To the attention of noteholders in respect of the (a) EUR 325 million 9.125% New York law governed senior notes due to mature in 2020 (ISINs: XS0836495183 / XS0836495696), (b) USD 300 million 8.875% New York law governed senior notes due to mature in 2020 (ISINs: USX0027KAG32 / US00855UAB52, CUSIPs: X0027KAG3 / 00855UAB5) and (c) EUR 300 million 9.875% New York law governed senior notes due to mature in 2019 (ISINs: XS0776111188 / XS0776110966) issued by Agrokor d.d. (the “Notes” and the holders thereof being “Noteholders“).
As per the notice dated 21 January 2019[1], Noteholders must (a) submit written confirmation about being appointed by BNY Mellon as Designated Noteholders, (b) block their Notes on or before the Claims Record Date by 5 p.m. New York Time, and (c) submit a properly completed KYC Form prior to the Initial KYC Completion Date in order to be cleared to receive the New Instruments on the Implementation Commencement Date.[2]
Failure by a Noteholder to (a) be appointed by BNY Mellon as Designated Noteholder, (b) block its Notes on or before the Claims Record Date by 5 p.m. New York Time, and (c) validly complete, execute and submit a KYC Form in accordance with the instructions set out in the KYC Form prior to the Initial KYC Completion Date, will result in the Noteholder not being issued with the New Instruments on the Implementation Commencement Date.
Noteholders are reminded that all outstanding Notes will be cancelled on the Implementation Commencement Date pursuant to Cl. 18.3.1 of the Settlement Plan. If a Noteholder will not be issued with the New Instruments on the Implementation Commencement Date, there will likely be a significant delay in such Noteholder receiving its New Instruments from BNY Mellon. During this time, Noteholders will no longer hold any positions in the Notes.
Timing
1 March 2019 is the Public Announcement Date. In the announcement that the Extraordinary Administrator has published (http://nagodba.agrokor.hr/en/public-announcement-implementation-commencement-date/), it is scheduled that:
- the Implementation Commencement Date will be Monday 1 April 2019.
As a consequence,
- the Claims Record Date will be Friday 8 March 2019; and
- the Initial KYC Completion Date will be Monday 25 March 2019.
(a) Designation Process as contemplated under the Settlement Plan
Under the Settlement Plan, BNY Mellon, as Impaired Creditor, is entitled to receive the New Instruments issued for the Notes and to appoint Noteholders in writing as its designees to receive their respective portion of New Instruments on its behalf directly on the Implementation Commencement Date (see Cl. 18.3.1 of the Settlement Plan), each a “Designated Noteholder“. Please note that neither the Company nor the Extraordinary Administrators is responsible for BNY Mellon’s designation process and for blocking (see (c) below) pursuant to the Settlement Plan. Neither the Company nor the Extraordinary Administrator will take any responsibility for any losses that Noteholders may incur as a result of BNY Mellon’s designation process. Only BNY Mellon is entitled to appoint Noteholders as its designees to receive the New Instruments.
Please note that as of now, BNY Mellon has not yet appointed Noteholders as its designees, as they are still working through the issues related to the lack of payment of their outstanding fees and expenses as described in their 18 January 2019 notice to Noteholders. BNY Mellon has indicated that it may be in a position to make the designation following an auction of a sufficient amount of New Instruments to recover on their fees before the Implementation Commencement Date. However, unless BNY Mellon informs the Extraordinary Administrator in writing about the designation, Noteholders are not entitled to be issued with the New Instruments. For further information about this, please contact BNY Mellon at dagemea@bnymellon.com.
Alternative to designation
In case BNY Mellon will not have appointed Noteholders as its designees before the Implementation Commencement Date as contemplated under the Settlement Plan, the New Instruments will be issued to BNY Mellon or the Security Escrow Agent for the benefit of BNY Mellon on the Implementation Commencement Date. Noteholders cannot be appointed as designees on or after the Implementation Commencement Date. For further information about when and how the New Instruments will be transferred to Noteholders after the Implementation Commencement Date in such case, please contact BNY Mellon at dagemea@bnymellon.com.
(b) Blocking
As announced in the notice dated 21 January 2019, both issuance of New Instruments to Designated Noteholders and, if no designation occurs, the alternative transfer of New Instruments from BNY Mellon to Noteholders at a later stage will require the Notes to be blocked for a specific period. Therefore, a corporate action will be set up in respect of each series of Notes to allow holders to block their Notes in the clearing systems in accordance with the standard procedures of the clearing systems.
