Source - RNS
RNS Number : 0249H
Duncannon CRE CDO 1 plc
02 June 2017
 

NOTICE TO HOLDERS OF

DUNCANNON CRE CDO I PLC (the "Issuer")

 

Class D-2 Deferrable Interest Floating Rate Notes due 2047 (Regulation S ISIN: XS0311204621, Rule 144A ISIN US265082AH01)

Class D-3 Deferrable Interest Floating Rate Notes due 2047 (Regulation S ISIN: XS0311204977, Rule 144A ISIN US265082AJ66)

Class E-1 Deferrable Interest Floating Rate Notes due 2047 (Regulation S ISIN: XS0311206329, Rule 144A ISIN US265082AK30)

Class E-2 Deferrable Interest Floating Rate Notes due 2047 (Regulation S ISIN: XS0311206592, Rule 144A ISIN US265082AL13)

Subordinated Notes due 2047 (Regulation S ISIN: XS0311206675,

Rule 144A ISIN US265082AM95)

 

 

NOTICE TO NOTEHOLDERS

2 June 2017

Reference is made to that certain Trust Deed (including the terms and conditions of the Notes attached thereto), dated 31 July 2007 (the "Trust Deed"), among the Issuer, U.S. Bank Trustees Limited (as successor to ABN AMRO Trustees Limited) as Trustee, Elavon Financial Services DAC, UK Branch (as successor to ABN AMRO Bank N.V. (London Branch)) as Principal Paying Agent, Custodian, Account Bank, Transfer Agent, Calculation Agent, Collateral Administrator, Exchange Agent and Back-up Agent, The Royal Bank of Scotland plc, Luxembourg Branch (as successor by merger to RBS Global Banking (Luxembourg) (as successor to ABN AMRO Bank (Luxembourg) S.A.)) as Registrar, FIG LLC as Portfolio Manager, and Deutsche International Corporate Services (Ireland) Limited as Irish Paying Agent, as the same may have been amended, supplemented or otherwise modified from time to time.  Capitalised terms used but not defined herein shall have the meanings assigned to such terms in the Trust Deed. 

This Notice to Noteholders is given to the Irish Listing Agent for delivery to the Company Announcements Office of the Irish Stock Exchange.

FIG LLC

c/o Fortress Investment Group (UK) Limited

5 Savile Row

London W1S 3PD, Great Britain

+44 20 7290 5600

DUNCANNON CRE CDO I PLC
Pinnacle 2,
Eastpoint Business Park,
Clontarf,
Dublin 3,
D03 P580,
Ireland

 

EXHIBIT A

 

[Extraordinary Resolution]

 

 

 

FORM OF WRITTEN RESOLUTION OF THE NOTEHOLDERS

 

To:

 

U.S. Bank Trustees Limited

125 Old Broad Street, Fifth Floor

London EC2N 1AR

United Kingdom

(the "Trustee")          

 

Elavon Financial Services DAC, UK Branch
125 Old Broad Street, Fifth Floor

London EC2N 1AR

United Kingdom

(the "Principal Paying Agent")          

 

Duncannon CRE CDO I PLC

Pinnacle 2,
Eastpoint Business Park,
Clontarf,
Dublin 3,
D03 P580,
Ireland

(the "Issuer")

 

The Royal Bank of Scotland plc, Luxembourg Branch

46, avenue J-F Kennedy

L-1855, Luxembourg

Grand Duchy of Luxembourg

(the "Registrar")

 

 

WRITTEN RESOLUTION OF THE NOTEHOLDER

in respect of the Issuer's €20,000,000 Class D-2 Deferrable Interest Floating Rate Notes due 2047 (Regulation S ISIN: XS0311204621, Rule 144A ISIN US265082AH01)

(the "Class D-2 Notes") 

 

 

Dear Sirs:

 

We refer to the Proposed Direction, the Proposed Amendments and the Proposed Termination, as such terms are defined in the notice and request for instructions from the Issuer dated 6 April 2017 and relating to the Class D-2 Notes (the "Notice and Request").  Capitalised terms not defined herein shall have the meanings assigned to such terms in the Notice and Request and, if not defined therein, in the Trust Deed constituting the Class D-2 Notes.

