TIDM49WP
RNS Number : 5408Z
NIBC Bank N.V.
12 January 2024
NOTICE OF SECURITYHOLDER MEETING
THIS NOTICE IS IMPORTANT AND REQUIRES THE IMMEDIATE ATTENTION
OF
SECURITYHOLDERS .
If Securityholders are in any doubt about any aspect of the
proposals in this notice and/or the action they should take, they
are recommended to seek their own financial advice immediately from
their broker, bank manager, solicitor, accountant or other another
appropriately authorised independent financial adviser and such
other professional advisers as they deem necessary.
FURTHER INFORMATION REGARDING THE MATTERS REFERRED TO IN THIS
NOTICE IS AVAILABLE IN THE CONSENT SOLICITATION MEMORANDUM (AS
DEFINED BELOW), AND ELIGIBLE SECURITYHOLDERS (AS DEFINED BELOW) ARE
ENCOURAGED TO READ THIS NOTICE IN CONJUNCTION WITH THE SAME.
NIBC BANK N.V.
(formerly known as NIB Capital Bank N.V.,
incorporated with limited liability under the laws of The
Netherlands
and having its corporate seat in The Hague )
(the " Issuer ")
NOTICE OF A SECURITYHOLDER MEETING
to the holders of the
U.S.$100,000,000 CMS Linked Perpetual Debt Securities (ISIN:
XS0215294512)
(the "Securities")
of the Issuer presently outstanding.
NOTICE IS HEREBY GIVEN that a Meeting (the "Meeting") of the
holders of the Securities convened by the Issuer will be held at
the offices of Clifford Chance LLP at Droogbak 1A, 1013 GE
Amsterdam, The Netherlands on 5 February 2024 for the purpose of
considering and, if thought fit, passing the resolution set out
below, with the implementation of that resolution being subject to
satisfaction of the condition set out in paragraph 5(b) thereof
(the "Eligibility Condition") and which resolution will be proposed
as an extraordinary resolution of the Securityholders (the
"Extraordinary Resolution") in accordance with the provisions of
the Trust Deed dated 24 March 2005 (, the "Trust Deed"), made
between the Issuer and The Law Debenture Trust Corporation p.l.c.
(the "Trustee").
The Meeting will commence at 9:00 a.m. (London time) / 10:00
a.m. (CET).
In accordance with normal practice, the Trustee, the Principal
Paying Agent and Kroll Issuer Services Limited (the "Tabulation
Agent") have not been involved in the formulation of the
Securityholder Proposal (as defined below). The Trustee, the
Tabulation Agent and NatWest Markets N.V. (the "Sole Solicitation
Agent") express no opinion on, and make no representations as to
the merits of, the Securityholder Proposal, the Extraordinary
Resolution or the proposed amendments referred to in the
Extraordinary Resolution set out below.
None of the Tabulation Agent, the Sole Solicitation Agent and
the Trustee makes any representation that all relevant information
has been disclosed to Securityholders in or pursuant to this
Notice, the Consent Solicitation Memorandum or otherwise. None of
the Tabulation Agent, the Sole Solicitation Agent and the Trustee
has approved the draft Supplemental Trust Deed referred to in the
Extraordinary Resolution set out below and Securityholders are
recommended to arrange to inspect and review such draft
Supplemental Trust Deed as provided below in this Notice.
Accordingly, Securityholders should take their own independent
legal, financial, tax 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.
None of the Tabulation Agent, the Sole Solicitation Agent and
the Trustee are responsible for the accuracy, completeness,
validity or correctness of the statements made in the Consent
Solicitation Memorandum or this Notice, or omissions therefrom.
Neither this Notice nor the Consent Solicitation Memorandum
constitutes or forms part of, or should be construed as, an offer
for sale, exchange or subscription of, or a solicitation of any
offer to buy, exchange or subscribe for, any securities of the
Issuer or any other entity. The distribution of the Consent
Solicitation Memorandum may nonetheless be restricted by law in
certain jurisdictions. Persons into whose possession the Consent
Solicitation Memorandum comes are required to inform themselves
about, and to observe, any such restrictions.
BACKGROUND
Status of LIBOR
In July 2017, the UK Financial Conduct Authority (the "FCA")
announced that it would no longer persuade or compel banks to
submit rates for the calculation of the LIBOR benchmark after the
end of 2021 and explained they expected that some panel banks would
cease contributing to LIBOR panels at such time.
On 5 March 2021, the administrator of LIBOR, ICE Benchmark
Administration Limited ("IBA") announced its intention to cease the
publication of all 35 LIBOR settings, the majority on 31 December
2021, and for certain USD LIBOR settings, on 30 June 2023, subject
to the rights of the FCA to compel continued publication. The IBA
notified the FCA of its intention and, on the same date, the FCA
published an announcement stating that all 35 LIBOR settings would
either cease to be provided by any administrator or no longer be
representative of the underlying market and economic reality (and
that representativeness would not be restored) immediately after:
(i) 31 December 2021, in the case of all sterling, euro, Japanese
Yen and Swiss Franc, and certain U.S. Dollar settings; or (ii) 30
June 2023, in the case of the remaining U.S. Dollar settings.
The Alternative Reference Rates Committee ("ARRC") was convened
by the Federal Reserve Board and the Federal Reserve Bank of New
York to help ensure a successful transition from U.S. Dollar LIBOR
to a more robust reference rate and to this end the ARRC has
published a number of reports and guiding principles concerning its
recommendations for spread-adjusted fallbacks for contracts
referencing U.S. Dollar LIBOR. Following extensive consultations
and discussion of potential candidates, the ARRC identified SOFR as
the rate that represents best practice for use in certain new U.S.
dollar derivatives and other financial contracts. The Federal
Reserve began to publish SOFR in April 2018.
U.S. Dollar swap rates based on USD LIBOR swap transactions are
determined by reference to the USD LIBOR ICE Swap Rate (available
in various tenors) calculated and administrated by the IBA (for
swaps referencing 3-month USD LIBOR) ("USD LIBOR ICE Swap
Rate").
In March 2021, the ARRC proposed a suggested fallback formula
for the USD LIBOR ICE Swap Rate which instead references the USD
SOFR ICE Swap Rate (launched on 8 November 2021), adds The
International Swaps and Derivatives Association, Inc. ("ISDA")
fallback spread adjustment for 3-month USD LIBOR (26.161 bps) and
applies technical adjustments to account for differences in payment
frequency and day count conventions between the USD LIBOR and USD
SOFR swaps (the "ARRC Recommended Methodology").
In June 2021, ISDA launched a consultation to seek feedback on
the incorporation in the ISDA definitions of a fallback formula
for, amongst other things, the USD LIBOR ICE Swap Rate (using the
ARRC Recommended Methodology). In July 2021, ISDA announced the
results of this consultation, which indicated that a significant
majority of respondents agreed with such fallback formula and that
the conditions were satisfied for them to be incorporated in the
ISDA definitions. As a result of this, on 10 November 2021, ISDA
published Supplement 88 to the 2006 ISDA Definitions which updated
provisions in the 2006 ISDA Definitions that referred or related to
the USD LIBOR ICE Swap Rate to refer to a fallback rate calculated
on the basis of ARRC Recommended Methodology.
On 8 November 2021, the IBA launched the USD SOFR ICE Swap
Rate(R) for use in financial contracts and instruments. On 30
August 2022, the IBA announced its intention to cease the
publication of all USD LIBOR ICE Swap Rate(R) benchmark settings
for all tenors immediately after the cessation of publication of
USD LIBOR on 30 June 2023 subject to a consultation with market
participants. Subsequently, on 14 November 2022, the IBA published
a feedback statement from this consultation in which it stated that
it would cease the publication of all USD LIBOR ICE Swap Rate(R)
benchmark settings for all tenors immediately after publication on
30 June 2023.
Proposed Amendments
On the basis that the Conditions of the Securities currently
envisage that, for the period from (and including) the Interest
Payment Date falling in March 2024 (expected to be 24 March 2024),
the Rate of Interest will, in part, be determined by reference to
the applicable 10-year USD LIBOR ICE Swap Rate (which is determined
on the basis of USD LIBOR swap rates) and such period commences
after the discontinuation of such USD LIBOR ICE Swap Rate on 30
June 2023 (as described in "Status of LIBOR" above), the Issuer has
convened the Meeting for the purposes of enabling Securityholders
to consider, and if they think fit, approve the Proposed
Amendments, being:
(a) an amendment to the Conditions in respect of the Rate of
Interest applicable to the Securities from (and including) the
Interest Payment Date falling in March 2024 (expected to be 24
March 2024) such that the Rate of Interest shall cease to be
determined by reference to a USD LIBOR swap rate, and the relevant
Rate of Interest shall instead be the lower of:
(i) the sum of:
(a) the USD SOFR Spread Adjusted Swap Rate calculated in
accordance with the ARRC Recommended Methodology on the basis of
the following formula (the "ARRC Recommended Formula") on the
relevant Interest Determination Date:
where:
"SOFR SA SR" is the USD SOFR Spread Adjusted Swap Rate
(expressed as a percentage) with a maturity of 10-years commencing
on the first day of the relevant Interest Period (the "Designated
Maturity");
"SOFR SR" is the USD SOFR ICE Swap Rate (expressed as a
percentage) in respect of the day falling two U.S. Government
Securities Business Days prior to the first day of the relevant
Interest Period (the "Interest Determination Date") with a maturity
of the Designed Maturity; and
"ISDA Spread (3m LIBOR)" is 0.26161 per cent.; and
(b) the Margin (which shall remain unaltered by these amendments); and
(ii) 8.25 per cent.;
(b) the inclusion of new fallback provisions relating to the USD
SOFR ICE Swap Rate (or any component thereof) for the purposes of
calculating the USD SOFR Spread Adjusted Swap Rate (including
fallback provisions in case a Benchmark Transition Event occurs
with respect to the USD SOFR ICE Swap Rate (or any component
thereof)) in the Conditions of the Securities and consequential
amendments to Clause 19.2 (Modification) of the Trust Deed in
respect of any future modifications to the Conditions to give
effect to any Benchmark Replacement Conforming Changes; and
(c) the inclusion of a Contractual Recognition of Bail-in Clause in the Conditions,
as more fully described in this Consent Solicitation Memorandum
and the Notice (the "Proposed Amendments")
The Proposed Amendments will be implemented as soon as
reasonably practicable following the conclusion of the Meeting at
which the Extraordinary Resolution is passed (and the Eligibility
Condition satisfied). Provided the Extraordinary Resolution is
passed (and the Eligibility Condition satisfied) at the initial
Meeting, implementation of the Proposed Amendments is expected to
occur on 12 February 2024 (the "Implementation Date").
