GLENEAGLES CLO, LTD. AND GLENEAGLES CLO CORP. ANNOUNCEMENT
|GLENEAGLES CLO, LTD.|
GLENEAGLES CLO CORP.
NOTICE OF PROPOSED SUPPLEMENTAL INDENTURE
NOTE: THIS NOTICE CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO THE REGISTERED AND BENEFICIAL OWNERS OF THE SUBJECT SECURITIES AND PREFERENCE SHARES. IF APPLICABLE, ALL DEPOSITORIES, CUSTODIANS, AND OTHER INTERMEDIARIES RECEIVING THIS NOTICE ARE REQUESTED TO EXPEDITE RE-TRANSMITTAL TO BENEFICIAL OWNERS OF THE SECURITIES AND PREFERENCE SHARES IN A TIMELY MANNER.
April 30, 2009
To: The Holders of the Securities and Preference Shares as of April 30, 2009 (the “Record Date”) described as:
Security Class A-1 Notes Class A-2 Notes Class B Notes Class C Notes Class D Notes
CUSIP? Rule 144A 378663AA6 378663AC2 378663AE8 378663AG3 378663AJ7
CUSIP* Regulation S G3916NAA7 G3916NAB5 G3916NAC3 G3916NAD1 G3916NAE9
CUSIP* Certificated Securities 378663AB4 378663AD0 378663AF5 378663AH1 378663AK4
Common Codes* Rule 144A N/A N/A N/A N/A N/A
Common Codes* Regulation S 22700634 22700839 22701037 22701231 22701312
Common Codes* Certificated Securities N/A N/A N/A N/A N/A
ISIN* Rule 144A US378663AA63 US378663AC20 US378663AE85 US378663AG34 US378663AJ72
ISIN* Regulation S USG3916NAA75 USG3916NAB58 G3916NAC32 G3916NAD15 G3916NAE97
ISIN* Certificated Securities US378663AB47 US378663AD03 US378663AF50 US378663AH17 US378663AK46
WKN Rule 144A A0GDSG A0GDSK A0GDSN A0GDSR A0GDSU
WKN Regulation S A0GDSF A0GDSJ A0GDSM A0GDSQ A0GDST
WKN Certificated Securities A0GDSH A0GDSL A0GDSP A0GDSS A0GDSV
Security Class 1 Combination Securities Class 1 Combination Securities Preference Shares
CUSIP* Regulation S G39165AB4 G39165AC2 G39165AA6
CUSIP* Certificated Securities 37866PAC3 37866PAD1 37866PAB5
Common Codes* Regulation S 23191466 23191563 22701444
Common Codes* Certificated N/A N/A N/A
ISIN* Regulation S USG39165AB40 USG39165AC23 USG39165AA66
ISIN* Certificated US37866PAC32 US37866PAD15 US37866PAB58
WKN Regulation S A0GGXU A0GGXW A0GDSW
WKN Certificated A0GGXV A0GGXX A0GDSY
To: Those Additional Parties Listed on Schedule I hereto
Re: Proposed Supplemental Indenture
Reference is made to that certain Indenture dated as of October 13, 2005 (as amended, modified or supplemented, the “Indenture”) among GLENEAGLES CLO, LTD., as as Issuer (the “Issuer”), GLENEAGLES CLO CORP., as Co-issuer (the “Co Issuer,” and together with the Issuer, the “Co-Issuers”) and THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION (as successor to JPMorgan Chase Bank, National Association), as trustee (the “Trustee”). Capitalized terms used herein without definition shall have the meaning given to such terms in the Indenture.
Pursuant to Sections 8.1(c) and 8.1(e) of the Indenture, the Trustee hereby provides notice of a proposed Supplemental Indenture (the “Supplemental Indenture”) under Sections 8.1(a)(20) and 8.1(d) of the Indenture among the Co-Issuers and the Trustee, which will supplement the Indenture according to its terms and which will be executed by the Issuer, the Co-Issuer and the Trustee upon satisfaction of all conditions precedent set forth in the Indenture. A copy of the proposed Supplemental Indenture is attached hereto as Exhibit A.