 

We, the undersigned (the "Noteholder") acknowledges, represents, warrants and confirms with effect from (and including) the date of this Written Resolution that:

 

a.         it is the beneficial owner of the Class D-2 Notes in the amount set forth below issued by the Issuer and currently outstanding;

b.         none of the parties to the Trust Deed are acting as a fiduciary or financial or investment adviser to it;

c.         it has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisers to the extent deemed necessary, and has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the documentation) based upon its own judgement and upon any advice from such advisers as deemed necessary and not upon any view expressed by the parties to the Trust Deed;

d.         it is a sophisticated investor familiar with transactions similar to its investment in the Notes and it is acting for its own account and has made its own independent decision to execute this Written Resolution based on its own judgment and upon such advice from its advisers as it deems necessary;

e.         it is not relying (for purposes of making any investment decision or advice) on any communication, advice, counsel or representations (written or oral) from the Issuer, the Trustee or any other party to the Transaction Documents in relation to its decision to execute this Written Resolution and none of the Issuer, the Trustee nor any other party to the Transaction Documents is acting or has acted in any advisory capacity in relation thereto;

f.          it has the capability (either internally or through independent advice) to understand the scope of the Proposed Direction, the Proposed Amendments and the Proposed Termination and the effect they will have on the risk connected with the Class D-2 Notes; and

g.         it has full corporate capacity and authority to execute this Written Resolution and understands that the Proposed Direction, the Proposed Amendments and the Proposed Termination will, among other things, have an effect on the assets backing the Class D-2 Notes; and

h.         it has given irrevocable instructions to the relevant Clearing Systems to block Notes in the securities account to which they are credited with effect from and including the day such instruction is delivered to the relevant Clearing System so that no transfers may be effected in relation to the Notes at any time after such date until 21 June 2017. Notes should be blocked in accordance with the procedures of the relevant Clearing System and the deadlines required by the relevant Clearing System. It has also authorised the Clearing System at which our account is maintained to disclose to each of the addressees of this Written Resolution confirmation that we are the beneficial owner of the Notes referred to above.

Conditional upon your receipt of similar Written Resolutions from other holders of the Class D-2 Notes who, together with our holding of the Class D-2 Notes, hold not less than 75 per cent. of the aggregate Principal Amount Outstanding of the Class A-2 Notes, and concurrently with such other Written Resolutions, the Noteholder hereby authorises the approval of this Written Resolution and: 

                                   

1.        approve the Proposed Direction, the Proposed Amendments and the Proposed Termination;

2.         authorise, instruct, request and direct the Trustee, the Registrar, the Portfolio Manager and the Issuer to execute the Amendment and Termination Deed (substantially in the form attached to the Notice and Request) and take such other actions or inactions and give such waivers, directions, authorizations and consents as may be required to effect the Proposed Direction, the Proposed Amendments and the Proposed Termination;

3.         resolve that any and every modification, waiver, abrogation, variation, compromise of, or arrangement in respect of, the rights of the holders of the Notes against the Issuer whether such rights shall arise under the Trust Deed, the Conditions or otherwise, involved in or resulting from or to be effected by the Proposed Direction, the Proposed Amendments and the Proposed Termination, the authorisations referred to in this Written Resolution and their implementation thereof be and are hereby approved;

4.         acknowledge that the Proposed Direction, the Proposed Amendments and the Proposed Termination will not become effective until the Amendment and Termination Deed is executed by the parties thereto;

5.         irrevocably discharge, exonerate and waive any claim against the Issuer, the Trustee, the Registrar or the Portfolio Manager which arises as a result of any loss or damage to the undersigned holder of the Notes suffered or incurred as a result of the Issuer, the Trustee, the Registrar or the Portfolio Manager following the terms of this Written Resolution and the implementation of this Written Resolution (including for the avoidance of doubt, the directions and/or instructions contained herein), even though it may be subsequently found that there is a defect in this Written Resolution or that for any reason this Written Resolution is not valid or binding upon the Holders of the Notes;

6.         approve that each of the Issuer, the Trustee, the Registrar and the Portfolio Manager be and are hereby authorised and instructed not to obtain any legal opinions in relation to, or to make any investigation or enquiry into the power and capacity of any person to enter into the Amendment and Termination Deed or the due execution and delivery thereof and that they shall not be liable to any Noteholders for the failure to do so or for any consequences thereof;

7.         agree that this Written Resolution shall take effect as a Written Resolution pursuant to paragraph 13 of Schedule 7 (Provisions for Meetings of the Noteholders of each Class) to the Trust Deed.

The Noteholder fully acknowledges that it has had sufficient prior knowledge of the matters and agenda referred to in the present Written Resolution.

The Noteholder agrees to indemnify the Trustee, the Issuer, the Registrar, the Portfolio Manager and the Principal Paying Agent and hold the Trustee, the Issuer, the Registrar, the Portfolio Manager and the Principal Paying Agent harmless against the consequences of any misrepresentation under or, as the case may be, breach of the representations and warranties set out herein in paragraphs (a) to (e) (inclusive) above.

 

This Written Resolution may be executed and delivered in any number of counterparts, all of which, taken together, shall constitute one and the same Written Resolution.

 

This Written Resolution and any non-contractual obligations arising out of it shall be governed by and construed in accordance with English law.

 

SIGNATORIES

 

 

Signed on the date written above for and on behalf of the Noteholder:

 

 

 

__________________________________________

(Name of Noteholder)

 

Signature:___________________

 

Date: ___________________________

 

By: ___________________________

 

Title: ___________________________

Amount of Holding of Class D-2 Notes:___________________________                                            

Euroclear/Clearstream account number: ___________________________

 

 

 

EXHIBIT B

 

[Form Deed of Trust and Amendment]

 

 

 

 

 

DEED OF AMENDMENT AND TERMINATION

This Deed of Amendment and Termination (the "Deed"), dated as of 24 May 2017 is entered into among DUNCANNON CRE CDO I PLC as Issuer (the "Issuer"), U.S. Bank Trustees Limited (as successor to ABN AMRO Trustees Limited), as Trustee (the "Trustee"), Elavon Financial Services DAC, UK Branch (as successor to ABN AMRO Bank N.V. (London Branch) ("ABN AMRO London")) as Principal Paying Agent, Custodian, Account Bank, Transfer Agent, Calculation Agent, Collateral Administrator, Exchange Agent and Back-up Advancing Agent, The Royal Bank of Scotland plc, Luxembourg Branch (as successor by merger to RBS Global Banking (Luxembourg) (as successor to ABN AMRO Bank (Luxembourg) S.A. ("ABN AMRO Luxembourg"))) as Registrar (the "Registrar"), FIG LLC as Portfolio Manager (the "Portfolio Manager"), EUROCASTLE INVESTMENT LIMITED as Advancing Agent (the "Advancing Agent"), DEUTSCHE INTERNATIONAL CORPORATE SERVICES (IRELAND) LIMITED as Irish Paying Agent (the "Irish Paying Agent") and CITIBANK, N.A., LONDON BRANCH as Hedge Counterparty (the "Hedge Counterparty").

WHEREAS, in connection with the issuance by the Issuer of certain Notes secured by certain Collateral, the parties hereto entered into the following agreements (collectively, the "Agreements"): (i) the Trust Deed, dated 31 July 2007 (the "Trust Deed"), among the Issuer, ABN AMRO Trustees Limited, as Trustee, ABN AMRO London (in its capacity as Principal Paying Agent, Custodian, Account Bank, Transfer Agent, Calculation Agent and Collateral Administrator), ABN AMRO Luxembourg (in its capacity as registrar), the Portfolio Manager and the Irish Paying Agent, as the same may have been amended, supplemented or otherwise modified from time to time; (ii) the Agency Agreement, dated 31 July 2007, among the Issuer, the Trustee, ABN AMRO London (in its capacity as Principal Paying Agent, Custodian, Account Bank, Transfer Agent, Calculation Agent, Collateral Administrator, Exchange Agent and Back-up Advancing Agent), ABN AMRO Luxembourg (in its capacity as registrar), the Portfolio Manager, the Advancing Agent and the Irish Paying Agent, (iii) the Portfolio Management Agreement, dated 31 July 2007, among the Issuer, the Portfolio Manager, ABN AMRO London (in its capacity as Collateral Administrator and Custodian) and the Trustee; (iv) the Collateral Administration Agreement, dated 31 July 2007, among the Issuer, the Portfolio Manager, ABN AMRO London (in its capacity as Collateral Administrator and Custodian) and the Trustee; (v) the Euroclear Pledge Agreement, dated 31 July 2007 (the "Pledge Agreement"), between the Issuer and the Trustee; and (vi) the ISDA Master Agreement and the Schedule and Credit Support Annex thereto (together with all confirmations entered into at any time pursuant thereto), dated 27 July 2007, between the Issuer and the Hedge Counterparty;

WHEREAS, the Senior Debt, the Class B Senior Notes, the Class C-1 Deferrable Interest Notes, the Class C-2 Deferrable Interest Notes and the Class D-1 Deferrable Interest Notes have been redeemed and paid in full, and therefore the Class D-2 Deferrable Interest Notes are the "Controlling Class" (as such term is defined in the Trust Deed);

WHEREAS, the Issuer has been directed, pursuant to an Extraordinary Resolution of the Holders or beneficial owners of no less than 75 per cent. in Principal Amount Outstanding of the Notes of the Controlling Class (which is attached hereto as Exhibit A) in accordance with Condition 14 (Meetings of Noteholders, Modification, Waiver and Substitution), to execute this Deed and take such actions or inactions and give such waivers, directions, authorisations and consents as may be required to (i) sell the remaining Collateral Debt Obligations securing the Notes and distribute the proceeds of such sales (together with any other available amounts) as provided herein, (ii) enter into certain amendments to the Trust Deed and the other Transaction Documents in connection with such sales and distributions and (iii) terminate the Trust Deed and certain related agreements and release all claims thereunder;

           WHEREAS, the parties hereto wish to enter into this Deed in order to give effect to such Extraordinary Resolution and are entering this Deed pursuant to such Extraordinary Resolution; and

WHEREAS, capitalized terms used but not defined in this Deed shall have the meanings given to them in the Trust Deed (including the terms and conditions of the Notes as set out in Schedule 6 thereto).

NOW THEREFORE, in consideration of the mutual representations, warranties and covenants contained in this Deed and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged by each of the parties), the parties hereto each hereby agree as follows:

1.         Amendments of the Transaction Documents.

(a)      The Trust Deed is hereby amended by adding the following as Section 6.4: "Sales of Collateral Debt Obligations at the Direction of the Issuer.  Notwithstanding anything to the contrary contained herein or in any other Transaction Document, upon direction by the Issuer, the Portfolio Manager (on behalf of the Issuer) shall sell, in any commercially reasonable manner determined by the Portfolio Manager, any or all of the Collateral Debt Obligations.  Any Collateral Debt Obligation so sold shall be released from the security constituted pursuant to Clause 5.1 in accordance with the provisions of Clause 5.5(a).  For purposes of clause (ii)(D)(2) of Condition 3(c) (Priorities of Payment), Principal Sale Proceeds of any such sale shall be deemed not to constitute (i) Principal Sale Proceeds from Credit Risk Obligations or Credit Improved Obligations or (ii) Unscheduled Principal Proceeds."

(b)      The Conditions are hereby amended by adding the following as clause (vi) of Condition 3(c) (Priorities of Payment): "Notwithstanding anything to the contrary contained herein or in any other Transaction Document, on the Payment Date immediately following the sale of all the Collateral Debt Obligations pursuant to Section 6.4 of the Trust Deed, (A) all amounts standing to the credit of the Accounts shall be transferred to the Payment Account and distributed in accordance with Priorities of Payment and (B) the amounts applied pursuant to clause (ii) above (Application of Principal Proceeds) shall be applied without giving effect to either the Senior Fee Cap or clause (i)(D) of this Condition 3(c)."

(c)      The Trust Deed is hereby amended by adding the following after the last sentence of Section 26: "Notwithstanding anything to the contrary contained herein or in any other Transaction Document, on the Payment Date immediately following the sale of all the Collateral Debt Obligations pursuant to Section 6.4 of the Trust Deed (after giving effect to all payments to be made on such date pursuant to Condition 3(c) (Priorities of Payment) (as amended hereby)), all payment and other obligations existing under the Notes shall be extinguished and the Notes shall be deemed to no longer be Outstanding for any purpose under the Transaction Documents." 

2.        Direction to Portfolio Manager. The Issuer (acting pursuant to the Extraordinary Resolution) hereby directs the Portfolio Manager (on behalf of the Issuer) to sell each Collateral Debt Obligation owned by the Issuer in accordance with Section 6.4 of the Trust Deed (as amended hereby).

3.        Satisfaction of and Discharge of Secured Obligations. Each of the parties hereto (other than the Issuer) hereby confirms that (a) any and all Secured Obligations owed by the Issuer to such party shall with effect immediately following the extinguishment and cancellation of the Notes referred to in Section 1(c) above, be discharged and satisfied in full and (b) such party is no longer owed any Secured Obligations.

4.        Termination of Agreements and Release of Security.  With effect immediately following the extinguishment and cancellation of the Notes referred to in Section 1(c) above:

           (a)       the Agreements shall be terminated in full and be of no further force or effect;

           (b)       no party shall owe any other party any termination payment or other amounts in connection with the termination of the Agreements; and

           (c)       any requirement of notice of termination or delivery of any other document required in connection with termination of the Agreements is hereby waived by each party entitled to such notice or other document and, each party hereby otherwise irrevocably waives any and all conditions to this Deed set forth in any Transaction Document that are not satisfied by the execution and delivery of this Deed (including, without limitation, any requirement to provide notice of such amendment to any Rating Agency or to receive any Rating Agency Affirmation with respect thereto) and irrevocably waives any other agreement, condition, right, obligation, covenant, representation or warranty in any Transaction Document or otherwise as and to the extent necessary to effect the purposes of this Agreement.

(d)       except with respect to any provisions of the Agreements that expressly survive termination and as provided in Section 6, each party hereto forever releases and waives each other party hereto (including all of their respective past and present parent companies, subsidiaries, divisions, affiliates, joint ventures, predecessors, successors, transferees, assigns, subrogees, insurers, co-insurers, reinsurers, servants, attorneys, partners, principals, members, directors, officers, employees, stockholders, owners, representatives and anyone claiming by or through them) from its obligations (if any) under the Agreements and, except in the case of fraud, any and all Claims and Unknown Claims (each as defined below) of any nature whatsoever that such party ever had, now has or can, shall or may have, by reason of any matter, cause or thing occurring at any time up to the date the Agreements are terminated that arises out of or in any way relates to actions taken or obligations arising (whether present or future, fixed or contingent or otherwise) under the Agreements.  The parties understand that they may have suffered damages that are unknown to them at present and that they may suffer unknown damages in the future.  The parties acknowledge that any actions taken in consideration of this Deed are intended to and in fact do release and discharge any and all claims, whether known or unknown, suspected or unsuspected, contingent or non-contingent, which now exist or have existed upon any theory of law or equity, regardless of whether or not the law recognizes the existence of such claims or rights of actions as of the date of this Deed.  For the avoidance of doubt, the parties are not releasing any Claims or Unknown Claims related to any transaction other than the transactions governed by the Agreements.

                       "Claims" means any action or actions, cause or causes of action, in law or in equity, suits, liens, liabilities, claims, demands, obligations, damages, punitive damages, losses, costs, expenses and attorneys' fees of any nature whatsoever, including, but not limited to claims based on breach of fiduciary duty or other legal duty, legal fault, negligence, negligent misrepresentation, offense, quasi-offense, contract, aiding and abetting breach of fiduciary duty, ratification, promissory estoppel, breach of the implied covenant of good faith and fair dealing, any securities law or any other theory.

                       "Unknown Claims" means any Claim that any party hereto does not know or even suspect to exist in its favor at the time of this Deed, which, if known, may have affected its decision to enter into this Deed.

(e)      The Trustee hereby consents, in accordance with Section 11.14(c) of the Trust Deed, to the Issuer granting the release contemplated by Section 4(d) and hereby releases and discharges all of the charges, pledges, assignments and other security constituted by the Trust Deed and/or the Pledge Agreement, and the Trustee irrevocably releases and discharges such charges and other security and the Trustee shall take any further action which may be necessary to release the charges and other security created by the Trust Deed and/or the Pledge Agreement and/or to return to  the Issuer all documents of title held by it which relate to the property released from the charges and other security.

5.        Corporate Services Agreement.  The Issuer, the Portfolio Manager and the Corporate Services Provider agree that, with effect from the date of commencement of the voluntary winding-up of the Issuer in accordance with Section 590 of the Companies Act 2014 of Ireland, the Corporate Services Agreement shall be terminated (including, for the avoidance of doubt, any provisions stated as surviving the termination of the Corporate Services Agreement, other than Clause 21 (Limited Recourse) thereof).

6.        Holdback Amount

(a)      The parties acknowledge and agree that the Account Bank will refrain from distributing in accordance with Condition 3(c) (Priorities of Payment) an amount specified by the Issuer (the "Holdback Amount") and instead such amount shall be applied by the Issuer (with the consent of the Trustee) in satisfaction of any Trustee Fees and Expenses or Administrative Expenses which may arise or be presented for payment in connection with and following the date hereof, together with such costs and expenses as are required to effect a voluntary winding-up of the Issuer in accordance with Section 590 of the Companies Act 2014 of Ireland ("Liquidation Costs").

(b)      The Issuer shall calculate the Holdback Amount based on a reasonable good faith estimate of the Trustee Fees and Expenses, Administrative Expenses and Liquidation Costs which are expected to become due and payable.  Each other party hereto agrees to provide the Issuer, upon request, with a good faith estimate of the amounts, if any, which such party expects to become entitled to pursuant to subsection (a).

(c)      The Account Bank shall deposit the Holdback Amount in an account designated by the Issuer.

(d)      Upon the earlier of (i) confirmation in writing from the Trustee and all other parties to the Agreements that all Trustee Fees and Expenses or Administrative Expenses have been discharged in full or (ii) the expiration of a period of six calendar months following the extinguishment and cancellation of the Notes referred to in Section 1(c) above (the "Extinguishment Date"), the Issuer shall effect a voluntary winding up in accordance with Section 590 of the Companies Act 2014 of Ireland.

(e)      For the avoidance of doubt, following the Extinguishment Date, each party (other than the Issuer) acknowledges and agrees that all claims in respect of Trustee Fees and Expenses or Administrative Expenses shall be terminated and extinguished in full and waives any future claim for any Trustee Fees and Expenses or Administrative Expenses following the Extinguishment Date.

(f)       Any cash remaining after payment of Liquidation Costs will be distributed to the trustee of the trust under which the Issuer's shares are held.

7.        Preservation of Rights.  Each of the parties hereto shall be afforded all of the rights, privileges, protections, indemnities and immunities afforded to such party under the Transaction Documents (as if such Transaction Documents had not been terminated) in connection with its execution of this Deed and the performance of the actions contemplated herein, including, without limitation, the actions of the Account Bank and the Issuer pursuant to Section 6.  Each party to this Deed other than the Trustee agrees that (i) by entering into this Deed, the Trustee does not incur any additional obligation or liability other than as expressly set out herein and (ii) the foregoing is without prejudice to any indemnity which the Trustee may have, whether under the Transaction Documents, at law or otherwise.

8.        Entire Agreement.  This Deed constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between the parties hereto with respect to the subject matter hereof.

9.        Further Assurances.  Each party agrees, at the expense of the Issuer, to provide such further documents and execute such additional notices, consents or other instruments reasonably requested by another party in order to effectuate the provisions of this Deed.

10.      Severability.  If any of the provisions of this Deed becomes invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not be in any way affected or impaired. 

           11.       Assignment.  This Deed shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, and shall not be modified, except in writing, nor assigned by any party without the consent of each the other party. 

           12.       Counterparts.  This Deed (and each amendment, modification and waiver in respect of it) may be executed in any number of counterparts (including by facsimile transmission or in portable document format), each of which when executed and delivered shall constitute an original, but all the counterparts shall together constitute but one and the same instrument.

           13.       Amendment.  No amendment, modification or waiver in respect of this Deed will be effective unless in writing (including a writing evidenced by a facsimile transmission or in portable document format) and executed by each of the parties.

           14.       Governing Law.  Subject to the following sentence, This Deed, and any non-contractual obligations arising out of or in connection with this Deed, shall be governed by and construed in accordance with English law, except insofar as this Deed relates to the Pledge Agreement, this Deed shall be governed by Belgian law.  Section 5 (Corporate Services Agreement) of this Deed and any non-contractual obligations arising out of or in connection with such Section shall be governed by and construed in accordance with Irish law.

           15.1     Jurisdiction.  Subject to Section 15.2 below, the parties hereto agree that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Deed and that accordingly any suit, action or proceedings arising out of or in connection with this Deed (together referred to as "Proceedings") may be brought in the courts of England. Each party  irrevocably and unconditionally waives and agrees not to raise any objection which it may have now or subsequently to the laying of the venue of any Proceedings in the courts of England and any claim that any Proceedings have been brought in an inconvenient forum and further irrevocably and unconditionally agrees that a judgement in any Proceedings brought in the courts of England shall be conclusive and binding upon each party and may be enforced in the courts of any other jurisdiction. Nothing in this section shall limit any right to take Proceedings against any party in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings against any party in any other jurisdiction, whether concurrently or not.

15.2    The courts of Ireland have exclusive jurisdiction to settle any dispute arising out of or in connection with Section 5 (Corporate Services Agreement) of this Deed (including claims for set-off and counterclaim and any dispute regarding the existence, validity or termination of Section 5 of this Deed and any non-contractual obligations arising out of or in connection with it) (an "Irish Law Dispute").  The parties agree that the courts of Ireland are the most appropriate and convenient courts to settle Irish Law Disputes and no party will argue to the contrary.

16.      Agent for Service of Process.           The Issuer, the Portfolio Manager, the Registrar and the Irish Paying Agent appoint as agent for service of process for any matters arising in connection with this Deed the same agent for service of process so appointed pursuant to Clause 28.3 of the Trust Deed.  The Advancing Agent appoints as agent for service of process for any matters arising in connection with this Deed the same agent for service of process so appointed pursuant to Clause 28.3 of the Agency Agreement.

17.      Power of Attorney.  If the Issuer is represented by an attorney or attorneys in connection with the signing and/or execution and/or delivery of this Deed or any agreement or document referred to herein or made pursuant hereto and the relevant power or powers of attorney is or are expressed to be governed by the laws of a particular jurisdiction, it is hereby expressly acknowledged and accepted by the other parties hereto that such laws shall govern the existence and extent of such attorney's or attorneys' authority and the effects of the exercise thereof.

18.      Notices.  Any notices to be given pursuant to this Deed to any of the Parties hereto shall be served in the manner set out in Clause 27 (Notices) of the Trust Deed, save that any notice to be delivered to the Issuer shall addressed as follows:

To the Issuer:                Duncannon CRE CDO I PLC

Pinnacle 2,

Eastpoint Business Park,

Clontarf,

Dublin 3,

D03 P580,

Ireland

 

Attention: The Directors

Facsimile: +353 1 680 6050

 

19.      Contracts (Rights of Third Parties) Act 1999.  No person shall have any rights to enforce any term or condition of this Deed under the Contracts (Rights of Third Parties) Act 1999 but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.

17.      Limited Recourse.  The provisions of Clause 26 of the Trust Deed shall be applicable to this Deed and all actions taken pursuant hereto (as if the Trust Deed had not been terminated).

 

IN WITNESS WHEREOF this Deed is executed as a deed and delivered on the date written above.

 

Issuer

 

Given under the Common Seal of

DUNCANNON CRE CDO I PLC

 

 

Director: __________________________________

Name:

 

 

Director/Secretary: __________________________

Name:

 

 

 

Trustee

 

EXECUTED as a deed

by

U.S. Bank Trustees Limited (as successor to

ABN AMRO Trustees Limited)

 

 

Authorised Signatory: ________________________

Name:

Title:

 

 

Authorised Signatory: ________________________

Name:

Title:

 

 

Principal Paying Agent, Custodian, Account Bank, Transfer Agent, Calculation Agent, Collateral Administrator, Exchange Agent and Back-up Advancing Agent

 

EXECUTED as a deed

by

Elavon Financial Services DAC, UK

Branch (as successor to ABN AMRO Bank N.V.

(London Branch)

 

 

Authorised Signatory: ________________________

Name:

Title:

 

 

Authorised Signatory: ________________________

Name:

Title:

 

 

 

Registrar

 

EXECUTED as a deed

by

The Royal Bank of Scotland plc,

Luxembourg Branch (as successor by

merger to RBS Global Banking (Luxembourg)

(as successor to ABN AMRO Bank (Luxembourg)

S.A.))

 

 

Authorised Signatory: ________________________

Name:

Title:

 

 

Authorised Signatory: ________________________

Name:

Title:

 

 

 

 

 

 

Advancing Agent

 

EXECUTED as a deed

by

EUROCASTLE INVESTMENT LIMITED

Acting by FIG LLC as its duly authorized investment manager

 

 

_____________________________________

Name:

 

Title: authorized signatory

 

 

Irish Paying Agent

 

Given under the Common Seal of

DEUTSCHE INTERNATIONAL CORPORATE

SERVICES (IRELAND) LIMITED

 

 

Director: __________________________________

Name:

 

 

Director/Secretary: __________________________

Name:

 

 

 

EXECUTED as a deed

by

CITIBANK, N.A., LONDON BRANCH, as Hedge Counterparty

 

 

Authorised Signatory: ________________________

Name:

Title:

 

 

 

 

 

EXHIBIT A

 

[Extraordinary Resolution]

 

FORM OF WRITTEN RESOLUTION OF THE NOTEHOLDERS

 

To:

 

U.S. Bank Trustees Limited

125 Old Broad Street, Fifth Floor

London EC2N 1AR

United Kingdom

(the "Trustee")          

 

Elavon Financial Services DAC, UK Branch
125 Old Broad Street, Fifth Floor

London EC2N 1AR

United Kingdom

(the "Principal Paying Agent")          

 

Duncannon CRE CDO I PLC

Pinnacle 2,
Eastpoint Business Park,
Clontarf,
Dublin 3,
D03 P580,
Ireland

(the "Issuer")

 

The Royal Bank of Scotland plc, Luxembourg Branch

46, avenue J-F Kennedy

L-1855, Luxembourg

Grand Duchy of Luxembourg

(the "Registrar")

 

 

WRITTEN RESOLUTION OF THE NOTEHOLDER

in respect of the Issuer's €20,000,000 Class D-2 Deferrable Interest Floating Rate Notes due 2047 (Regulation S ISIN: XS0311204621, Rule 144A ISIN US265082AH01)

(the "Class D-2 Notes") 

 

 

Dear Sirs:

 

We refer to the Proposed Direction, the Proposed Amendments and the Proposed Termination, as such terms are defined in the notice and request for instructions from the Issuer dated [_] April 2017 and relating to the Class D-2 Notes (the "Notice and Request").  Capitalised terms not defined herein shall have the meanings assigned to such terms in the Notice and Request and, if not defined therein, in the Trust Deed constituting the Class D-2 Notes.

 

We, the undersigned (the "Noteholder") acknowledges, represents, warrants and confirms with effect from (and including) the date of this Written Resolution that:

 

i.          it is the beneficial owner of the Class D-2 Notes in the amount set forth below issued by the Issuer and currently outstanding;

j.          none of the parties to the Trust Deed are acting as a fiduciary or financial or investment adviser to it;

k.         it has consulted with its own legal, regulatory, tax, business, investment, financial and accounting advisers to the extent deemed necessary, and has made its own investment decisions (including decisions regarding the suitability of any transaction pursuant to the documentation) based upon its own judgement and upon any advice from such advisers as deemed necessary and not upon any view expressed by the parties to the Trust Deed;

l.          it is a sophisticated investor familiar with transactions similar to its investment in the Notes and it is acting for its own account and has made its own independent decision to execute this Written Resolution based on its own judgment and upon such advice from its advisers as it deems necessary;

m.        it is not relying (for purposes of making any investment decision or advice) on any communication, advice, counsel or representations (written or oral) from the Issuer, the Trustee or any other party to the Transaction Documents in relation to its decision to execute this Written Resolution and none of the Issuer, the Trustee nor any other party to the Transaction Documents is acting or has acted in any advisory capacity in relation thereto;

n.         it has the capability (either internally or through independent advice) to understand the scope of the Proposed Direction, the Proposed Amendments and the Proposed Termination and the effect they will have on the risk connected with the Class D-2 Notes; and

o.         it has full corporate capacity and authority to execute this Written Resolution and understands that the Proposed Direction, the Proposed Amendments and the Proposed Termination will, among other things, have an effect on the assets backing the Class D-2 Notes; and

p.         it has given irrevocable instructions to the relevant Clearing Systems to block Notes in the securities account to which they are credited with effect from and including the day such instruction is delivered to the relevant Clearing System so that no transfers may be effected in relation to the Notes at any time after such date until 21 June 2017. Notes should be blocked in accordance with the procedures of the relevant Clearing System and the deadlines required by the relevant Clearing System. It has also authorised the Clearing System at which our account is maintained to disclose to each of the addressees of this Written Resolution confirmation that we are the beneficial owner of the Notes referred to above.

Conditional upon your receipt of similar Written Resolutions from other holders of the Class D-2 Notes who, together with our holding of the Class D-2 Notes, hold not less than 75 per cent. of the aggregate Principal Amount Outstanding of the Class A-2 Notes, and concurrently with such other Written Resolutions, the Noteholder hereby authorises the approval of this Written Resolution and: 

                                   

8.        approve the Proposed Direction, the Proposed Amendments and the Proposed Termination;

9.         authorise, instruct, request and direct the Trustee, the Registrar, the Portfolio Manager and the Issuer to execute the Amendment and Termination Deed (substantially in the form attached to the Notice and Request) and take such other actions or inactions and give such waivers, directions, authorizations and consents as may be required to effect the Proposed Direction, the Proposed Amendments and the Proposed Termination;

10.       resolve that any and every modification, waiver, abrogation, variation, compromise of, or arrangement in respect of, the rights of the holders of the Notes against the Issuer whether such rights shall arise under the Trust Deed, the Conditions or otherwise, involved in or resulting from or to be effected by the Proposed Direction, the Proposed Amendments and the Proposed Termination, the authorisations referred to in this Written Resolution and their implementation thereof be and are hereby approved;

11.       acknowledge that the Proposed Direction, the Proposed Amendments and the Proposed Termination will not become effective until the Amendment and Termination Deed is executed by the parties thereto;

12.       irrevocably discharge, exonerate and waive any claim against the Issuer, the Trustee, the Registrar or the Portfolio Manager which arises as a result of any loss or damage to the undersigned holder of the Notes suffered or incurred as a result of the Issuer, the Trustee, the Registrar or the Portfolio Manager following the terms of this Written Resolution and the implementation of this Written Resolution (including for the avoidance of doubt, the directions and/or instructions contained herein), even though it may be subsequently found that there is a defect in this Written Resolution or that for any reason this Written Resolution is not valid or binding upon the Holders of the Notes;

13.       approve that each of the Issuer, the Trustee, the Registrar and the Portfolio Manager be and are hereby authorised and instructed not to obtain any legal opinions in relation to, or to make any investigation or enquiry into the power and capacity of any person to enter into the Amendment and Termination Deed or the due execution and delivery thereof and that they shall not be liable to any Noteholders for the failure to do so or for any consequences thereof;

14.       agree that this Written Resolution shall take effect as a Written Resolution pursuant to paragraph 13 of Schedule 7 (Provisions for Meetings of the Noteholders of each Class) to the Trust Deed.

The Noteholder fully acknowledges that it has had sufficient prior knowledge of the matters and agenda referred to in the present Written Resolution.

The Noteholder agrees to indemnify the Trustee, the Issuer, the Registrar, the Portfolio Manager and the Principal Paying Agent and hold the Trustee, the Issuer, the Registrar, the Portfolio Manager and the Principal Paying Agent harmless against the consequences of any misrepresentation under or, as the case may be, breach of the representations and warranties set out herein in paragraphs (a) to (e) (inclusive) above.

 

This Written Resolution may be executed and delivered in any number of counterparts, all of which, taken together, shall constitute one and the same Written Resolution.

 

This Written Resolution and any non-contractual obligations arising out of it shall be governed by and construed in accordance with English law.

 

SIGNATORIES

 

 

Signed on the date written above for and on behalf of the Noteholder:

 

 

 

__________________________________________

(Name of Noteholder)

 

Signature:___________________

 

Date: ___________________________

 

By: ___________________________

 

Title: ___________________________

Amount of Holding of Class D-2 Notes:___________________________                                            

Euroclear/Clearstream account number: ___________________________

 

This announcement has been issued through the Companies Announcement Service of

the Irish Stock Exchange.

 

 


This information is provided by RNS
The company news service from the London Stock Exchange
 
END
 
 
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