the Obligor and the Trustee, relating to
certain assets;
"Lease Assets" has the meaning given to it in the Lease
Agreement;
"Leverage Ratio" means the ratio of Consolidated Total
Liabilities to Consolidated Net Worth;
"Liability" means any actual loss, damage, cost, charge, claim,
demand, expense, fee, judgment, action, proceeding or other
liability whatsoever (including, without limitation, in respect of
Taxes and other charges) and including any value added tax or
similar Tax charged or chargeable in respect thereof and legal or
other fees and expenses on a full indemnity basis, but excluding
any interest, cost of funds and opportunity costs, and references
to "Liabilities" shall mean all of these;
"Material Subsidiary" means any Subsidiary of the Obligor:
(a) whose total income (consolidated in the case of a Subsidiary
of the Obligor which itself has Subsidiaries) or whose total assets
(consolidated in the case of a Subsidiary of the Obligor which
itself has Subsidiaries) represent in each case (or, in the case of
a Subsidiary of the Obligor acquired after the end of the financial
period to which the then latest audited consolidated accounts of
the Group relate, are equal to) not less than 10 per cent. of
Consolidated Total Income or, as the case may be, Consolidated
Total Assets, all as calculated respectively by reference to the
then latest audited accounts of such Subsidiary and the then latest
audited consolidated accounts of the Group, provided that in the
case of a Subsidiary of the Obligor acquired after the end of the
financial period to which the then latest audited consolidated
accounts of the Group relate, the reference to the then latest
audited consolidated accounts of the Group for the purposes of the
calculation above shall, until consolidated accounts for the
financial period in which the acquisition is made have been
prepared and audited as aforesaid, be deemed to be a reference to
such first-mentioned accounts as if such Subsidiary had been shown
in such accounts by reference to its then latest relevant audited
accounts, adjusted as deemed appropriate by the Obligor;
(b) to which is transferred the whole or substantially the whole
of the undertaking and assets of a Subsidiary of the Obligor which
immediately prior to such transfer is a Material Subsidiary,
provided that the transferor Subsidiary shall upon such transfer
forthwith cease to be a Material Subsidiary and the transferee
Subsidiary shall cease to be a Material Subsidiary pursuant to this
paragraph (b) on the date on which the consolidated accounts of the
Group for the financial period current at the date of such transfer
have been prepared and audited as aforesaid but so that such
transferor Subsidiary or such transferee Subsidiary may be a
Material Subsidiary on or at any time after the date on which such
consolidated accounts have been prepared and audited as aforesaid
by virtue of the provisions of paragraph (a) above or, prior to or
after such date, by virtue of any other applicable provision of
this definition; or
(c) to which is transferred an undertaking or assets which,
taken together with the undertaking or assets of the transferee
Subsidiary, generated (or, in the case of the transferee Subsidiary
being acquired after the end of the financial period to which the
then latest audited consolidated accounts of the Group relate,
generate total income equal to) not less than 10 per cent. of
Consolidated Total Income, or represent (or, in the case aforesaid,
are equal to) not less than 10 per cent. of Consolidated Total
Assets, all as calculated as referred to in paragraph (a) above,
provided that the transferor Subsidiary (if a Material Subsidiary)
shall upon such transfer forthwith cease to be a Material
Subsidiary unless immediately following such transfer its
undertaking and assets generate (or, in the case aforesaid,
generate total income equal to) not less than 10 per cent. of
Consolidated Total Income, or its assets represent (or, in the case
aforesaid, are equal to) not less than 5 per cent. of Consolidated
Total Assets, all as calculated as referred to in paragraph (a)
above, and the transferee Subsidiary shall cease to be a Material
Subsidiary pursuant to this paragraph (c) on the date on which the
consolidated accounts of the Group for the financial period current
at the date
of such transfer have been prepared and audited but so that such
transferor Subsidiary or such transferee Subsidiary may be a
Material Subsidiary on or at any time after the date on which such
consolidated accounts have been prepared and audited as aforesaid
by virtue of the provisions of paragraph (a) above or, prior to or
after such date, by virtue of any other applicable provision of
this definition.
A report signed by an Authorised Signatory of the Obligor
(whether or not addressed to the Delegate) that in its opinion a
Subsidiary of the Obligor is or is not or was or was not at any
particular time or throughout any specified period a Material
Subsidiary may be relied upon by the Delegate without further
enquiry or evidence (without any liability to any person for so
relying) and, if relied upon by the Delegate, shall, in the absence
of manifest error, be conclusive and binding on all parties;
"Moody's" means Moody's Investors Service Limited;
"Murabaha Agreement" means the murabaha agreement dated 28
January 2020 and entered into between the Obligor and the
Trustee;
"Obligor Event" means any of the following events (but in the
case of the happening of any of the events described in paragraph
(c), (k) and (m) below, only if the Delegate shall have certified
in writing to the Trustee and the Obligor that such event is, in
its opinion, materially prejudicial to the interests of the
Certificateholders):
(a) the Obligor (acting in any capacity) fails to pay an amount
payable by it pursuant to any Transaction Document to which it is a
party which corresponds to all or part of a Periodic Distribution
Amount payable by the Trustee on a Periodic Distribution Date and
the failure continues for a period of 10 Business Days, or the
Obligor (acting in any capacity) fails to pay an amount payable by
it pursuant to any Transaction Document to which it is a party
which corresponds to all or part of a Dissolution Distribution
Amount payable by the Trustee on a Dissolution Date and the failure
continues for a period of five Business Days;
(b) the Obligor does not perform or comply with any one or more
of its covenants or other obligations under Condition 6(b);
(c) the Obligor (acting in any capacity) does not perform or
comply with any one or more of its other covenants or obligations
in the Transaction Documents to which it is a party, which failure:
(x) is, in the opinion of the Delegate, incapable of remedy; or (y)
(if, in the opinion of the Delegate, such failure is capable of
remedy) is not, in the opinion of the Delegate, remedied within the
period of 30 Business Days after written notice of such failure
shall have been given to the Obligor by the Trustee (or the
Delegate) requiring the same to be remedied, except that a failure
by the Obligor (acting in its capacity as Servicing Agent) to
comply with its obligations set out in clause 7.1 of the Servicing
Agency Agreement will not constitute an Obligor Event under this
paragraph (c);
(d) any Financial Indebtedness of the Obligor or any Material
Subsidiary of the Obligor (or any guarantee or indemnity given by
any of them in respect of any Financial Indebtedness) is not paid
when due or, as the case may be, within any originally applicable
grace period or any such Financial Indebtedness is declared to be
or otherwise becomes due and payable prior to its specified
maturity (or, in the case of a guarantee, is called) as a result of
an event of default (however described) provided, however, that it
shall not constitute an Obligor Event unless the aggregate amount
(or its equivalent in U.S. dollars) of all such Financial
Indebtedness or guarantees either alone or when aggregated with all
other Financial Indebtedness or guarantees which shall remain
unpaid or unsatisfied or is so declared or becomes due and payable
or is called, as the case may be, shall be more than
U.S.$30,000,000 (or its equivalent in any other currency or
currencies);
(e) any order is made by any competent court or resolution
passed for the winding-up or dissolution of the Obligor or any
Material Subsidiary of the Obligor, save in connection with a
Permitted Reorganisation;
(f) the Obligor or any Material Subsidiary of the Obligor ceases
or threatens to cease to carry on all or substantially all of its
business, save (i) in connection with a Permitted Reorganisation or
(ii) in the case of a Material Subsidiary only, as a result of any
Asset Sale permitted under Condition 6(b)(iv);
(g) one or more judgments or orders for the payment of any sum
in excess of U.S.$30,000,000 (or its equivalent in any currency or
currencies), whether individually or in aggregate, is (or are)
rendered against the Obligor and/or any Material Subsidiary of the
Obligor by the courts of Bahrain or the courts of England and
continue(s) unsatisfied and unstayed, or, if appealed, and the
appeal is unsuccessful, continues unsatisfied and unstayed, in each
case, for a period of 60 days after the later of (i) the date of
the judgment or order, or (ii) the date on which payment of such
sum is required to be paid (either pursuant to the judgment or
order, or as otherwise agreed with the recipients of such sum
and/or the issuer of such judgment or order);
(h) the Obligor or any Material Subsidiary of the Obligor takes
any corporate action or any steps are taken or any court or other
proceedings are initiated against the Obligor or any Material
Subsidiary of the Obligor under any applicable liquidation,
insolvency, composition, reorganisation or other similar laws, or
an application is made (or documents filed with a court) for the
appointment of a liquidator, an administrative or other receiver,
manager, administrator or other similar official (and such
proceedings are not being actively contested in good faith by the
Obligor or the relevant Material Subsidiary, as the case may be),
or a liquidator, an administrative or other receiver, manager,
administrator or other similar official is appointed, in relation
to the Obligor or any Material Subsidiary of the Obligor or, as the
case may be, in relation to all or substantially all of the
undertaking, assets or revenues of any of them save in all cases,
in connection with a Permitted Reorganisation; or (ii) an
encumbrancer takes possession of all or substantially all of the
undertaking or assets of the Obligor or any Material Subsidiary of
the Obligor, or a distress, attachment, execution or other legal
process is levied, enforced or sued out on or against all or
substantially all of the property, assets or revenues of the
Obligor or any Material Subsidiary of the Obligor; and in each case
(other than the appointment of an administrator) is not discharged
within 30 days;
(i) the Obligor or any Material Subsidiary of the Obligor stops
or is unable to, or admits inability to, pay, its debts (or any
class of its debts) as they fall due, or is deemed unable to pay
its debts pursuant to or for the purposes of any applicable law, or
is adjudicated or found bankrupt or insolvent by a court of
competent jurisdiction; or (ii) the Obligor or any Material
Subsidiary of the Obligor initiates or consents to judicial
proceedings relating to itself under any applicable liquidation,
insolvency, composition, reorganisation or other similar laws
(including the obtaining of a moratorium) or makes a conveyance or
assignment for the benefit of, or enters into any composition or
other arrangement with, its creditors generally (or any class of
its creditors) or any meeting is convened to consider a proposal
for the general readjustment or rescheduling of its debts or an
arrangement or composition or conciliation with its creditors
generally (or any class of its creditors) save, in all cases, in
connection with a Permitted Reorganisation;
(j) any one or more Security Interests, present or future, is
created or assumed by the Obligor and/or any Material Subsidiary of
the Obligor and securing an amount which equals or exceeds
U.S.$30,000,000 (or its equivalent in any other currency or
currencies), whether individually or in aggregate, and any step is
taken to enforce such Security Interest(s) (including the taking of
possession or the appointment of a receiver, manager or other
similar person) unless the full amount of the debt(s) which is (or
are) secured by the relevant Security Interest(s) is (or are)
discharged within 30 days of the later of the first date on which:
(i) a step is taken to enforce the relevant Security Interest(s);
or (ii) the Obligor and/or the relevant Material Subsidiary of the
Obligor, as the case may be, is notified that a step has been taken
to enforce the relevant Security Interest(s);
(k) any event occurs which under the laws of the Kingdom of
Bahrain thereof or any other relevant jurisdiction has an analogous
effect to any of the events referred to in paragraphs (e), (h), (i)
and (j) above;
(l) any action, condition or thing (including the obtaining or
effecting of any necessary consent, approval, authorisation,
exemption, filing, licence, order, recording or registration) at
any time required to be taken, fulfilled or done in order: (i) to
enable the Obligor lawfully to enter into, exercise its rights and
perform and comply with its obligations under the Transaction
Documents to which it is party; and (ii) to ensure that those
obligations are legally binding and enforceable; is not taken,
fulfilled or done, provided that the non-registration of legal
title to, and/or the non-perfection of the legal transfer of, any
of the Wakala Assets in the name of the Trustee will not constitute
an Obligor Event for these purposes;
(m) the Obligor repudiates or challenges in writing, or does or
causes to be done any act or thing evidencing an intention to
repudiate or challenge, these Conditions or any (or any part of
any) Transaction Document to which it is a party; or
(n) at any time it is or becomes unlawful for the Obligor to
perform or comply with any one or more of its obligations under or
in respect of any of the Transaction Documents to which it is a
party or any of the obligations of the Obligor thereunder are not
or cease to be legal, valid, binding or enforceable; or
(o) all or substantially all of the undertaking, assets and/or
revenues of the Obligor or any Material Subsidiary of the Obligor
is condemned, seized or otherwise appropriated by any Person acting
under the authority of any national, regional or local
government.