The Supplemental Indenture shall not become effective until: (i) the Rating Condition with respect to each Rating Agency is satisfied, (ii) the Co-Issuers and the Trustee shall have executed the Supplemental Indenture and (iii) all other conditions precedent set forth in the Indenture are satisfied or waived. Unless notified by a Majority of any Class of the Securities or a Majority of the Holders of Preference Shares that the Class of Securities or Holders of Preference Shares would be materially and adversely affected, the Trustee may rely on a certificate of the Portfolio Manager and an Opinion of Counsel as to whether the interests of any Holder of Securities or Holder of Preference Shares would be materially and adversely affected by the Supplemental Indenture.
The Record Date for determining the Holders entitled to receive this Notice of Proposed Supplemental Indenture shall be April 30, 2009.
Should you have any questions regarding the enclosed, please contact Annye Hua at (713) 483-6378 or at firstname.lastname@example.org.
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee and Preference Shares Paying Agent
Gleaneagles CLO, Ltd.
c/o Maples Finance Limited
P.O. Box 1093
Boundary Hall, Cricket Square
Grand Cayman KY1-1102 Cayman Islands
Attn: The Directors
Fax: (345) 945-7100
Gleaneagles CLO Corp.
1209 Orange Street
Wilmington, Delaware 19801
Attn: Donald Puglisi
Highland Capital Management, L.P.
Two Galleria Tower
13455 Noel Road, Suite 800
Dallas, Texas 75240
Fax: (972) 628-4147
Attn: James Dondero
Maples Finance Limited
P.O. Box 1093
Boundary Hall, Cricket Square
Grand Cayman KY1-1102 Cayman Islands
Attn: The Directors
Fax: (345) 945-7100
Banc of America Securities LLC:
Banc of America Securities LLC
9 West 57th Street
New York, New York 10019
Attn: Structured Securities Group
Cayman Islands Stock Exchange:
Cayman Islands Stock Exchange
4th Floor, Elizabethan Square
P.O Box 2408 G.T.
Grand Cayman, Cayman Islands
Fax: (345) 945-6061
Moody’s Investors Service
7 World Trade Center at 250 Greenwich Street
New York, New York 10007
Fax: (212) 553-4170
Attn: CBO/CLO Monitoring
Standard & Poor’s
55 Water Street, 41st Floor
New York, New York 10041-0003
Fax: (212) 438-2664
Attn: Asset Backed-CBO/CLO Surveillance
PROPOSED SUPPLEMENTAL INDENTURE
GLENEAGLES CLO, LTD.
GLENEAGLES CLO CORP.
THE BANK OF NEW YORK MELLON TRUST COMPANY,
AMENDMENT NO. 1
Dated as of April [__], 2009
THIS AMENDMENT NO. 1 TO INDENTURE (this “Amendment”), dated as of April [____], 2009, among GLENEAGLES CLO, LTD., as issuer (the “Issuer”), GLENEAGLES CLO CORP., as co issuer (the “Co Issuer”), and THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION (successor to JPMorgan Chase Bank, National Association), as trustee (the “Trustee”), hereby amends the Indenture, dated as of October 13, 2005, among the Issuer, the Co-Issuer and the Trustee (as amended, modified or supplemented and in effect, the “Indenture”).
W I T N E S S E T H
WHEREAS, the Issuer and the Co-Issuer desire to amend certain provisions contained in the Indenture;
WHEREAS, Highland Capital Management, L.P. acts as portfolio manager (the “Portfolio Manager”) with respect to the Collateral;
WHEREAS, Sections 8.1(a)(20) and 8.1(d) of the Indenture provide that the Indenture may be supplemented by the Issuer, Co-Issuer and the Trustee with the consent of the Portfolio Manager and without the consent of the Holders of any Securities or the Holders of any Preference Shares (i) if such supplement is authorized by Board Resolutions, (ii) if such supplement would not materially and adversely affect the rights or interest of the Holders of any Class of Securities, as evidenced by an Opinion of Counsel, and (iii) if each Rating Agency confirms that the Rating Condition will be satisfied with respect to such supplement;
WHEREAS, this Amendment has been authorized by the Board Resolutions attached hereto as Exhibit A;
WHEREAS, an Opinion of Counsel in the form of Exhibit B hereto will be delivered in connection with this Amendment; and
WHEREAS, the Issuer has received confirmation from each Rating Agency that this Amendment satisfies the Rating Condition.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms.
