Commencement of Adjudication of Trade Finance and ECA Claims17.03.2010
JSC BTA Bank (the “Bank”) is commencing an adjudication process for trade finance claims (including those owed to or guaranteed or otherwise covered by export credit agencies (“ECAs”)) in connection with the restructuring of the financial indebtedness of the Bank (the “Restructuring”). The adjudication process will be conducted by Watson, Farley & Williams LLP (the “Adjudicator”). The purpose of this adjudication is the categorisation of the claims of trade finance creditors of the Bank and the amounts of principal related thereto; it being understood that the Adjudicator will not make any determination, adjudication or assessment as to the validity of a creditor's claim. Interest and other sums that may be due and payable to creditors in relation to their claims will be assessed at a later date under a procedure to be agreed between the Bank and its creditors’ steering committee (the “Steering Committee”).
On 17 March 2010, the Bank signed a revised principal commercial terms sheet (the “PCTS”) with the Steering Committee setting out the revised principal commercial terms of the Restructuring. Under the PCTS, certain trade finance claims will be eligible to be restructured by means of a Revolving Committed Trade Finance Facility (the “RCTFF”). Other trade finance claims which are not eligible for the RCTFF will be restructured separately. ECA and trade-related government sector creditor claims will be reviewed by the Adjudicator to confirm that these claims have been correctly classified as ECA or trade-related government sector creditors. The Bank’s ECA creditors, trade-related government sector creditors and trade finance creditors who wish to submit their claims (the “Claims”) to the Adjudicator should follow the steps set out in this notice and submit to the Adjudicator the documentation related to the submission of Claims specified on the Bank’s website at http://www.bta.kz/en/investor. The Adjudicator will then review the documentation supplied to it by both creditors and the Bank. In the meantime, the Bank will promptly, and in any case not later than 19 March 2010, publish on its website a complete list of claims that its trade finance department has booked and that the Bank believes are owed to its creditors.
IN ORDER TO ENSURE THAT THE ADJUDICATION PROCESS IS CONDUCTED IN A TIMELY AND SUCCESSFUL MANNER, YOU ARE ENCOURAGED TO SUBMIT TO THE ADJUDICATOR AS SOON AS POSSIBLE A SEPARATE CLAIMS NOTICE (THE FORM OF WHICH IS SET OUT ON THE BANK'S WEBSITE) IN RELATION TO EACH CLAIM THAT YOU HAVE TOGETHER WITH THE SUPPORTING DOCUMENTATION.
If you believe that you are a trade finance creditor, ECA creditor or trade-related government sector creditor of the Bank and wish to have your Claim considered by the Adjudicator, you must:
- — — by no later than 3:00 p.m. London time on 30 March 2010, submit a separate completed and signed Claims Notice for each Claim to the Adjudicator (via email: email@example.com) together with the supporting documentation to be reviewed by the Adjudicator with a copy to the Bank (via email: firstname.lastname@example.org). It will greatly facilitate the adjudication process if you submit with your Claims Notice a brief summary of the structure of the transaction underlying your Claim and an English translation of any document that is only available in a language other than English. Failure to do so may delay adjudication of your Claim.
After receipt of your Claims Notice, the Adjudicator will then send you a letter containing a Waiver & Release (the form of which, containing key definitions to be used in the adjudication process, is posted on the Bank’s website and has been approved by the Steering Committee). For a Claim to be adjudicated, you must return the countersigned letter containing the Waiver & Release to the Adjudicator by no later than 11:00 a.m. London time on 7 April 2010.
Furthermore, if you are not an ECA or government sector creditor, as a condition to the Adjudicator’s determination being released to you and for RCTFF eligibility, you must also have signed and returned to the Bank (via email: email@example.com) a Co-operation Undertaking Letter (the form of which is posted on the Bank’s website and has been approved by the Steering Committee) by no later than 7 April 2010. If you are not an ECA or government sector creditor and you do not provide the Bank with a signed Co-operation Undertaking Letter, to the extent you hold senior debt of the Bank, your Claim will be allocated into the Senior Package 1, which is the restructuring package for senior unsecured debt as set out in the PCTS, rather than the RCTFF. In the case of ECA creditors and trade-related government sector creditors, we would request that you also provide a Co-operation Undertaking Letter to the Bank no later than 7 April 2010.
The process thereafter is as follows:
- — — The Adjudicator will deliver its determination with respect to the categorisation of your Claim, on the basis set out in the above-mentioned Waiver & Release, by 14 April 2010. The determination of the Adjudicator in relation to a Claim will not include reasons. Furthermore, the Adjudicator will include the amount of principal of your Claim as submitted by you in the aggregate amount of the category in which your Claim will have been allocated in such determination. In parallel, where there is a discrepancy between your and the Bank's calculation of the principal amount owing to you, the Adjudicator will also indicate the amount of principal owing to you according to the Bank’s records.
- — — If you or the Bank disagrees with the determination of the Adjudicator, you and the Bank will have the opportunity, by 12:00 noon London time on 23 April 2010, to supply further documentation and request the Adjudicator to review such determination.
- — — If the Adjudicator identifies a discrepancy between your and the Bank's calculation of the principal amount owing to you under a Claim, the Adjudicator will notify both you and the Bank and you may both supply further documentation in support of your calculations, you may both be requested to answer questions in clarification, explanation or corroboration of evidence submitted by you in respect of that Claim and you may both be requested to contact each other in an attempt to find a resolution to such discrepancy by 12:00 noon London time on 23 April 2010 (the “Cut-Off Time”).
- — — To the extent that such discrepancy with respect to any particular Claim amounts to a difference between the amounts of principal submitted by you and the Bank that is equivalent to less than the lower of 5% of the principal amount submitted by the Bank and U.S. $100,000 (a “Minor Discrepancy”), then if no agreement is reached by you and the Bank by the Cut-Off Time, the Adjudicator will use the average of the discrepant figures provided to the Adjudicator by you and the Bank in such circumstances for its final determination.
- — — To the extent there are discrepancies which are not Minor Discrepancies and no agreement has been reached by you and the Bank in relation to such discrepancies by the Cut-Off Time, and:
- (a) if the discrepancies in respect of which the Adjudicator cannot make a final determination are considered by the Steering Committee to be material, then such discrepancies will be settled by expert determination in accordance with a procedure the structure and terms of which will be settled by 6 May 2010; or
(b) if such discrepancies are not considered by the Steering Committee to be material, then you will both be requested to contact each other in an attempt to find a resolution to the discrepancy relating to your Claimed Amount by 12:00 noon London time on 23 May 2010.
- — — The Adjudicator will deliver its final determination on categorisation and, to the extent an adjudication can be made, on the principal amount of each Claim by 6.00 p.m. London time on 6 May 2010, such determination being final and binding.
If any of our trade finance creditors, ECA creditors or trade-related government sector creditors has any question relating to any of the documents required for the submission of a Claim to the Adjudicator or the adjudication process, it should contact Ms. Dinara Ibrayeva at the Bank (via email: DIbrayeva@bta.kz).
Senior PR Expert /International Activity
PR & Advertising Department/JSC BTA Bank
Tel.: +7 (727) 266-47-99
Fax. +7 (727) 250-12-55