Rationale for the proposed amendments to the Rate of
Interest
As noted above: (i) the USD SOFR Spread Adjusted Swap Rate is
calculated in accordance with the ARRC Recommended Methodology and
on the basis of the ARRC Recommended Formula included therein; and
(ii) ISDA's consultation in June 2021 (which sought feedback from
market participants on the use of the ARRC Recommended Methodology
as a fallback for the USD LIBOR ICE Swap Rate) concluded that a
majority of respondents agreed with the use of the ARRC Recommended
Methodology. As such, the Proposed Amendments seek to align with
the industry approved methodologies recommended by the ARRC and
ISDA as fallbacks to the USD LIBOR ICE Swap Rate.
If the Extraordinary Resolution is not passed, the ultimate
contractual fallback under the terms of the Securities is that the
Rate of Interest will be the same as the rate determined in
relation to the preceding Interest Determination Date.
Rationale for addition of contractual recognition of bail-in
clause
The directive providing for the establishment of an EU-wide
framework for the recovery and resolution of credit institutions
and investment firms (Directive 2014/59/EU) (known as the " Bank
Recovery and Resolution Directive " or " BRRD ") entered into force
on 2 July 2014 and was subsequently implemented in The Netherlands
through the BRRD Implementation Act ( Implementatiewet Europees
kader voor herstel en afwikkeling van banken en
beleggingsondernemingen ) which amended the Dutch Financial
Supervision Act ( Wet op het financieel toezicht ) with effect from
26 November 2015.
Article 55(1) of the BRRD requires institutions to include "a
contractual term by which the creditor or party to the agreement or
instrument creating the liability recognises that the liability may
be subject to the write-down and conversion powers and agrees to be
bound by any reduction of the principal or outstanding amount due,
conversion or cancellation that is effected by the exercise of
those powers by a resolution authority" (a " Contractual
Recognition of Bail-in Clause ") where, inter alia, such liability
is governed by the law of a third country and is "issued or entered
into" after the date on which the transposition of the BRRD into
national law became applicable.
Pursuant to Article 43(2)(b) of Commission Delegated Regulation
(EU) 2016/1075 of 23 March 2016, as amended (the "Delegated
Regulation"), Article 55(1) of the BRRD is applicable to
liabilities created before such date of transposition of the BRRD
into national law where they are subject to "material amendment"
which is defined in Article 42(1) of the Delegated Regulation as
being "an amendment, including an automatic amendment, made after
that date and affecting the substantive rights and obligations of a
party to a relevant agreement".
Following the UK's withdrawal from the European Union and the
end of the transitional period, English law has now become a third
country law. As a result, the Issuer would be required to include a
Contractual Recognition of Bail-in Clause at the same time as the
other Proposed Amendments.
Securityholders should note that Article 55(2) of the BRRD
specifies that, in any event, the failure to include a Contractual
Recognition of Bail-in Clause " shall not prevent the resolution
authority from exercising the write down and conversion powers in
relation to that liability ".
As of the date hereof, applicable authorities have communicated
that the preferred resolution strategy for the Issuer is normal
insolvency, which means that, should it fail, the plan is that the
Issuer would be liquidated under normal insolvency law and so
resolution would not be triggered (and the bail-in tool not used).
There is no guarantee, however, that such plan will be followed in
a liquidation or resolution scenario, and on 18 April 2023 the
European Commission adopted a proposal to promote the use of
resolution tools for small and medium sized banks.
On this basis, and as a consequence of the amendments proposed
to the Conditions in respect of the determination of the Rate of
Interest (as set out herein) and the Securities being governed by
English law, the Issuer is required to include a Contractual
Recognition of Bail-in Clause in the Conditions pursuant to Article
55(2) of the BRRD and in accordance with customary market practice
following the UK's withdrawal from the European Union and the end
of the transitional period.
Risk Factors
Blocking of Securities held through Euroclear and/or
Clearstream, Luxembourg
Following the submission of a Consent Instruction through
Euroclear and/or Clearstream, Luxembourg, the Securities which are
the subject of such Consent Instruction will be blocked from
trading by the relevant Clearing System until the earliest of the
date on which the Extraordinary Resolution is duly passed, the
conclusion of the Meeting and the date upon which the
Securityholder becomes entitled to withdraw, and does withdraw, its
Consent Instruction in the circumstances set out under " Error!
Reference source not found. - Procedures in Connection with the
Consent Solicitation - Error! Reference source not found. " of the
Consent Solicitation Memorandum. Following the expiry of the
Expiration Deadline, a Securityholder will only be able to withdraw
its Consent Instruction in the limited circumstances set out under
" Error! Reference source not found. - Error! Reference source not
found. " of the Consent Solicitation Memorandum.
Responsibility for complying with the procedures relating to the
Consent Solicitation and the Meeting
Securityholders are solely responsible for complying with all of
the procedures for submitting Consent Instructions or otherwise
making arrangements to vote or be represented at the Meeting. None
of the Issuer, the Sole Solicitation Agent, the Trustee and the
Tabulation Agent assumes any responsibility for informing
Securityholders of irregularities with respect to Consent
Instructions or any voting instructions.
Responsibility to Consult Advisers
Securityholders should consult their own tax, accounting,
financial and legal advisers regarding the consequences (tax,
accounting or otherwise) of participating in the Consent
Solicitation.
None of the Issuer, the Sole Solicitation Agent, the Tabulation
Agent, the Trustee or the Principal Paying Agent nor any director,
officer, employee, agent or affiliate of any such person, is acting
for any Securityholder, or will be responsible to any
Securityholder for providing any protections which would be
afforded to its clients or for providing advice in relation to the
Consent Solicitation, and accordingly none of the Issuer, the Sole
Solicitation Agent, the Tabulation Agent, the Trustee or the
Principal Paying Agent, nor any director, officer, employee, agent
or affiliate of, any such person makes any recommendation whether
Securityholders should participate in the Consent Solicitation.
Submission of instructions by Sanctions Restricted Persons
A Securityholder or a beneficial owner of the Securities who is,
or who is believed by the Issuer to be, a Sanctions Restricted
Person (as defined herein) may not participate in the Consent
Solicitation. No steps taken by a Sanctions Restricted Person to
vote in respect of the Proposed Amendments or deliver instructions
pursuant to the Consent Solicitation will be accepted by the Issuer
and such Sanctions Restricted Person will not be eligible to
receive the Consent Fee or the Ineligible Holder Instruction
Fee.
USD SOFR differs from USD LIBOR in a number of material respects
and the market continues to develop in relation to USD SOFR as a
reference rate for securities which incorporate a floating rate
interest basis
If the Extraordinary Resolution is passed and implemented, the
applicable USD LIBOR linked swap rate for the Securities for the
period commencing from (and including) the Interest Payment Date in
March 2024 (expected to be 24 March 2024) will be replaced by a
reference to the USD SOFR Spread Adjusted Swap Rate.
USD SOFR differs from USD LIBOR in a number of material
respects, including (without limitation) that USD SOFR is a
backwards-looking, compounded, risk-free overnight rate, whereas
USD LIBOR is expressed on the basis of a forward-looking term and
includes a risk-element based on inter-bank lending. As such,
investors should be aware that USD LIBOR and USD SOFR may behave
materially differently as reference rates.
The use of USD SOFR as a reference rate for eurobonds is
relatively recent, and is subject to change and development, both
in terms of the substance of the calculation and in the development
and adoption of market infrastructure for the issuance and trading
of bonds referencing (either directly or indirectly) USD SOFR.
Accordingly, Securityholders should be aware that the market
continues to develop in relation to USD SOFR as a reference rate in
the capital markets and its adoption as an alternative to USD
LIBOR. The market or a significant part thereof may adopt an
application of USD SOFR that differs significantly from the current
methodology used in the determination of the USD SOFR Spread
Adjusted Swap Rate. In addition, as SOFR is published by the
Federal Reserve Bank of New York, the Issuer has no control over
its determination, calculation or publication. USD SOFR may be
discontinued or fundamentally altered in a manner that is
materially adverse to the interests of Securityholders.
Investors should consider these matters when considering the
Consent Solicitation and the Proposed Amendments.
Regulatory reforms and changes may cause a benchmark to perform
differently than it has done in the past or to be discontinued
Benchmarks have, in recent years, been the subject of political
and regulatory scrutiny as to how they are created and operated.
This has resulted in regulatory reform and changes to existing
benchmarks, with further changes anticipated. These reforms and
changes may cause a benchmark like the USD SOFR ICE Swap Rate
(which references USD SOFR) to perform differently than it has done
in the past or to be discontinued. Any change in the performance of
the USD SOFR ICE Swap Rate (or any component thereof, including USD
SOFR) or its discontinuation, could have a material adverse effect
on the Securities, including possible adverse tax consequences for
Securityholders.
Any of the reforms, or the general increase in regulatory
scrutiny of benchmarks, could increase the costs and risks of
administering or participating in the setting of a benchmark and
complying with any such regulations or requirements. Such factors
may have the effect of discouraging market participants from
continuing to administer or contribute to certain benchmarks (or
rates referencing such benchmarks), trigger changes in the rules or
methodologies used in certain benchmarks (or rates referencing such
benchmarks) or lead to the discontinuation or unavailability of
quotes of certain benchmarks.
Any changes to the administration of, or the methodology used to
obtain, a benchmark or the emergence of alternatives to a benchmark
as a result of these reforms, may cause the relevant benchmark to
perform differently than in the past or to be discontinued, or
there could be other consequences which cannot be predicted. The
potential discontinuation of a benchmark or changes to its
administration could require changes to the way in which the USD
SOFR Spread Adjusted Swap Rate is calculated. The development of
alternatives to a benchmark may result in the Securities performing
differently than would otherwise have been the case if such
alternatives to such benchmark had not developed. Any such
consequence could have a material adverse effect on the value of,
and return on, the Securities.
Furthermore, even prior to the implementation of any changes,
uncertainty as to the nature of alternative reference rates and as
to potential changes to such benchmark may adversely affect such
benchmark during the term of the Securities, the return on the
Securities and the trading market for securities based on the same
benchmark.
In accordance with the Conditions, the Securities may be subject
to the adjustment of the interest provisions in certain
circumstances. The circumstances which could trigger such
adjustments are beyond the Issuer's control and the subsequent use
of a replacement benchmark may result in changes to the Conditions
(which could be extensive) and/or interest payments that are lower
than or that do not otherwise correlate over time with the payments
that could have been made on the Securities if the relevant
benchmark remained available in its current form. Although pursuant
to the Conditions, spread adjustments may be applied to such
replacement benchmark (including with the intention of partially or
wholly reducing or eliminating any economic prejudice or benefit
(as applicable) to investors arising out of the replacement of the
relevant benchmark), the application of such adjustments to the
Securities may not achieve this objective. Any such changes may
result in the Securities performing differently (which may include
payment of a lower interest rate) than if the original benchmark
continued to apply. There is no assurance that the characteristics
of any replacement benchmark would be similar to the affected
benchmark, that any replacement benchmark would produce the
economic equivalent of the affected benchmark or would be a
suitable replacement for the affected benchmark. The choice of
replacement benchmark is uncertain and could result in the
replacement benchmark being unavailable or indeterminable. In
certain circumstances, the ultimate fallback provisions may result
in the effective application of a fixed interest rate to the
Securities.
