EXHIBIT 10.71
[XXXXXXXX CHANCE LOGO] LIMITED LIABILITY PARTNERSHIP
EXECUTION COPY
1 FEBRUARY 2006
XXXXX INDUSTRIES LIMITED
as the Company
and
THE LAW DEBENTURE TRUST CORPORATION P.L.C.
as the Trustee
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FIRST SUPPLEMENTAL TRUST DEED
in respect of the Trust Deed dated 10 January 1989
(as amended or supplemented from time to time)
relating to the creation and issue of
(pound)100,000,000
10 7/8 PER CENT. BONDS DUE 2020
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CONTENTS
CLAUSE PAGE
1. Definitions..................................................................................... 1
2. Amendments to the Principal Trust Deed.......................................................... 1
3. Principal Trust Deed............................................................................ 2
4. Counterparts.................................................................................... 3
5. Liability of Trustee............................................................................ 3
6. Governing Law................................................................................... 3
7. Third Party Rights.............................................................................. 3
Schedule 1 FORM OF EARLY REDEMPTION RESOLUTION........................................................ 4
EXECUTION PAGE......................................................................................... 6
THIS FIRST SUPPLEMENTAL TRUST DEED is made on 1 February 2006
BETWEEN:
(1) XXXXX INDUSTRIES LIMITED (registered in England and Wales with the number
00054802) whose registered office is at Xxxxxxxxx Xxxx, Xxxxxxxx X00 0XX,
Xxxxxx Xxxxxxx (the "COMPANY"); and
(2) THE LAW DEBENTURE TRUST CORPORATION P.L.C. (registered in England and
Wales with the number 01675231, whose registered office is at Fifth Floor,
100 Wood Street, London EC2V 7EX, United Kingdom (the "TRUSTEE").
INTRODUCTION
(A) This Deed (the "FIRST SUPPLEMENTAL TRUST DEED") is supplemental to a trust
deed dated 10 January 1989 and made between the Company and the Trustee
(as amended and/or supplemented, the "PRINCIPAL TRUST DEED"), which
constituted (pound)100,000,000 10 7/8 per cent. bonds of the Company due
2020 (the "BONDS").
(B) At a meeting of the holders of the Bonds (the "BONDHOLDERS") held on 1
February 2006 an Extraordinary Resolution, particulars of which are set
out in Schedule 1 (Form of Early Redemption Resolution) to this First
Supplemental Trust Deed, (the "EARLY REDEMPTION RESOLUTION") was passed by
the requisite majority of the Bondholders which (amongst other things)
authorised and instructed the Trustee to agree with the Company in making
the modifications set out in the Early Redemption Resolution.
(C) In accordance with the authority and direction contained in the Early
Redemption Resolution and with the authority afforded it under the terms
of the Principal Trust Deed, the Trustee concurs in executing this First
Supplemental Trust Deed.
THIS FIRST SUPPLEMENTAL TRUST DEED WITNESSES as follows:
1. DEFINITIONS
1.1 DEFINED TERMS
Unless otherwise defined in this First Supplemental Trust Deed or the
context requires otherwise, words and expressions used in this First
Supplemental Trust Deed have the meanings set out in the Principal Trust
Deed.
1.2 PRINCIPLES OF INTERPRETATION
Unless the context requires otherwise, the principles of interpretation
set out in Clause 1 (Definitions) of the Principal Trust Deed shall apply
to this First Supplemental Trust Deed.
2. AMENDMENTS TO THE PRINCIPAL TRUST DEED
The Trustee and the Company hereby agree to amend the Conditions of the
Bonds set out in the Second Schedule (Form of Original Bond) to the
Principal Trust Deed by:
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(i) the deletion of Condition 5(a) (Final Redemption) in its entirety
and the insertion in its place of the following text:
"(a) Final Redemption - Unless previously redeemed or purchased and
cancelled as provided below, the Company shall redeem the
Bonds at the Early Redemption Settlement Amount on the
Settlement Date.
