Execution Version Strictly Private and Confidential
1 April 2017 Dear Sirs, Re: Agrokor – Short Term Standstill 1
Introduction
1.1
We refer to the agreements and any associated other agreements, arrangements and legal instruments (such documents as in effect on the date of this letter, the “Agreements”) between the creditors listed in Schedule 1 (List of Creditors) whose total exposures (and/or credit limits extended) to the Group (as defined below) are each set out in that Schedule (the “Creditors”) on the one side, and Agrokor d.d. (the “Debtor”) and/or the subsidiaries of the Debtor listed in Schedule 2 (Group) hereto (the Debtor and such subsidiaries together, the “Group”), on the other side.
1.2
The Group is taking steps to avoid certain operational cashflow-related financial difficulties. The Group has proposed that the Creditors enter into a standstill on the terms set out in this letter to facilitate the efforts of management of the Group to (i) ensure the continued operations of the Group; (ii) preserve the value of the Group; (iii) ensure a more stable basis for more flexible negotiations in connection with a restructuring of the Group and (iv) so as to address the immediate liquidity needs of the Group, to facilitate the Debtor and/or certain members of the Group entering into short-term financing arrangements up to an aggregate amount of €300,000,000 (the “New Monies Financing”).
1.3
This letter shall come into effect on the date (the “Effective Date”) on which: (a)
the Creditors set out in the signature pages attached to this letter have executed this letter; and
(b)
the Debtor has completed the information required in Schedule 1 (List of Creditors) and Schedule 2 (Group) and has executed this letter.
Following the Effective Date, any other secured or unsecured Creditor may accede to this letter (any such Creditor an “Acceding Creditor” and, together with the other Creditors party to this letter, the “Participating Creditors”) by way of an accession undertaking substantially on the form set out in Schedule 3 (Participating Creditor Accession Undertaking), provided that the Surviving Clauses (as defined in clause 2 (Certain Definitions) below) shall be deemed to have come into effect on the date of this letter. 1.4
Each member of the Group represents and warrants that information provided in Schedule 1 (List of Creditors) and Schedule 2 (Group) is true, accurate and complete. This representation is made on the date of this letter and is deemed to be repeated by each member of the Group on each day of the Standstill Period (as defined in clause 3 (Standstill)) by reference to the facts then existing.
2
Certain Definitions In this letter: “Approval Confirmation Date” means the date on which each Participating Creditor has confirmed to every other Participating Creditor and the Debtor that it has obtained any authorisation or consent
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required in connection with the entry into this letter with respect to the rolling seven-day standstill period under clause 3.1 below. “by value” in relation to any Participating Creditor claims means the disbursed principal value of such claims. “Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in Vienna, Moscow, Zagreb and London. “Event of Default” means an event of default as that term or any other similar term is defined in any of the Agreements and, for the avoidance of doubt, includes any event of default arising from entry into the arrangements under this letter or similar standstill arrangements with other creditors. “Existing Creditor Security” means any guarantees or security or quasi-security of any Participating Creditor under any Agreement as at the date of this letter. “Permitted Payments” means any payments made by the Debtor or any member of the Group in connection with any BoE Program and in connection with any payments effected in accordance with clause 3.5 below, which are made in the ordinary course of business on market terms and within the limits existing as of the date hereof and set out in Schedule 1 (List of Creditors). “Surviving Clauses” means clauses 5.1(i) (Undertakings), 9 (Governing Law and Jurisdiction) and 11 (Miscellaneous) of this letter. 3
Standstill
3.1
For the period from and including the Effective Date to the date that is seven days from the Effective Date (the “Standstill Period”, which term shall be interpreted in accordance with clause 3.2 below), each Participating Creditor agrees (on the terms and subject to the conditions of this letter) that it shall not take any Enforcement Action (as defined below) that it would otherwise be entitled to take under any of the Agreements following the occurrence of an Event of Default.
3.2
Unless otherwise determined by the Participating Creditors representing at least 50% (by value) of the Participating Creditors no later than 2 Business Days before the end of the Standstill Period, the Standstill Period shall automatically be extended for successive seven-day periods until this letter is terminated in accordance with clause 7 (Termination) below.
