TIDM35QO
RNS Number : 1566U
Ukraine (State Road Agency of)
28 July 2022
State Road Agency of UKRAINE ( Ukravtodor)
(the "Issuer")
MULTIPLE SERIES TWO LIMB WRITTEN RESOLUTION OF HOLDERS
(the "Written Resolution")
of its outstanding
U.S.$700,000,000 6.250 per cent. Guaranteed Amortising Notes due
2028 (Regulation S ISIN: XS2357277149, Common Code: 235727714; Rule
144A ISIN: US857329AA47, CUSIP: 857329AA4)
(the "Notes")
To: UKRAVTODOR
9 Fizkultury Street
Kyiv, 03150
Ukraine
The Bank of New York Mellon, London Branch (the "Fiscal
Agent")
One Canada Square
London E14 5AL
United Kingdom
We refer to the Notes issued subject to and with the benefit of
the agency agreement dated 24 June 2021 between Ukravtodor, The
Bank of New York Mellon SA/NV, Dublin Branch (the "Registrar") and
the Bank of New York Mellon, London Branch (the "Fiscal Agent",
"Principal Paying Agent", and "Transfer Agent") (the "Agency
Agreement"). Capitalised terms used but not defined herein shall,
unless the context otherwise requires, have the meanings set out in
the terms and conditions of the Notes as set out in Schedule 5 to
the Agency Agreement (the "Conditions") or the consent solicitation
memorandum prepared by the Issuer dated 28 July 2022 relating to
the Notes, as supplemented from time to time (the "Consent
Solicitation Memorandum") (as applicable).
The Issuer has requested that the Holders consent to the
Proposed Modifications, in accordance with the terms of the Consent
Solicitation described in the Consent Solicitation Memorandum.
General
The Notes are represented by global certificates. The
unrestricted global certificate is deposited with the common
depositary for and on behalf of Euroclear ("Euroclear") and
Clearstream Banking, S.A. ("Clearstream") and is registered in the
name of The Bank of New York Depository (Nominees) Limited as
nominee for the common depositary. The restricted global
certificate is deposited with a custodian for, and registered in
the name of, Cede & Co. as nominee of, the Depository Trust
Company ("DTC" and together with Euroclear and Clearstream, the
"Clearing Systems"). For the purposes of this Written Resolution, a
"Holder" shall be deemed to include holders and beneficial owners
of the Notes in the books of the Clearing Systems.
In the context of managing Ukraine's public external debt
obligations, Ukraine, the guarantor of the Notes, is separately
seeking the consent of holders of its outstanding Eurobonds (the
"Eurobonds"), pursuant to a separate consent solicitation (the
"Eurobond Consent Solicitation") to certain proposed modifications
to the terms and conditions of the Eurobonds (the "Eurobond
Proposed Modifications"). Condition 12(a)(ix) of the Notes allows
for the Notes to be aggregated with other debt securities of
Ukraine, the guarantor of the Notes, for purposes of passing the
Written Resolution. Pursuant to Condition 12(a)(ix) of the
Conditions, the consents of holders of the Eurobonds shall be
counted for the purposes of determining whether the Requisite
Consents have been reached in relation to the Written Resolution of
the Issuer, provided that the relevant Eurobond requisite consents
have been reached in relation to the Eurobond Proposed
Modifications and such Eurobond Proposed Modifications have become
effective as further described in the consent solicitation
memorandum dated 20 July 2022, as amended on 22 July 2022 in
respect of the Eurobond Consent Solicitation.
The Proposed Modifications will become effective with respect to
the Notes only if (i) valid Consents from (x) holders of at least
662/3 per cent. of the aggregate principal amount of all the
Eurobonds and Securities outstanding at the Record Date (taken in
aggregate) and (y) Holders of more than 50 per cent. of the
aggregate principal amount of the Securities outstanding at the
Record Date, subject to re-designation (as set forth below), have
been validly delivered and accepted pursuant to the terms of the
Consent Solicitation Memorandum, (ii) the Eligibility Condition has
been satisfied, and (iii) the other conditions described in this
Consent Solicitation Memorandum have been either satisfied or
waived by Ukravtodor (in its sole discretion), and (iv) upon
execution of the Amendment Documents in accordance with Condition
12(d) (Multiple Series Aggregation - Two limb voting) of the
Conditions.