For purposes of this Amendment, all capitalized terms which are used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Indenture.
SECTION 2. Amendments.
1. Amendment to Section 1.1.
Section 1.1 is hereby amended to add the following new defined terms:
“ETB Assets”: The meaning set forth in Section 7.4(c).
“Subsidiary”: The meaning set forth in Section 7.4(c).
2. Amendment to Section 7.4.
Section 7.4 of the Indenture is hereby amended to add the following new subsections (c), (d), (e), (f), (g) and (h):
(c) Notwithstanding Section 7.4(b)(i), the Issuer may have as a subsidiary, directly or indirectly, in addition to the Co-Issuer, any entity (a "Subsidiary") that (x) meets the then-current criteria of the Rating Agencies for bankruptcy remote entities, (y) is formed for the sole purpose of holding (1) stock of one or more corporations or other assets that are or may be treated as United States real property interests for purposes of Section 897 of the Code acquired in connection with a workout or restructuring of a Collateral Obligation, (2) (A) equity interests in “partnerships” (within the meaning of Section 7701(a)(2) of the Code), “grantor trusts” (within the meaning of the Code) or entities that are disregarded as separate from their owners for United States federal income tax purposes that are or may be engaged or deemed to be engaged in a trade or business in the United States or (B) any other assets the holding or acquisition of which may cause the Issuer to be treated as being engaged in a U.S. trade or business or otherwise being subject to U.S. federal, state, or local income tax on a net income basis, in each case acquired in connection with a workout or restructuring of a Collateral Obligation (any of the assets described in the foregoing clause (1) or (2) referred to herein as "ETB Assets") or (3) the stock of one or more other Subsidiaries and (z) is a corporation for United States federal income tax purposes; provided that any Subsidiary (i) will be wholly-owned by the Issuer or another Subsidiary, (ii) will not sell, transfer, exchange or otherwise dispose of, or pledge, mortgage, hypothecate or otherwise encumber (or permit such to occur), any part of its assets, except in compliance with the Issuer’s rights and obligations under this Indenture and with such Subsidiary’s constituent documents, (iii) will not have any subsidiaries other than another Subsidiary, (iv) will not have any employees (other than directors to the extent they are employees) and will not conduct business under any name other than its own, (v) will not incur or guarantee any indebtedness, (vi) will include in its constituent documents a limitation on its business such that it may only engage in the acquisition or ownership of assets permitted under this Indenture (including stock of another Subsidiary) and the disposition of such assets and the distribution of the proceeds thereof to the Issuer or another Subsidiary (and activities ancillary thereto) and (vii) will distribute 100% of the proceeds of the assets acquired by it (net of applicable taxes and expenses payable by such subsidiary) to the Issuer or another Subsidiary. The Issuer shall notify the Rating Agencies of (i) any Subsidiary that it may have pursuant to this subsection 7.4(c) and (ii) any Collateral Obligation that is transferred to a Subsidiary by the Issuer. For the avoidance of doubt, a Subsidiary shall not purchase real property in a manner unrelated to the purposes set forth in this subection 7.4(c). In addition, (i) with respect to a Subsidiary formed under the laws of the State of Delaware, any director of such Subsidiary shall be “independent” as defined by the Delaware law in relation to the Portfolio Manager and (ii) with respect to a Subsidiary formed under the laws of any jurisdiction other than the Cayman Islands, the Rating Condition shall be satisfied prior to the formation of such Subsidiary.
(d) The Portfolio Manager (by consenting to Amendment No. 1 to the Indenture) has agreed to cause the Subsidiaries (on behalf of the Issuer) to acquire any ETB Assets in exchange for an interest in such Subsidiary. Such acquisition and exchange may take the form of either (i) a single exchange between the Issuer and a directly-owned Subsidiary acquiring the ETB Assets or (ii) a series of exchanges resulting in the Issuer's indirect ownership of the Subsidiary acquiring ETB Assets through one or more intermediate Subsidiaries. The Portfolio Manager on behalf of the Issuer shall cause each Subsidiary to dispose of all ETB Assets as soon as is commercially reasonable.