References in paragraph (i) above to debts shall be deemed to
include any debt or other financing arrangement issued (or intended
to be issued) in compliance with the principles of Shari'a, whether
entered into directly or indirectly by the Obligor or a Material
Subsidiary of the Obligor, as the case may be;
"outstanding" shall have the meaning given to it in the Trust
Deed;
"Periodic Distribution Amount" has the meaning given to it in
Condition 7(a);
"Periodic Distribution Date" means 28 January and 28 July in
each year, commencing on 28 July 2020, and subject to Condition
7(c);
"Permitted Financial Indebtedness" means
(a) any Financial Indebtedness of the Obligor or any Subsidiary
outstanding on 28 January 2020;
(b) any Financial Indebtedness incurred pursuant to the
Certificates and/or the Transaction Documents;
(c) any Financial Indebtedness of any Subsidiary of the Obligor
to any other Subsidiary of the Obligor;
(d) any amounts owed by the Obligor or any Subsidiary to
suppliers, contractors, subcontractors and/or project consultants
in respect of goods supplied and/or services provided, in each case
in the ordinary course of business;
(e) any Financial Indebtedness arising for, or in respect of,
working capital facilities which are fully cash collateralised and
which are incurred by the Obligor or a Subsidiary in the ordinary
course of business;
(f) any Financial Indebtedness arising in the form of deferred
payment obligations of the Obligor or any Subsidiary in respect of
the acquisition of any business, assets or Capital Stock, in each
case in the ordinary course of business;
(g) any Financial Indebtedness for or in respect of any
derivative transaction entered into solely to protect the Obligor
or a Subsidiary from fluctuations in interest rates or financing
costs or currencies and is not for speculation);
(h) Financial Indebtedness arising from the honouring by a bank
or other financial institution of a cheque, draft or similar
instrument drawn against insufficient funds in the ordinary course
of business; provided, however, that such Financial Indebtedness is
extinguished within five Business Days of its Incurrence;
(i) Financial Indebtedness incurred by KHCB provided that such
Financial Indebtedness is in the form of Tier 1 Capital;
(j) Financial Indebtedness incurred for the account of the
Obligor or any of its Subsidiaries by third parties managing their
funds in the ordinary course of such management and within prudent
and customary guidelines from time to time established between the
Obligor and such third parties; and
(k) any Financial Indebtedness incurred by the Obligor or its
Subsidiaries in exchange for, or the net proceeds of which are used
to renew, refund, extend, substitute, discharge, replace, defease
or refinance any of
the Financial Indebtedness incurred pursuant to paragraph (a),
(b) or (f) above;
"Permitted Reorganisation" means:
(a) any merger or consolidation that would be permitted under Condition 6(b)(ix); or
(b) any composition or other similar arrangement on terms
previously approved by an Extraordinary Resolution;
"Permitted Security Interest" means any Security Interest:
(a) existing on 28 January 2020;
(b) existing on any property or assets prior to the acquisition
thereof by the Obligor or a Subsidiary (as the case may be),
provided that such Security Interest was not created in
contemplation of such acquisition;
(c) created or outstanding with the approval of
Certificateholders by any Extraordinary Resolution;
(d) securing the Relevant Indebtedness or Relevant Sukuk
Obligation of any person and/or its Subsidiaries existing at the
time that such person is merged into or consolidated with the
Obligor or a Subsidiary provided that such Security Interest was
not created in contemplation of such merger or consolidation and
does not extend to any other assets or property of the Obligor or
any Subsidiary; and
(e) granted by the Obligor or any member of the Group upon an
asset or upon the contract for the acquisition of an asset securing
Financial Indebtedness incurred for the acquisition of such asset,
provided that the maximum amount of Financial Indebtedness
thereafter secured by such Security Interest does not exceed the
purchase price of such asset (including transactional expenses) and
the Security Interest does not extend to any assets of any member
of the Group other than the assets being acquired;
(f) which arises pursuant to any order of attachment, distraint
or similar legal process arising in connection with court
proceedings or as security for costs and expenses in any such
proceedings, so long as the execution or other enforcement thereof
is effectively stayed and the claims secured thereby are being
contested in good faith by appropriate proceedings;
(g) being liens or rights of set off arising by operation of law
and in the ordinary course of business, including, without
limitation, any rights of set off with respect to demand or time
deposits maintained with financial institutions and bankers' liens
with respect to property of the Obligor or any member of the Group
held by financial institutions;
(h) arising in the ordinary course of business of the Group and
(i) which are necessary in order to enable the Obligor and/or any
of its Subsidiaries to comply with any mandatory requirement
imposed on any of them by a banking or other regulatory authority
in connection
with the Group's business or (ii) limited to deposits made in
the name of the Obligor and/or any of its Subsidiaries to secure
obligations of their customers;
(i) incurred in connection with the Group's foreign exchange
dealings or other proprietary trading or hedging activities
(including any Repo, swap or derivative transaction) and not for
the purpose of raising credit or funds for the operation of the
Group generally, other than any Security Interest upon any asset in
its investment short term account or investment long term
account;
(j) incurred in the ordinary course of business of the Group
provided that the Financial Indebtedness secured by such Security
Interest (but excluding any Financial Indebtedness secured by any
Security Interest pursuant to any other limb of this definition of
Permitted Security Interest) does not in the aggregate at any time
exceed in value 20 per cent. of Consolidated Total Assets;
(k) to secure Financial Indebtedness of the nature referred to
in Condition 6(b)(ii) over investments comprised in funds managed
by the relevant third party;
(l) granted in favour of the Obligor or any member of the Group
to secure Financial Indebtedness owed to the Obligor or any member
of the Group;
(m) arising in any netting or set-off arrangement entered into
by the Obligor or any member of the Group in the ordinary course of
business for the purpose of netting debit and credit balances;
(n) on property acquired (or deemed to be acquired) under a
financial lease or claims arising from the use or loss of or damage
to such property, provided that any such encumbrance secures only
rentals and other amounts payable under such lease, but for the
avoidance of doubt, this shall not exclude the amount of such
financing from the definition of "Financial Indebtedness"; and
(e) comprising any extension, renewal of or substitution for any
Security Interest permitted by any of the preceding paragraphs (a)
to (k d ) above; provided that with respect to any such Security
Interest the principal amount secured has not increased and such
extension, renewal or replacement shall be no more restrictive in
any material respect than the original Security Interest, and the
Security Interest shall have not been extended to any additional
property (other than proceeds of the property in question).
"Person" means any individual, company, corporation, firm,
partnership, joint venture, association, organisation, state or
agency of a state or other entity, whether or not having separate
legal personality;
"Potential Dissolution Event" means any condition, event or act
which, with the giving of notice, lapse of time, declaration,
demand, determination or fulfilment of any other applicable
condition (or any combination of the foregoing) could constitute a
Dissolution Event;
"Proceedings" has the meaning given to it in Condition
20(d)(iii);
"Profit Amount" has the meaning given to it in the Murabaha
Agreement; "Profit Rate" means 7.5 per cent. per annum;
"Purchase Agreement" means the purchase agreement dated 28
January 2020 and entered into between Harbour North 2b Real Estate
S.P.C. Owned by GFH Asset Company, Harbour East 3 Real Estate
S.P.C. Owned by GFH Asset Company, South East Real Estate S.P.C.
and Delmon Lost Paradise Project Company 2 S.P.C., as sellers, the
Obligor and the Trustee relating to certain assets as supplemented
by a supplemental purchase agreement dated 8 June 2020 and entered
into between Harbour North 1 Real Estate S.P.C. Owned By GFH Asset
Company, Harbour North 3 Real Estate
S.P.C. Owned By GFH Asset Company and Delmon Lost Paradise
Project Company 1 Spc, as sellers, the Obligor and the Trustee
relating to certain assets;
"Purchase Undertaking" means the purchase undertaking dated 28
January 2020 and granted by the Obligor for the benefit of the
Trustee and the Delegate, and includes the form of sale agreement
to be entered into in accordance with the terms of the Purchase
Undertaking;
"Real Estate Assets" has the meaning given to it in the Purchase
Agreement;
"Recognised Rating Agencies" means (i) Moody's, (ii) Standard
& Poor's and (iii) Fitch, or any of their respective
successors;
"Record Date" has the meaning given to it in Condition 9(a);
"Register" has the meaning given to it in Condition 2; "Relevant
Date" has the meaning given to it in Condition 10;
"Relevant Indebtedness" means any present or future
indebtedness, which is in the form of, or which is represented or
evidenced by, bonds, notes, debentures, debenture stock, loan stock
or other securities, which for the time being are, or are intended
to be, or are capable of being, quoted, listed or dealt in or
traded on any stock exchange or over-the-counter or other
securities market;
"Relevant Jurisdiction" means the Cayman Islands and the Kingdom
of Bahrain; "Relevant Powers" has the meaning given to it in
Condition 15(a);
"Relevant Sukuk Obligation" means any Sukuk Obligation in
respect of which the relevant trust certificates or other
securities are, or are intended to be, or are capable of being,
quoted, listed or dealt in or traded on any stock exchange or
over-the-counter or other securities market;
"Rental" has the meaning given to it in the Lease Agreement;
"Repo" means a securities repurchase or resale agreement or
reverse repurchase or resale agreement, a securities borrowing
agreement, or any agreement relating to securities which is similar
in effect to any of the foregoing, and for the purposes of this
definition, the term "securities" shall mean any Capital Stock,
share, debenture or other debt or equity instrument, whether issued
by any private or public company, any government or agency or
instrumentality thereof or any supranational, international or
multilateral institution or organisation;
"Required Amount" has the meaning given to it in the Servicing
Agency Agreement; "Restricted Payment" has the meanings given to it
in Condition 6(b)(iii);
"Return Accumulation Period" means the period beginning on (and
including) 28 January 2020 and ending on (but excluding) the first
Periodic Distribution Date and each successive period beginning on
(and including) a Periodic Distribution Date and ending on (but
excluding) the next succeeding Periodic Distribution Date;
"Sale and Substitution Undertaking" means the sale and
substitution undertaking dated 28 January 2020 and granted by the
Trustee for the benefit of the Obligor and includes the form of
sale agreement (each a "Sale Agreement") to be entered into in
accordance with the terms of the Sale and Substitution
Undertaking;
"Scheduled Dissolution Date" means 28 January 2025;
"Scheme of Arrangement" means a scheme of arrangement or
analogous procedure;
"Security Interest" means a mortgage, charge, pledge, lien or
other security interest securing any obligation of any Person or
any other agreement or arrangement having a similar effect;
"Servicing Agency Agreement" means the servicing agency
agreement dated 28 January 2020 and entered into between the
Servicing Agent and the Trustee;
"Servicing Agent" means the Obligor in its capacity as servicing
agent under the Servicing Agency Agreement;
"Standard & Poor's" means S&P Global Ratings Europe
Limited;
"Stated Maturity" means, with respect to any Financial
Indebtedness, the date specified in the relevant documentation as
the fixed date on which the final payment of principal in respect
thereof is due and payable, including pursuant to any mandatory
redemption provision (but excluding any provision providing for the
repurchase of such Financial Indebtedness at the option of the
holder thereof upon the happening of any contingency unless such
contingency has occurred);
"Subsidiary" means, in relation to any company, corporation or
other legal entity (a "holding company"), a company, corporation or
other legal entity:
(a) which is controlled, directly or indirectly, by the holding company;
(b) in which a majority of the voting rights are held by the
holding company, either alone or pursuant to an agreement with
others;
(c) more than half the issued share capital of which is
beneficially owned, directly or indirectly, by the holding company;
or
(d) which is a subsidiary of another Subsidiary of the holding company,
and, for this purpose, a company, corporation or other legal
entity shall be treated as being "controlled" by another if that
other company, corporation or other legal entity is able to
determine the composition of the majority of its board of directors
or equivalent body;
"Successor Company" has the meaning given to it in Condition
6(b)(ix);
"Sukuk Obligation" means any undertaking or other obligation to
pay any money given in connection with any issue of trust
certificates or other securities intended to be issued in
accordance with the principles of Shari'a, whether or not in return
for consideration of any kind;
"Supplemental Purchase Agreement" means a supplemental purchase
agreement entered into pursuant to clause 3.2 of the Purchase
Agreement;
"Supplemental Trust Deed" means a supplemental trust deed
entered into pursuant to clause 4.5 of the Trust Deed;
"Tax Event" has the meaning given to it in Condition 8(b);
"Taxes" means any present or future sales, excise, stamp,
turnover, issue, registration, documentary, value added, transfer
or other tax, levy, impost, duty, fee, assessment or other charge,
withholding or deduction of whatever nature, and all additional
amounts, penalties or similar liabilities with respect thereto;
"Tier 1 Capital" means capital qualifying as, and approved by
the Financial Regulator as, tier 1 capital in accordance with the
Capital Regulations;
"Total Loss Event" means the total loss or destruction of, or
damage to the whole of the Lease Assets or any event or occurrence
that renders the whole of the Lease Assets permanently unfit for
any economic use and (but only after taking into consideration any
insurances payable or other indemnity in each case granted by any
third party in respect of the Lease Assets) the repair or remedial
work in respect thereof is wholly uneconomical;
"Total Loss Event Dissolution Date" has the meaning given to it
in Condition 8(c);
"Total Loss Shortfall Amount" has the meaning given to it in the
Servicing Agency Agreement;
"Transaction Account" means the non-interest bearing account
maintained in London in the Trustee's name and held with the
Principal Paying Agent, into which the Obligor will deposit all
amounts due to the Trustee under the Transaction Documents;
"Transaction Documents" means:
(a) the Agency Agreement;
(b) the Lease Agreement;
(c) the Murabaha Agreement;
(d) the Purchase Agreement;
(e) the Purchase Undertaking;
(f) the Sale and Substitution Undertaking;
(g) the Servicing Agency Agreement;
(h) the Trust Deed;
(i) any Supplemental Purchase Agreement;
(j) any Supplemental Trust Deed; and
(k) any Sale Agreement.