In this Condition 5(a) (Final Redemption), the following terms
have the following meanings:
"BUSINESS DAY" means a day other than a Saturday or a Sunday
or a public holiday, on which commercial banks are open for
business in London and New York;
"EARLY REDEMPTION RESOLUTION" means the extraordinary
resolution set out in the Notice of Meeting;
"EARLY REDEMPTION SETTLEMENT AMOUNT" means the Early
Redemption Settlement Amount as defined in and calculated as
set out in the Explanatory Memorandum;
"EXPLANATORY MEMORANDUM" means the memorandum dated 9 January
2006 made available to Bondholders as described in the Notice
of Meeting;
"NOTICE OF MEETING" means the notice of meeting of Bondholders
delivered to the Clearing Systems (as described in the
Explanatory Memorandum) for distribution to Bondholders on 9
January 2006, relating to a meeting of Bondholders proposed to
be held at the offices of Xxxxxxxx Chance LLP, 00 Xxxxx Xxxx
Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, on 1 February 2006 at
11.00 a.m. (London time) to consider, and if thought fit, to
pass the Early Redemption Resolution; and
"SETTLEMENT DATE" means the Business Day immediately following
the date on which Bondholders resolve at a meeting of
Bondholders (or any adjourned meeting) to assent to the
modification of the Conditions of the Bonds in accordance with
the Early Redemption Resolution proposed in the Notice of
Meeting."; and
(ii) the deletion in its entirety of Condition 5(b) (Redemption at the
Option of the Company) and Condition 5(d) (Purchases) of the
Conditions of the Bonds.
3. PRINCIPAL TRUST DEED
This First Supplemental Trust Deed is supplemental to the Principal Trust
Deed and, subject to the amendments to be effected to the Principal Trust
Deed pursuant to the terms of this First Supplemental Trust Deed, the
Principal Trust Deed and the Bonds shall remain in full force and effect
until the obligations set out in the Trust Deeds and the Bonds have been
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discharged and the Principal Trust Deed and this First Supplemental Trust
Deed shall be read and construed together as one deed.
4. COUNTERPARTS
This First Supplemental Trust Deed may be executed in counterparts (and,
where applicable, in facsimile form) and the executed documents shall,
from the date on which the Company and the Trustee have each executed a
counterpart of this First Supplemental Trust Deed, be construed and have
effect as though all such counterparts were one document executed by the
Company and the Trustee.
5. LIABILITY OF TRUSTEE
The Trustee shall have no liability to any person for the Trustee's acts
or omissions in connection with the amendments effected by this First
Supplemental Trust Deed.
6. GOVERNING LAW
This First Supplemental Trust Deed is governed by English law.
7. THIRD PARTY RIGHTS
A person who is not party to this First Supplemental Trust Deed may not
enforce any terms of this First Supplemental Trust Deed under the Contract
(Rights of Third Parties) Xxx 0000, but this does not affect any right or
remedy of any third party which exists or is available apart from that
Act.
THE PARTIES have executed this First Supplemental Trust Deed as a deed and
intend to deliver, and do deliver, this First Supplemental Trust Deed on the
date stated at the beginning of this First Supplemental Trust Deed.
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SCHEDULE 1
FORM OF EARLY REDEMPTION RESOLUTION
THE EXTRAORDINARY RESOLUTION is in the following terms.
IT IS RESOLVED THAT the holders of the (pound)100,000,000 10 7/8% bonds due 2020
(the "BONDS") of Xxxxx Industries Limited (the "Company") presently outstanding
constituted by the Trust Deed dated 10 January 1989 (together with all further
deeds expressed to be supplemental thereto, the "TRUST DEED") made between,
among others, the Company and The Law Debenture Trust Corporation p.l.c. (the
"TRUSTEE") as trustee for the holders of the Bonds (the "BONDHOLDERS") hereby:
(i) assent to the modification of the Terms and Conditions of the Bonds set
out in the Second Schedule (Form of Original Bond) to the Trust Deed by
the deletion of Condition 5(a) (Final Redemption) of the Conditions of the
Bonds and the insertion in its place of the following text:
"(a) Final Redemption - Unless previously redeemed or purchased and cancelled
as provided below, the Company shall redeem the Bonds at the Early
Redemption Settlement Amount on the Settlement Date.
In this Condition 5(a) (Final Redemption), the following terms have the
following meanings:
"BUSINESS DAY" means a day other than a Saturday or a Sunday or a public
holiday, on which commercial banks are open for business in London and New
York;
"EARLY REDEMPTION RESOLUTION" means the extraordinary resolution set out
in the Notice of Meeting;
"EARLY REDEMPTION SETTLEMENT AMOUNT" means the Early Redemption Settlement
Amount as defined in and calculated as set out in the Explanatory
Memorandum;
"EXPLANATORY MEMORANDUM" means the memorandum dated 9 January 2006 made
available to Bondholders as described in the Notice of Meeting;
"NOTICE OF MEETING" means the notice of meeting of Bondholders delivered
to the Clearing Systems (as described in the Explanatory Memorandum) for
distribution to Bondholders on 9 January 2006, relating to a meeting of
Bondholders proposed to be held at the offices of Xxxxxxxx Chance LLP, 00
Xxxxx Xxxx Xxxxxx, Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, on 1 February 2006 at
11.00 a.m. (London time) to consider, and if thought fit, to pass the
Early Redemption Resolution; and
"SETTLEMENT DATE" means the Business Day immediately following the date on
which Bondholders resolve at a meeting of Bondholders (or any adjourned
meeting) to assent to the modification of the Conditions of the Bonds in
accordance with the Early Redemption Resolution proposed in the Notice of
Meeting.";
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(ii) assent to the modification of the Terms and Conditions of the Bonds set
out in the Second Schedule (Form of Original Bond and Original Coupon) to
the Trust Deed by the deletion in its entirety of Condition 5(b)
(Redemption at the Option of the Company) and Condition 5(d) (Purchases)
of the Conditions of the Bonds;
(iii) sanction every abrogation, modification, compromise or arrangement in
respect of the rights of the Bondholders relating to the Bonds against the
Company, whether or not such rights arise under the Trust Deed, involved
in or resulting from or to be effected by, the modifications referred to
in paragraphs (i), (ii) and (iv) of this extraordinary resolution and
their implementation;
(iv) authorise, direct, request and empower the Trustee to concur in the
modifications referred to in paragraphs (i) and (ii) of this extraordinary
resolution and, in order to give effect thereto and to implement the same,
forthwith to execute a supplemental trust deed (the "FIRST SUPPLEMENTAL
TRUST DEED") in substantially the form made available to Bondholders and
initialled for the purposes of identification by the Chairman of the
meeting of Bondholders and to concur in, and to execute and do, all such
other deeds, instruments, acts and things as may be necessary or
appropriate to carry out and give effect to this extraordinary resolution
and the implementation of the modifications referred to in paragraphs (i)
and (ii) of this extraordinary resolution; and
(v) discharge and exonerate the Trustee from all liability for which it may
have become or may become responsible under the Trust Deed or the Bonds in
respect of any act or omission in connection with this extraordinary
resolution or its implementation.
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EXECUTION PAGE
THE COMPANY
THE COMMON SEAL OF )
XXXXX INDUSTRIES LIMITED )
was affixed in the presence of: )
/s/
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Director
/s/
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Director/Secretary
THE TRUSTEE
THE COMMON SEAL OF )
THE LAW DEBENTURE TRUST )
CORPORATION P.L.C. was )
affixed in the presence of: )
/s/
---------------------------------------------
Authorised Signatory
/s/
---------------------------------------------
Director
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