3.3
In this letter, “Enforcement Action” means any action of any kind in relation to any liability of any member of the Group under any Agreement to: (a)
declare such amount of a member of the Group due and payable or otherwise seek to accelerate payment of any such amount due;
(b)
demand from a member of the Group any security, quasi-security, guarantee, payment, prepayment, or repayment of any such amount, including initiating any in court or out of court procedure against a member of the Group for collection of any such amount;
(c)
exercise or enforce any right under any guarantee or any right in respect of any security granted by any member of the Group or any set-off or combination of accounts of a member of the Group;
(d)
exercise or enforce any right under any mortgage, pledge, assignment, bill of exchange, debenture bond or any other similar instrument (including for the avoidance of doubt any promissory note) issued by any member of the Group under the laws of any jurisdiction as credit-enhancement for debt repayment;
(e)
settle any default interest or any other penalty or cost; 2
(f)
take any formal step towards the opening of pre-insolvency, insolvency or similar procedures against any member of the Group in any jurisdiction; or
(g)
sue, claim, institute, or continue any legal action against any member of the Group (other than any action which is required for the purpose of enforcing the terms of this letter).
3.4
Notwithstanding the provisions of clause 3.3, each Participating Creditor that is providing financing to any counterparty (such as suppliers) of the Debtor or other member of the Group (where such counterparty may itself be a member of the Group), through discounting bills of exchange issued by the Debtor and/or any other member of the Group (a “BoE Program”) may present such bills of exchange for payment to a member of the Group and any financial institution prescribed within such bill of exchange and receive and retain any payment made (but not to take any further Enforcement Action) by a member of the Group or the relevant financial institution under such bill of exchange following its presentation. Each Participating Creditor will negotiate in good faith with counterparties to each BoE Program to which it is a party to replace each BoE Program to which it is a party with a working capital facility or similar financial instrument and, in the event that such negotiations do not result in formal agreement, the relevant Participating Creditor shall be authorized to replace its limits extended under the relevant BoE Program with equivalent limits under any other legal form.
3.5
The rights of Participating Creditors under clause 3.4 above shall extend to any factoring or other form of discounting of receivables in the course of any BoE Program.
3.6
Each Participating Creditor agrees not to decrease its respective limit set out in Schedule 1 (List of Creditors) during the Standstill Period, whereby “not decreasing the limit” should be read and construed as a commitment on the part of any Participating Creditor to the other parties to this letter to make further financing available if and to the extent the Debtor and any other member of the Group reduce their existing financial indebtedness towards that Participating Creditor arising out of such limit. For the avoidance of doubt, this provision does not imply in any way that such Participating Creditors should advance moneys to the extent such advance would result in such Participating Creditor’s credit exposure towards the Group exceeding its respective limit.
3.7
After the termination of the Standstill Period, all the rights and remedies of the Participating Creditors relating to any Event of Default shall immediately, and without the need for further notice, be reinstated in full as if this letter had not been entered into.
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Undertakings
4.1
During the Standstill Period the Debtor shall (and, in the case of paragraphs (g) and (h) below, shall procure that the other members of the Group shall): (a)
on or about the date of this letter, enter into a co-ordination committee of the Participating Creditors (“CoCom”) letter in form and substance satisfactory to all Participating Creditors based on the Loan Market Association form and in accordance with market practice;
(b)
by no later than 21 Business Days from the date of this letter provide to the Participating Creditors in form and substance acceptable to the Participating Creditors: (i)
a zero-report prepared by Deloitte (with the report to be approved by the Debtor or CRO before release) setting out in reasonable detail all financial indebtedness of the Group (present and future, actual and contingent and whether incurred as principal or as surety, including details of intragroup financing arrangements);
(ii)
a cash-flow forecast for the following six months setting out all projected cash inflows and cash outflows broken down month-by-month; 3
(iii)
a report on contemplated disposals of “non-core” assets (setting out in reasonable detail a description of each such relevant asset designated for disposal, an up-to-date valuation and an estimated deadline for disposal and a plan of use of proceeds arising from such asset disposal);
(iv)
on such date and weekly thereafter an updated 13-week liquidity forecast prepared by management of the Group and Alvarez & Marsal, reviewed by Deloitte and approved by the Chief Restructuring Officer (“CRO”) (if a CRO has been appointed); and
(v)
a plan for unwinding, financing or proceeding with any contractual agreements or undertakings of the Debtor and Group with non-affiliated entities and businesses (such as joint ventures, contracts of sale, agreements to sell, sale and lease-back schemes, development contracts (and any similar or comparable transactions or arrangements) as a result of which the Debtor and/or any member of the Group may incur financial liabilities which are of or above (in aggregate) an amount to be agreed in respect of any such contract, investment or arrangement (or series of related contracts, investments or arrangements) or in respect of any individual counterparty (or affiliated counterparties);
