THIS ANNOUNCEMENT CONTAINS IMPORTANT INFORMATION THAT IS OF INTEREST TO THE REGISTERED AND BENEFICIAL OWNERS OF THE Series 2018-F1 Notes (AS DEFINED BELOW). |
THIS NOTICE IS ADDRESSED ONLY TO HOLDERS OF THE Series 2018-F1 Notes AND PERSONS TO WHOM IT MAY OTHERWISE BE LAWFUL TO DISTRIBUTE IT ("RELEVANT PERSONS"). IT IS DIRECTED ONLY AT RELEVANT PERSONS AND MUST NOT BE ACTED ON OR RELIED ON BY PERSONS WHO ARE NOT RELEVANT PERSONS. |
IF YOU HAVE RECENTLY SOLD OR OTHERWISE TRANSFERRED YOUR ENTIRE HOLDING(S) OF THE Series 2018-F1 Notes, YOU SHOULD IMMEDIATELY FORWARD THIS NOTICE TO THE PURCHASER OR TRANSFEREE OR TO THE STOCKBROKER, BANK OR OTHER AGENT THROUGH WHOM THE SALE OR TRANSFER WAS EFFECTED FOR TRANSMISSION TO THE PURCHASER OR TRANSFEREE. |
THIS NOTICE DOES NOT CONSTITUTE OR FORM PART OF, AND SHOULD NOT 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 IN ANY JURISDICTION. |
TRUSTEE NOTICE TO NOTEHOLDERS | |
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ESCHER MARWICK PLC | |
(incorporated as a public limited liability company under the laws of England and Wales with registration number 10112860 (the Issuer)) | |
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SERIES 2018-F1 GBP NOTES | |
ISIN: GB00BFYFCF43 | |
£10,000,000 5% Fixed Rate Secured Notes Due 2023 | |
(the "Series 2018-F1 Notes") | |
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1. | The Series 2018-F1 Notes are constituted by a trust deed dated 31 May 2016, as amended and restated on 14 October 2016 (the "Trust Deed"), as supplemented by a supplemental trust deed dated 9 July 2018 (the "Supplemental Trust Deed") and secured pursuant to a deed of charge dated 31 May 2016 (the "Deed of Charge"). |
2. | The Supplemental Trust Deed contains the conditions applicable to the Series 2018-F1 Notes (the "Conditions") and a pricing supplement (the "Pricing Supplement") relevant to Series 2018-F1 Notes and which completes the Conditions. |
3. | The Series 2018-F1 Notes benefit from an agency services agreement dated 31 May 2016 entered into between the Issuer and Avenir Registrars Limited as paying agent (the "Paying Agent") (the "Agency Agreement"). |
4. | Capitalised terms used but not defined in this Notice shall have the same meaning given to them in the Conditions. |
5. | Truva Services Limited acts as trustee for the Noteholders of the Series 2018-F1 Notes and for the Secured Parties under the Trust Deed and the Deed of Charge (the "Trustee"). |
6. | Any references in this Notice to the Trustee shall, as the context may require, be construed to refer to the Trustee acting pursuant to, and in accordance with, the Trust Deed and/or the Deed of Charge. |
BACKGROUND
A. | The Issuer used the proceeds from the Series 2018-F1 Notes to grant a secured loan facility to Apex Aero Limited (the "Borrower") pursuant to a facility agreement dated 9 July 2018 (the "Facility Agreement"). On 9 July 2019, the Borrower granted to the Issuer certain mortgages and charges over its business and assets (the "Debenture"). |
B. | The Borrower was placed into Administration on 12 September 2023 pursuant to paragraph 22 of Schedule B1 to the Insolvency Act 1986 and Peter Hart and Stephen Goderski of PKF Geoffrey Martin &Co Limited were appointed as joint administrators on the same date (the "Joint Administrators"). The appointment of the Joint of Administrators constituted an Event of Default under the Facility Agreement and the Debenture. |
C. | On 19 September 2023 the Trustee gave notice to the Issuer declaring that an Event of Default of the Series 2018-F1 Notes had occurred and that the Series 2018-F1 Notes were immediately due and payable. On 19 September 2023 the Trustee gave notice to the Issuer and Borrower that due to the Event of Default the Security is enforceable pursuant to the Deed of Charge and the Debenture and directing the Borrower (in administration) that it may only act pursuant to the instructions of the Trustee in respect of the Facility Agreement. |
D. | The Issuer under clause 16.1 (Power of Attorney) of the Trust Deed, by way of security, irrevocably and severally appointed the Trustee, to be its attorney acting severally, and on its behalf and in its name or otherwise to execute and do all such assurances, acts and things which the Issuer ought to do under the covenants and provisions contained in the Trust Deed. |
E. | The Issuer, under clause 14.1 (Power of Attorney) of the Deed of Charge, by way of security, irrevocably and severally appointed the Trustee to be its attorney acting severally, and on its behalf and in its name or otherwise to execute and do all such assurances, acts and things which the Issuer ought to do under the covenants and provisions contained in the Deed of Charge. |
F. | Following the enforcement notice dated 19 September 2023 and pursuant to the power of attorney contained in clause 16.1 (Power of Attorney) of the Trust Deed and clause 14.1 (Power of Attorney) of the Deed of Charge, the Trustee as attorney for the Issuer can approve, consent and enter into agreements to endeavour to collect from the Borrower an amount equal to the payments due under the Facility Agreement plus accrued interest. |
G. | On 23 October 2023, the Joint Administrators informed the Trustee that the Joint Administrators and Aeras Aviation LTD had entered into a sale and purchase agreement (the "SPA"). The Joint Administrators, as officers of the Court, asked the Trustee execute a deed of release (the "Deed of Release") to release certain assets from the security in order to facilitate the sale of Borrower's assets, acting by its Joint Administrators. The Trustee took legal advice as to whether to concur with the Joint Administrators to executing the Deed of Release. The Trustee signed the Deed of Release on 23 October 2023. |
H. | On 8 December 2023, the Issuer, as the secured creditor of the Borrower submitted a proof of debt to the Joint Administrators setting out the total outstanding amount in respect of the Facility Agreement. |
I. | In accordance with the order of application set out in Condition 4 (Status and Application of Moneys) of the Conditions and clause 6.1 (Priority of Payments) of the Deed of Charge, all moneys received by the Trustee shall be held on trust and applied in accordance with the priority of payments as set out in Condition 4 (Status and Application of Moneys) of the Conditions as follows: |
(i) | first, in or towards satisfaction of (x) the costs, expenses, fees or other remuneration and indemnity payments (if any) and any other amounts incurred by the Trustee in preparing and executing the trusts and performing any obligations under the Transaction Documents; (y) the costs, expenses, fees or other remuneration and indemnity payments (if any) and any other amounts payable to any Receiver, including in the case of either the Trustee or a Receiver the costs of enforcing and/or realising any Security; |
(ii) | second, in or towards satisfaction of the costs, expenses, fees or other remuneration and indemnity payments (if any) and any other amounts payable to the Agents under the Transaction Documents; |
(iii) | third, in or towards payment of all arrears of interest remaining unpaid in respect of the Notes or Coupons and all principal monies due on or in respect of the Notes; and |
(iv) | fourth, the balance (if any) in payment to the Issuer. |
ACTIONS TAKEN BY THE TRUSTEE
1. | Pursuant to clause 2.5 (Payment After a Default) of the Trust Deed, the Agents are required, following receipt of the enforcement notice dated 19 September 2023, to hold all amounts held in respect of the Series 2018-F1 Notes to, or to the order of, the Trustee. |
2. | In accordance with the Trust Deed, the Trustee requested that all moneys standing to the credit or account of the Issuer and the Servicer and all other assets be sent to the Trustee. On 22 September 2023 the Trustee received GBP192,824.49 from the Servicer. In accordance with the order of application set out in Condition 4 (Status and Application of Moneys) of the Conditions, the Trustee applied the moneys received in accordance with the priority of payments on 28 October 2023 but the Trustee was only able to satisfy the costs referred to in paragraph (i) of Condition 4, as set out above in paragraph K, as there were insufficient funds to make further distributions (the "Initial Distribution"). |
3. | The Joint Administrators made a distribution to the Trustee, on behalf of the Issuer, in the sum of £1,500,000 on 23 November 2023. The Trustee collated the invoices from various Agents in order to be able to apply the moneys in accordance with the priority of payments as set out in Condition 4 (Status and Application of Moneys) of the Conditions. The Trustee then made a distribution to the persons shown as the Holders in the register at the close of business on the Record Date of 15 December 2023 ("Second Distribution"). The Trustee issued a notice dated 15 December 2023 (RNS Number: 0568X) with details of the Second Distribution. |
4. | The Joint Administrators made further distributions to the Trustee of £200,000 on 15 May 2024 and £250,000 on 20 September 2024. |
5. | The Trustee is now able to determine how much principal and interest it will be able to distribute to the Noteholders in accordance with the priority of payments. The Trustee has calculated that the amounts it can distribute are as follows: (i) trustee fees and legal costs in the sum of GBP60,000; ii) costs, expenses, fees to the Agents in the sum of GBP7,650; (iii) GBP141,849.41 in interest, which represents the total outstanding interest due; and (iv) GBP292,606.58 in principal (together, the "Third Distribution"). After the Third Distribution the outstanding principal in respect of the Series 2018-F1 Notes is GBP 3,290,957.42. |
6. | The Trustee is maintaining detailed records of the allocation and distribution to ensure transparency and provide a clear account of how the moneys are distributed (the "Distribution Report"). |
7. | Any shortfall amounts in relation to the Series 2018-F1 Notes will constitute a shortfall in accordance with the Conditions of the Series 2018-F1 Notes. |
8. | The Trustee will continue to liaise with the Joint Administrators, the Issuer and the Servicer to realise further assets and will notify the Noteholders in due course. |
9. | In accordance with the Agency Agreement, the Trustee will pay the Third Distribution to the Paying Agent for onward distribution to the Noteholders. The Paying Agent will make all the payments on 9 October 2024 in accordance with the calculations of 30 September 2024. |
10. | The Third Distribution will be made to the persons shown as the Holder in the register at the close of business on the record date of 30 September 2024. |
NEXT STEPS
The Distribution Report will be available on demand to the Noteholders who will make themselves known to the Trustee and arrange for their position in the Series 2018-F1 Notes to be disclosed to the Trustee and verify their holdings of the Series 2018-F1 Notes to the Trustee. |
Noteholders can contact or direct the Trustee by sending an email to directors@truvacorp.com referencing the ISIN of the Series 2018-F1 Notes and "ESCHER MARWICK PLC" in the subject line of the email. |
This announcement is given by Truva Services Limited in its capacity as Trustee.
9 October 2024 |
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