Overview Presentation
Ukravtodor, in conjunction with Ukraine, has prepared an
overview of the Consent Solicitation, the Eurobond Consent
Solicitation and the GDP-linked Securities Consent Solicitation
(the "Overview Presentation"). The Overview Presentation is
available on the Consent Website operated by the Information and
Tabulation Agent.
Documents Available for Inspection
Copies of the documents set out below may be inspected by
Holders at the offices of the Information and Tabulation Agent
specified herein at any time during normal business hours on any
weekday (Saturdays, Sundays and bank and other public holidays
excepted) upon reasonable request or may be provided by email to a
Holder following their prior written request to the Information and
Tabulation Agent and provision of proof of holding and identity (in
a form satisfactory to the Information and Tabulation Agent).
Holders may also inspect copies of the documents set out below
on the Consent Website:
https://projects.morrowsodali.com/Ukravtodor.
-- the Consent Solicitation Memorandum;
-- the Agency Agreement;
-- the Deed of Covenant;
-- the Deed of Guarantee;
-- the forms of the Amendment Documents;
-- the Overview Presentation; and
-- this Notice of Written Resolution.
MULTIPLE SERIES TWO LIMB WRITTEN RESOLUTION
On behalf of Holder(s) holding the aggregate principal amount
specified above of the Notes for the time being outstanding, we
hereby resolve, confirm and instruct the Issuer and the Fiscal
Agent , the Principal Paying Agent and the Registrar , (in reliance
on the instructions received through the Clearing Systems) that,
subject to the Requisite Consents for the Notes having been
received and the Eligibility Condition having been satisfied, the
Holders:
1. assent to and approve, unconditionally and irrevocably, the
proposed modifications to the Conditions and entry by the Issuer
into the First Supplemental Agency Agreement in the form set out on
https://projects.morrowsodali.com/Ukravtodor, so as to take effect
as of the Effective Date:
a. To insert the following paragraphs (a) and (b) in Condition 4
(Interest) immediately prior to the sentence commencing "Interest
will be paid subject...", and the remaining text of Condition (4)
(Interest) shall be a new paragraph (c) of Condition (4)
(Interest):
"(a) Notwithstanding the foregoing, any interest payment not
paid on any Interest Payment Date falling during the Deferral
Period shall be deferred and shall itself bear interest at the Rate
of Interest and, for so long as the same remains unpaid, such
deferred interest (together with the interest accrued thereon)
shall constitute "Deferred Interest". Any Deferred Interest shall
be due and payable on the Deferred Interest Payment Date (as
defined below) without any grace period applicable thereafter,
provided that the Issuer has the right to (i) upon not less than 15
nor more than 30 days' prior notice to the Noteholders in
accordance with Condition 14 (Notices), partially prepay the
Deferred Interest on the Notes at any time during the Deferral
Period and (ii) instead of paying the Deferred Interest on the
Deferred Interest Payment Date, on and effective as of such date
and as further described in Condition 4(b) below, increase the
aggregate principal amount of the Notes outstanding through the
issuance of further Notes in the amount equal to the remaining
Deferred Interest (the "Additional Notes"), following which the
Notes will bear interest at the Rate of Interest on such increased
aggregate principal amount from and including the Deferred Interest
Payment Date and the Issuer's obligation to pay the Deferred
Interest shall be deemed to be discharged. The deferral of interest
payments in accordance with this Condition 4 shall not constitute
an Event of Default by the Issuer for the purposes of these
Conditions, the Agency Agreement or for any other purpose.
Calculations of the Deferred Interest shall be made solely by the
Principal Paying Agent.