each as may be amended, restated and/or supplemented from time
to time; "Trust" means the trust constituted by the Trust Deed;
"Trust Assets" has the meaning given to it in Condition
5(a);
"Trustee Administrator" means Walkers Fiduciary Limited as
corporate administrator of the Trustee;
"Trustee Event" means any of the following events:
(a) Non-Payment: default is made in the payment of any
Dissolution Distribution Amount on the date fixed for payment
thereof and the default continues for a period of seven days or
default is made in the payment of any Periodic Distribution Amount
on the due date for payment thereof and the default continues for a
period of 14 days; or
(b) Breach of Other Obligations: the Trustee does not perform or
comply with any one or more of its other duties, obligations or
undertakings in the Certificates or the Transaction Documents to
which it is a party, which failure is, in the opinion of the
Delegate, incapable of remedy or, if in the opinion of the Delegate
is capable of remedy, is not, in the opinion of the Delegate,
remedied within the period of 30 days after written notice of such
default shall have been given by the Delegate to the Trustee
requiring the same to be remedied; or
(c) Enforcement Proceedings: any distress, attachment, execution
or other legal process is levied, enforced or sued out on or
against any part of the property, assets or revenues of the Trustee
and is not discharged or stayed within 30 days; or
(d) Insolvency: the Trustee is (or is, or could be, deemed by
law or a court to be) insolvent or bankrupt or unable to pay its
debts as they fall due, stops, suspends or threatens to stop or
suspend payment of all or any part of (or of a particular type of)
its debts, proposes or makes a general assignment or an arrangement
or composition with or for the benefit of the relevant creditors in
respect of any of such debts or a moratorium is agreed or declared
or comes into effect in respect of or affecting all or any part of
(or of a particular type of) the debts of the Trustee; or
(e) Winding-up: an administrator is appointed, an order is made
or an effective resolution passed for the winding-up or dissolution
or administration of the Trustee, or the Trustee shall apply or
petition for a winding-up or administration order in respect of
itself or cease or through an official action of its board of
directors threaten to cease to carry on all or substantially all of
its business or operations, in each case except for the purpose of
and followed by a reconstruction, amalgamation, reorganisation,
merger or consolidation on terms approved by the Delegate or by an
Extraordinary Resolution of the Certificateholders; or
(f) Authorisation and Consents: any action, condition or thing
(including the obtaining or effecting of any necessary consent,
approval, authorisation, exemption, filing, licence, order,
recording or registration) at any time required to be taken,
fulfilled or done in order: (x) to enable the Trustee lawfully to
enter into, exercise its rights and perform and comply with its
duties, obligations and undertakings under the Certificates and
the Transaction Documents to which it is a party; (y) to ensure
that those duties, obligations and undertakings are legally binding
and enforceable; or (z) to make the Certificates and the
Transaction Documents to which it is a party admissible in evidence
in the courts of the Cayman Islands, is not taken, fulfilled or
done; or
(g) Illegality: it is or will become unlawful for the Trustee to
perform or comply with any one or more of its duties, obligations
or undertakings under any of the Certificates or the Transaction
Documents or any duties, obligations or undertakings of the Trustee
under the Certificates or the Transaction Documents are not or
cease to be legal, valid, binding and enforceable; or
(h) Repudiation: the Trustee repudiates any Certificate or any
Transaction Document or does or causes to be done any act or thing
evidencing an intention to repudiate any Certificate or any
Transaction Document; or
(i) Analogous Events: any event occurs that under the laws of
the Cayman Islands has an analogous effect to any of the events
referred to in paragraphs (d) or (e) above.
For the purpose of paragraph (a) above, all amounts payable in
respect of the Certificates shall be considered due and payable
(including any amounts expressed to be payable under Condition 7)
notwithstanding that the Trustee has at the relevant time
insufficient funds or Trust Assets to pay such amounts (whether as
a result of the application of Condition 5(b) or otherwise);
"Wakala Portfolio" has the meaning given to it in the Servicing
Agency Agreement; and
"Wakala Portfolio Revenues" has the meaning given to it in the
Servicing Agency Agreement.
All references to the "face amount" of a Certificate shall be
deemed to include the Dissolution Distribution Amount, any
additional amounts (other than relating to Periodic Distribution
Amounts) which may be payable under Condition 10 and any other
amount in the nature of face amounts payable pursuant to these
Conditions.
All references to Periodic Distribution Amounts shall be deemed
to include any additional amounts in respect of profit
distributions which may be payable under Condition 10 and any other
amount in the nature of a profit distribution payable pursuant to
these Conditions.
All references to "U.S.$" and "U.S. dollars" are to the lawful
currency of the United States of America and all references to
"dinar" and "BD" are to the lawful currency of the Kingdom of
Bahrain.
2 Form, Denomination and Title
The Certificates are issued in registered form in denominations
of U.S.$200,000 and integral multiples of U.S.$1,000 in excess
thereof.
Certificates are represented by registered certificates
("Registered Certificates") and, save as provided in Condition
3(a), each Registered Certificate shall represent the entire
holding of Certificates by the same holder.
Title to the Certificates shall pass by registration in the
register that the Trustee shall procure to be kept by the Registrar
outside the United Kingdom in accordance with the provisions of the
Agency Agreement (the "Register"). Except as ordered by a court of
competent jurisdiction or as required by law, the holder (as
defined below) of any Certificate shall be deemed to be and may be
treated as its absolute owner for all purposes whether or not it is
overdue and regardless of any notice of ownership, trust or an
interest in it, any writing on the Registered Certificate
representing it or the theft or loss of such Registered Certificate
and no person shall be liable for so treating the holder. The
holder of a Certificate will be recognised by the Trustee as
entitled to its Certificate free from any equity, set-off or
counterclaim on the part of the Trustee against the original or any
intermediate holder of such Certificate.
In these Conditions, "Certificateholder" or "holder" means the
person in whose name a Certificate is registered.
Upon issue, the Certificates will be represented by interests in
a global certificate in registered form (the "Global Certificate")
which will be deposited with, and registered in the name of a
nominee for, a common depositary for Euroclear Bank SA/NV
("Euroclear") and Clearstream Banking S.A. ("Clearstream,
Luxembourg"). Ownership interests in the Global Certificate will be
shown on, and transfers thereof will only be effected through,
records maintained by Euroclear and Clearstream, Luxembourg (as
applicable), and their respective participants. The Conditions are
modified by certain provisions contained in the Global
Certificate.
Except in certain limited circumstances, owners of interests in
the Global Certificate will not be entitled to receive Registered
Certificates representing their holdings of Certificates. See
"Summary of Provisions relating to the Certificates while in Global
Form".
3 Transfers
(a) Transfer of Registered Certificates: A holding of
Certificates may, subject to Condition 3(c), be transferred in
whole or in part upon the surrender (at the specified office of the
Registrar or any Transfer Agent) of the Registered Certificate
representing such Certificates to be transferred, together with the
form of transfer endorsed on such Registered Certificate (or
another form of transfer substantially in the same form and
containing the same representations and certifications (if any),
unless otherwise agreed by the Trustee), duly completed and
executed and any other evidence as the Registrar or Transfer Agent
may reasonably require. In the case of a transfer of part only of a
holding of Certificates represented by one Registered Certificate,
a new Registered Certificate shall be issued to the transferee in
respect of the part transferred and a further new Registered
Certificate in respect of the balance of the holding not
transferred shall be issued to the transferor. In the case of a
transfer of Certificates to a person who is already a holder of
Certificates, a new Registered Certificate representing the
enlarged holding shall only be issued against surrender of the
Registered Certificate representing the existing holding. All
transfers of Certificates and entries on the Register will be made
in accordance with the detailed regulations concerning transfers of
Certificates scheduled to the Agency Agreement. The regulations may
be changed by the Trustee, with the prior written approval of the
Registrar and the Delegate, provided that any such change is not
materially prejudicial to the interests of the Certificateholders
or is required to be made to comply with applicable law or
regulation. A copy of the current regulations will be made
available by the Registrar to any Certificateholder upon
request.
(b) Delivery of New Certificates: Each new Registered
Certificate to be issued pursuant to Condition 3(a) shall be
available for delivery within five business days of receipt of a
duly completed form of transfer and surrender of the existing
Registered Certificate. Delivery of the new Registered
Certificate(s) shall be made at the specified office of the
Transfer Agent or of the Registrar (as the case may be) to whom
delivery or surrender of such form of transfer, and/or Registered
Certificate shall have been made or, at the option of the holder
making such delivery or surrender as aforesaid and as specified in
the relevant form of transfer, or otherwise in writing, be mailed
by uninsured post at the risk of the holder entitled to the new
Registered Certificate to such address as may be so specified,
unless such holder requests otherwise and pays in advance to the
relevant Transfer Agent or the Registrar (as the case may be) the
costs of such other method of delivery and/or such insurance as it
may specify. In this Condition 3(b), "business day" means a day,
other than a Saturday or Sunday, on which banks are open for
business in the place of the specified office of the relevant
Transfer Agent or the Registrar (as the case may be).
