PUBLIC JOINT-STOCK COMPANY COMMERCIAL BANK “PRIVATBANK” as Borrower and UK SPV CREDIT FINANCE PLC acting as Lender SUPPLEMENTAL LOAN AGREEMENT IMAGE OMITTED Ref: L-237036 Linklaters LLP
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Dated [●] 2015
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PUBLIC JOINT-STOCK COMPANY COMMERCIAL BANK “PRIVATBANK” as Borrower and UK SPV CREDIT FINANCE PLC
SUPPLEMENTAL LOAN AGREEMENT
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| IMAGE OMITTED |
| Ref: L-237036 |
| Linklaters LLP |
Table of Contents
Contents Page
| 1 Definitions and interpretation | 1 |
| 2 Amendments | 1 |
| 3 Borrower’s and Lender’s Representations and Warranties | 6 |
| 4 Consent Fee Payment | 6 |
| 5 Assignments and Transfers | 7 |
| 6 Status of the Loan Agreement | 7 |
| 7 Contracts (Rights of Third Parties) Xxx 0000 | 7 |
| 8 Law and Arbitration | 7 |
| 9 Single Agreement | 8 |
| 10 Counterparts | 8 |
| 11 Language of Agreement | 8 |
| 12 NBU Registration and Signing of the Supplemental Trust Deed | 8 |
THIS SUPPLEMENTAL LOAN AGREEMENT is dated [●] 2015 and made between:
| (1) | PUBLIC JOINT-STOCK COMPANY COMMERCIAL BANK “PRIVATBANK”, registered under the laws of Ukraine, whose registered office is at 00 Xxxxxxxxxx Xxxxxxxx, Xxxxxxxxxxxxxx, Xxxxxxx 00000, as borrower (the “Borrower”); and |
| (2) | UK SPV CREDIT FINANCE PLC, incorporated under the laws of England and Wales, whose registered office is at Fifth Floor, 0 Xx. Xxxxxx Xxxxxx, Xxxxxx XX0X 0XX, Xxxxxx Xxxxxxx as lender (the “Lender”). |
Whereas
| (A) | At the request of the Borrower, the Lender made available to the Borrower a loan (the “Loan”) in the amount of U.S.$200,000,000 on the terms and subject to the conditions of a loan agreement dated 17 September 2010 (the “Loan Agreement”). |
| (B) | Pursuant to an extraordinary resolution passed by the beneficial holders of the outstanding U.S.$200,000,000 9.375 per cent. Loan Participation Notes due 2015 issued by, but without recourse to, the Lender the “Noteholders”) on [●] 2015 (the “Extraordinary Resolution”), the Noteholders sanctioned certain amendments to the Loan Agreement and the holders of the Notes have authorised Deutsche Trustee Company Limited, in its capacity as trustee under the Notes (as defined herein) to agree to the modification of and certain amendments to the Loan Agreement, pursuant to this Supplemental Loan Agreement. |
| (C) | This Supplemental Loan Agreement is supplemental to, and should be read in conjunction with, the Loan Agreement. |
| 1 | Definitions and interpretation |
Terms defined or construed in the Loan Agreement shall have the same meaning when used in this Supplemental Loan Agreement.