(b) If the Issuer elects to issue the Additional Notes as
described in Condition 4(a) above, then no later than three
business days prior to the Deferred Interest Payment Date, the
Issuer shall deliver an irrevocable notice to the Fiscal Agent, the
Registrar and the Noteholders in accordance with Condition 14
(Notices), specifying the amount of Deferred Interest to be settled
by issuance of Additional Notes which amount shall correspond to
the aggregate principal amount of any Additional Notes to be issued
by the Issuer on the Deferred Interest Payment Date. In this event,
on the Deferred Interest Payment Date:
(i) the Issuer shall issue the Additional Notes having an
aggregate principal amount equal to the remaining Deferred
Interest. So long as the Notes are represented by Note
Certificates, Note Certificates dated as of the Deferred Interest
Payment Date, shall be issued to Noteholders in respect of such
Additional Notes in an aggregate principal amount equal to the
amount of the Deferred Interest (rounded down to the nearest
U.S.$1.00);
(ii) the Issuer shall execute an amended and restated deed of
covenant, substantially in the form of the Deed of Covenant (as
amended or supplemented) except that it shall reflect the principal
amount of the Notes as increased by the issuance of the Additional
Notes ;
(iii) the Issuer shall procure that the Guarantor execute an
amended and restated deed of guarantee, substantially in the form
of the Deed of Guarantee (as amended or supplemented) except that
it shall reflect the principal amount of the Notes as increased by
the issuance of the Additional Notes;
(iv) the "authorised denomination" (as defined in Condition 1(a)
(Form and denomination)) shall be amended to U.S.$200,000 and
integral multiples of U.S.$1.00 in excess thereof, provided that
while the Notes may only be traded in authorised denominations, for
the purposes of the relevant clearing systems the denominations are
considered as U.S.$1.00. For the avoidance of doubt, the relevant
clearing systems are not required to monitor or enforce the
authorised denomination ; and
(v) all references in these Conditions to "principal" of the
Notes shall be deemed to include the principal amount of the Notes
as increased by the issuance of the Additional Notes.
So long as the Notes are represented by the Global Notes, in the
event that the Issuer elects to issue the Additional Notes as
described in Conditions 4(a) and (b) above, the relevant Global
Note shall be annotated to take account of such issuance of
Additional Notes by increasing the aggregate principal amount of
the outstanding Global Notes, effective as of the Deferred Interest
Payment Date, by an amount equal to the amount of the remaining
Deferred Interest as of the Deferred Interest Payment Date (rounded
up to the nearest U.S.$1.00).
In these Conditions:
"Deferral Period" means the period commencing on (and including)
24 December 2022 and ending on (but excluding) (i) 24 December
2024, or (ii) any earlier date notified by the Issuer to
Noteholders with not less than 15 nor more than 30 days' prior
notice in accordance with Condition 14 (Notices) on which the
Deferred Interest is paid in full in relation to the Notes (each
such date, the "Deferred Interest Payment Date")."
b. To replace Condition 5(a) (Amortisation and Final Redemption) with the following:
"Condition 5(a) (Amortisation and Final Redemption)
Unless previously redeemed, or purchased and cancelled, the
Notes will be redeemed in four equal instalments on each
amortisation date specified in column (A) in the table below (each,
an "Amortisation Date"). Each authorised denomination of U.S.$1,000
of the Notes shall be redeemed at the related amortisation amount
specified in column (B) in the table below (each, an "Amortisation
Amount"), payable as provided in Condition 6 (Payments). The
outstanding principal amount of each authorised denomination of
U.S.$1,000 of the Notes shall be reduced by the Amortisation Amount
so paid by the Issuer on the relevant Amortisation Date for all
purposes with effect from such payment on the relevant Amortisation
Date such that the outstanding principal amount of each authorised
denomination of U.S.$1,000 of the Notes following such payment
shall be as specified in column (C) in the table below. If payment
of the relevant Amortisation Amount is improperly withheld or
refused in respect of a Note, the relevant principal amount of such
Note will remain outstanding until whichever is the earlier of (i)
the day on which payment in full of such portion of outstanding
principal is received by or on behalf of the relevant Noteholder
and (ii) the day which is seven days after the Fiscal Agent has
notified the Noteholders in accordance with Condition 14 (Notices)
that it has received all sums due in respect of the Notes up to
such seventh day (except to the extent that there is any subsequent
default in payment). The Notes shall be finally redeemed at their
final Amortisation Amount on 24 June 2030 (the "Maturity Date").