Furthermore, if the Issuer determines that it is not able to
follow the prescribed steps set out in the Conditions, the relevant
fallback provisions may not operate as intended at the relevant
time. Any such consequence could have a material adverse effect on
the trading markets for the Securities, the liquidity of the
Securities and/or the value of and return on the Securities.
The Conditions may require the exercise of discretion by an
independent adviser and the making of potentially subjective
judgments (including as to the occurrence or not of any events
which may trigger amendments to the Conditions) and/or the
amendment of the Conditions without the consent of Securityholders.
The interests of the independent adviser in making such
determinations or amendments may be adverse to the interests of the
Securityholders.
Moreover, any of the above matters or any other significant
change to the setting or existence of any relevant reference rate
could affect the ability of the Issuer to meet its obligations
under the Securities if linked to a benchmark or could have a
material adverse effect on the market value or liquidity of, and
the amount payable under the Securities.
Investors should consider all of these matters when considering
the Consent Solicitation and the Proposed Amendments.
Extraordinary Resolution binding
If the Extraordinary Resolution is passed, it will be binding on
all Securityholders (subject to the satisfaction of the Eligibility
Condition), whether or not they choose to, or are able to,
participate in the Consent Solicitation or otherwise vote at the
relevant Meeting.
SECURITYHOLDER PROPOSAL
Pursuant to this Notice, the Issuer has convened the Meeting to
request that the holders of the Securities consider and agree by
Extraordinary Resolution to the matters contained in the
Extraordinary Resolution set out below.
The Issuer, under the Securityholder Proposal, is requesting
that the Securityholders consider and if thought fit, pass the
Extraordinary Resolution. If the Extraordinary Resolution is passed
by the Securityholders, and if the Eligibility Condition is
satisfied, the Extraordinary Resolution will be binding on all
Securityholders, whether present or not at the Meeting and whether
or not voting.
The Securityholder Proposal is being put to Securityholders for
the reasons set out in "Background" above.
Eligible Securityholders are also referred to the Consent
Solicitation Memorandum which provides further background to the
Securityholder Proposal and the reasons therefor.
Consent Solicitation
Securityholders are further given notice that the Issuer has
invited Eligible Securityholders (as defined below) of the
Securities (such invitation, the "Consent Solicitation") to consent
to the approval, by Extraordinary Resolution at the Meeting, of the
modification of the terms and conditions (the "Conditions") of the
Securities and the Trust Deed and execution of the Supplemental
Trust Deed as described in paragraph 1 of the Extraordinary
Resolution as set out below, all as further described in the
Consent Solicitation Memorandum dated 12 January 2024 (the "Consent
Solicitation Memorandum"), which is available to Eligible
Securityholders (as defined below) from the Tabulation Agent
(including on the website of the Tabulation Agent (
https://deals.is.kroll.com/nibc )) (see "Documents Available for
Inspection" below).
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 persons who are (i) located
and resident outside the United States and not U.S. persons or
acting for the account or benefit of a U.S. person (in each case,
as defined in Regulation S under the U.S. Securities Act of 1933,
as amended (the "Securities Act")), (ii) not retail investors (as
defined in the Extraordinary Resolution below) and, if applicable
and acting on a non-discretionary basis, who are acting on behalf
of beneficial owners that are not retail investors, and (iii)
otherwise persons to whom the Consent Solicitation can be lawfully
made and that may lawfully participate in the Consent Solicitation
(all such persons, "Eligible Securityholders").
Subject to the restrictions described in the previous paragraph,
Securityholders may obtain from the date of this Notice a copy of
the Consent Solicitation Memorandum 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 Securityholder will
be required to provide confirmation as to their status as an
Eligible Securityholder. Ineligibility to participate in the
Consent Solicitation does not affect a Securityholder's right to
attend and vote at the Meeting - see "Voting and Quorum" below.
Consent Fee
Securityholders may be eligible, to the extent permitted by
applicable laws and regulations, to receive an amount equal to the
Consent Fee by delivering, or arranging to have delivered on their
behalf, a valid Consent Instruction, that is received by the
Tabulation Agent by the Expiration Deadline and not subsequently
revoked (in the limited circumstances in which revocation is
permitted).
Only Securityholders who (i) deliver, or arrange to have
delivered on their behalf, valid Consent Instruction by the
Expiration Deadline, and do not subsequently revoke (in the limited
circumstances in which revocation is permitted) such instructions,
and (ii) do not seek to attend the Meeting (or any adjourned
Meeting) in person or make any other arrangements to be represented
at the Meeting (or any adjourned Meeting), will be eligible for the
applicable Consent Fee. Any Securityholder that separately seeks to
appoint a proxy to vote at the Meeting (or any adjourned Meeting)
on its behalf or attends the Meeting (or any adjourned Meeting) in
person or makes other arrangements to be represented at the Meeting
(or any adjourned Meeting) will not be eligible for the Consent
Fee, irrespective of whether such Securityholder has delivered a
valid Consent Instruction.
If the Extraordinary Resolution is passed (subject to the
satisfaction of the Eligibility Condition), any Consent Fee payable
to Securityholders will be paid on the Fee Payment Date in
immediately available funds delivered to the Clearing Systems for
payment to the cash accounts of the relevant Securityholders in the
Clearing Systems. The deposit of such funds with the Clearing
Systems will discharge the obligation of the Issuer to all
Securityholders in respect of the above amounts represented by such
funds.
In order to be eligible to receive the applicable Consent Fee,
Securityholders will be required to submit instructions in
accordance with the procedures set out herein. For the avoidance of
doubt, Eligible Securityholders shall not be eligible to receive
any Ineligible Holder Instruction Fee.
Ineligible Holder Instruction Fee
Ineligible Securityholders may be eligible, to the extent
permitted by applicable laws and regulations, to receive the
Ineligible Holder Instruction Fee for delivering, or arranging to
have delivered on their behalf, an Ineligible Holder Instruction
waiving their right to attend and vote (or be represented) at the
Meeting that is received by the Tabulation Agent by the Expiration
Deadline and not subsequently revoked (in the limited circumstances
in which revocation is permitted).
Only Ineligible Securityholders who deliver, or arrange to have
delivered on their behalf, valid Ineligible Holder Instructions by
the Expiration Deadline, and do not subsequently revoke (in the
limited circumstances in which revocation is permitted) such
instructions will be eligible for the applicable Ineligible Holder
Instruction Fee.
If the Extraordinary Resolution is passed (subject to the
satisfaction of the Eligibility Condition), any Ineligible Holder
Instruction Fee payable to Securityholders will be paid on the Fee
Payment Date in immediately available funds delivered to the
Clearing Systems for payment to the cash accounts of the relevant
Securityholders in the Clearing Systems. The deposit of such funds
with the Clearing Systems will discharge the obligation of the
Issuer to all Securityholders in respect of the above amounts
represented by such funds.
In order to be eligible to receive the applicable Ineligible
Holder Instruction Fee, Securityholders will be required to submit
instructions in accordance with the procedures set out herein. For
the avoidance of doubt, Ineligible Securityholders shall not be
eligible to receive any Consent Fee.
EXTRAORDINARY RESOLUTION
"THAT this Meeting of the holders (together, the
"Securityholders") of the presently outstanding U.S.$100,000,000
CMS Linked Perpetual Debt Securities (ISIN: XS0215294512) (the
"Securities") of NIBC Bank N.V. (the "Issuer"), issued with the
benefit of the Trust Deed dated 24 March 2005 (the "Trust Deed")
made between the Issuer and The Law Debenture Trust Corporation
p.l.c. (the "Trustee"):
1. (subject to paragraph 5 of this Extraordinary Resolution)
assents to the modification of the terms and conditions of the
Securities (the "Conditions") and the Trust Deed, and the execution
of a Supplemental Trust Deed to effect such modifications, such
that:
(a) for the purposes of any Interest Period beginning on or
after the Interest Payment Date in March 2024 (expected to be 24
March 2024) the relevant Rate of Interest shall instead be the
lower of:
(i) the sum of:
(A) the USD SOFR Spread Adjusted Swap Rate calculated on the
basis of the following formula (the "ARRC Recommended Formula") on
the relevant Interest Determination Date:
where:
"SOFR SA SR" is the USD SOFR Spread Adjusted Swap Rate
(expressed as a percentage) with a maturity of 10-years commencing
on the first day of the relevant Interest Period (the "Designated
Maturity");
"SOFR SR" is the USD SOFR ICE Swap Rate (expressed as a
percentage) in respect of the day falling two U.S. Government
Securities Business Days prior to the first day of the relevant
Interest Period (the "Interest Determination Date") with a maturity
of the Designed Maturity; and
"ISDA Spread (3m LIBOR)" is 0.26161 per cent.; and
(B) the Margin (which shall remain unaltered by these amendments); and
(ii) 8.25 per cent.;
(b) new fallback provisions relating to the USD SOFR ICE Swap
Rate (or any component thereof)for the purposes of calculating the
USD SOFR Spread Adjusted Swap Rate (including fallback provisions
in case a Benchmark Transition Event occurs with respect to the USD
SOFR ICE Swap Rate (or any component thereof)) are included in the
Conditions of the Securities and consequential amendments to Clause
19.2 (Modification) of the Trust Deed in respect of any future
modifications to the Conditions to give effect to any Benchmark
Replacement Conforming Changes are included; and
(c) a Contractual Recognition of Bail-in Clause is included in the Conditions.
