The Rolls Building
B e f o r e :
| In the Matter of : SMP Trustees Limited
Hearing dates: 21 March 2012
Crown Copyright ©
MR JUSTICE NORRIS:
"It is expected that under the Controlled Liquidation Proposal the terms and conditions of the Trust Deeds would be amended as follows:
- payments will be made to Bondholders of all Issues on a pari passu basis irrespective of the original security dates for each bond. This means that all Bondholders will share equally in any amounts to be distributed in respect of the Bonds, irrespective of the original security dates for each bond. The amounts to be distributed in respect of each Bond will be calculated based on the nominal amount of that Bond as a proportion of the aggregate nominal amount of all Bonds;
- the votes of Bondholders will not be counted or determined on an Issue-by-Issue basis but will be counted and determined on an aggregated basis across all Issues. This means that amendments will be made so that, in the event of any future Bondholder meetings, only one meeting shall be held, the results of which will bind Bondholders of all Issues. The votes of Bondholders at any such meeting will be counted and determined on an aggregated basis across all Issues of Bonds, rather than on an Issue-by-Issue basis, and the voting entitlements of Bondholders will be determined and calculated in accordance with the applicable exchange rates at the time of such meeting;
- Payments to the liquidators for liquidation costs and expenses will rank above all other payments;"
a) Act on the basis that on the proper construction of the Trust Deed it could accept the result of the plenary meeting:
b) Proceed with the controlled liquidation proposal (entering into the protocol and amending each Trust Deed accordingly):
c) Enter into the proposed costs arrangements relating to KIS: or
d) Re-denominate the currency of the bond issues.
"The Trustee may agree without the consent of the Bondholders, to any modification to this Trust Deed… which is, in the opinion of Trustee of a formal, minor or technical nature or to correct a manifest error. The Trustee may also agree to any modification to this Trust Deed… that is in its opinion not materially prejudicial to the interest of the Bondholders".
" It is important to avoid unduly fettering the power to amend the provisions of the scheme, thereby preventing the parties from making those changes which may be required by the exigencies of commercial life" ( Re Courage Group's Pension Scheme  1 WLR 495 at 505-506)
CLAIM NO HC12CO1016
|IN THE HIGH COURT OF JUSTICE
Mr Justice Norris
21 March 2012
|SMP TRUSTEES LIMITED|
Upon the application of the Claimant (the "Trustee") by its Application Notice dated 15 March 2012 (the "Application Notice")
And upon reading the witness statement of Oliver Francis Peck dated 15 March 2012.
And upon hearing Leading Counsel for the Trustee.
IT IS ORDERED THAT:
1. Pursuant to clause 13.1 of the trust deeds governing each of issues 1 to 25 of the Lifemark Note Programme (the "Trust Deeds") the Trustee may:
a. Amend the Trust Deeds to authorise the Trustee to enter into a Protocol with the liquidators of Lifemark to facilitate and govern the controlled liquidation of Lifemark (as described in the Explanatory Memorandum to the Bondholders dated 2 December 2011).
b. Thereafter enter into a Protocol with the liquidators of Lifemark on such terms as the Trustee considers appropriate.
c. Subject to the required consent of Société Européenne de Banque S.A in its capacity as the Swap Counterparty, amend clauses 6.1 and 6.2 of the Trust Deeds to allow for the liquidators of Lifemark and a Reserve Fund, which is to be set up under the Protocol, to rank ahead of the Bondholders in the hierarchy of payees.
d. Amend clauses 6.1 and 6.2 of the Trust Deeds to provide that payments are to be made to the Bondholders on a pro-rated basis according to the principal entitlement of their Bonds irrespective of the original maturity dates of the Bonds.
e. Amend the Trust Deeds to make clear that the quorum and voting requirements are henceforth to be calculated by reference to all the Bondholders of the 25 bond issues of the Lifemark Note Programme.
f. Replace the Trust Deeds with one composite trust deed that applies to all 25 bond issues of the Lifemark Note Programme.
2. For the purpose of this Order the term "Bondholders" includes those persons who beneficially own the nominal amounts represented by the global bonds registered in the name of the common depositary, BNP Paribas Securities Services Luxembourg.
3. Consideration of paragraphs 5(1), (3) and (4) of the Application Notice be adjourned, to be reserved to Norris J with a time estimate of 1 day.
4. The Trustee is at liberty to raise and pay out of the property subject to the trusts of the Trust Deeds in due course of administration its costs of the hearing on 21 March 2012 (to be the subject of assessment on the indemnity basis in default of agreement by a simple majority of Note Progamme Bondholders). The remainder of the costs relating to the Application Notice are reserved to the adjourned hearing.
21 March 2012