Notwithstanding the foregoing, if the Issuer elects to issue the
Additional Notes as described in Condition 4(a) (Interest), (i) all
references in this Condition 5(a), including in the table below, to
(i) "U.S.$1,000" shall be amended to U.S.$1, (ii) "250.00" shall be
amended to 0.25, (iii) "500.00" shall be amended to 0.50 and (iv)
"750.00" shall be amended to 0.75.
Amortisation Date Amortisation Amount Outstanding Principal
(A) in respect of each Amount of each
authorised denomination authorised
of U.S.$1,000 Denomination of
of the Notes U.S.$1,000 of the
(B) Notes
(C)
(in U.S.$)
24 December 2028 250.00 750.00
24 June 2029 250.00 500.00
24 December 2029 250.00 250.00
Maturity Date 250.00 0.00
In these Conditions, references to "principal" shall, unless the
context requires otherwise, be deemed to include any Amortisation
Amount and references to the "due date" for payment shall, unless
the context requires otherwise, be deemed to include any
Amortisation Date."
c. To replace Condition 8(a) (Events of Default - Non payment) with the following:
"Subject to the provisions of Condition 4 (Interest), the Issuer
or the Guarantor fail to pay any amount of principal or interest in
respect of the Notes and the default continues for a period of 30
days."
d. To replace Condition 8(c) (Events of Default - Indebtedness) with the following:
"Save in respect of any default or breach in relation to any
failure of the Guarantor to pay any interest, principal or any
other amounts due in respect of, and solely in accordance with the
terms of, any series of Guarantor Outstanding Eurobonds, in each
case during the relevant Deferral Period (as defined in the
relevant terms and conditions of the Guarantor Outstanding
Eurobonds), any Indebtedness shall become due and payable prior to
the stated maturity thereof following a default or any security
therefore becomes enforceable or the Issuer or the Guarantor fails
to make any payment of any Indebtedness on the due date for payment
thereof or, if applicable, at the expiration of any grace period
originally applicable thereto or any guarantee of, or indemnity in
respect of, any Indebtedness of any other Person given by the
Issuer or the Guarantor shall not be honoured when due and called
upon; provided that the aggregate amount of such Indebtedness is in
excess of U.S.$50,000,000 (or its equivalent in any currency or
currencies) and provided further that the acceleration of the
maturity of or any payment default in respect of any Old Notes or
any Guarantor Dissenting Eurobonds will not constitute an Event of
Default."
e. To replace Condition 8(e) (Events of Default -Moratorium) with the following:
"Save in respect of any suspension of payments of interest,
principal or any other amounts due in respect of, and solely in
accordance with the terms of, any series of Guarantor Outstanding
Eurobonds, in each case during the relevant Deferral Period (as
defined in the relevant terms and conditions of the Guarantor
Outstanding Eurobonds), if the Issuer or the Guarantor shall
suspend payment of, or admit its inability to pay, Indebtedness or
any part thereof, or declare a general moratorium on or in respect
of Indebtedness or any part thereof or anything analogous to the
foregoing shall occur, in each case other than with respect to Old
Notes or any Guarantor Dissenting Eurobonds.
In these Conditions:
"Guarantor Dissenting Eurobonds" means [ Series of Eurobonds
that were not amended as a result of the Eurobond Consent
Solicitation ];
"Guarantor Outstanding Eurobonds" means each of the outstanding
[Series of Eurobonds that were amended as a result of the Eurobond
Consent Solicitation ] as amended following the consent
solicitation described in the consent solicitation memorandum
published by Ukraine on 20 July 2022, as supplemented from time to
time. The consent solicitation memorandum is available to
Noteholders at https://projects.morrowsodali.com/Ukraine ."