When submitting their KYC Forms, Noteholders are required to include an 8-digit alphanumerical reference which they have to generate themselves (please make it up to be as unique as possible) (such reference, the “Unique Reference Number”). Noteholders are required to include their Unique Reference Number in the electronic blocking instruction submitted via the clearing systems on or before the Claims Record Date by 5 p.m. New York Time. Failure to provide the Unique Reference Number in both the KYC Form and the blocking instruction may result in a significant delay in the delivery of the New Instruments.
Only a person shown in the records of the Clearing Systems as a holder of the Notes (Direct Participant) can properly instruct that Clearing System with regard to submitting blocking instructions. If a Noteholder holds its Notes through a custodian or other intermediary, such Noteholder may not submit a blocking instruction directly. It should therefore contact its custodian or other intermediary to instruct its custodian or intermediary to submit a blocking instruction on its behalf and include the relevant 8-digit Unique Reference Number. In the event that the relevant custodian or intermediary is unable to submit a blocking instruction on its behalf by one of the methods described herein, the Noteholder should contact the Information Agent for assistance (details below) in submitting its blocking instruction. There can be no assurance that the Information Agent will be able to assist any such Noteholders in successfully submitting a blocking instruction.
A separate blocking instruction must be submitted on behalf of each beneficial owner of the Notes and each must include its own 8-digit Unique Reference Number. The submission of a valid blocking instruction in accordance with the procedures set out herein will be irrevocable. By blocking the relevant Notes in the relevant Clearing System, the Direct Participant will be deemed to consent to have such Clearing System provide details concerning its identity to the Information Agent, Agrokor d.d. and its advisers.
Information Agent
Lucid Issuer Services Limited
Tankerton Works
12 Argyle Walk
London WC1H 8HA
United Kingdom
Tel: +44 (0) 20 7704 0880
Attention: Alexander Yangaev / Yves Theis
Email: agrokor@lucid-is.com
Upon the earlier of (a) the date on which a Noteholder voluntarily blocks its holdings of the Notes by responding to the corporate action through the clearing systems, as further described below, or (b) the Claims Record Date – being Friday 8 March 2019 – from 5 p.m. New York time on, Noteholders will no longer be able to transfer their Notes. On the Claims Record Date, whether or not a Noteholder has responded to the corporate action referred to below, all Notes will be mandatorily and automatically blocked, if possible, and only those Designated Noteholders who are holders of Notes on the Claims Record Date at 5 p.m. New York Time are entitled to the New Instruments on the Implementation Commencement Date. Any holder who subsequently acquires any Notes must contact the holder of record to claim the New Instruments.
(c) KYC
As a further reminder, all Noteholders are urged to complete a KYC Form as soon as possible in order to be ready to receive the New Instruments on the Implementation Commencement Date and are encouraged to not to wait until the Initial KYC Completion Date given the large number of Noteholders that need to be processed. Instructions for completing and submitting the KYC Form can be found on the notice dated 21 January 2019 (http://nagodba.agrokor.hr/en/important-notice-holders-agrokors-senior-notes-instructions-noteholders-enable-receipt-new-instruments/).
A Noteholder who has been designated by BNY Mellon (see (a) above), but has not validly completed, executed and submitted a KYC Form prior to the Initial KYC Completion Date – being Monday 25 March 2019 – will have the New Instruments to which that Designated Noteholder is entitled be issued on the Implementation Commencement Date to the Securities Escrow Agent upon and pursuant to the terms of the Securities Escrow Deed, as described in more detail in the Settlement Plan. Any such New Instruments will only be released from the escrow arrangements pursuant to the procedures set forth in the Securities Escrow Deed upon satisfaction of the applicable conditions specified therein.
For the avoidance of doubt, if the New Instruments cannot be issued to Noteholders on the Implementation Commencement Date due to failure of designation, Noteholders may have to KYC again if and once BNY Mellon transfers the New Instruments to them.
[1] http://nagodba.agrokor.hr/en/important-notice-holders-agrokors-senior-notes-instructions-noteholders-enable-receipt-new-instruments/
[2] All undefined terms with capitals used in this notice have the meaning as set out in de notice dated 21 January 2019 or in the Settlement Plan, which can be found on http://nagodba.agrokor.hr/.