(c)
appoint PwC to audit financial statements of the Group (including financial statements for the year which ended on 31 December 2016) based on a scope of work approved from time to time by the CRO, without delay;
(d)
by not later than 7 days from the Effective Date appoint (at its own liability, cost and expense) a person acceptable to the Participating Creditors (acting by at least 50% (by value) of the Participating Creditors) and the Group as CRO of the Group with duties and on terms which are: (i)
fully disclosed in reasonable detail to the Participating Creditors; and
(ii)
agreed by at least 60% (by value) of the Participating Creditors and by the Group;
(e)
prior to its entry into any binding agreements in relation to any New Monies Financing, provide to the Participating Creditors the relevant term sheet, and/or provide the Participating Creditors with the key terms of such New Monies Financing, and confirm the intended and actual use of the proceeds of such New Monies Financing;
(f)
negotiate in good faith a proposal for a long-term restructuring of the business and financial affairs of the Group in coordination with any requisite majority of its creditors to permit its continuation as a going concern and protecting as far as possible the interests of the Group’s creditors (a “Consensual Restructuring”);
(g)
to the extent consistent with directors’ duties in any applicable jurisdiction, not make any filing or seek the protection of any court or court process in any jurisdiction in any manner which could prejudice a Consensual Restructuring;
(h)
provide to the Participating Creditors’ advisers (during business hours on any Business Day and on reasonable notice) access to the premises, books and records of the Group and any information which the Participating Creditors may request in connection with the business, assets, indebtedness, contractual obligations and financial performance of the Group; and
(i)
considering the goals of the Group as described in clause 1.2 above, pay the fees, costs and expenses of the advisors to the Participating Creditors (including, for the avoidance of doubt but without limitation, a financial adviser to be appointed by the Participating Creditors, and legal adviser(s) to the Participating Creditors) in: 4
(i)
assessing the financial condition of the Group;
(ii)
considering, negotiating and agreeing this letter; and
(iii)
considering, negotiating and agreeing any proposal delivered pursuant to paragraph (f) above, and any documents entered into in connection with such proposal,
and to this end shall within 7 Business Days of the Effective Date pay a deposit of EUR 250,000 to a CoCom client account of White & Case (Europe) LLP for the purposes of meeting such fees, costs and expenses (and to pay further amounts to maintain such deposit at such level as amounts are drawn down). 4.2
Any of the dates set out in clause 4.1 above may be extended only by written agreement between the Debtor and at least 50% (by value) of the Participating Creditors.
5
Assignment and transfer
5.1
The Participating Creditors agree that, during the Standstill Period, they shall not assign, transfer, sell or in any other way dispose (directly or indirectly) of their claims under the Agreements unless the relevant assignee or transferee becomes a party to this Agreement as Participating Creditor not later than at the time of such assignment or transfer.
5.2
No member of the Group may assign, transfer, sell or in any other way dispose (directly or indirectly) of any of their rights or obligations under this letter or any Agreement or associated legal instrument.
5.3
No Participating Creditor may assign, transfer, sell or in any other way dispose (directly or indirectly) of their claims under the Agreements to any member of the Group or any affiliate of any member of the Group, or to any natural person or legal entity that may be considered affiliated to any Group member within the meaning of the term “affiliated person” (povezana osoba) as it is defined under the relevant laws and regulations in Republic of Croatia.
6
Continuing payments
6.1
For the avoidance of any doubt, during the Standstill Period, the Debtor and the members of its Group will continue to make payments required for their regular day-to-day operations (including any lease, operating lease and/or rental payments), but not the payment of any interest or principal amounts on any indebtedness of any member of the Group to any Participating Creditor (other than servicing of credit cards in the ordinary course).
6.2
Clause 6.1 above shall not apply to any Permitted Payment.
7
Termination
7.1
Other than in respect of the Surviving Clauses, Participating Creditors representing at least 50% (by value) of the Participating Creditors may elect to terminate this letter with immediate effect if: (a)
the Debtor or any member of the Group breaches any term of this letter;
(b)
any expropriation occurs of any material asset of the Group;
(c)
any material change occurs in any laws or regulations (including any interpretation thereof) relating to insolvency or regulating the compulsory or voluntary administration and/or management of distressed companies or corporations which change may reasonably be considered to be detrimental to the interests of the Participating Creditors or the objectives set out in this letter; 5
(d)
any Enforcement Action is taken in order to settle or secure any indebtedness for a sum in excess of EUR 100,000 by any person other than a Participating Creditor against the Debtor or any member of the Group;
(e)
any Enforcement Action is taken by a Participating Creditor against the Debtor or other member of the Group; or
(f)
the Debtor or any other member of the Group resolves to enter into or enters into or any preinsolvency, insolvency or any similar proceeding in any jurisdiction.