2. waive any breach or any alleged breach whatsoever of any
obligation, or any default or any alleged default whatsoever, under
or in respect of the Securities, the Conditions, the Deed of
Covenant, the Agency Agreement or the Deed of Guarantee that may
occur or may be capable of occurring by the threat of, in
anticipation of, in connection with, or as a result of, the
modifications, waivers and authorisations set out in paragraph (1)
above ;
3. assent to all other such modifications to the Conditions, the
Deed of Covenant, the Agency Agreement and the Deed of Guarantee as
are necessary for or expedient to effect the modifications, waivers
and authorisations set out in paragraph (1) above;
4. irrevocably authorise, direct, request, instruct and empower
the Fiscal Agent, the Principal Paying Agent and the Registrar
to:
a. concur with the modifications and waivers referred to in
paragraphs (1) and (2) of this Multiple Series Two Limb Written
Resolution and, in order to give effect to and implement such
modifications, on or shortly after the passing of this Multiple
Series Two Limb Written Resolution and the satisfaction of the
conditions to the Consent Solicitation described in the Consent
Solicitation Memorandum (as defined below ), to execute the First
Supplemental Agency Agreement substantially in the form set out on
the Consent Website (as defined in the Consent Solicitation
Memorandum) with such modifications (if any) thereto as the Fiscal
Agent, the Principal Paying Agent and the Registrar shall request
or approve; and
b. concur in and to execute and do, all such other deeds,
instruments, acts and things and to take steps (in the case of the
Fiscal Agent, the Principal Paying Agent and the Registrar , at the
cost of the Issuer) as may be necessary, desirable or expedient as
certified by the Issuer to the Fiscal Agent, the Principal Paying
Agent and the Registrar to carry out and give effect to this
Multiple Series Two Limb Written Resolution and the implementation
of the modifications and waivers referred to in paragraphs (1) and
(2) of this Multiple Series Two Limb Written Resolution and
acknowledge that any such steps will not subsequently be called
into question by the Noteholders ;
5. assent to the execution of the Amended and Restated Deed of
Guarantee by the Guarantor substantially in the form set out on the
Consent Website;
6. sanction and assent to every abrogation, amendment,
modification, compromise or arrangement in respect of the rights of
the Noteholders against the Issuer or against any of its property
whether such rights shall arise under the Agency Agreement or
otherwise in or resulting from the amendment and modification
referred to in paragraphs (1) and (2) above;
7. resolve to irrevocably waive any claim that the Noteholders
may have against the Fiscal Agent, the Principal Paying Agent and
the Registrar arising as a result of any loss or damage which the
Noteholders may suffer or incur as a result of the Fiscal Agent,
the Principal Paying Agent and the Registrar acting upon this
Multiple Series Two Limb Written Resolution or its implementation,
the modifications and waivers referred to in paragraphs (1) and (2)
of this Multiple Series Two Limb Written Resolution or the
implementation of those modifications (including but not limited to
circumstances where it is subsequently found that this Multiple
Series Two Limb Written Resolution is not valid or binding on the
Noteholders) and the Noteholders further confirm that they will not
seek to hold the Fiscal Agent, the Principal Paying Agent and the
Registrar liable for any such loss or damage save in relation to
its or their own gross negligence, wilful default or fraud, as
applicable;
8. discharges, exonerates and indemnifies the Fiscal Agent, the
Principal Paying Agent and the Registrar from all liability, costs
or expenses whatsoever (including, without limitation, in respect
of taxes, duties, levies, imports and other charges) for which it
may have become or may become liable under the Agency Agreement,
the Deed of Covenant, the Deed of Guarantee or the Notes in respect
of any act or omission, in connection with the Proposal, the
Proposed Modifications, the Amendment Documents and this Multiple
Series Two Limb Written Resolution or its implementation, the
modifications and waivers referred to in paragraph (1) of this
Multiple Series Two Limb Written Resolution or the implementation