| 2 | Amendments |
With effect from the Effective Date as set out in Clause 11 (NBU Registration and Signing of the Supplemental Trust Deed), the Loan Agreement shall be amended as follows:
| 2.1 | Amended Definitions |
Clause 1.1 (Definitions) of the Loan Agreement shall be amended as follows:
| 2.1.1 | the definitions of “Agency Agreement”, “Interest Payment Date”, “Interest Rate”, “Notes”, and “Repayment Date” shall be deleted and replaced with the following definitions: |
““Agency Agreement” means the paying agency agreement relating to the Notes dated 24 September 2010 between the Lender (as issuer of the Notes), the Trustee and the Principal Paying Agent as amended from time to time;
“Interest Payment Date” means 23 March and 23 September in each year in which the Loan remains outstanding with the last Interest Payment Date falling on the Repayment Date;
“Interest Rate” means 10 per cent.;
“Notes” means the outstanding U.S.$200,000,000 10 per cent. Notes due 2018 issued by the Lender pursuant to the Trust Deed on 24 September 2010 for the sole purpose of financing the Loan;
“Repayment Date” means 23 January 2018 or, if such day is not a Business Day, the next succeeding Business Day;”
| 2.1.2 | the following definitions shall be added: |
““Amended Drawdown Date” means the Effective Date;
“Amortisation Amount” has the meaning given to it in Clause 6A;
“Amortisation Date” has the meaning given to it in Clause 6A;
“Effective Date” means the date of execution and delivery of a supplemental trust deed between the Lender and the Trustee relating to the Notes, subject to the registration of amendments to this Loan Agreement introduced by a supplemental loan agreement between the Borrower and the Lender dated [●] 2015 (the “Supplemental Loan Agreement”) with the NBU;
“First Interest Payment Date” means 23 September 2015;
“First Interest Period” means the period beginning on and including the Amended Drawdown Date and ending on (but excluding) the First Interest Payment Date;
“Last Interest Period” means the period beginning on and including 23 September 2017 and ending on (but excluding) the Repayment Date;”
| 2.2 | Amended Clauses |
The following clauses of the Loan Agreement shall be amended as follows:
| 2.2.1 | Clause 4 (Interest Periods) shall be deleted and replaced with the following: |
“4 Interest Periods
The period for which the Loan is outstanding shall be divided into successive semi-annual periods (except for the First Interest Period and the Last Interest Period), each of which (other than the First Interest Period, which shall commence on (and shall include) the Amended Drawdown Date and the Last Interest Period which shall end on (but shall exclude) the Repayment Date) shall start on (and shall include) an Interest Payment Date and shall end on (but shall exclude) the first, or the next following, Interest Payment Date (each, an “Interest Period”).”
| 2.2.2 | Clause 5.1 (Payment of Interest), Clause 5.2 (Calculation of Interest) and Clause 5.3 (Calculation of Additional Interest) shall be deleted and replaced with the following: |
“5.1 Payment of Interest
As set out in Clause 17.1 (Payments to the Lender), the Borrower shall, not later than 10.00 a.m. (New York City time) two Business Days prior to each Interest Payment Date (including the First Interest Payment Date), in respect of the relevant Interest Period, pay (a) to the Account accrued and unpaid interest (calculated to but excluding the last day of the relevant Interest Period, which in the case of the First Interest Period is the First Interest Payment Date and in the case of the Last Interest Period, the Repayment Date) on the outstanding principal amount of the Loan calculated in accordance with Clause 5.2 (Calculation of Interest); and (b) to the Profit Account additional interest calculated in accordance with Clause 5.3 (Calculation of Additional Interest).
5.2 Calculation of Interest
The Borrower will pay interest semi-annually in U.S. dollars to the Account on the outstanding principal amount of the Loan at the rate of 10 per cent. per annum (the “Interest Rate”). Interest shall accrue from day to day, starting from (and including) the Amended Drawdown Date to (but excluding) the Repayment Date. The amount of interest payable in respect of the Loan for any Interest Period (other than the First Interest Period and the Last Interest Period) shall be calculated by applying the Interest Rate to the outstanding principal amount of the Loan, dividing the product by two and rounding the resulting figure to the nearest cent (half a cent being rounded upwards). If interest is required to be calculated for any other period (including the First Interest Period and the Last Interest Period), it shall be calculated on the basis of a year of 360 days consisting of 12 months of 30 days each and, in the case of an incomplete month, the actual number of days elapsed.
5.3 Calculation of Additional Interest
The Borrower will pay additional interest semi-annually in U.S. dollars to the Profit Account on the outstanding principal amount of the Loan at the rate per annum of 0.0048 per cent. Additional interest shall accrue from day to day, starting from (and including) the Amended Drawdown Date to (but excluding) the Repayment Date. The amount of additional interest payable in respect of the Loan for any Interest Period (other than the First Interest Period and the Last Interest Period) shall be calculated by applying 0.0048 per cent. to the outstanding principal amount of the Loan, dividing the product by two and rounding the resulting figure to the nearest cent (half a cent being rounded upwards). If additional interest is required to be calculated for any other period, (including the First Interest Period and the Last Interest Period) it shall be calculated on the basis of a year of 360 days consisting of 12 months of 30 days each and, in the case of an incomplete month, the actual number of days elapsed.”