(c) Transfers Free of Charge: Transfers of Registered
Certificates on transfer in respect of some but not all of a
holding of Certificates shall be effected without charge by or on
behalf of the Trustee, the Registrar or the Transfer Agents, but
upon payment by the transferee of any Tax or other governmental
charges that may be
imposed in relation to such transfer (or
the giving of such indemnity and/or security as the Trustee, the
Registrar or the relevant Transfer Agent may require).
(d) Closed Periods: No Certificateholder may require the
transfer of a Certificate to be registered (i) during the period of
15 days ending on (and including) the due date for payment of any
Dissolution Distribution Amount or Periodic Distribution Amount or
any other date on which any payment of the face amount or payment
of any profit in respect of that Certificate falls due, (ii) after
any such Certificate has been called for redemption pursuant to
Condition 8 or (iii) during the period of seven days ending on (and
including) any Record Date.
4 Status and Limited Recourse
(a) Status of Certificates: The Certificates represent an
undivided ownership interest in the Trust Assets and are limited
recourse obligations of the Trustee. Each Certificate will
constitute unsecured obligations of the Trustee and shall at all
times rank pari passu and without any preference or priority with
all other Certificates.
(b) Status of Obligor's obligations: The payment obligations of
the Obligor (in any capacity) under the Transaction Documents are
and will be direct, unconditional, unsubordinated and (subject to
the negative pledge provisions described in Condition 6(b)(vii))
unsecured obligations of the Obligor and shall, save for such
exceptions as may be provided by applicable legislation and subject
to the negative pledge provisions described in Condition 6(b)(vii),
at all times rank at least equally with all other unsecured and
unsubordinated obligations of the Obligor, present and future.
(c) Limited Recourse and Agreement of Certificateholders: Save
as provided in this Condition 4(c), the Certificates do not
represent an interest in or obligation of any of the Trustee, the
Delegate, the Obligor, any of the Agents or any of their respective
affiliates.
The proceeds of the Trust Assets are the sole source of payments
on the Certificates. The net proceeds of the realisation of, or
enforcement with respect to, the Trust Assets may not be sufficient
to make all payments due in respect of the Certificates.
Certificateholders, by subscribing for or acquiring the
Certificates, acknowledge and agree that notwithstanding anything
to the contrary contained in these Conditions or any Transaction
Document:
(i) no payment of any amount whatsoever shall be made by the
Trustee (in any capacity) or the Delegate or any of their
respective directors, officers, employees or agents on their behalf
except to the extent funds are available therefor from the Trust
Assets and no recourse shall be had for the payment of any amount
due and owing hereunder or under any Transaction Document, whether
for the payment of any fee, indemnity or other amount hereunder or
any other obligation or claim arising out of or based upon the
Transaction Documents, against the Trustee (in any capacity) or the
Delegate to the extent that the Trust Assets have been exhausted,
following which all obligations of the Trustee shall be
extinguished;
(ii) the Trustee may not sell, transfer, assign or otherwise
dispose of the Wakala Assets to a third party and may only realise
its rights, title, interest, benefits and entitlements, present and
future in, to and under the Wakala Assets in the manner expressly
provided in the Transaction Documents;
(iii) if the proceeds of the Trust Assets are insufficient to
make all payments due in respect of the Certificates,
Certificateholders will have no recourse to any assets of the
Trustee (and/or its directors, officers, shareholders or corporate
services providers in each of their respective capacities as such)
(other than the Trust Assets in the manner and to the extent
contemplated by the Transaction Documents) or of the Delegate or
the Agents or any of their respective directors, officers,
employees, agents, shareholders or affiliates, in each case in
respect of any shortfall or otherwise;
(iv) no Certificateholders will be able to petition for,
institute against, or join with any other person in instituting
proceedings for, the reorganisation, arrangement, liquidation,
bankruptcy, winding-up or receivership or other proceedings under
any bankruptcy or similar law in any jurisdiction against the
Trustee (in any capacity), the Delegate, the Agents or any of their
respective directors, officers, employees, agents, shareholders or
affiliates as a consequence of such shortfall or otherwise;
(v) no recourse (whether by institution or enforcement of any
legal proceedings or assessment or otherwise) in respect of any
breaches of any duty, obligation or undertaking of the Trustee or
the Delegate arising under or in connection with the Certificates
or the Transaction Documents by virtue of any customary law,
statute or otherwise shall be had against any shareholder, officer,
employee, agent, director or corporate services provider of the
Trustee and/or the Delegate (in each of their respective capacities
as such). The obligations of the Trustee (in any capacity) under
the Certificates and the Transaction Documents are corporate or
limited liability obligations of the Trustee and no personal
liability shall attach to or be incurred by the shareholders,
members, officers, employees, agents, directors or corporate
services providers of the Trustee (in each of their respective
capacities as such), save in the case of their wilful default or
actual fraud. Reference in these Conditions to wilful default or
actual fraud means a finding to such effect by a court of competent
jurisdiction in relation to the conduct of the relevant party;
and
(vi) it shall not be entitled to claim or exercise any right of
set-off, counterclaim, abatement or other similar remedy which it
might otherwise have, under the laws of any jurisdiction, in
respect of such Certificate or any part of these Conditions. No
collateral is or will be given for the payment obligations under
the Transaction Documents or the Certificates (without prejudice to
the negative pledge provisions described in Condition
6(b)(vii)).
Pursuant to the terms of the Transaction Documents, the Obligor
is obliged to make certain payments directly to or to the order of
the Trustee. Such payment obligations form part of the Trust Assets
and the Trustee and the Delegate (in the name of and on behalf of
the Trustee) will thereby have direct recourse against the Obligor
to recover payments due to the Trustee from the Obligor pursuant to
such Transaction Documents notwithstanding any other provision of
this Condition 4(c). Such right of the Trustee and the Delegate
shall (subject to the negative pledge provisions described in
Condition 6(b)(vii)) constitute an unsecured claim against the
Obligor. None of the Certificateholders, the Trustee nor the
Delegate shall be entitled to claim any priority right in respect
of any specific assets of the Obligor in connection with the
enforcement of any such claim.
5 The Trust
(a) Trust Assets: Pursuant to the Trust Deed, the Trustee holds
the Trust Assets upon trust absolutely for and on behalf of the
Certificateholders pro rata according to the face amount of
Certificates held by each holder. The term "Trust Assets"
means:
(i) the cash proceeds of the issue of Certificates, pending
application thereof in accordance with the terms of the Transaction
Documents;
(ii) any and all of the rights, title, interest, benefits and
entitlements, present and future, of the Trustee in, to and under
the Wakala Portfolio;
(iii) any and all of the interest, rights, benefits and
entitlements, present and future, of the Trustee in, to and under
the Transaction Documents (excluding the Excluded Representations
and the covenant given to the Trustee pursuant to clause 17.1 of
the Trust Deed); and
(iv) any and all moneys standing to the credit of the Transaction Account from time to time,
and all proceeds of the foregoing.
(b) Application of Proceeds from Trust Assets: On each Periodic
Distribution Date and on any Dissolution Date, the Principal Paying
Agent shall apply the moneys standing to the credit of the
Transaction Account in the following order of priority (in each
case only if and to the extent that payments of a higher priority
have been made in full):
(i) first, (to the extent not previously paid) to the Delegate
in respect of all amounts owing to it under the Transaction
Documents in its capacity as Delegate (including any amounts owing
to the Delegate in respect of its Appointees (as defined in the
Trust Deed)) and to any receiver, manager or administrative
receiver or any other analogous officer or agent appointed in
respect of the Trust by the Delegate in accordance with the Trust
Deed;
(ii) second, (to the extent not previously paid) to the Agents
(on a pasi passu basis and pro rata to the amounts owing to them)
in respect of all amounts owing to them under the Transaction
Documents;
(iii) third, only if such payment is due on or before a Periodic
Distribution Date (to the extent not previously paid) to pay pro
rata and pari passu (i) the Trustee in respect of all amounts owing
to it under the Transaction Documents in its capacity as Trustee;
and (ii) the Trustee Administrator in respect of all amounts owing
to it under the Transaction Documents and the Corporate Services
Agreement in its capacity as trustee administrator and registered
office provider for the Trustee;
(iv) fourth, only if such payment is due on a Periodic
Distribution Date, for application in or towards payment pari passu
and rateably of all Periodic Distribution Amounts due but
unpaid;
(v) fifth, only if such payment is due on a Dissolution Date,
for application in or towards payment pari passu and rateably of
all Dissolution Distribution Amounts; and
(vi) sixth, only on a Dissolution Date on which all Certificates
are redeemed in full and provided that all amounts required to be
paid in respect of the Certificates hereunder have been discharged
in full, in payment of any residual amount to the Obligor in its
capacity as Servicing Agent as an incentive fee payment for its
performance under the Servicing Agency Agreement.
6 Covenants
(a) Trustee Covenants: The Trustee covenants that for so long as
any Certificate is outstanding it shall not (without the prior
written consent of the Delegate):
(i) incur any indebtedness in respect of financed, borrowed or
raised money whatsoever whether structured (or intended to be
structured) in accordance with the principles of Shari'a or
otherwise, or give any guarantee or indemnity in respect of any
obligation of any person or issue any shares (or rights, warrants
or options in respect of shares or securities convertible into or
exchangeable for shares) except, in all cases, as provided in the
Transaction Documents;
(ii) secure any of its present or future indebtedness by any
lien, pledge, charge or other security interest upon any of its
present or future assets, properties or revenues (other than those
arising by operation of law (if any) and other than under or
pursuant to any of the Transaction Documents);
(iii) sell, lease, transfer, assign, participate, exchange or
otherwise dispose of, or pledge, mortgage, hypothecate or otherwise
encumber (by security interest, lien (statutory or otherwise),
preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever or otherwise) (or
permit such to occur or suffer such to exist), any part of its
interest in any of the Trust Assets except pursuant to any of the
Transaction Documents;
(iv) except as provided in Condition 14, amend or agree to any
amendment of any Transaction Document to which it is a party (other
than in accordance with the terms thereof);
(v) except as provided in the Trust Deed, act as trustee in
respect of any trust other than the Trust or in respect of any
parties other than the Certificateholders;
(vi) have any subsidiaries or employees;
(vii) redeem any of its shares or pay any dividend or make any
other distribution to its shareholders;
(viii) use the proceeds of the issue of the Certificates for any
purpose other than as stated in the Transaction Documents;
(ix) put to its directors or shareholders any resolution for, or
appoint any liquidator for, its winding-up or any resolution for
the commencement of any other bankruptcy or insolvency proceeding
with respect to it; or
(x) enter into any contract, transaction, amendment, obligation
or liability other than the Certificates and the Transaction
Documents to which it is a party or as expressly contemplated,
permitted or required thereunder or engage in any business or
activity other than:
(A) as contemplated, provided for or permitted in the Transaction Documents;
(B) the ownership, management and disposal of the Trust Assets
as provided in the Transaction Documents; and
(C) such other matters which are incidental thereto;
(b) Obligor Covenants:The Obligor covenants that for so long as
any Certificate is outstanding it shall:
(i) Financial Maintenance: ensure that its Consolidated Net
Worth shall not at any time be less than US$600,000,000.
(ii) Limitation on Financial Indebtedness: not, and shall not
permit any of its Subsidiaries to, create, incur, assume, guarantee
or in any manner become directly or indirectly liable with respect
to or otherwise become responsible for, contingently or otherwise,
the payment of (individually and collectively, to "Incur" or, as
appropriate, an "Incurrence") any Financial Indebtedness (other
than Permitted Financial Indebtedness); provided that the Obligor
and its Subsidiaries will be permitted to Incur such Financial
Indebtedness if the Leverage Ratio is not more than 5.0:1.0.