Upon receipt by the Trustee of an Issuer Order certifying that the transfer of the ETB Asset is being made in accordance with this Section 7.4 and that all applicable requirements of this Section 7.4 have been or will be satisfied, the Trustee shall release such ETB Asset and shall deliver such ETB Asset as specified in such Issuer Order.
(e) The Portfolio Manager shall be entitled to be reimbursed from the Issuer for all reasonable expenses that it incurs in connection with any Subsidiary, which shall be payable in accordance with the Priority of Payments as an Administrative Expense pursuant to subsection (v) of the definition of Administrative Expenses.
(f) With respect to any Subsidiary, the parties hereto agree that any reports prepared by the Trustee with respect to the Collateral Obligations shall refer to related ETB Asset instead of the stock of such Subsidiary.
(g) The Co-Issuers and the Trustee, each hereby covenant and agree (and the Portfolio Manager by consenting to Amendment No. 1 to the Indenture covenanted and agreed) that it will not at any time institute against any Subsidiary, or voluntarily join in any institution against any Subsidiary of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any Cayman Islands, United States federal or state bankruptcy or similar law of any jurisdiction within or without the United States in connection with any obligations relating to any Subsidiary for a period of one-year and one-day (or, if longer, the applicable preference period then in effect plus one day) following the date upon which the preferred shares issued by any Subsidiary are redeemed.
(h) This Section 7.4 shall be subject to the provisions set forth in Article 8 of the Indenture regarding supplemental indentures, including, without limitation, a requirement, if applicable, that the Rating Condition be satisfied in connection with a supplemental indenture. In addition, so long as this Indenture remains in effect and any Outstanding Securities are rated by a Rating Agency, the Rating Condition shall be satisfied prior to any amendment to the memorandum and articles of association of a Subsidiary.
SECTION 3. Effect of Amendment.
Upon execution of this Amendment, the Indenture shall be, and be deemed to be, modified and amended in accordance herewith and the respective rights, limitations, obligations, duties, liabilities and immunities of the Issuer, Co-Issuer and the Trustee shall hereafter be determined, exercised and enforced subject in all respects to such modifications and amendments, and all the terms and conditions of this Amendment shall be deemed to be part of the terms and conditions of the Indenture for any and all purposes. Except as modified and expressly amended by this Amendment, the Indenture is in all respects ratified and confirmed, and all the terms, provisions and conditions thereof shall be and remain in full force and effect.
SECTION 4. Binding Effect.
The provisions of this Amendment shall be binding upon and inure to the benefit of the Issuer, the Co-Issuer and the Trustee and each of their respective successors and assigns.
SECTION 5. Acceptance by Trustee
The Trustee accepts the amendment to the Indenture as set forth in this Amendment and agrees to perform the duties of the Trustee upon the terms and conditions set forth herein and in the Indenture set forth therein. Without limiting the generality of the foregoing, the Trustee assumes no responsibility for the correctness of the recitals contained herein, which shall be taken as the statements of the Issuers and, except as provided in the Indenture, the Trustee shall not be responsible or accountable in any way whatsoever for or with respect to the validity, execution or sufficiency of this Amendment and makes no representation with respect thereto.
SECTION 6. Execution, Delivery and Validity
The Issuer represents and warrants to the Trustee that this Amendment has been duly and validly executed and delivered by the Issuer and constitutes its legal, valid and binding obligation, enforceable against the Issuer in accordance with its terms.
SECTION 7. GOVERNING LAW.
THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
SECTION 8. Separability.
Except to the extent prohibited by applicable law, in case any provision in this Amendment shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 9. Effect of Headings.
The section headings herein are for convenience only and shall not affect the construction of this Amendment.
SECTION 10. Counterparts.
This Amendment may be executed in any number of copies, and by the different parties on the same or separate counterparts, each of which shall be considered to be an original instrument.
[Signature page follow]
IN WITNESS WHEREOF, the Issuer, Co-Issuer and the Trustee have caused their names to be signed to this Amendment by their respective officers thereunto duly authorized, all as of the day and year first above written.
GLENEAGLES CLO, LTD., as Issuer
GLENEAGLES CLO CORP., as Co-Issuer
THE BANK OF NEW YORK MELLON TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
ACKNOWLEDGED AND AGREED:
HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Portfolio Manager
OPINION OF COUNSEL