| 2.2.3 | Clause 5.5 (Payment of Accrued Interest) shall be inserted directly after Clause 5.4 (Assumption when Calculating Interest): |
“5.5 Payment of Accrued Interest
As set out in Clause 17.1 (Payments to the Lender), the Borrower shall pay to the Lender, not later than 10.00 a.m. (New York City time) two Business Days prior to the First Interest Payment Date all accrued and unpaid interest on the outstanding principal amount of the Loan in accordance with Clause 5.2 (Calculation of Interest) at the rate of 9.375 per cent. per annum as well as all accrued and unpaid additional interest on the outstanding principal amount of the Loan in accordance with Clause 5.3 (Calculation of Additional Interest) at the rate of 0.0048 per cent. per annum, in each case from and including the last date on which a payment of interest was made (being 23 March 2015) up to (but excluding) the Effective Date.”;
| 2.2.4 | Clause 6A (Amortisation) shall be inserted immediately after Clause 6 (Repayment and Prepayment): |
“6A Amortisation
Unless previously repaid or prepaid, the Borrower shall repay the Loan as set out in Clause 17.1 (Payments to the Lender) in two instalments not later than 10.00 a.m. (New York City time) two Business Days prior to each amortisation date specified in column A below (each an “Amortisation Date”) at the related amortisation amount specified in column B below and calculated as at the relevant Amortisation Date (each an “Amortisation Amount”) (together with any outstanding interest or additional amounts). The outstanding principal amount of the Loan shall be reduced by the Amortisation Amount for all purposes with effect from the relevant Amortisation Date such that the outstanding aggregate principal amount of the Loan following such reduction shall be as specified in column C below, unless the payment of the relevant Amortisation Amount is improperly withheld or refused. In such a case, the relevant principal amount will remain outstanding until the day on which all sums due in respect of the Loan (including any outstanding interest or additional amounts) up to that day are received by or on behalf of the Lender. The Loan shall be finally repaid on 23 January 2018, at its final Amortisation Amount.
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Amortisation Date (A) |
Amortisation Amount (B) |
Outstanding Aggregate Amount of the Notes (C) |
| 23 September 2017 | 30 per cent. of the amount of principal remaining on the Loan | 70 per cent. of the amount of principal remaining on the Loan |
| 23 January 2018 | 70 per cent. of the amount of principal remaining on the Loan | U.S.$0 |
In this Agreement references to “principal” shall, unless the context requires otherwise, be deemed to include any Amortisation Amount.”;
| 2.2.5 | Clause 23 (Law, Jurisdiction and Arbitration) shall be deleted and replaced with the following: |
“23. Law and Arbitration
23.1 Governing Law
This Loan Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
23.2 Arbitration
The parties irrevocably agree that any dispute arising out of or in connection with this Loan Agreement, including a dispute as to the validity, existence or termination of this Loan Agreement or the consequences of its nullity and/or this Clause 23.2 (a “Dispute”), shall be resolved by arbitration in London, England, conducted in the English language by three arbitrators, in accordance with the rules of the London Court of International Arbitration (the “LCIA”) (the “LCIA Rules”), which rules are deemed to be incorporated by reference into this Clause, save that Article 6 shall not apply and Article 5.6 of the LCIA Rules shall be amended as follows: “unless the parties agree otherwise, the third arbitrator, who shall act as chairman of the tribunal, shall be nominated by the two arbitrators nominated by or on behalf of the parties. If he is not so nominated within 30 days of the date of nomination of the later of the two party-nominated arbitrators to be nominated, he shall be chosen by the LCIA”. The parties agree to exclude the jurisdiction of the English courts under section 45 of the Arbitration Xxx 0000.