(iii) Limitation on Restricted Payments: not, and shall ensure
that none of its Subsidiaries will, directly or indirectly:
a. declare or pay any dividend, in cash or otherwise, or make
any other payment or distribution (whether by way of redemption,
acquisition or otherwise) in respect of its Capital Stock (other
than: (x) dividends, payments or distributions payable to the
Obligor or any of its Subsidiaries; and (y) dividends or
distributions payable solely in the form of shares of the Obligor);
or
b. voluntarily purchase, redeem or otherwise acquire or retire
for value: (i) more than 5% of the Capital Stock of the Obligor; or
(ii), other than in the ordinary course of its investment business,
the Capital Stock of any of its Affiliates; or
b. make any payment on or with respect to, or purchase, redeem,
defease or otherwise acquire or retire for value any Financial
Indebtedness of the Obligor that is contractually subordinated to
the obligations of the Obligor under the Transaction Documents
(excluding any intercompany Financial Indebtedness
between or among the Obligor and any of its Subsidiaries),
except a payment of interest or principal (or equivalent amounts)
at the Stated Maturity thereof;
(all such payments and other actions set out in paragraphs (a)
and (b c) (inclusive) above being together referred to herein as
"Restricted Payments"), unless at the time of and after giving
effect to such Restricted Payment:
i. the Obligor (acting in any capacity) has neither failed to
pay an amount in the nature of: (x) profit payable by it pursuant
to any Transaction Document to which it is a party and the failure
has continued for a period of 10 Business Days; or (y) principal
payable by it pursuant to any Transaction Document to which it is a
party and the failure has continued for a period of 5 Business
Days; and
ii. no Potential Dissolution Event or Dissolution Event has
occurred, is continuing or would occur as a consequence of such
Restricted Payment; and
iii. immediately after giving pro forma effect to such
Restricted Payment, the Obligor would be able to incur an
additional U.S.$ 1.00 of Financial Indebtedness pursuant to
Condition 6(b)(ii); and
iv. such Restricted Payment when aggregated with all other
Restricted Payments declared or made in the same financial year is
equal to, or is less than, 65 per cent. of the Consolidated Profit
of the Obligor for the preceding financial year.
(iv) Asset Sale: not, and shall ensure that none of its
Subsidiaries will, directly or indirectly, enter into an Asset Sale
unless:
a. such Asset Sale has been approved by the board of directors
of the Obligor in the case of the Obligor, or the board of
directors of the relevant Subsidiary in the case of a
Subsidiary;
b. the consideration received by the Obligor or its Subsidiary,
as the case may be, is at least equal to the Fair Market Value of
the assets sold or disposed of; and
c. to the extent that the Asset Sale is in respect of an asset
which has a book value (as determined by reference to the most
recently available financial statements of the Obligor or of its
relevant Subsidiary, as the case may be) that exceeds 1.5 per cent.
of the Consolidated Total Assets at the time of such proposed Asset
Sale, the requirement specified in Condition 6(b)(iv)(b) for the
consideration received by the Obligor or its Subsidiary to be at
least equal to the Fair Market Value must be determined by an
Independent Qualified Party.
(v) Limitation on Affiliate Transactions: not, and shall not
permit any Subsidiary to, enter into or permit to exist any
transaction (including the purchase, sale, lease or exchange of any
property, employee compensation arrangements or the rendering of
any service) with, or for the benefit of, any Affiliate of the
Obligor or any of its Subsidiaries (an "Affiliate Transaction")
unless:
a. if such Affiliate Transaction involves an amount in excess of
U.S.$2,500,000, the terms of the Affiliate Transaction are no less
favourable to the Obligor or such Subsidiary than those that could
be obtained at the time of the Affiliate Transaction in
arm's-length dealings with a person who is not an Affiliate of the
Obligor or any of its Subsidiaries;
b. if such Affiliate Transaction involves an amount in excess of
U.S.$7,500,000, the terms of the Affiliate Transaction are set
forth in writing and a majority of the directors of the Obligor
disinterested with respect to such Affiliate Transaction have
determined in good faith that the criteria set forth in
paragraph
(a) above are satisfied and have approved the relevant Affiliate
Transaction as evidenced by a resolution of the board of directors
of the Obligor, in the case of the Obligor, or the board of
directors of the Subsidiary, in the case of a Subsidiary; and
c. if such Affiliate Transaction involves an amount in excess of
U.S.$50,000,000, the board of directors shall also have received a
written opinion from an Independent Qualified Party to the effect
that such Affiliate Transaction is fair, from a financial
standpoint, to the Obligor and its Subsidiaries or is not less
favourable to the Obligor and its Subsidiaries than could
reasonably be expected to be obtained at the time in an
arm's-length transaction with a Person who was not an
Affiliate.
This condition 6(b)(v) does not apply to any Affiliate
Transaction between the Obligor and its Subsidiaries or between its
Subsidiaries.
(vi) Restriction on Distributions from Subsidiaries: shall
procure that, for so long as a Material Subsidiary is lawfully able
to pay at least U.S.$1.00 (or its equivalent in another currency)
in dividends, such Material Subsidiary will not create or otherwise
become subject to or permit to exist, any restriction on its
ability to pay such dividends.
(vii) Negative Pledge: not, and shall procure that none of its
Subsidaries Subsidiaries will, create or permit to subsist any
Security Interest (other than a Permitted Security Interest) over
any of its or their assets to secure any Financial Relevant
Indebtedness or Relevant Sukuk Obligation or any guarantee or
indemnity of its Relevant Indebtedness or Relevant Sukuk Obligation
unless, at the same time or prior thereto, the Obligor's
obligations under the Transaction Documents are secured equally and
rateably therewith; or have the benefit of such other arrangement
as may be approved by an Extraordinary Resolution of
Certificateholders, or as Delegate in its discretion shall deem to
be not materially less beneficial to the interests of
Certificateholders.
(viii) Provision of Financial Information:
a. in respect of each financial year, (A) deliver to the
Delegate; and (B) publish in accordance with the rules of the ISM
and/or on the website of the Obligor; as the case may be, the
audited annual consolidated financial statements of the Group, in
each case, prepared in accordance with the Applicable Accounting
Standards and delivered by no later than 120 days after the end of
the financial year; and
b. in respect of any period for which interim reviewed
consolidated financial statements are published by the Group, (A)
deliver to the Delegate; and (B) publish in accordance with the
rules of the ISM and/or on the website of the Obligor, as the case
may be, such interim reviewed consolidated financial statements of
the Group, in each case, prepared in accordance with the Applicable
Accounting Standards and to be delivered by no later than 60 days
after the end of the relevant interim period.
(ix) Merger and Consolidation: not consolidate with or merge
with or into, or convey, transfer or lease, in one transaction or a
series of transactions, directly or indirectly, all or
substantially all its assets to, any Person, unless:
a. the Obligor is the surviving corporation or the Person formed
by or surviving any such consolidation or merger (if other than the
Obligor) or to which such sale, assignment, transfer, lease,
conveyance or other disposition shall have been made (the
"Successor Company") is a corporation organised or existing under
the laws of the Kingdom of Bahrain, the United States or any
political subdivision thereof, the Cayman Islands, any member state
of the European Union, any member country of the Gulf Cooperation
Council or any other member
country of the Organisation for Economic Co-operation and
Development (each an "OECD Country") (other than any other OECD
Country the long-term foreign currency rating of which at such time
is less than "A" (or the equivalent) from any two Recognised Rating
Agencies);
b. the Successor Company assumes all the obligations of the
Obligor under the Transaction Documents whether by operation of law
or pursuant to amendment agreements in a form reasonably
satisfactory to the Delegate;
c. immediately after giving pro forma effect to such transaction
(and treating any Financial Indebtedness which becomes an
obligation of the Successor Company or any Subsidiary as a result
of such transaction as having been incurred by such Successor
Company or such Subsidiary at the time of such transaction), no
Obligor Event shall have occurred and be continuing; and
d. immediately after giving pro forma effect to such
transaction, (i) the Successor Company would be able to incur an
additional U.S.$1.00 of Financial Indebtedness pursuant to
Condition 6(b)(ii) or (ii) the Consolidated Net Worth of the
Successor Company would be no less than the Consolidated Net Worth
of the Obligor immediately prior to such transaction,
provided, however, that the restriction set out in Condition
6(b)(ix)(d) will not be applicable to (A) a Subsidiary
consolidating with, merging into or transferring all or part of its
properties and assets to the Obligor (so long as no Capital Stock
of the Obligor is distributed to any Person) or (B) the Obligor
merging with an Affiliate of the Obligor solely for the purpose and
with the sole effect of reincorporating the Obligor in another
jurisdiction.
(x) Pari Passu Ranking: ensure that the obligations of the
Obligor under the Transaction Documents at all times rank at least
pari passuin right of payment with all of its other unsecured and
unsubordinated obligations, save for those preferred by provisions
of law which are both mandatory and of general application.
(xi) Treasury Shares : not at any time hold more than 10 per
cent. of the Capital Stock of the Obligor.
(xii) Suspension of Covenants:
a. If on any date the following conditions are satisfied (the
fulfilment of these conditions being referred to as "Investment
Grade Status"):
i. the Certificates are assigned any two of the following
ratings: Baa3 or better by Moody's, BBB- or better by S&P, BBB-
or better by Fitch, or an equivalent credit rating from any other
Recognised Rating Agency; and
ii. there exists no Dissolution Event or Potential Dissolution Event,
then, beginning on such date and for such time as the foregoing
conditions remain satisfied (such period, the "Investment Grade
Status Period"), the following covenants will be suspended (a)
Condition 6(b)(i), (b) Condition 6(b)(ii), (c) Condition 6(b)(iii)
and (d) Condition 6(b)(iv).
b. The covenants and other provisions of these Conditions that
are suspended during an Investment Grade Status Period will be
immediately reinstated and will continue to exist upon the
commencement of any period in which the Certificates do not have
Investment Grade Status. No action taken (or not taken) during an
Investment Grade Status Period or prior to an Investment Grade
Status Period in compliance with the covenants then applicable may
constitute an Obligor Event or an event which, with the passage of
time or the giving of notice, or both, would
constitute an Obligor Event under the Certificates in the event
that suspended covenants and provisions are subsequently
reinstated or suspended, as the case may be.
7 Periodic Distribution Amounts
(a) Periodic Distribution Amounts: A profit distribution (the
amount of which shall be calculated as provided in Condition 7(b))
shall accrue at the Profit Rate and shall be payable in arrear in
respect of the Certificates on each Periodic Distribution Date in
respect of the Return Accumulation Period ending on such date (each
such distribution being referred to in these Conditions as a
"Periodic Distribution Amount"). Periodic Distribution Amounts
shall be distributed to Certificateholders by the Principal Paying
Agent on behalf of the Trustee, pro rata to their respective
holdings, out of amounts transferred to the Transaction Account and
subject to Condition 5(b) and Condition 9.
(b) Calculations: The amount of profit payable per Calculation
Amount in respect of any Certificate for any period shall be equal
to the product of (i) the Profit Rate, (ii) the Calculation Amount,
and (iii) the Day Count Fraction for such period, with the result
being rounded to the nearest U.S.$0.01, U.S.$0.005 being rounded
upwards. For these purposes, "Day Count Fraction" means, in respect
of the calculation of an amount of profit on any Certificate for
any period (whether or not constituting a Return Accumulation
Period, the "Calculation Period"), the number of days in the
Calculation Period divided by 360 (the number of days in such
period to be calculated on the basis of a year of 360 days with 12
30- day months and, in the case of an incomplete month, the number
of days elapsed).
(c) Entitlement to Profit: No further Periodic Distribution
Amounts will be payable in respect of any Certificate from and
including: (i) any Dissolution Date (other than the Total Loss
Event Dissolution Date) unless payment is improperly withheld or
refused and no sale agreement has been executed pursuant to the
Purchase Undertaking or the Sale and Substitution Undertaking as
the case may be, in which event Periodic Distribution Amounts shall
continue to accumulate (both before and after judgment) in the
manner provided in this Condition 7 to the earlier of (x) the
Relevant Date; and (y) the date on which a Sale Agreement has been
executed in accordance with the terms of the Purchase Undertaking
or the Sale and Substitution Undertaking, as the case may be; or
(ii) the Total Loss Event Dissolution Date.