2. (subject to paragraph 5 of this Extraordinary Resolution)
authorises, directs, requests and empowers:
(a) the Issuer and the Trustee to execute a supplemental trust
deed (the "Supplemental Trust Deed") to effect the modifications
referred to in paragraph 1 of this Extraordinary Resolution, in the
form or substantially in the form of the draft produced to this
Meeting, with such amendments thereto (if any) as the Issuer and/or
the Trustee shall deem necessary to effect such modifications;
and
(b) the Issuer and the Trustee to execute and to do all such
other deeds, instruments, acts and things as may be necessary,
desirable or expedient in its sole opinion to carry out and to give
effect to this Extraordinary Resolution and the implementation of
the modifications referred to in paragraph 1 of this Extraordinary
Resolution;
3. (subject to paragraph 5 of this Extraordinary Resolution)
sanctions and assents to every abrogation, modification, compromise
or arrangement in respect of the rights of the Securityholders
appertaining to the Securities against the Issuer, whether or not
such rights arise under the Trust Deed, the Conditions or
otherwise, involved in, resulting from or to be effected by the
amendments referred to in paragraphs 1 and 2 of this Extraordinary
Resolution and their implementation;
4. (subject to paragraph 5 of this Extraordinary Resolution)
discharges and exonerates the Trustee from all liability for which
it may have become or may become responsible under the Trust Deed,
the Securities 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 Supplemental Trust Deed, the Notice or this
Extraordinary Resolution;
5. 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 Securityholders
only, irrespective of any participation at this Meeting by
Ineligible Securityholders (and would also have been so satisfied
if any Ineligible Securityholders who provide confirmation of their
status as Ineligible Securityholders and waive their right to
attend and vote (or be represented) at the Meeting had actually
participated at the Meeting) and further resolves that, if the
Extraordinary Resolution is passed at this Meeting but such
condition is not satisfied, the chairman of this Meeting and the
Trustee are hereby authorised, directed, requested and empowered to
adjourn this Meeting until such date, not less than 13 Clear Days
nor more than 42 Clear Days later, and time and place as may be
appointed by the chairman of this Meeting and approved by the
Trustee, for the purpose of reconsidering resolutions 1 to 7 of
this Extraordinary Resolution with the exception of resolution 5
(b) of this Extraordinary Resolution, and in place of the
provisions of resolution 5(b) the relevant condition will
be satisfied if the quorum required for, and the requisite
majority of votes cast at, the adjourned Meeting are satisfied by
Eligible Securityholders only, irrespective of any participation at
the adjourned Meeting by Ineligible Securityholders (and would also
have been so satisfied if any Ineligible Securityholders who
provide confirmation of their status as Ineligible Securityholders
and waive their right to attend and vote (or be represented) at the
adjourned Meeting had actually participated at the adjourned
Meeting);
6. acknowledges that the following terms, as used in this
Extraordinary Resolution, shall have the meanings given below:
"Consent Solicitation in respect of the Securities" means the
invitation by the Issuer to all Eligible Securityholders to consent
to the modification of the Conditions and Trust Deed relating to
the Securities and the execution of the Supplemental Trust Deed, 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 12 January 2024 prepared by the Issuer in relation
to the Consent Solicitation in respect of the Securities;
"Eligible Securityholder" means each Securityholder who is (a)
located and resident outside the United States and not a U.S.
person or acting for the account or benefit of a U.S. person (in
each case, as defined in Regulation S under the Securities Act),
(b) not a retail investor and, if applicable and acting on a
non-discretionary basis, who is acting on behalf of a beneficial
owner that is not a retail investor, and (c) otherwise a person to
whom the Consent Solicitation in respect of the Securities can be
lawfully made and that may lawfully participate in the Consent
Solicitation in respect of the Securities;
"Ineligible Securityholder" means each Securityholder who is not
an Eligible Securityholder;
"Notice" means the notice given by the Issuer to Securityholders
on or around 12 January 2024;
"retail investor" means a person who is one (or more) of: (i) a
retail client as defined in point (11) of Article 4(1) of Directive
2014/65/EU (as amended or superseded, "MiFID II"), (ii) a customer
within the meaning of Directive 2016/97 (as amended, the "Insurance
Distribution Directive"), where that customer would not qualify as
a professional client as defined in point (10) of Article 4(1) of
MiFID II, (iii) a retail client, as defined in point (8) of Article
2 of Regulation (EU) No 2017/565 as it forms part of UK domestic
law by virtue of the European Union (Withdrawal) Act 2018 (as
amended, the "EUWA"), or (iv) a customer within the meaning of the
provisions of the Financial Services and Markets Act 2000 (as
amended, the "FSMA") and any rules or regulations made under the
FSMA which were relied on immediately before exit day to implement
the Insurance Distribution Directive, where that customer would not
qualify as a professional client, as defined in point (8) of
Article 2(1) of Regulation (EU) No 600/2014 as it forms part of UK
domestic law by virtue of the EUWA;
"Securities Act" means the U.S. Securities Act of 1933, as
amended; and
"U.S. Government Securities Business Days" means any day except
for a Saturday, a Sunday or a day on which the Securities Industry
and Financial Markets Association recommends that the fixed income
departments of its members be closed for the entire day for
purposes of trading in U.S. government securities.
7. agrees that capitalised terms in this document where not
defined herein shall have the meanings given to them in the Trust
Deed or the Notice, as applicable."
INELIGIBLE SECURITYHOLDERS
Submission of Ineligible Holder Instructions
Any Securityholder that is not an Eligible Securityholder may
not participate in the Consent Solicitation and will not be
eligible to receive the Consent Fee. However, any Ineligible
Securityholder may deliver, or arrange to have delivered on its
behalf, a valid Ineligible Holder Instruction (as defined below)
and may be entitled to receive an Ineligible Holder Instruction Fee
(as defined below). Ineligibility to participate in the Consent
Solicitation does not affect a Securityholder's right to attend and
vote at the Meeting - see "Voting and Quorum" below.
In respect of any Securities held through Euroclear Bank SA/NV
("Euroclear") or Clearstream Banking S.A. ("Clearstream,
Luxembourg" and, together with Euroclear, the "Clearing Systems"),
the submission of Ineligible Holder Instructions will have occurred
upon receipt by the Tabulation Agent from Euroclear or Clearstream,
Luxembourg, as applicable, of a valid instruction (an "Ineligible
Holder Instruction") submitted in accordance with the requirements
of Euroclear or Clearstream, Luxembourg, as applicable. Each such
Ineligible Holder Instruction must specify, among other things, the
aggregate principal amount of the Securities which are subject to
such Ineligible Holder Instruction, and the securities account
number at the relevant Clearing System in which the relevant
Securities are held. The receipt of such Ineligible Holder
Instruction by the relevant Clearing System will be acknowledged in
accordance with the standard practices of such Clearing System and
will result in the blocking of the relevant Securities in the
relevant Ineligible Securityholder's account with such Clearing
System so that no transfers may be effected in relation to such
Securities until the earlier of (i) the date on which the relevant
Ineligible Holder Instruction is validly revoked (in the limited
circumstances in which revocation is permitted, including the
automatic revocation of such Ineligible Holder Instruction on the
termination of the Consent Solicitation in accordance with the
terms of the Consent Solicitation) and (ii) the conclusion of the
Meeting (or, if applicable, the adjourned Meeting).
Ineligible Securityholders who have submitted a valid Ineligible
Holder Instruction waiving their right to attend and vote (or be
represented) at the Meeting by the Expiration Deadline that has not
subsequently been revoked (in the limited circumstances in which
revocation is permitted) will be eligible to receive an amount
equal to 0.50 per cent. of the principal amount of the relevant
Securities (the "Ineligible Holder Instruction Fee"), subject to
the successful passing of the Extraordinary Resolution and the
satisfaction of the Eligibility Condition.
A Securityholder or a beneficial owner of the Securities who is,
or who is believed by the Issuer to be, a Sanctions Restricted
Person (as defined herein) may not participate in the Consent
Solicitation and will not be eligible to receive the Ineligible
Holder Instruction Fee.
Only Direct Participants (as defined under " Voting and Quorum "
below) may submit Ineligible Holder Instructions. Each beneficial
owner of Securities who is an Ineligible Securityholder and is not
a Direct Participant, must arrange for the Direct Participant
through which such beneficial owner of Securities who is an
Ineligible Securityholder holds its Securities to submit an
Ineligible Holder Instruction on its behalf to the relevant
Clearing System before the deadlines specified by the relevant
Clearing System.
By delivering, or arranging for the delivery on its behalf, of
an Ineligible Holder Instruction in accordance with the procedures
described below, a Securityholder shall (A) waive its right to
attend and vote (or be represented) at the Meeting (as the
consequence of the eligibility condition set out in paragraph 5(b)
of 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 Securityholders,
such that the attendance and voting at the Meeting by an Ineligible
Securityholder will be of no consequence for such implementation)
and (B) agree, acknowledge, represent, warrant and undertake to the
Issuer, the Sole Solicitation Agent, the Tabulation Agent, the
Trustee or the Principal Paying Agent at (i) the time of submission
of such Ineligible Holder Instruction, (ii) the Expiration
Deadline, (iii) the time of the Meeting and (if applicable) at the
time of the adjourned Meeting, (iv) the Implementation Date and (v)
the Fee Payment Date (and if a Securityholder or Direct Participant
(as defined below) on behalf of any Securityholder is unable to
make any such agreement or acknowledgement or give any such
representation, warranty or undertaking, such Securityholder or
Direct Participant should contact the Tabulation Agent immediately)
that:
(a) It is an Ineligible Securityholder.
(b) It is not a "Sanctions Restricted Person", being 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 of the date hereof can be found at:
https://www.treasury.gov/ofac/downloads/sdnlist.pdf ) or (ii) the
most current Foreign Sanctions Evaders List (which as of the date
hereof can be found at:
http://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 of the date hereof can
be found at:
https://data.europa.eu/data/datasets/consolidated-list-of-persons-groups-and-entities-subject-to-eu-financial-sanctions?locale=en
) or (iv) the most current consolidated list of UK financial
sanctions targets(which as of the date hereof can be found at:
https://www.gov.uk/government/publications/financial-sanctions-consolidated-list-of-targets/consolidated-list-of-targets
); or (B) that is otherwise the subject of any sanctions
administered or enforced by any Sanctions Authority, other than
solely by virtue of their inclusion in any of the following lists
(and not other lists): (i) the most current "Sectoral Sanctions
Identifications" list (which as of the date hereof can be found
at:
http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/ssi_list.aspx
) (the "SSI List"), (ii) Annexes III, IV, V, VI, XII and XIII of
Council Regulation No. 833/2014, as amended by Council Regulation
No. 960/2014 (the "EU Annexes"), (iii) Schedule 2 of the UK
Sanctions (Russia) (EU Exit) Regulations 2019 (which as at the date
hereof can be found at:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1063155/InvBan.pdf
), or (iv) any other list maintained by a Sanctions Authority, with
similar effect to the SSI List or the EU Annexes. For these
purposes "Sanctions Authority" means each of: (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;
and (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 His Majesty's Treasury.
(c) It has undertaken all appropriate analysis of the
implications of the Consent Solicitation without reliance on the
Issuer, the Sole Solicitation Agent, the Tabulation Agent, the
Trustee or the Principal Paying 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 Holder
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 Issuer,
the Sole Solicitation Agent, the Tabulation Agent or any other
person acting in breach of the legal or regulatory requirements of
any such jurisdiction in connection with the Extraordinary
Resolution.
(e) Its Ineligible Holder Instruction is made on the terms and
conditions set out in this Notice and therein.
(f) Its Ineligible Holder Instruction is being submitted in
compliance with the applicable laws or regulations of the
jurisdiction in which the Securityholder 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 Holder Instruction.