of those modifications, and any act or omission taken in connection
with paragraphs (4) and (5) of this Multiple Series Two Limb
Written Resolution, even if it is found subsequently that there is
a defect in the passing of this Multiple Series Two Limb Written
Resolution, provided that, if the Fiscal Agent, the Principal
Paying Agent and the Registrar fails to show the degree of care and
diligence required of it as an agent and registrar, nothing in this
Multiple Series Two Limb Written Resolution shall relieve the
Fiscal Agent, the Principal Paying Agent and the Registrar from or
against any liability which would otherwise attach to it in respect
of any gross negligence, wilful default or fraud of which it may be
guilty;
9. acknowledge that each of the Fiscal Agent, the Principal
Paying Agent and the Registrar is released from and against any
claim or cause of action, judgment, action, proceeding or any other
liability whether present or future, prospective or contingent, in
each case, in connection with or relating to the negotiation,
preparation, or execution of this Multiple Series Two Limb Written
Resolution, the First Supplemental Agency Agreement or the
implementation thereof, whatsoever claimed against any of them by
any Noteholders;
10. acknowledge that the following terms, as used in this
Multiple Series Two Limb Written Resolution, shall have the
meanings given below:
"Consent Solicitation" means the invitation by the Issuer to the
Noteholders to consent to the modification of the Conditions
relating to the Notes and other related documents, as described in
the Consent Solicitation Memorandum and as the same may be amended
in accordance with its terms; and
"Consent Solicitation Memorandum" means the consent solicitation
memorandum dated 28 July 2022 prepared by the Issuer in relation to
the Consent Solicitation as may be supplemented from time to
time;
11. acknowledges that the Fiscal Agent is not required to
request or receive any legal opinions in respect of the proposals
set out in this Multiple Series Two Limb Written Resolution or its
implementation;
12. declares that it is a condition to the effectiveness of this
Multiple Series Two Limb Written Resolution that the Requisite
Consents will be satisfied by Eligible Holders only, irrespective
of any participation in the Consent Solicitation of Ineligible
Holders;
13. acknowledges and agrees that for the purposes of the Consent
Solicitation, the consents of Eligible Holders of Eurobonds in
relation to the Eurobond Proposed Modifications (each as defined in
the Consent Solicitation Memorandum) shall be counted for the
purposes of determining whether the Requisite Consents have been
reached in relation to the Written Resolution, subject to
conditions as further described herein provided that (i) the
Requisite Consents (as defined in the Eurobond Consent Solicitation
Memorandum) in relation to the Eurobond Proposed Modifications
described in the Eurobond Consent Solicitation Memorandum have been
reached, (ii) the Eligibility Condition (as defined in the Eurobond
Consent Solicitation Memorandum) has been satisfied and (iii) the
Eurobond Proposed Modifications have become effective as further
described in the Eurobond Consent Solicitation Memorandum; and
14. resolve that this Multiple Series Two Limb Written
Resolution shall take effect as an Extraordinary Resolution and for
all purposes be as valid and effective as an Extraordinary
Resolution passed at a meeting of the Noteholders duly convened and
held.
DATED as of................................................
By:
Name:
Title:
The Bank of New York Depository (Nominees) Limited , as nominee
of the common depositary acting solely on behalf of and on the
instructions of one or more persons who are for the time being
shown in the records of the Clearing Systems as holding, in
aggregate,____ per cent. of the principal amount of the Notes for
the time being outstanding.
DATED as of................................................
By:
Name:
Title:
Morrow Sodali Limited , in its capacity as Information and
Tabulation Agent and proxy acting solely on behalf of and on the
instructions of one or more persons who are for the time being
shown in the records of the Clearing Systems as holding, in
aggregate,____ per cent. of the principal amount of the Notes for
the time being outstanding.
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END
CIRPPUUGMUPPGQR
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