7.2
Until its Approval Confirmation Date, any Participating Creditor can terminate this letter in respect to such Participating Creditor at the end of the then-current 7-day Standstill Period if such Participating Creditor notifies the other Participating Creditors and the Debtor of its intention to withdraw from this letter no later than 2 (two) Business Day prior to the end of such period.
7.3
In any case, this letter will terminate automatically, save for Surviving Clauses, and without the need for any further notice or action on the part of Participating Creditor(s): (a)
on the date falling 3 months from the date of this letter;
(b)
on the date on which the Participating Creditors and the Group enter into a long-term standstill agreement expressed to replace this letter or a framework or restructuring agreement or other such agreement in relation to a Consensual Restructuring; and
(c)
if Creditors, secured and unsecured, named in Schedule 1 (List of Creditors) holding in aggregate at least: (i)
49% (by value) of the total indebtedness of the Group (as determined in accordance with Schedule 1 (List of Creditors)), and in respect of each of whom the Approval Confirmation Date has occurred, have not become Participating Creditors within a period of 7 Business Days from the date of this letter; or
(ii)
55% (by value of the total indebtedness of the Group (as determined in accordance with Schedule 1 (List of Creditors)), and in respect of each of whom the Approval Confirmation Date has occurred, have not become Participating Creditors within a period of 21 Business Days from the date of this letter.
8
Reservation of Rights
8.1
Save to the extent expressly agreed pursuant to the terms of this letter, the Agreements shall remain in full force and effect.
8.2
The parties hereto acknowledge and agree that neither this letter nor any act or omission on the part of the Participating Creditors during the continuation of the Standstill Period, shall, except as expressly set out in this letter, constitute a waiver of any rights and remedies available to them under any of the Agreements, all of which are hereby expressly reserved.
8.3
Each member of the Group hereby expressly affirms its guarantees and commitments given under or in respect of the Agreements and that such guarantees and commitments shall remain in full force and effect notwithstanding the entry by the Debtor or any Participating Creditor into this letter.
9
Governing Law and Jurisdiction
9.1
This letter agreement and any non-contractual obligations arising out of or in conjunction with it are governed by English law.
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9.2
The courts of England and Wales shall have jurisdiction to hear any dispute arising out of or in connection with this letter.
10
Communication
10.1
Each of the Participating Creditors hereby appoints Zagrebacka banka d.d. to act as its representative to receive any written communication or correspondence between the Debtor or any member of the Group and the Participating Creditors or any Participating Creditor in connection with this letter (the “Participating Creditors’ Representative”) as follows: Zagrebacka banka d.d. FAO: Jupiter SSA Team Trg bana Josipa Jelačića 10 10 000 Zagreb
[email protected] +385 1 6104 401
10.2
The Debtor confirms that each member of the Group has appointed Agrokor d.d. to act as its representative (the “Debtor’s Representative”) to receive any any written communication or correspondence between the Participating Creditors or any Participating Creditor and the Debtor or any member of the Group in connection with this letter as follows: Agrokor d.d. FAO: Hido Lajtman
[email protected] +385 1 489 4111
11
Miscellaneous
11.1
Any notice given under or in connection with this letter must be in English and all other documents provided under or in connection with this letter must be: (a)
in English; or
(b)
if not in English, and if so required by any Participating Creditor, accompanied by a certified English translation and, in this case, the English translation will prevail unless the document is a constitutional, statutory or other official document.
11.2
This letter may be executed in any number of counterparts and this has the same effect as if the signatures on the counterparts were on a single copy of this letter.
11.3
Nothing in this letter constitutes any party to this letter a trustee or fiduciary for any other party.
11.4
No Participating Creditor makes any representation or warranty nor assumes any responsibility to a another Participating Creditor for: (a)
the legality, validity, effectiveness, adequacy or enforceability of any Agreements or any other documents;
(b)
the financial condition of any member of the Group;
(c)
the performance and observance by any member of the Group of its obligations under the Agreements or any other documents; or
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