(g) It holds and will hold, until the earlier of (i) the date on
which its Ineligible Holder Instruction is validly revoked (in the
limited circumstances in which revocation is permitted), and (ii)
conclusion of the Meeting or (if applicable) the adjourned Meeting,
as the case may be, the Securities the subject of the Ineligible
Holder Instruction, in the relevant Clearing System and in
accordance with the requirements of the relevant Clearing System
and by the deadline required by the relevant Clearing System, it
has submitted, or has caused to be submitted, an Ineligible Holder
Instruction to the relevant Clearing System, as the case may be, to
authorise the blocking of such Securities with effect on and from
the date thereof so that no transfers of such Securities may be
effected until the occurrence of any of the events listed in (i) or
(ii) above.
(h) It acknowledges that none of the Issuer, the Sole
Solicitation Agent, the Tabulation Agent, the Trustee and the
Principal Paying Agent or any of their respective affiliates,
directors, officers, employees, representatives 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 the Extraordinary Resolution based on any independent
legal, financial, tax or other advice that it has deemed necessary
to seek.
(i) It acknowledges that all authority conferred or agreed to be
conferred pursuant to these acknowledgements, representations,
warranties and undertakings and every obligation of the
Securityholder offering to waive its right 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
Securityholder waiving its right to vote on the Extraordinary
Resolution and shall not be affected by, and shall survive, the
death or incapacity of the Securityholder waiving its right to vote
on the Extraordinary Resolution, as the case may be.
(j) It acknowledges that the Securities have not been and will
not be registered under the Securities Act, or the securities laws
of any state or other jurisdiction of the United States, and may
not be offered or sold in the United States 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 paragraph that are, unless otherwise specified,
defined in Regulation S under the Securities Act are used as
defined in Regulation S).
(k) The information given by or on behalf of such Securityholder
in the Ineligible Holder Instruction is true and will be true in
all respects at the time of the Meeting (and, if applicable, at the
time of the adjourned Meeting).
(l) No information has been provided to it by the Issuer, the
Sole Solicitation Agent, the Tabulation Agent, the Trustee or the
Principal Paying Agent or any of their respective affiliates,
directors, officers, employees, representatives or agents, with
regard to the tax consequences for Securityholders arising from the
participation in the Meeting 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 the Ineligible Holder 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 Issuer, the Sole
Solicitation Agent, the Tabulation Agent, the Trustee or the
Principal Paying Agent or any of their respective affiliates,
directors, officers, employees, representatives or agents, or any
other person, in respect of such taxes and payments.
The representation set out in paragraph (b) above shall not be
sought or given at any time after such representation is first made
if and to the extent that it is or would result in a violation of
Council Regulation (EC) No 2271/1996, as amended, including as it
forms part of UK domestic law by virtue of the EUWA (the "Blocking
Regulation"), or any applicable national law, instrument or
regulation implementing the Blocking Regulation or imposing
penalties for breach thereof.
If the relevant Ineligible Securityholder is unable to give any
of the representations and warranties described above, such
Ineligible Securityholder should contact the Tabulation Agent.
Each Ineligible Securityholder submitting an Ineligible Holder
Instruction in accordance with its terms shall have agreed to
indemnify the Issuer, the Sole Solicitation Agent, the Tabulation
Agent, the Trustee, the Principal Paying Agent and each of their
respective affiliates, directors, officers, employees,
representatives or agents against all and any losses, costs, fees,
claims, liabilities, expenses, charges, actions or demands which
any of them may incur or which may be made against any of them as a
result of any breach of any of the terms of, or any of the
representations, warranties and/or undertakings given pursuant to,
such instruction by such Securityholder.
All questions as to the validity, form and eligibility
(including the time of receipt) of any Ineligible Holder
Instructions or revocation (in the limited circumstances in which
revocation is permitted) or revision thereof or delivery of
Ineligible Holder Instructions will be determined by the Issuer in
its sole discretion, which determination will be final and binding.
The Issuer reserves the absolute right to reject any and all
Ineligible Holder Instructions not in a form which is, in the
opinion of the Issuer, lawful. The Issuer also reserves the
absolute right to waive defects in Ineligible Holder Instructions
with regard to any Securities. None of the Issuer, the Sole
Solicitation Agent, the Tabulation Agent, the Trustee or the
Principal Paying Agent shall be under any duty to give notice to
Securityholders or beneficial owners of Securities of any
irregularities in Ineligible Holder Instructions; nor shall any of
them incur any liability for failure to give notification of any
material amendments to the terms and conditions of the Consent
Solicitation.
REQUIREMENTS OF U.S. SECURITIES LAWS
In the event the Extraordinary Resolution is passed and
implemented, the Supplemental Trust Deed will contain a statement
that, until the expiry of the period of 40 days after the date of
the Supplemental Trust Deed, sales of the Securities may not be
made in the United States or to U.S. persons unless made outside
the United States pursuant to Rules 903 and 904 of Regulation S
under the Securities Act.
GENERAL INFORMATION
The attention of Securityholders is particularly drawn to the
quorum required for the Meeting and for any adjourned Meeting which
is set out in paragraphs 1 , 2 , 3 , 4 and 5 of " Voting and Quorum
" below. Having regard to such requirements, Securityholders are
strongly urged either to attend the Meeting or to take steps to be
represented at the Meeting (including by way of submitting a valid
electronic voting instruction to the relevant Clearing System (a
"Consent Instruction") or Ineligible Holder Instruction) as soon as
possible.
Voting and Quorum
Securityholders who have submitted and not revoked (in the
limited circumstances in which revocation is permitted) a valid
Consent Instruction or Ineligible Holder Instruction in respect of
the Extraordinary Resolution by 4:00 p.m. (London time) / 5:00 p.m.
(CET) on 31 January 2024 (the "Expiration Deadline"), by which they
will (i) (in the case of Consent Instructions) have given
instructions to the Tabulation Agent for the appointment by the
Principal Paying Agent of one or more representatives of the
Tabulation Agent as its proxy to vote in the manner specified or
identified in such Consent Instruction at the Meeting (or any
adjourned such Meeting) or (ii) (in the case of Ineligible Holder
Instructions) waived such rights, need take no further action to be
represented at the Meeting (or any such adjourned such
Meeting).
Securityholders who have not submitted, or who have submitted
and revoked (in the limited circumstances in which revocation is
permitted), a Consent Instruction or Ineligible Holder Instruction
in respect of the Extraordinary Resolution by the Expiration
Deadline should take note of the provisions set out below detailing
how such Securityholders can attend or take steps to be represented
at the Meeting (references to which, for the purposes of such
provisions, include, unless the context otherwise requires, any
adjourned such Meeting).
1. Subject as set out below, the provisions governing the
convening and holding of the Meeting are set out in Schedule 3
(Provisions for Meetings of Securityholders) to the Trust Deed, a
copy of which is available for inspection by the Securityholders
during normal business hours at the specified offices of the
Trustee on any weekday (public holidays excepted).
All of the Securities are represented by a global security and
are held by a common depositary for Euroclear and Clearstream,
Luxembourg. For the purpose of the Meeting, a "Direct Participant"
shall mean each person who is for the time being shown in the
records of Euroclear or Clearstream, Luxembourg as the holder of a
particular principal amount outstanding of the Securities.
Each person (a "beneficial owner") who is the owner of a
particular principal amount of the Securities through Euroclear,
Clearstream, Luxembourg or a Direct Participant, should note that a
beneficial owner will only be entitled to attend and vote at the
Meeting in accordance with the procedures set out below and where a
beneficial owner is not a Direct Participant it will need to make
the necessary arrangements, either directly or with the
intermediary through which it holds its Securities, for the Direct
Participant to complete these procedures on its behalf by all
applicable deadlines.
A Direct Participant or beneficial owner of Securities wishing
to attend the Meeting in person must produce at the Meeting a valid
voting certificate issued by the Principal Paying Agent relating to
the Securities in respect of which such Direct Participant or
beneficial owner wishes to vote.
A Direct Participant not wishing to attend the Meeting in person
may (or the beneficial owner of the relevant Securities may arrange
for the relevant Direct Participant on its behalf to) give a voting
instruction to the Tabulation Agent (by giving an electronic
instruction to block its Securities and to vote in respect of the
Meeting to Euroclear or Clearstream, Luxembourg in accordance with
the procedures of Euroclear or Clearstream, Luxembourg, as
applicable) requiring the Principal Paying Agent to include the
votes attributable to its Securities in a block voting instruction
issued by the Principal Paying Agent for the Meeting or any
adjourned such Meeting, and the Principal Paying Agent shall
appoint one or more representatives of the Tabulation Agent as its
proxy to attend and vote at the Meeting in accordance with such
Direct Participant's instructions. A Direct Participant holding
Securities and not wishing to attend the Meeting in person may
alternatively deliver its voting certificate to the person whom it
wishes to attend the Meeting on its behalf.
Securities may be blocked in the Clearing Systems for the
purposes of appointing proxies under block voting instructions or
obtaining voting certificates until 48 Hours before the time fixed
for the Meeting.
Accordingly, beneficial owners or their Direct Participants must
have made arrangements to vote with the relevant Clearing System by
not later than 48 Hours before the time fixed for the Meeting (or
any adjourned such Meeting) and within the relevant time limit
specified by the relevant Clearing System (who may set a
significantly earlier deadline) and request or make arrangements
for the relevant Clearing System to block the Securities in the
relevant Direct Participant's account and to hold the same to the
order or under the control of the Tabulation Agent.
Securities blocked as set out above will not be released until
the earlier of (i) the date on which the relevant electronic voting
and blocking instruction is validly revoked (in the limited
circumstances in which revocation is permitted, including its
automatic revocation on the termination of the Consent
Solicitation); (ii) the conclusion of the Meeting (or, if
applicable, any adjourned such Meeting); and (iii) not less than 48
Hours before the time for which the Meeting (or, if applicable, any
adjourned such Meeting) is convened, the notification in writing of
any revocation of a Direct Participant's previous instructions to
the Tabulation Agent.
Securityholders should note that the timings and procedures set
out in this notice reflect the requirements for Securityholders'
Meetings set out in the Trust Deed, but that the Clearing Systems
and the relevant intermediaries may have their own additional
requirements as to timings and procedures for voting on the
Extraordinary Resolution. Accordingly, Securityholders wishing to
vote in respect of the Extraordinary Resolution are strongly urged
either to contact their custodian (in the case of a beneficial
owner whose Securities are held in book-entry form by a custodian)
or the relevant Clearing System (in the case of a Securityholder
whose Securities are held in book-entry form directly in the
relevant Clearing System), as soon as possible.
2. The quorum at the Meeting for passing the Extraordinary
Resolution shall (subject as provided below) be one or more
eligible persons present and holding or representing in the
aggregate not less than two-thirds of the principal amount of the
Securities for the time being outstanding (as defined in the Trust
Deed). If a quorum is not present within 15 minutes after the time
fixed for the Meeting, the Meeting will be adjourned until such
date, not less than 13 Clear Days nor more than 42 Clear Days
later, and such time and place as may be appointed by the chairman
of the Meeting either at or subsequent to such Meeting and approved
by the Trustee. In addition, if the quorum required for, and the
requisite majority of votes cast at, the Meeting is satisfied but
the Eligibility Condition in respect of such Meeting is not
satisfied, the chairman of the Meeting will adjourn the Meeting
until such date, not less than 13 Clear Days nor more than 42 Clear
Days later, and such time and place as may be appointed by the
chairman of the Meeting either at or subsequent to such Meeting and
approved by the Trustee. The Extraordinary Resolution will then be
considered at an adjourned Meeting (notice of which will be given
to the Securityholders). At the adjourned Meeting, one or more
eligible persons present and holding or representing in the
aggregate not less than one-third of the principal amount of the
Securities for the time being outstanding shall (subject as
provided below) form a quorum and shall have the power to pass the
Extraordinary Resolution.
3. To be passed at the Meeting, the Extraordinary Resolution
requires a majority in favour consisting of not less than
three-fourths of the votes cast at the Meeting.
The question submitted to the Meeting shall be decided in the
first instance by a show of hands unless there is only one voter or
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 or by one or more persons present holding Securities or
voting certificates or being proxies (whatever the principal amount
of the Securities so held by them). Unless a poll is validly
demanded before or at the time that the result is declared, the
Chairman's declaration that on a show of hands a resolution has
been passed, passed by a particular majority, rejected or rejected
by a particular majority shall be conclusive, without proof of the
number of votes cast for, or against, the resolution.
At the Meeting, (A) on a show of hands every person who is
present in person and who produces a form of proxy or is otherwise
a proxy or representative has one vote and (B) on a poll every such
person has one vote in respect of each U.S.$1.00 of principal
amount of Securities so represented by the voting certificate so
produced or for which he is otherwise a proxy or
representative.
4. The implementation of the Consent Solicitation and the
Extraordinary Resolution will be conditional on:
(a) the passing of the Extraordinary Resolution; and
(b) the quorum required for, and the requisite majority of votes
cast at, the Meeting being satisfied by Eligible Securityholders
only, irrespective of any participation at the Meeting by
Ineligible Securityholders (and would also have been so satisfied
if any Ineligible Securityholders who provide confirmation only of
their status as Ineligible Securityholders and waive their right to
attend and vote (or be represented) at the Meeting had actually
participated at such Meeting), including, if applicable, the
satisfaction of such condition at an adjourned Meeting (the
"Eligibility Condition"),
(together, the "Consent Conditions").
5. If passed, the Extraordinary Resolution passed at the Meeting
will be binding upon all the Securityholders, whether present or
not at the Meeting and whether or not voting.
Documents Available for Inspection
Copies of items (a) to (c) below (together, the "Securityholder
Information") will be available from the date of this Notice, for
inspection during normal business hours at the specified offices of
the Trustee on any weekday (public holidays excepted) and on the
website of the Tabulation Agent ( https://deals.is.kroll.com/nibc
).
(a) this Notice;
(b) the current draft of the Supplemental Trust Deed, being the
Supplemental Trust Deed as referred to in the Extraordinary
Resolution set out above (the "Supplemental Trust Deed"); and
(c) such other ancillary documents as may be approved by the
Trustee and/or such other relevant party as are necessary or
desirable to give effect to the Securityholder Proposal in
full.
This Notice should be read in conjunction with the
Securityholder Information.
The Securityholder Information may be supplemented from time to
time. Securityholders should note that the Supplemental Trust Deed
may be subject to amendment (where such amendments are in line with
the Proposed Amendments) up until 7 days prior to the date fixed
for the Meeting. Should such amendments be made, blacklined copies
(showing the changes from the originally available Supplemental
Trust Deed) and clean versions will be available from the
Tabulation Agent (including on the website of the Tabulation Agent
( https://deals.is.kroll.com/nibc )).
Securityholders will be informed of any such amendments to the
Supplemental Trust Deed by announcements released via the website
of Euronext Amsterdam.
CONTACT INFORMATION
Further information relating to the Proposed Amendments can be
obtained from the Sole Solicitation Agent directly:
THE SOLE SOLICITATION AGENT
NatWest Markets N.V.
Claude Debussylaan 94
1082 MD Amsterdam
The Netherlands
Attention : Liability Management
Telephone : +44 20 7085 6124
Email : NWMLiabilityManagement@natwestmarkets.com
The contact details for the Tabulation Agent and the Trustee are
set out below:
THE TABULATION AGENT THE TRUSTEE
Kroll Issuer Services Limited The Law Debenture Trust Corporation
The Shard p.l.c.
32 London Bridge Street 8th Floor
London SE1 9SG 100 Bishopsgate
United Kingdom London EC2N 4AG
United Kingdom
Telephone : +44 207 704 0880
Attention : Arlind Bytyqi / Paul
Kamminga
Email : nibc@is.kroll.com
Website : https://deals.is.kroll.com/nibc
The Deal Roadshow login details in respect of this Consent
Solicitation are set out below:
DEAL ROADSHOW INVESTOR LOGIN DETAILS
URL : https://dealroadshow.com
Entry Code : NIBCBank2024
Direct Link : https://dealroadshow.com/e/NIBCBank2024
Securityholders whose Securities are held by Euroclear or
Clearstream, Luxembourg should contact the Tabulation Agent at the
address details above for further information on the process for
voting at the Meeting.
ANNOUNCEMENTS
If the Issuer is required to make an announcement relating to
matters set out in this Notice, any such announcement will be made
in accordance with all applicable rules and regulations via notices
to the Clearing Systems for communication to Direct Participants
and an announcement published via the website of Euronext
Amsterdam.
This Notice is given by:
NIBC Bank N.V.
Dated: 12 January 2024
Annex to the Notice of Securityholder Meeting
AMMENTS TO THE CONDITIONS
The following amendments will be made to the Conditions of the
Securities:
1. Amendments to preamble
The preamble to the Conditions shall be amended by the deletion
in full of the first paragraph thereof and the insertion of the
following text in its place (where the reference to "[DATE]" shall
be replaced with the final Implementation Date):
"The U.S.$100,000,000 CMS Linked Perpetual Debt Securities (the
Securities, which expression shall in these Conditions, unless the
context otherwise requires, include any further Securities issued
pursuant to Condition 17 and forming a single series with the
Securities) of NIBC Bank N.V. (the Bank) are constituted by a Trust
Deed dated 24th March, 2005 as supplemented by the Supplemental
Trust Deed dated [DATE] (together, the Trust Deed) made between the
Bank and The Law Debenture Trust Corporation p.l.c. (the Trustee,
which expression shall include its successor(s)) as trustee for the
holders of the Securities (the Securityholders) and the holders of
the interest coupons appertaining to the Securities (the
Couponholders and the Coupons respectively, which expressions
shall, unless the context otherwise requires, include the talons
for further interest coupons (the Talons) and the holders of the
Talons)."
2. Amendments to Condition 3.3
Condition 3.3 shall, with effect from the Interest Payment Date
(and related Interest Determination Date) falling in March 2024, be
deleted and replaced with the following:
"The rate of interest payable from time to time in respect of
the Securities (the Rate of Interest) will be determined on the
basis of the following provisions:
(a) On each Interest Determination Date, Citibank, N.A., London
Branch or its duly appointed successor (in such capacity, the Agent
Bank) will determine the USD SOFR Spread Adjusted Swap Rate on that
Interest Determination Date in accordance with the following
formula:
where:
SOFR SA SR is the USD SOFR Spread Adjusted Swap Rate (expressed
as a percentage) with a maturity of 10-years commencing on the
first day of the relevant Interest Period (the Designated
Maturity);
SOFR SR is the USD SOFR ICE Swap Rate (expressed as a
percentage) in respect of the Interest Determination Date with a
maturity of the Designed Maturity; and
ISDA Spread (3m LIBOR) is 0.26161 per cent.
(b) In no event shall the Rate of Interest be more than 8.25 per cent. per annum.
(c) The Rate of Interest for the Interest Period shall the lower
of: (i) the sum of the USD SOFR Spread Adjusted Swap Rate plus the
Margin; and (ii) 8.25 per cent.
(d) Subject to the operation of Condition 3.9, if the Rate of
Interest cannot be determined in accordance with the above
provisions, the Rate of Interest shall be determined as at the last
preceding Interest Determination Date."
3. Insertion of new Condition 3.9
A new Condition 3.9 shall be inserted immediately after
Condition 3.8, as follows:
" 3.9 Benchmark Discontinuation
(a) Notwithstanding anything to the contrary in these
Conditions, if the Issuer determines at any time that a Benchmark
Transition Event has occurred in relation to the Relevant Benchmark
or any component thereof when any Rate of Interest remains to be
determined by reference to the Relevant Benchmark, the Issuer will
use reasonable endeavours to appoint an Independent Adviser to
determine, or to advise the Issuer in determining, a Benchmark
Replacement and the applicable Benchmark Replacement Adjustment and
any other amendments to the terms of the Securities (including,
without limitation, any Benchmark Replacement Conforming
Changes).
(b) In making such determination, the Issuer shall act in good
faith and a commercially reasonable manner as an expert. In the
absence of fraud, the Issuer and the Independent Adviser, as
applicable, shall have no liability whatsoever to the Issuer, the
Trustee, the Agent Bank, the Securityholders or the Couponholders
for any determination made by it, any variation of these Conditions
or for any advice given to the Issuer in connection with any
determination made by the Issuer, pursuant to this Condition
3.9.
(c) If the Issuer is unable to appoint an Independent Adviser in
accordance with this Condition 3.9, the Issuer, acting in good
faith, may still make any determinations and/or any amendments
contemplated by and in accordance with this Condition 3.9 (with the
relevant provisions in this Condition 3.9 applying mutatis mutandis
to allow such determinations or amendments to be made by the Issuer
without consultation with an Independent Adviser).
(d) Where this Condition 3.9 applies, without prejudice to the
definitions set out herein, for the purposes of making any
determination contemplated by this Condition 3.9, the Issuer will
take into account any relevant and applicable market precedents and
customary market usage as well as any published guidance from
relevant associations involved in the establishment of market
standards and/or protocols in the international debt capital
markets.
(e) None of the Trustee, the Principal Paying Agent, the Agent
Bank or the Paying Agents shall be responsible or liable for any
determinations, decisions or elections made by the Issuer or the
Independent Adviser pursuant to this Condition 3.9 including,
without limitation, with respect to any waivers or consequential
amendments to be effected pursuant to this Condition 3.9 and shall
be entitled to rely conclusively on any determination notified to
each of them in this regard.