23.3 Service of Process
The Borrower agrees that the service of process relating to any Dispute in England and Wales may be by delivery to Law Debenture Corporate Services Limited at its registered office for the time being, currently at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX. If such person is not or ceases to be effectively appointed to accept service of process, the Borrower shall immediately appoint a further person in the United Kingdom to accept service of process on its behalf and, failing such appointment within 15 days, the Lender (and, following the execution of the Loan Administration Assignment, the Trustee) shall be entitled to appoint such a person by written notice to the Borrower. Nothing in this Clause shall affect the right of the Lender (and, following the execution of the Loan Administration Assignment, the Trustee) to serve process in any other manner permitted by law.”
| 2.2.6 | Clause 25.2 (Maximum Interest Rate) shall be deleted and replaced with the following: |
“25.2 Maximum Interest Rate
| 25.2.1 | Notwithstanding any other provisions hereof to the contrary (but subject to Clause 25.2.2 below), if and to the extent required by the mandatory provisions of the regulations of the NBU governing the registration of loan agreements between Ukrainian borrowers and foreign lenders (and only until such requirement is in effect), the aggregate amount of all payments payable by the Borrower under this Agreement for the use of the Loan (i.e., all payments made by the Borrower pursuant to this Agreement other than repayments of the principal amount of the Loan, including, but not limited to, interest payments, fees and indemnity payments) shall not exceed the amount calculated by reference to the maximum interest rate established by the NBU for foreign currency loans from non-residents and effective at the date of registration of this Agreement or (if and to the extent required by the applicable regulations of the NBU) amendments to this Agreement with the NBU. For the avoidance of doubt, any application of this requirement shall not limit the rights of the Lender (and/or the Trustee, as applicable) under Clause 14.1 (Failure to Pay) or Clause 14.11 (Acceleration) of this Agreement. |
| 25.2.2 | Notwithstanding the provisions of Clause 25.2.1 above, the amount of fees payable by the Borrower to the Lender in connection with the amendments introduced by the Supplemental Loan Agreement shall (in the amount not exceeding 2.0 per cent. of the principal amount of the Loan outstanding as at the date of payment of such fees) be excluded from the calculation of the payments payable by the Borrower under this Agreement for the use of the Loan for the purposes of Clause 25.2.1 above.” |
| 3 | Borrower’s and Lender’s Representations and Warranties |
| 3.1 | Borrower’s Representations and Warranties |
The Borrower repeats the representations and warranties set out in Clause 10.1 (Status) to Clause 10.14 (Compliance with Laws) in the Loan Agreement (as amended by the provisions of this Supplemental Loan Agreement) other than the representations set out in Clauses 10.12 (No Material Adverse Change) and 10.13 (No Undisclosed Material Assets or Liabilities) as of the date hereof, the Effective Date and each date falling in-between, with reference to the Loan Agreement as modified and supplemented by this Supplemental Loan Agreement and with reference to the facts and circumstances existing at the relevant date and acknowledges that the Lender has entered into this Supplemental Loan Agreement in reliance on those representations and warranties.
| 3.2 | Lender’s Representations and Warranties |
The Lender repeats representations and warranties set out in Clause 7.6 (Tax Position of the Lender) (as amended by the provisions of this Supplemental Loan Agreement) and Clause 11 (Representations and Warranties of the Lender) of the Loan Agreement as of the date hereof, the Effective Date and each date falling in-between with reference to the facts and circumstances existing at the relevant date and with reference to the Loan Agreement as modified and supplemented by this Supplemental Loan Agreement.
| 4 | Consent Fee Payment |
In consideration of the Lender agreeing to (i) make amendments to the Loan and subsequent amendments to the Notes and (ii) continue to act as lender in respect of the Loan, the Borrower hereby agrees that it shall pay to the Lender, in Same-Day Funds by 4.30 p.m. (London time) one day before the Settlement Date a consent solicitation fee in the amount of U.S.$[●] to the following account of the New Lender [●].
“Settlement Date” means [●] 2015 (or such later date as may be agreed between the Lender and the Borrower, which shall be no later than 15 days after a resolution of the holders of the Notes has been validly passed in relation to certain amendments to the terms of the Notes as set out in a notice of meeting to such holders dated 26 June 2015), subject to the registration of this Supplemental Loan Agreement with the National Bank of Ukraine.
| 5 | Assignments and Transfers |
| 5.1 | Binding Agreement |
This Supplemental Loan Agreement shall be binding upon and enure to the benefit of each party hereto and its or any subsequent successors and assigns.
| 5.2 | Provisions of the Loan Agreement Apply |
The provisions of Clause 19.2 (No Assignments and Transfers by the Borrower) and 19.3 (Assignments by the Lender) of the Loan Agreement shall apply to this Supplemental Loan Agreement as if the same were repeated in full mutatis mutandis.