8 Redemption and Dissolution of the Trust
(a) Dissolution on the Scheduled Dissolution Date: Unless
previously redeemed, or purchased and cancelled, in full, as
provided below, each Certificate shall be finally redeemed on the
Scheduled Dissolution Date at its Dissolution Distribution Amount,
and the Trust shall be dissolved by the Trustee following the
payment of all such amounts in full. Upon such dissolution as
aforesaid, the Certificates shall cease to represent interests in
the Trust Assets and no further amounts shall be payable in respect
thereof and the Trustee shall have no further obligations in
respect thereof.
(b) Early Dissolution at the Option of the Obligor: If:
(i) (A) the Trustee has or will become obliged to pay additional
amounts as described under Condition 10 as a result of any change
in, or amendment to, the laws or regulations of a Relevant
Jurisdiction or any change in the application or official
interpretation of such laws or regulations, which change or
amendment becomes effective on or after 27 January 2020, and (B)
such obligation cannot be avoided by the Trustee taking reasonable
measures available to it; or
(ii) (A) the Obligor has or will become obliged to pay
additional amounts to the Trustee pursuant to the terms of any
Transaction Document as a result of any change in, or amendment to,
the laws or regulations of a Relevant Jurisdiction or any change in
the application or official interpretation of such laws or
regulations,
which change or amendment becomes effective on or after 27 January 2020 and (B) such
obligation cannot be avoided by the Obligor taking reasonable
measures available to it,
(the occurrence of an event described in Condition 8(b)(i) or
8(b)(ii) being a "Tax Event"), the Obligor may, in its sole
discretion, deliver to the Trustee a duly completed Exercise Notice
in accordance with the provisions of the Sale and Substitution
Undertaking. On receipt of such notice, the Trustee shall, on
giving not less than 30 nor more than 60 days' notice to the
Delegate and the Certificateholders (which notice shall be
irrevocable) redeem the Certificates in whole but not in part at
any time (such date being an "Early Tax Dissolution Date")
at their Dissolution Distribution Amount, provided that in either case,
(x) no such notice of dissolution shall be given to
Certificateholders unless an Exercise Notice has been received by
the Trustee from the Obligor pursuant to the Sale and Substitution
Undertaking; and (y) no such notice of dissolution or Exercise
Notice may be given earlier than 90 days prior to the earliest date
on which the Trustee or the Obligor, as the case may be, would be
obliged to pay such additional amounts were a payment in respect of
the Certificates (in the case of the Trustee) or pursuant to any
Transaction Document (in the case of the Obligor) then due.
Prior to the publication of any notice of dissolution pursuant
to this Condition 8(b), the Trustee shall deliver to the
Delegate:
(A) a certificate signed by two directors and/or Authorised
Signatories of the Trustee (in the case of Condition 8(b)(i)) or
the Obligor (in the case of Condition 8(b)(ii)), as the case may
be, in each case stating that the obligation referred to in
Condition 8(b)(i) or 8(b)(ii), as the case may be, has arisen and
cannot be avoided by the Trustee or the Obligor, as the case may
be, taking reasonable measures available to it; and
(B) an opinion of independent legal or tax advisers of
recognised standing to the effect that the Trustee or the Obligor,
as the case may be, has or will become obliged to pay additional
amounts as a result of such change or amendment,
and the Delegate shall be entitled to accept and rely on such
certificate and legal opinion as sufficient evidence of the
satisfaction of the conditions precedent set out in Condition
8(b)(i) or, as the case may be, Condition 8(b)(ii) above (without
Liability to any person), in which event it shall be conclusive and
binding on Certificateholders.
Upon expiry of any such notice given in accordance with this
Condition 8(b) and payment in full of the Dissolution Distribution
Amount to Certificateholders, the Trustee shall be bound to
dissolve the Trust. Upon such dissolution as aforesaid, the
Certificates shall cease to represent interests in the Trust Assets
and no further amounts shall be payable in respect thereof and the
Trustee shall have no further obligations in respect thereof.
(c) Dissolution following a Total Loss Event: The Obligor has
agreed in the Trust Deed to notify the Trustee and the Delegate
forthwith upon the occurrence of a Total Loss Event and to provide
a description of the Total Loss Event. The Trustee, upon receipt of
such notice from the Obligor or otherwise upon becoming aware of
the occurrence of a Total Loss Event, unless the Lease Assets are
replaced by the Obligor in accordance with the Servicing Agency
Agreement, shall redeem all of the Certificates by no later than
the close of business in London on the 31st day after the
occurrence of the Total Loss Event (a "Total Loss Event Dissolution
Date"). Any such redemption of Certificates shall be at their
Dissolution Distribution Amount using either (i) the proceeds of
insurance payable in respect of the Total Loss Event which are
required to be paid into the Transaction Account by no later than
the 29th day after the occurrence of the Total Loss Event, or (ii)
if the insurance proceeds (if any) standing to the credit of the
Transaction Account on the 29th day following the occurrence of a
Total Loss Event are less than the Full Reinstatement Value, the
amount standing to the credit of the Transaction Account on the
30th day following the occurrence of a Total Loss Event,
representing the aggregate
of the insurance proceeds paid in respect
of any Total Loss Event (if any) and the Total Loss Shortfall
Amount funded by the Servicing Agent in accordance with the terms
of the Servicing Agency Agreement and, in each case, together with
the aggregate amounts of the Deferred Sale Price then outstanding
under the Murabaha Agreement. Upon payment in full of the
Dissolution Distribution Amount to all Certificateholders, the
Trustee shall be bound to dissolve the Trust. Upon such dissolution
as aforesaid, the Certificates shall cease to represent interests
in the Trust Assets and no further amounts shall be payable in
respect thereof and the Trustee shall have no further obligations
in respect thereof.
(d) Dissolution following a Dissolution Event: Upon the
occurrence of a Dissolution Event, the Certificates may be redeemed
at the Dissolution Distribution Amount and the Trustee shall
dissolve the Trust, in each case subject to, and as more
particularly specified in, Condition 12.
(e) Purchases: The Obligor and the Obligor's Subsidiaries may at
any time purchase Certificates at any price. Any Certificates held
by or on behalf of or for the benefit of the Obligor or any of the
Obligor's Subsidiaries shall not entitle the holder to exercise any
voting rights and shall not be deemed to be outstanding for the
purposes of calculating quorums, meetings or for passing
Extraordinary Resolutions for the purposes of Condition 14(a).
(f) Cancellation: Any Registered Certificates representing
Certificates purchased by or on behalf of the Obligor or any of the
Obligor's Subsidiaries may, in the Trustee's and the Obligor's sole
discretion, be surrendered for cancellation in accordance with the
terms of the Trust Deed, the Agency Agreement and the Sale and
Substitution Undertaking. Any Registered Certificates so
surrendered for cancellation may not be reissued or resold and the
obligations of the Trustee in respect of any such Certificates
shall be discharged. If all (and not some only) of the Certificates
are cancelled in accordance with this Condition 8(f), the Trustee
shall be bound to dissolve the Trust.
(g) No other Dissolution:The Trustee shall not be entitled to
redeem the Certificates or dissolve the Trust other than as
provided in this Condition 8 and Condition 12.
9 Payments
(a) Method of Payment:
(i) Payments of the Dissolution Distribution Amount shall be
made (subject to surrender of the relevant Registered Certificates
at the specified office of any Transfer Agent or of the Registrar
if no further payment falls to be made in respect of the
Certificates represented by such Registered Certificates) in the
manner provided in paragraph (ii) below.
(ii) Periodic Distribution Amounts in respect of each
Certificate shall be paid to the person shown on the Register (or,
in the case of a Certificate held by two or more persons, to the
person whose name appears first on the Register) at the close of
business on the fifteenth day before the due date for payment
thereof (the "Record Date"). Payments of Periodic Distribution
Amounts and the Dissolution Distribution Amount in respect of each
Certificate shall be made in U.S. dollars by transfer to an account
in U.S. dollars maintained by the payee with a bank that processes
payments in U.S. dollars notified by the holder to the specified
office of the Registrar or any Transfer Agent before the Record
Date.
(iii) If the Dissolution Distribution Amount being paid upon
surrender of the relevant Registered Certificate is less than the
outstanding principal amount of such Registered Certificate, the
Registrar will annotate the Register with the amount of principal
so paid and will (if so requested by the Trustee or a
Certificateholder) issue a new Registered Certificate with a
principal amount equal to the remaining unpaid outstanding
principal amount. If the Periodic Distribution Amount being paid is
less than the amount then due, the Registrar will annotate the
Register with the amount so paid.
(b) Payments subject to Laws: Payments are subject in all cases
to (i) any fiscal or other laws and regulations applicable thereto
in the place of payment, but without prejudice to the provisions of
Condition 10 and (ii) any withholding or deduction required
pursuant to an agreement described in Section 1471(b) of the U.S.
Internal Revenue Code of 1986 (the "Code") or otherwise imposed
pursuant to Sections 1471 through 1474 of the Code, any regulations
or agreements thereunder, any official interpretations thereof, or
any law implementing an intergovernmental approach thereto. No
commission or expenses shall be charged to the Certificateholders
in respect of such payments.
(c) Appointment of Agents: The Principal Paying Agent, the
Paying Agent(s), the Registrar and the Transfer Agent(s) initially
appointed by the Trustee and their respective specified offices are
listed below. The Principal Paying Agent, the Paying Agent(s), the
Registrar and the Transfer Agent(s) act solely as agents of the
Trustee and do not assume any obligation or relationship of agency
or trust for or with any Certificateholder. The Trustee reserves
the right at any time with the approval of the Delegate to vary or
terminate the appointment of the Principal Paying Agent, any other
Paying Agent, the Registrar or any Transfer Agent and to appoint
additional or other Paying Agents or Transfer Agents, provided that
the Trustee shall at all times maintain (i) a Principal Paying
Agent, (ii) a Registrar, (iii) a Transfer Agent,
(iv) a Paying Agent (which may be the Principal Paying Agent)
having a specified office in at least one major European city and
(v) such other agents as may be required by any stock exchange on
which the Certificates may be listed, in each case as approved by
the Delegate.
Notice of any such change or any change of any specified office
shall promptly be given to the Certificateholders.
(d) Non-Business Days: If any date for payment in respect of any
Certificate is not a business day, the holder shall not be entitled
to payment until the next following business day nor to any profit
or other sum in respect of such postponed payment. In this
Condition 9(d), "business day" means a day (other than a Saturday
or a Sunday) on which banks and foreign exchange markets are open
for business in the place in which the specified office of the
Registrar is located and, where payment is to be made by transfer
to an account maintained with a bank in U.S. dollars, on which
foreign exchange transactions may be carried on in
U.S. dollars in New York.
10 Taxation
All payments in respect of the Certificates shall be made in
U.S. dollars without set-off or counterclaim of any kind and free
and clear of, and without withholding or deduction for, or on
account of, any taxes, duties, assessments or governmental charges
of whatever nature imposed, levied, collected, withheld or assessed
by or on behalf of a Relevant Jurisdiction, unless such withholding
or deduction is required by law. In that event, the Trustee shall
pay such additional amounts as shall result in receipt by the
Certificateholders of such amounts as would have been received by
them had no such withholding or deduction been required, except
that no such additional amounts shall be payable in respect of any
Certificate:
(a) Other connection: held by or on behalf of a holder who is
liable to such taxes, duties, assessments or governmental charges
in respect of such Certificate by reason of his having some
connection with a Relevant Jurisdiction, other than the mere
holding of the relevant Certificate; or
(b) Surrender more than 30 days after the Relevant Date: in
respect of which the Registered Certificate representing it is
presented for payment more than 30 days after the Relevant Date
except to the extent that the holder of it would have been entitled
to such additional amounts on surrendering the Registered
Certificate representing such Certificate for payment on the last
day of such period of 30 days irrespective of whether that day is a
business day (as defined in Condition 9(d)).
As used in these Conditions, "Relevant Date" in respect of any
Certificate means the date on which payment in respect of it first
becomes due or (if any amount of the money payable is
improperly
withheld or refused) the date on which payment in full of the
amount outstanding is made or (if earlier) the date seven days
after that on which notice is duly given to the Certificateholders
that, upon surrender of the Registered Certificate representing
such Certificate being made in accordance with the Conditions, such
payment will be made, provided that payment is in fact made upon
such surrender. References in these Conditions to "Periodic
Distribution Amounts" and the "Dissolution Distribution Amount"
shall be deemed to include any additional amounts that may be
payable under this Condition 10 or any undertaking given in
addition to or in substitution for it under the Trust Deed.
Notwithstanding any other provision in these Conditions, in no
event will the Trustee, the Obligor or the Agents be required to
pay any additional amounts in respect of the Certificates for, or
on account of, any withholding or deduction required pursuant to an
agreement described in Section 1471(b) of the Code or otherwise
imposed pursuant to Sections 1471 to 1474 of the Code, any
regulations or agreements thereunder, or any official
interpretations thereof, or any law implementing an
intergovernmental approach thereto.
11 Prescription
Claims against the Trustee for payment in respect of the
Certificates shall be prescribed and become void unless made within
10 years (in the case of the Dissolution Distribution Amount) or
five years (in the case of Periodic Distribution Amounts) from the
appropriate Relevant Date in respect of them.
12 Dissolution Events
(a) Dissolution Event: Upon the occurrence of a Dissolution Event:
(i) the Delegate, upon receiving express notice in writing
thereof under the Trust Deed of a Dissolution Event, shall (subject
to it being indemnified and/or secured and/or pre-funded to its
satisfaction) promptly give notice of the occurrence of the
Dissolution Event to the Certificateholders in accordance with
Condition 17 with a request to the Certificateholders to indicate
to the Trustee and the Delegate if they wish the Certificates to be
redeemed and the Trust to be dissolved; and
(ii) the Delegate in its sole discretion may, and if so
requested in writing by the holders of at least 25 per cent. of the
then aggregate face amount of the Certificates outstanding or if so
directed by an Extraordinary Resolution (subject in each case to
being indemnified and/or secured and/or pre-funded to its
satisfaction) shall, give notice (a "Dissolution Notice") to the
Trustee, the Obligor and the Certificateholders in accordance with
Condition 17 that the Certificates are immediately due and payable
at the Dissolution Distribution Amount, whereupon they shall become
so due and payable. A Dissolution Notice may be given pursuant to
this Condition 12(a)(ii) whether or not notice has been given to
Certificateholders as provided in Condition 12(a)(i).
Upon receipt of such Dissolution Notice, (x) the Trustee (or the
Delegate on behalf of the Trustee) shall deliver an Exercise Notice
to the Obligor under the Purchase Undertaking, and the Exercise
Price shall become immediately due and payable thereunder, and (y)
all aggregate amounts of the Deferred Sale Price shall immediately
become due and payable under the Murabaha Agreement. The Trustee
(or the Delegate in the name of the Trustee) shall use the Exercise
Price payable under the Purchase Undertaking together with the
amounts then due and payable under the Murabaha Agreement to redeem
the Certificates at the Dissolution Distribution Amount on the date
of the relevant Exercise Notice (the relevant "Dissolution Event
Redemption Date") and the Trust shall be dissolved on the day after
the last outstanding Certificate has been so redeemed in full.
Upon payment in full of such amounts and dissolution of the
Trust as aforesaid, the Certificates shall cease to represent
interests in the Trust Assets and no further amounts shall be
payable in respect thereof and the Trustee shall have no further
obligations in respect thereof.
(b) Enforcement and Exercise of Rights: If, following the
occurrence of a Dissolution Event, any amount payable in respect of
the Certificates has not been paid in full (notwithstanding the
provisions of Condition 12(a)), the Trustee or the Delegate (in the
name of and on behalf of the Trustee), subject to it being
indemnified and/or secured and/or pre-funded to its satisfaction,
shall, subject to Condition 13 (acting for the benefit of the
Certificateholders) take one or more of the following steps:
(i) enforce the provisions of the Transaction Documents against the Obligor; and/or
(ii) take such other actions or steps or institute such
proceedings as the Trustee or the Delegate may, in its opinion,
consider necessary to recover amounts due to the Trustee and/or the
Certificateholders.
13 Realisation of Trust Assets
(a) Neither the Delegate nor the Trustee shall be bound in any
circumstances to take any action, step or proceeding to enforce or
to realise the Trust Assets or take any action, step or proceeding
against the Trustee, the Obligor under any Transaction Document to
which any of the Trustee, the Obligor is a party unless directed or
requested to do so: (i) by an Extraordinary Resolution; or (ii) in
writing by the holders of at least 25 per cent. of the then
outstanding aggregate face amount of the Certificates; or (iii) (in
the case of the Trustee only) by the Delegate, and in any such case
then only if it shall be indemnified and/or secured and/or
prefunded to its satisfaction against all Liabilities to which it
may thereby render itself liable or which it may incur by so
doing.
(b) No Certificateholder shall be entitled to proceed directly
against the Trustee or the Obligor unless the Delegate or the
Trustee, as the case may be, having become bound so to proceed,
(i) fails to do so within a reasonable period or (ii) is unable
by reason of an order of a court having competent jurisdiction to
do so and in each case such failure or inability is continuing.
Under no circumstances shall the Delegate or any Certificateholder
have any right to cause the sale or other disposition of any of the
Trust Assets (other than as expressly contemplated in the
Transaction Documents) and the sole right of the Delegate and the
Certificateholders against the Trustee and the Obligor shall be to
enforce their respective obligations under the Transaction
Documents to which they are a party.
(c) The foregoing provisions of this Condition 13 are subject to
this Condition 13(c). After enforcing or realising the Trust Assets
and distributing the net proceeds of the Trust Assets in accordance
with Condition 5(b), the obligations of the Trustee in respect of
the Certificates shall be satisfied and no Certificateholder may
take any further steps, actions or proceedings against the Trustee
(or any steps, actions or proceedings against the Delegate) to
recover any further sums in respect of the Certificates and the
right to receive any such unpaid sums shall be extinguished. In
particular, no Certificateholder shall be entitled in respect
thereof to petition or to take any other steps, actions or
proceedings for the winding-up of the Trustee.
14 Meetings of Certificateholders, Modification and Waiver
(a) Meetings of Certificateholders: The Trust Deed contains
provisions for convening meetings of Certificateholders to consider
any matter affecting their interests, including the sanctioning by
Extraordinary Resolution of a modification of any of these
Conditions or any provisions of the Trust Deed. Such a meeting may
be convened by Certificateholders holding not less than 10 per
cent. in face amount of the Certificates for the time being
outstanding. The quorum for any meeting convened to consider an
Extraordinary Resolution shall be two or more persons holding or
representing not less than a clear majority in face amount of the
Certificates for the time being outstanding, or at any adjourned
meeting two or more persons being or representing
Certificateholders whatever the face amount of the Certificates
held or represented, unless the business of such meeting includes
consideration of proposals (i) to amend any Dissolution Date in
respect of the Certificates or any date for payment of Periodic
Distribution Amounts in respect of the Certificates, (ii) to reduce
or cancel or vary the method for calculating the amount of any
payment due in respect of the Certificates, (iii) to
amend any of the Trustee's or the Obligor's covenants set out in
the Transaction Documents to which it is a party, (iv) to vary the
currency of payment or denomination of the Certificates,
(v) to modify the provisions concerning the quorum required at
any meeting of Certificateholders or the majority required to pass
the Extraordinary Resolution, or (vi) to amend the above list, in
which case the necessary quorum shall be two or more persons
holding or representing not less than 75 per cent., or at any
adjourned meeting not less than
25 per cent., in face amount of the Certificates for the time
being outstanding. Any Extraordinary Resolution duly passed shall
be binding on Certificateholders (whether or not they were present
at the meeting at which such resolution was passed).
The Trust Deed provides that a resolution in writing signed by
or on behalf of the holders of not less than 75 per cent., in
aggregate face amount of the Certificates then outstanding (a
"Written Resolution") shall for all purposes be as valid and
effective as an Extraordinary Resolution passed at a meeting of
Certificateholders duly convened and held. Such a Written
Resolution may be contained in one document or several documents in
like form, each signed by or on behalf of one or more
Certificateholders. Such a Written Resolution will be binding on
all Certificateholders whether or not they participated in such
Written Resolution.
(b) Modifications, Waivers, Authorisations and
Determinations:The Delegate may, without the consent or sanction of
the Certificateholders: (i) agree to any modification of any of the
provisions of the Trust Deed (including these Conditions) or of any
other Transaction Document that is, in the opinion of the Delegate,
of a formal, minor or technical nature or is made to correct a
manifest error; or (ii) (A) agree to any other modification (except
as mentioned in the Trust Deed), or to any waiver or authorisation
of any breach or proposed breach, of any of the provisions of the
Trust Deed or the Transaction Documents; or (B) determine that any
Dissolution Event or Potential Dissolution Event shall not be
treated as such provided that such modification, waiver,
authorisation or determination is:
(x) in the opinion of the Delegate not materially prejudicial to
the interests of the Certificateholders;
(y) not in contravention of any express direction given by
Extraordinary Resolution or request in writing by the holders of at
least 25 per cent. of the outstanding aggregate face amount of the
Certificates; or
(z) other than in respect of a matter which requires a special
quorum resolution (as defined in the proviso to paragraph 2 of
Schedule 3 to the Trust Deed). Any such modification,
authorisation, determination or waiver shall be binding on the
Certificateholders and shall be notified to the Certificateholders
in accordance with Condition 17 as soon as practicable.
(c) Entitlement of the Delegate:In connection with the exercise
of its functions (including, but not limited to, those referred to
in this Condition) the Delegate shall have regard to the interests
of the Certificateholders as a class and shall not have regard to
the consequences of such exercise for individual Certificateholders
and the Delegate shall not be entitled to require, nor shall any
Certificateholder be entitled to claim, from the Trustee, the
Obligor or the Delegate any indemnification or payment in respect
of any tax consequence of any such exercise upon individual
Certificateholders (except, in the case of the Trustee and the
Obligor, to the extent already provided for in Condition 10).
15 Delegate
(a) Delegation of Powers: The Trustee will in the Trust Deed
irrevocably and unconditionally appoint the Delegate to be its
attorney and, in its name, on its behalf and as its act and deeds,
to execute, deliver and perfect all documents, and to exercise all
of the present and future powers (including the power to
sub-delegate), rights, trusts, authorities (including, but not
limited to, the authority to request directions from any
Certificateholders and the power to make any determinations to be
made under the Transaction Documents) and discretions vested in the
Trustee by the Trust Deed, that the Delegate may consider to be
necessary or
desirable in order to, upon the occurrence of a Dissolution
Event or Potential Dissolution Event, and subject to its being
indemnified and/or secured and/or prefunded to its satisfaction,
exercise all of the rights of the Trustee under the Transaction
Documents and make such distributions from the Trust Assets as the
Trustee is bound to make in accordance with the Trust Deed
(together, the "Delegation" of the "Relevant Powers"), provided
that (i) no obligations, duties, liabilities or covenants of the
Trustee pursuant to the Trust Deed or any other Transaction
Document shall be imposed on the Delegate by virtue of this
Delegation; (ii) in no circumstances will such Delegation of the
Relevant Powers result in the Delegate holding on trust the Trust
Assets; and (iii) such Delegation of the Relevant Powers shall not
include any power, trust, right, authority or discretion to
dissolve any of the trusts constituted by the Trust Deed following
the occurrence of a Dissolution Event or Potential Dissolution
Event or to determine the remuneration of the Delegate (save as
provided in the Trust Deed). The Trustee shall ratify and confirm
all things done and all documents executed by the Delegate in the
exercise of all or any of the Relevant Powers.
In addition to the Delegation of the Relevant Powers under the
Trust Deed, the Delegate also has certain powers which are vested
solely in it from the date of the Trust Deed.
The appointment of a delegate by the Trustee is intended to be
in the interests of the Certificateholders and does not affect the
Trustee's continuing role and obligations as sole trustee.
(b) Indemnification: The Trust Deed contains provisions for the
indemnification of the Delegate in certain circumstances and for
its relief from responsibility, including provisions relieving it
from taking any action, step or proceeding unless indemnified
and/or secured and/or prefunded to its satisfaction. In particular,
but without limitation, in connection with the exercise of any of
its rights in respect of the Trust Assets or any other right it may
have pursuant to the Trust Deed or the other Transaction Documents,
the Delegate shall in no circumstances be bound to take any action,
step or proceeding unless directed to do so in accordance with
Condition 12 or Condition 13, and then only if it shall have been
indemnified and/or secured and/or prefunded to its
satisfaction.
(c) No Liability: The Delegate makes no representation and
assumes no responsibility for the validity, sufficiency or
enforceability of the obligations of the Obligor under the
Transaction Documents to which it is a party and shall not under
any circumstances have any Liability or be obliged to account to
Certificateholders in respect of any payments which should have
been paid by the Obligor but are not so paid and shall not in any
circumstances have any Liability arising from the Trust Assets,
other than as expressly provided in these Conditions or in the
Trust Deed.
(d) Reliance on Certificates, Reports, Advice, etc.: The
Delegate may act on any certificate, opinion, advice, confirmation
or report of any auditors, insolvency officials, financial advisers
or other experts (as applicable) of the Trustee, the Obligor or any
other person called for by or provided to the Delegate (whether or
not addressed to the Delegate) in accordance with or for the
purposes of the Trust Deed or the other Transaction Documents and
such certificate, opinion, advice, confirmation or report may be
relied upon by the Delegate (without Liability to any person) as
sufficient evidence of the facts stated therein notwithstanding
that such certificate, opinion, advice, confirmation or report
and/or any engagement letter or other document entered into by the
Delegate or any other person in connection therewith contains a
monetary or other limit on the liability of the auditors or
insolvency officials of the Trustee, the Obligor or such other
person in respect thereof and notwithstanding that the scope and/or
basis of such certificate, opinion, advice, confirmation or report
may be limited by an engagement or similar letter or by the terms
of the certificate or report itself and the Delegate shall not be
bound in any such case to call for further evidence or be
responsible for any Liability or inconvenience that may be
occasioned by its failure to do so.
(e) Proper Performance of Duties: Nothing shall, in any case in
which the Trustee or the Delegate has failed to show the degree of
care and diligence required of it as trustee, in the case of the
Trustee (having regard to the provisions of the Trust Deed
conferring on it any trusts, powers, rights, authorities or
discretions) or as donee and delegate, in the case of the Delegate
(having regard to the powers, rights, authorities and discretions
conferred on it by the Trust Deed and to the Relevant Powers
delegated to it), respectively exempt the Trustee or the Delegate
from or indemnify either of them against any Liability for gross
negligence, wilful default or actual fraud of which either of them
may be guilty in relation to their duties under the Trust Deed.
(f) Notice of Events: The Delegate shall not be responsible for
monitoring or ascertaining whether or not a Dissolution Event,
Potential Dissolution Event, Tax Event, or Total Loss Event has
occurred or exists and, unless and until it shall have received
express written notice to the contrary, it will be entitled to
assume that no such event or circumstance exists or has occurred
(without any Liability to any person for so doing).
16 Replacement of Registered Certificates
If any Registered Certificate is lost, stolen, mutilated,
defaced or destroyed, it may be replaced, subject to applicable
laws, regulations and stock exchange or other relevant regulatory
authority regulations, at the specified office of the Registrar or
such other Paying Agent or Transfer Agent, as the case may be, as
may from time to time be designated by the Trustee for the purpose
and notice of whose designation is given to Certificateholders, in
each case on payment by the claimant of the fees and costs incurred
in connection therewith and on such terms as to evidence, security
and indemnity (which may provide, inter alia, that if the allegedly
lost, stolen or destroyed Registered Certificate is subsequently
presented and/or surrendered for payment, there shall be paid to
the Trustee on demand the amount payable by the Trustee in respect
of such Registered Certificate) and otherwise as the Trustee may
require (provided that the requirement is reasonable in light of
prevailing market practice). Mutilated or defaced Registered
Certificates must be surrendered before replacements will be
issued.
17 Notices
Notices to the holders of Certificates shall be mailed to them
by first class mail (airmail if overseas) at their respective
addresses in the Register.
In addition, the Trustee shall ensure that notices to the
holders of Certificates are duly given and/or published in a manner
which complies with the rules and regulations of any listing
authority, stock exchange and/or quotation system (if any) on which
the Certificates are for the time being admitted to listing,
trading and/or quotation.
Any such notices shall be deemed to have been given on the
fourth weekday (being a day other than a Saturday or a Sunday)
after the date of mailing (or on the date of publication, or if
published more than once or on different dates, on the date of the
first publication).
So long as the Certificates are represented by a Global
Certificate and such Global Certificate is held on behalf of
Euroclear or Clearstream, Luxembourg, or any other clearing system,
notices to Certificateholders may be given by delivery of the
relevant notice to that clearing system for communication by it to
entitled accountholders in substitution for mailing as required by
this Condition 17. Any such notice shall be deemed to have been
given to the holders of the Certificates on the day on which the
said notice was given to Euroclear and/or Clearstream, Luxembourg
and/or such other relevant clearing system.
18 Further Issues
The Trustee shall be at liberty from time to time without the
consent of the Certificateholders to create and issue additional
Certificates having the same terms and conditions as the
outstanding Certificates on terms and conditions which are the same
in all respects save for the date and amount of the first payment
of the Periodic Distribution Amount and the date from which
Periodic Distribution Amounts start to accrue and so that the same
shall be consolidated and form a single
series with the outstanding Certificates. Any additional
Certificates which are to form a single series with the outstanding
Certificates previously constituted by the Trust Deed shall be
constituted by a deed supplemental to the Trust Deed. References in
these Conditions to the Certificates include (unless the context
requires otherwise) any other certificates issued pursuant to this
Condition 18 and forming a single series with the Certificates.
19 Contracts (Rights of Third Parties) Act 1999
No person shall have any right to enforce any term or condition
of the Certificates under the Contracts (Rights of Third Parties)
Act 1999.
20 Governing Law and Dispute Resolution
(a) Governing Law: The Trust Deed (including these Conditions),
the Agency Agreement and the Certificates and any non-contractual
obligations arising out of or in connection with the same are
governed by, and shall be construed in accordance with, English
law.
(b) Arbitration: The Delegate, the Trustee and the Obligor have
in the Trust Deed agreed that, subject to Condition 20(c), any
dispute, claim, difference or controversy arising out of or in
connection with the Trust Deed (including these Conditions) and/or
the Certificates (including any dispute, claim, difference or
controversy as to their existence, validity, interpretation,
performance, breach or termination or the consequences of their
nullity or any dispute relating to any non-contractual obligations
arising out of or in connection with them) (a "Dispute") shall be
referred to and finally resolved by arbitration in accordance with
the Arbitration Rules of the LCIA (the "Rules"), which Rules (as
amended from time to time) are incorporated by reference into this
Condition 20. For these purposes:
(i) the seat of arbitration shall be London, England;
(ii) there shall be three arbitrators, each of whom shall be an
attorney experienced in international securities transactions. The
claimant(s), irrespective of number, shall nominate jointly one
arbitrator; the respondent(s), irrespective of number, shall
nominate jointly the second arbitrator, and a third arbitrator (who
shall act as presiding arbitrator) shall be nominated by the
arbitrators nominated by or on behalf of the claimant(s) and
respondent(s) or, in the absence of agreement on the third
arbitrator within 30 days of the date of nomination of the later of
the two party- nominated arbitrators to be nominated, the third
arbitrator shall be chosen by the LCIA Court (as defined in the
Rules); and
(iii) the language of the arbitration shall be English.
(c) Option to Litigate: Notwithstanding the agreement described
in Condition 20(b), the Delegate may, in the alternative and at its
sole discretion, by notice in writing to the Trustee and the
Obligor in accordance with the Trust Deed:
(i) within 28 days of service of a Request for Arbitration (as defined in the Rules); or
(ii) if no arbitration has commenced,
require that the Dispute be heard by a court of law (a "Notice
to Litigate"). If the Delegate gives a Notice to Litigate, the
Dispute to which such notice refers shall be determined in the
manner described in Condition 20(d) and any arbitration commenced
under Condition 20(b) in respect of that Dispute will be
terminated. With the exception of the Delegate (whose costs will be
borne by the Obligor), each of the parties to the terminated
arbitration will bear its own costs in relation thereto.
(d) Effect of Exercise of Option to Litigate: If a Notice to
Litigate is given pursuant to Condition 20(c), the following
provisions shall apply:
(i) subject to paragraph (iii) below, the courts of England
shall have exclusive jurisdiction to settle any Dispute and each of
the Trustee and the Obligor have in the Trust Deed irrevocably
submitted to the exclusive jurisdiction of such courts;
(ii) each of the Trustee and the Obligor have agreed that the
courts of England are the most appropriate and convenient courts to
settle any Dispute and, accordingly, that it will not argue to the
contrary; and
(iii) this Condition 20(d) is for the benefit of the Delegate
for and on behalf of the Certificateholders only. As a result, and
notwithstanding paragraphs (i) and (ii) above, the Delegate may
take proceedings relating to a Dispute ("Proceedings") in any other
courts with jurisdiction and, to the extent allowed by law, may
take concurrent Proceedings in any number of jurisdictions.
(e) Appointment of Process Agent: Each of the Trustee and the
Obligor has in the Trust Deed irrevocably appointed Walkers of 6
Gracechurch Street, 1st Floor, 99 Bishopsgate, London, England,
EC3V 0AT EC2M 3XD to receive, for it and on its behalf, service of
process in respect of any Proceedings in England. Such service
shall be deemed completed on delivery to such process agent
(whether or not it is forwarded to and received by the Trustee
and/or the Obligor). If for any reason such process agent ceases to
be able to act as such or no longer has an address in England, each
of the Trustee and the Obligor has irrevocably agreed in the Trust
Deed to appoint a substitute process agent, and shall immediately
notify the Delegate of such appointment. Nothing herein shall
affect the right to serve process in any other manner permitted by
law.
(f) Waiver of Interest:
(i) Each of the Trustee, the Delegate and the Obligor has
irrevocably agreed in the Trust Deed that no interest will be
payable or receivable under or in connection therewith and each
party has agreed that it will not claim any interest in respect of
any Proceedings brought by or on behalf of a party to the Trust
Deed.
(ii) If it is determined that any interest is payable or
receivable in connection therewith by a party, whether as a result
of any judicial or arbitral award or by operation of any applicable
law or otherwise, such party has agreed to waive any rights it may
have to claim or receive such interest and has agreed that if any
such interest is actually received by it, it shall promptly donate
the same to a registered or otherwise officially recognised
charitable organisation.
(iii) For the avoidance of doubt, nothing in this Condition
20(f) shall be construed as a waiver of rights in respect of any
Wakala Portfolio Revenues, Full Reinstatement Value, Profit
Amounts, Periodic Distribution Amounts, Rentals, Dissolution
Distribution Amounts, Exercise Price, Deferred Sale Price, Required
Amounts, Total Loss Shortfall Amounts or profit or principal or
other amounts of any kind howsoever described payable by the
Obligor (in any capacity), or by the Trustee (in any capacity)
pursuant to the Transaction Documents and/or the Conditions,
howsoever such amounts may be described or re-characterised by any
court or arbitral tribunal.
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