(f) If a Benchmark Transition Event occurs in relation to the
Relevant Benchmark (or any component thereof) when any Rate of
Interest remains to be determined by reference to the Relevant
Benchmark, then the following provisions shall apply:
(i) subject to Condition 3.9(f)(ii), if the Independent Adviser
or the Issuer, following consultation with its Independent Adviser,
no later than five Business Days prior to the Interest
Determination Date relating to the next Interest Period (the
Determination Cut-Off Date ) determines the Benchmark Replacement
for the purposes of determining the Rate of Interest applicable to
the Securities for all future Interest Periods (subject to the
subsequent operation of this Condition 3.9(f) during any other
future Interest Period(s)), then such Benchmark Replacement shall
be the Relevant Benchmark for all future Interest Periods (subject
to the subsequent operation of this Condition 3.9(f) during any
other future Interest Period(s)); and
(ii) notwithstanding Condition 3.9(f)(i), if the Independent
Adviser or the Issuer, following consultation with its Independent
Adviser, determines prior to the Determination Cut-Off Date that no
Benchmark Replacement exists then the relevant Rate of Interest
shall be determined using the Relevant Benchmark (or component
parts thereof) last displayed on the relevant screen prior to the
relevant Interest Determination Date, as applicable. This Condition
3.9(f)(ii) shall apply to the relevant Interest Period only. Any
subsequent Interest Period(s) shall be subject to the subsequent
operation of, and adjustment as provided in, this Condition
3.9(f).
(g) The Independent Adviser or the Issuer, in consultation with
the Independent Adviser, (as applicable) (acting in good faith and
in a commercially reasonable manner) may in its discretion
specify:
(i) changes to these Conditions in order to follow market
practice in relation to such Benchmark Replacement (as applicable),
including, but not limited to, the method for determining the
fallback to the Relevant Benchmark in respect of the calculation of
the Rate of Interest in relation to the Securities if such
Benchmark Replacement is not available; and
(ii) any other changes which the Independent Adviser or the
Issuer, in consultation with the Independent Adviser, (as
applicable) determines are reasonably necessary to ensure the
proper operation and comparability to the Relevant Benchmark of
such Benchmark Replacement (as applicable),
(the Benchmark Replacement Conforming Changes ) which changes
shall apply to the Securities for all future Interest Periods
(subject to the subsequent operation of this Condition 3.9 during
any other future Interest Period(s)).
(h) Promptly following the determination of (i) any Benchmark
Replacement and (ii) if applicable, any Benchmark Replacement
Adjustment, but in any event not later than the Determination
Cut-Off Date, the Issuer shall give notice thereof, and of any
variation of the Conditions to give effect to any Benchmark
Replacement Conforming Changes pursuant to Condition 3.9(g) (and
the effective date thereof), to the Trustee, the Principal Paying
Agent, the Agent Bank and the Securityholders in accordance with
Condition 14.
(i) No consent of the Securityholders, holders of Talons or
Couponholders shall be required in connection with effecting the
relevant Benchmark Replacement or Benchmark Replacement Adjustment
(as applicable) as described in this Condition 3.9 or such
variation of the Conditions to give effect to any Benchmark
Replacement Conforming Change pursuant to Condition 3.9(g)
including for the execution of any documents or the taking of other
steps by the Issuer, and the Trustee shall be obliged, without the
consent or sanction of the Securityholders (including without the
requirement to provide to Securityholders an opportunity to
object), to concur with the Issuer or the Independent Adviser (as
applicable) in making any modification (other than in respect of a
matter contemplated in paragraph 7 of Schedule 3 (Provisions for
Meetings of Securityholders) to the Trust Deed (a Reserved Matter
), provided that neither replacing the Relevant Benchmark with the
Benchmark Replacement nor any Benchmark Replacement Conforming
Changes shall constitute a Reserved Matter) to the Conditions or
the Trust Deed that the Issuer or the Independent Adviser (as
applicable) certifies to the Trustee is necessary or appropriate to
give effect to the provisions set forth under this Condition 3.9
(and the Trustee shall be entitled to rely on such certificate
without further enquiry or liability to any person, and for the
avoidance of doubt, the Trustee shall not be liable to the
Securityholders, the holders of any Talons or Coupons or any other
person for so acting or relying on such certificate, irrespective
of whether any such modification is or may be materially
prejudicial to the interests of any such person), provided that the
Trustee shall not be obliged to effect any such modification if, in
the sole opinion of the Trustee, doing so would impose more onerous
obligations upon it or expose it to any additional duties,
responsibilities or liabilities or reduce or amend the protective
provisions afforded to the Trustee in these Conditions, the Trust
Deed and/or the Agency Agreement in any way.
(j) For the avoidance of doubt, the Principal Paying Agent, the
Agent Bank and the Paying Agents shall, at the direction and
expense of the Issuer, effect such waivers and consequential
amendments to the Agency Agreement and these Conditions as may be
required to give effect to this Condition 3.9 provided that the
Principal Paying Agent, the Agent Bank and the Paying Agents shall
not be obliged to effect any Benchmark Replacement Adjustments if
in the sole opinion of any of the Principal Paying Agent, the Agent
Bank and the Paying Agents and the Paying Agents doing so would
impose more onerous obligations upon it or expose it to any
additional duties, responsibilities or liabilities or reduce or
amend the protective provisions afforded to the relevant Principal
Paying Agent, the Agent Bank and the Paying Agents in these
Conditions and/or the Agency Agreement in any way.
(k) In no event shall the Agent Bank be responsible for
determining any Benchmark Transition Event or Benchmark Replacement
Conforming Changes. The Agent Bank shall be entitled to
conclusively rely on any determinations made by the Issuer or the
Independent Adviser and will have no liability for such actions
taken at the direction of the Issuer or the Independent Adviser.
Notwithstanding any other provision of this Condition 3.9, if in
the Agent Bank's opinion there is any uncertainty in making any
determination or calculation under this Condition 3.9, the Agent
Bank shall promptly notify the Issuer thereof and the Issuer shall
direct the Agent Bank in writing as to which course of action to
adopt. If the Agent Bank is not promptly provided with such
direction, or is otherwise unable to make such calculation or
determination for any reason, it shall notify the Issuer thereof
and the Agent Bank shall be under no obligation to make such
calculation or determination and shall not incur any liability for
not doing so."
4. Amendments to Condition 15.2
A new paragraph shall be inserted after the first paragraph of
Condition 15.2 as follows:
"The Trustee shall be obliged, without the consent or sanction
of the Securityholders (including without the requirement to
provide to Securityholders an opportunity to object), to concur
with the Issuer or the Independent Adviser (as applicable) in
making any modification to the Conditions or the Trust Deed in
connection with effecting the relevant Benchmark Replacement or
Benchmark Replacement Adjustment (as applicable) as described in
Condition 3.9 or such variation of the Conditions to give effect to
any Benchmark Replacement Conforming Change pursuant to Condition
3.9(g) (other than in respect of a matter contemplated in paragraph
7 of Schedule 3 (Provisions for Meetings of Securityholders) to the
Trust Deed (a Reserved Matter ), provided that neither replacing
the Relevant Benchmark with the Benchmark Replacement nor any
Benchmark Replacement Conforming Changes shall constitute a
Reserved Matter) to the Conditions or the Trust Deed that the
Issuer or the Independent Adviser (as applicable) certifies to the
Trustee is necessary or appropriate to give effect to the
provisions set forth under this Condition 3.9 (and the Trustee
shall be entitled to rely on such certificate without further
enquiry or liability to any person, and for the avoidance of doubt,
the Trustee shall not be liable to the Securityholders, the holders
of any Talons or Coupons or any other person for so acting or
relying on such certificate, irrespective of whether any such
modification is or may be materially prejudicial to the interests
of any such person), provided that the Trustee shall not be obliged
to effect any such modification if, in the sole opinion of the
Trustee, doing so would impose more onerous obligations upon it or
expose it to any additional duties, responsibilities or liabilities
or reduce or amend the protective provisions afforded to the
Trustee in these Conditions, the Trust Deed and/or the Agency
Agreement in any way."
5. Amendments to Condition 20
Condition 20 shall be amended as follows (with any new
definitions included in the appropriate places in alphabetical
order):
(i) the deletion of the definition of "Fallback CMS Rate" in its entirety;
(ii) the deletion of the definition of "Mid-market annual swap rate" in its entirety;
(iii) the deletion of the definition of "Reference Banks" in its entirety;
(iv) the deletion of the definition of "Screen Rate" in its entirety;
(v) the amendment of the definition of "Interest Determination Date" as follows:
Interest Determination Date means, in respect of any Interest
Period, the day that is two U.S. Government Securities Business
Days preceding the first day of such Interest Period.
(vi) the inclusion of the following definition:
2006 ISDA Definitions means the 2006 ISDA Definitions as
published by ISDA (copies of which may be obtained from ISDA at
www.isda.org ).
(vii) the inclusion of the following definition:
Benchmark Replacement means the first alternative set forth in
the order below that can be determined by the Issuer, following
consultation with its Independent Adviser:
(i) the sum of (A) the alternate benchmark that has been
selected or recommended by the Relevant Governmental Body as the
replacement for the then-current Relevant Benchmark for the
applicable Corresponding Tenor and (B) the Benchmark Replacement
Adjustment;
(ii) the sum of (A) the ISDA Fallback Rate and (B) the Benchmark Replacement Adjustment; or
(iii) the sum of (A) the alternate benchmark that has been
selected by the Issuer, in consultation with the Independent
Adviser, as the replacement for the then-current Relevant Benchmark
for the applicable Corresponding Tenor giving due consideration to
any industry-accepted benchmark as a replacement for the
then-current Relevant Benchmark for U.S. dollar denominated
floating rate notes at such time and (B) the Benchmark Replacement
Adjustment.
(viii) the inclusion of the following definition:
Benchmark Replacement Adjustment means the first alternative set
forth in the order below that can be determined by the Issuer,
following consultation with its Independent Adviser:
(i) the spread adjustment, or method for calculating or
determining such spread adjustment (which may be a positive or
negative value or zero) that has been selected or recommended by
the Relevant Governmental Body for the applicable Unadjusted
Benchmark Replacement;
(ii) if the applicable Unadjusted Benchmark Replacement is
equivalent to the ISDA Fallback Rate, then the ISDA Spread
Adjustment; or
(iii) the spread adjustment (which may be a positive or negative
value or zero) determined by the Issuer, following consultation
with its Independent Adviser, giving due consideration to any
industry accepted spread adjustment, or method for calculating or
determining such spread adjustment, for the replacement of the
then-current Relevant Benchmark with the applicable Unadjusted
Benchmark Replacement for U.S. dollar denominated floating rate
notes at such time.
(ix) the inclusion of the following definition:
Benchmark Replacement Conforming Changes has the meaning given
thereto in Condition 3.9.
(x) the inclusion of the following definition:
Benchmark Transition Event means the occurrence of one or more
of the following events with respect to the then-current Relevant
Benchmark (or any component part thereof):
(i) a public statement or publication of information by or on
behalf of the administrator of the Relevant Benchmark (or such
component) announcing that such administrator has ceased or will
cease to provide the Relevant Benchmark (or such component),
permanently or indefinitely, provided that, at the time of such
statement or publication, there is no successor administrator that
will continue to provide the Relevant Benchmark (or such
component);
(ii) a public statement or publication of information by the
regulatory supervisor for the administrator of the Relevant
Benchmark (or such component), the central bank for the currency of
the Relevant Benchmark (or such component), an insolvency official
with jurisdiction over the administrator for the Relevant Benchmark
(or such component), a resolution authority with jurisdiction over
the administrator for the Relevant Benchmark (or such component) or
a court or an entity with similar insolvency or resolution
authority over the administrator for the Relevant Benchmark (or
such component), which states that the administrator of the
Relevant Benchmark (or such component) has ceased or will cease to
provide the Relevant Benchmark (or such component) permanently or
indefinitely, provided that, at the time of such statement or
publication, there is no successor administrator that will continue
to provide the Relevant Benchmark (or such component); or
(iii) a public statement or publication of information by the
regulatory supervisor for the administrator of the Relevant
Benchmark (or such component) announcing that the Relevant
Benchmark (or such component) is no longer representative,
provided that the Benchmark Transition Event shall be deemed to
occur (A) in the case of subparagraphs (i) and (ii) above, on the
later of (x) the date of the public statement or publication of
information referenced therein and (y) the date on which the
administrator of the Relevant Benchmark (or such component)
permanently or indefinitely ceases to provide the Relevant
Benchmark (or such component), or (B) in the case of sub-paragraph
(iii) above, on the date of the public statement or publication of
information referenced therein (each such date, a Benchmark
Replacement Date).
(xi) the inclusion of the following definition:
Corresponding Tenor with respect to a Benchmark Replacement
means a tenor (including overnight) having approximately the same
length (disregarding business day adjustment) as the applicable
tenor for the then-current Relevant Benchmark.
(xii) the inclusion of the following definition:
Designated Maturity has the meaning given in Condition 3.3.
(xiii) the inclusion of the following definition:
Independent Adviser means an independent financial institution
of international repute or other independent financial adviser
experienced in the international debt capital markets, in each case
appointed by the Issuer at its own expense.
(xiv) the inclusion of the following definition:
ISDA means the International Swaps and Derivatives Association,
Inc. (or any successor).
(xv) the inclusion of the following definition:
ISDA Fallback Adjustment means the spread adjustment (which may
be a positive or negative value or zero) that would apply for
derivatives transactions referencing the 2006 ISDA Definitions to
be determined upon the occurrence of an index cessation event with
respect to the Relevant Benchmark.
(xvi) the inclusion of the following definition:
ISDA Fallback Rate means the rate that would apply for
derivatives transactions referencing the 2006 ISDA Definitions to
be effective upon the occurrence of an index cessation date with
respect to the Relevant Benchmark for the applicable tenor
excluding the applicable ISDA Fallback Adjustment.
(xvii) the inclusion of the following definition:
ISDA Spread Adjustment means the spread adjustment, or method
for calculating or determining such spread adjustment (which may be
a positive or negative value or zero) that shall have been selected
by ISDA as the spread adjustment that would apply to the ISDA
Fallback Rate.
(xviii) the inclusion of the following definition:
Relevant Benchmark means, initially, the USD SOFR ICE Swap Rate,
provided that if a Benchmark Transition Event and its related
Benchmark Replacement Date have occurred with respect to the USD
SOFR ICE Swap Rate or the then current Relevant Benchmark, then
Relevant Benchmark means the applicable Benchmark Replacement.
(xix) the inclusion of the following definition:
Relevant Governmental Body means the Board of Governors of the
Federal Reserve System and/or the NY Federal Reserve or a committee
officially endorsed or convened by the Board of Governors of the
Federal Reserve System and/or the NY Federal Reserve, or any
successor.
(xx) the inclusion of the following definition:
SOFR means the Secured Overnight Financing Rate administered by
the Federal Reserve Bank of New York (or any successor
administrator).
(xxi) the inclusion of the following definition:
Unadjusted Benchmark Replacement means the Benchmark Replacement
excluding the applicable Benchmark Replacement Adjustment.
(xxii) the inclusion of the following definition:
USD SOFR ICE Swap Rate means the benchmark for the mid-price for
the fixed leg of a fixed-for-floating U.S. Dollar swap transaction
where the floating leg references SOFR and both the fixed leg and
floating leg are paid annually, as provided by ICE Benchmark
Administration Limited as the administrator of the benchmark (or a
successor administrator).
(xxiii) the inclusion of the following definition:
USD SOFR Spread Adjusted Swap Rate means the rate determined by
the Agent Bank in accordance with Condition 3.3.
(xxiv) the inclusion of the following definition:
U.S. Government Securities Business Day means any day except for
a Saturday, a Sunday or a day on which the Securities Industry and
Financial Markets Association recommends that the fixed income
departments of its members be closed for the entire day for
purposes of trading in U.S. government securities.
6. Insertion of new Condition 19
A new Condition 19 shall be inserted immediately after Condition
18.3 as follows and the numbering of the existing Condition 19
(Rights of Third Parties) and Condition 20 (Definitions) shall be
deemed updated accordingly:
"19. Agreement and Acknowledgement with respect to the exercise
of Bail-in Power
19.1 Notwithstanding and to the exclusion of any other term of
the Securities or any other agreements, arrangements, or
understandings between the Issuer and any Securityholder, by its
acquisition of the Securities, each Securityholder (which, for the
purposes of this clause, includes each holder of a beneficial
interest in the Securities), acknowledges and accepts that the
Amounts Due arising under these Securities may be subject to the
exercise of Bail-in Powers by the Resolution Authority, and
acknowledges, accepts, consents and agrees to be bound by:
(a) the effect of the exercise of Bail-in Power by the
Resolution Authority, that may include and result in any of the
following, or some combination thereof:
(i) the reduction of all, or a portion, of the Amounts Due;
(ii) the conversion of all, or a portion, of the Amounts Due on
the Securities into shares, other securities or other obligations
of the Issuer or another person (and the issue to or conferral on
the Securityholder of such shares, securities or obligations),
including by means of an amendment, modification or variation of
the terms of the Securities;
(iii) the cancellation of the Securities; and/or
(iv) the amendment or alteration of the maturity of the
Securities or amendment of the amount of interest payable on the
Securities, or the date on which the interest becomes payable,
including by suspending payment for a temporary period; and
(b) the variation of the terms of the Securities, if necessary,
to give effect to the exercise of Bail-in Power by the Resolution
Authority.
19.2 No repayment or payment of Amounts Due on the Securities
will become due and payable or be paid after the exercise of any
Bail-in Power by the Resolution Authority if and to the extent such
amounts have been reduced, converted, cancelled, amended or altered
as a result of such exercise.
19.3 Neither a reduction or cancellation, in part or in full, of
the Amounts Due, the conversion thereof into another security or
obligation of the Issuer or another person, as a result of the
exercise of the Bail-in Power by the Resolution Authority with
respect to the Issuer, nor the exercise of the Bail-in Power by the
Resolution Authority with respect to the Securities will be an
Event of Default.
19.4 Upon the exercise of the Bail-in Power by the Resolution
Authority with respect to the Securities , the Issuer will provide
a written notice to the Securityholders in accordance with
Condition 14 (Notices) as soon as practicable regarding such
exercise of the Bail-in Power. The Issuer will also deliver a copy
of such notice to the Trustee and Principal Paying Agent for
information purposes.
19.5 For the purposes of this Condition 19:
Amounts Due are the principal amount of, together with any
accrued but unpaid interest due on, the Securities . References to
such amounts will include amounts that have become due and payable,
but which have not been paid, prior to the exercise of Bail-in
Power by the Resolution Authority;
Bail-in Legislation means the Dutch BRRD Implementation Act
(Implementatiewet Europees kader voor herstel en afwikkeling van
banken en beleggingsondernemingen) and any other law or regulation
applicable in The Netherlands relating to the resolution of unsound
or failing banks, investment firms or other financial institutions
or their affiliates (otherwise than through liquidation,
administration or other insolvency proceedings);
Bail-in Power means any write-down, conversion, transfer,
modification or suspension power existing from time to time under,
and exercised in compliance with, any law or regulation in effect
in The Netherlands, relating to the transposition of Directive
2014/59/EU establishing a framework for the recovery and resolution
of credit institutions and investment firms, including but not
limited to the Bail-in Legislation and Regulation (EU) No 806/2014
and the instruments, rules and standards created thereunder,
pursuant to which any obligation of a bank or investment firm or
affiliate of a bank or investment firm can be reduced, cancelled,
modified or converted into shares, other securities or other
obligations of such entity or any other person (or suspended for a
temporary period); and
Resolution Authority means the Dutch Central Bank (De
Nederlandsche Bank N.V.) (or any successor or replacement thereto
and/or such other authority with the ability to exercise any
Bail-in Power in respect of the Issuer)."
AMENDMENTS TO THE TRUST DEED
The following amendments will be made to the Trust Deed:
1. Amendments to Clause 19.2
A new paragraph shall be inserted after the first paragraph of
Clause 19.2 as follows:
" The Trustee shall be obliged, without the consent or sanction
of the Securityholders (including without the requirement to
provide to Securityholders an opportunity to object), to concur
with the Issuer or the Independent Adviser (as applicable) in
making any modification to these presents in connection with
effecting the relevant Benchmark Replacement or Benchmark
Replacement Adjustment (as applicable) as described in Condition
3.9 or such variation of the Conditions to give effect to any
Benchmark Replacement Conforming Change pursuant to Condition
3.9(g) (other than in respect of a matter contemplated in paragraph
7 of Schedule 3 (Provisions for Meetings of Securityholders) hereto
(a Reserved Matter), provided that neither replacing the Relevant
Benchmark with the Benchmark Replacement nor any Benchmark
Replacement Conforming Changes shall constitute a Reserved Matter)
to the Conditions or the Trust Deed that the Issuer or the
Independent Adviser (as applicable) certifies to the Trustee is
necessary or appropriate to give effect to the provisions set forth
under this Condition 3.9 (and the Trustee shall be entitled to rely
on such certificate without further enquiry or liability to any
person, and for the avoidance of doubt, the Trustee shall not be
liable to the Securityholders, the holders of any Talons or Coupons
or any other person for so acting or relying on such certificate,
irrespective of whether any such modification is or may be
materially prejudicial to the interests of any such person),
provided that the Trustee shall not be obliged to effect any such
modification if, in the sole opinion of the Trustee, doing so would
impose more onerous obligations upon it or expose it to any
additional duties, responsibilities or liabilities or reduce or
amend the protective provisions afforded to the Trustee in the
Conditions, this Trust Deed and/or the Agency Agreement in any
way."
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END
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