| 6 | Status of the Loan Agreement |
Save for the amendments to the Loan Agreement effected by this Supplemental Loan Agreement, all terms and conditions of the Loan Agreement shall remain in full force and effect and the Loan Agreement with effect from the Effective Date shall be read and construed as one document with this Supplemental Loan Agreement.
| 7 | Contracts (Rights of Third Parties) Xxx 0000 |
Other than the Trustee, a person who is not a party to this Supplemental Loan Agreement has no rights under the Contracts (Rights of Third Parties) Xxx 0000 to enforce any term of this Supplemental Loan Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
| 8 | Law and Arbitration |
| 8.1 | Governing Law |
This Supplemental Loan Agreement and any non-contractual obligations arising out of or in connection with it are governed by, and shall be construed in accordance with, English law.
| 8.2 | Arbitration |
The parties irrevocably agree that any dispute arising out of or connected with this Supplemental Loan Agreement, including a dispute as to the validity, existence or termination of this Supplemental Loan Agreement or the consequences of its nullity and/or this Clause 8.2 (a “Dispute”), shall be resolved by arbitration in London, England, conducted in the English language by three arbitrators, in accordance with the rules of the London Court of International Arbitration (the “LCIA”) (the “LCIA Rules”), which rules are deemed to be incorporated by reference into this Clause, save that Article 6 shall not apply and Article 5.6 of the LCIA Rules shall be amended as follows: “unless the parties agree otherwise, the third arbitrator, who shall act as chairman of the tribunal, shall be nominated by the two arbitrators nominated by or on behalf of the parties. If he is not so nominated within 30 days of the date of nomination of the later of the two party-nominated arbitrators to be nominated, he shall be chosen by the LCIA”. The parties agree to exclude the jurisdiction of the English courts under section 45 of the Arbitration Xxx 0000.
| 8.3 | Service of Process |
The Borrower agrees that the service of process relating to any Dispute in England and Wales may be by delivery to Law Debenture Corporate Services Limited at its registered office for the time being, currently at Xxxxx Xxxxx, 000 Xxxx Xxxxxx, Xxxxxx XX0X 0XX. If such person is not or ceases to be effectively appointed to accept service of process, the Borrower shall immediately appoint a further person in the United Kingdom to accept service of process on its behalf and, failing such appointment within 15 days, the Lender (and, following the execution of the Loan Administration Assignment, the Trustee) shall be entitled to appoint such a person by written notice to the Borrower. Nothing in this Clause shall affect the right of the Lender (and, following the execution of the Loan Administration Assignment, the Trustee) to serve process in any other manner permitted by law.
| 9 | Single Agreement |
This Supplemental Loan Agreement shall be read as one with the Loan Agreement so that all references in the Loan Agreement to “this Agreement” are deemed to refer also to this Supplemental Loan Agreement, provided always that in the event of any inconsistency between the Loan Agreement and this Supplemental Loan Agreement, the provisions of this Supplemental Loan Agreement shall override inconsistent provisions of the Loan Agreement.
| 10 | Counterparts |
This Supplemental Loan Agreement may be executed in any number of counterparts, each of which shall be deemed an original. Any party may enter into this Supplemental Loan Agreement by executing any such counterpart.
| 11 | Language of Agreement |
This Supplemental Loan Agreement has been executed in both the English language and the Ukrainian language. In the event of any discrepancies between the English and Ukrainian versions of this Supplemental Loan Agreement, or any dispute regarding the interpretation of any provision in the English or Ukrainian versions of this Supplemental Loan Agreement, the English version of this Supplemental Loan Agreement shall prevail and any question of interpretation shall be addressed solely in the English language.
| 12 | NBU Registration and Signing of the Supplemental Trust Deed |
The amendments to the Loan Agreement effected by this Supplemental Loan Agreement shall become effective following (and not earlier than) their registration with the NBU (which shall be evidenced by a registration notice issued by the Borrower and a registration notation of the NBU) on the date of execution and delivery of the Supplemental Trust Deed between the Lender and the trustee relating to the Notes (the “Effective Date”).
AS WITNESS the hands of the duly authorised representatives of the parties hereto the day and year first before written.
UK SPV CREDIT FINANCE PLC
By:
PUBLIC JOINT-STOCK COMPANY COMMERCIAL BANK “PRIVATBANK”
By:
