Exhibit 10.1
AGREEMENT
for establishing a credit line
# 250
Kazkommertsbank OJSC
and
Karakudukmunay JSC
This Agreement has been signed in the city of Almaty on May 6, 2002.
by and between
- --------------
(1) Kazkommertsbank OJSC in the person of the Deputy Chairman of the Board
Mr. A. L. Dautov acting on the basis of Power of attorney # 490 dated
January 31, 2002, and
(2) Closed joint-stock company Karakudukmunay in the person of the
Administrative Manager Mr. U. B. Khairov acting on the basis of the
unnumbered Power of Attorney dated April 30, 2002,
hereinafter collectively referred to as "the Parties"
ARTICLE 1. Definitions
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1.1. The terms used in this Agreement shall have the following meaning:
Bank Open Joint-Stock Company Kazkommertsbank
- ----
Company (a) the person having concluded this Agreement
- ------- with the Bank, Close joint-stock company
Karakudukmunay (hereinafter referred to as "the
Borrower") and
(b) the person(s) indicated in Appendix # 1 to the
Agreement (all together and each separately)
having acceded to the Agreement for receiving the
Credit Line (hereinafter referred to as "the
Affiliated persons"), all together [subparagraphs
(a) and (b)] and each separately;
Agreement this Agreement for establishing a credit line
- --------- (including the Accessorial Agreements, all
together and each separately);
Accessorial Agreement (a) agreement(s) [concluded between the Bank and
- --------------------- the Company in the form established by the Bank in
the context of the Agreement and being an integral
part of the Agreement] determining terms and
conditions of granting the Credit Line (method and
procedure of granting the financing, purpose,
amount, term, rate of compensation (interest),
commissions, procedure of repayment of the debt,
etc.) and
(b) agreement(s) concluded between the Bank and
the Company beyond the Agreement, but included by
them into the context of the Agreement and being
an integral part of the Agreement [indicated in
Appendix # 2 to the Agreement], all together
[subparagraphs (a) and (b)] and each separately;
Credit Line financing provided by the Bank for the Company
- ----------- under the terms and conditions of the Agreement in
the forms of credits, overdrafts, transactions
with notes, leasing, bank guarantees, security,
letters of credit, issuing payment cards, and
other forms of financing (crediting);
Term of the Credit Line the time, not later than at the expiry of which
- ----------------------- all sums of the Debt are to have been paid by the
Company to the Bank;
Limit the maximum amount of the Credit Line;
- -----
Period of Availability period of time, during which the Company may
- ---------------------- utilize the Credit Line;
Revolving possibility of the Company to repeatedly utilize
- --------- the Credit Line subject to the Limit and the
Period of Availability;
Available Resources the Limit during the Period of Availability less
- ------------------- the amount of the Credit Line used by the Company
(unpaid to the Bank);
Loan amount of the Credit Line used by the Company
- ---- (unpaid to the Bank) (including [but not limited
to the following amount of]: credits, overdrafts,
leasing received by the Company; letters of credit
opened by the Bank; guarantees, security provided
by the Bank; notes guaranteed and/or accepted by
the Bank; used credit limit on payment cards
issued by the Bank, etc.);
Obligations obligations and liabilities of the Company under
- ----------- the Agreement - all together and each separately;
Security means of ensuring fulfillment of the Obligations
- -------- of the Company provided for by the Agreement
and/or other agreements (including, but not
limited to those indicated in Appendix # 3 to the
Agreement);
Debt amount of (a) the Loan (principal debt) [including
- ---- but not limited to: credits, overdrafts, leasing
received by the Company; letters of credit opened
by the Bank; guarantees, security provided by the
Bank; notes guaranteed and/or accepted by the
Bank; used credit limit on payment cards issued by
the Bank, etc.]; (b) compensation (interest)
charged, commissions for risks, forfeit (fine,
penalties), payments provided for by the Bank
Tariffs; (c) any other commissions and payments to
be paid by the Company to the Bank under the terms
of the Agreement;
Default assertion by the Bank of a fact of:
- ------- (a) occurrence of any circumstances jeopardizing
proper fulfilment of the Obligations by the
Company, and/or (b) breach by the Company of any
Obligation, when any of the Bank's rights provided
for in Article 5.1 of the Agreement arise;
Cross-default arising of any right of the Bank similar to the
- ------------- Bank's rights under the Agreement arising in the
event of Default (provided for in Article 5.1 of
the Agreement) with regard to any other, not
relating to the Agreement, transactions (concluded
between the Bank and the Company and effective
when the Bank asserts the Company's Default under
the Agreement).
1.2. Unless the context implies otherwise, any singular words in the Agreement
shall also mean plural and vice versa, whereas the words referring to
persons shall mean both legal entities and individuals.
ARTICLE 2. Credit Line
- ----------------------
2.1. The Bank establishes the Credit Line for the Borrower subject to the
following terms and conditions:
(a) the Limit of USD 33,000,000.00 (thirty three million dollars 00
cents), including:
(1) revolving part of 3,000,000.00 (three million dollars 00 cents);
(2) non-revolving part of 30,000,000.00 (thirty million dollars 00
cents);
(b) the Term of the Credit Line of 5 (five) years from May 6, 2002, to May
6, 2007, including:
(1) term of the revolving part of the Credit Line, 4 (four) years
from May 6, 2002, to May 6, 2006;
(2) term of the non-revolving part of the Credit Line, 3 (three)
years from May 6, 2002, to May 6, 2005;
(c) the Period of Availability of 3 (three) years, including:
(1) for the revolving part of the Credit Line, 3 (three) years;
(2) for the non-revolving part of the Credit Line, up to 1 (one)
month;
(d) _______________ of the amount of the Limit for use in the form of
overdrafts with the Period of Availability up to _______________;
(e) _______________ of the amount of the Limit for use on payment cards
issued by the Bank; on terms of security, fixed term, repayment, and
compensation.
2.2. Considering that the Borrower:
(a) applied to the Bank with a request to extend the Agreement to the
Affiliated persons and to grant the Credit Line to the Affiliated
persons subject to the same terms that to the Borrower;
(b) unconditionally and irrevocably assumes full joint responsibility to
the Bank on obligations of any and all of the Affiliated persons under
the Agreement and empowers the Bank to make demands on the obligations
of any and all of the Affiliated persons under the Agreement
(including on any of the Accessorial Agreements) directly to the
Borrower and to collect the Security in the event of violation of the
Obligations by either the Borrower itself, or by any of the Affiliated
persons;
(c) agrees that the Bank and any of the Affiliated parties is empowered to
conclude, within the framework of the Agreement, Accessorial
Agreements (including additional agreements to the Accessorial
Agreements), which shall be an integral part of the Agreement, without
participation and notification of the Borrower;
(d) undertakes to consider any outstanding obligations of any and all of
the Affiliated parties under the Agreement to be its own,
the Bank grants to the Affiliated persons are right to use the Credit Line
within the same limits and subject to the same terms of the Agreement that
to the Borrower.
2.3. The Credit Line shall be granted to the Company (the Borrower and the
Affiliated persons) by means of concluding an appropriate Accessorial
Agreement. The following conditions are compulsory (unless the Bank
determines otherwise) for granting the Credit Line by the Bank to the
Company:
(a) application of the Company to the Bank with an appropriate request for
granting the Credit Line not less than 3 (three) months before the
proposed date of concluding the corresponding Accessorial Agreement;
(b) proper fulfilment of the existing Obligations by the Company;
(c) providing by the Company of all documents required by the Bank
(including but not limited to notarised copies of the Company's
foundation documents, resolutions of authorized bodies of the Company
concerning conclusion of the Agreement (or accession to it) and
providing the Security, any other documents confirming usage of the
Credit Line for the purpose specified only and financial status of the
Company);
(d) providing by the Company and/or third parties of the Security
satisfying the Bank's requirements to ensure fulfilment by the Company
of all its Obligation arising from the Agreement (Borrower [including
obligations of the Borrower on full joint responsibility before the
Bank for all Affiliated persons] and Affiliated persons);
(e) positive resolution of the authorized bodies of the Bank concerning
granting the Accessorial Agreements based on the results of
examination of the appropriate application from the Company.
ARTICLE 3. Use of the Credit Line for the Purposes Specified
- ------------------------------------------------------------
3.1. The Credit Line shall be granted to the Company for purposes not
conflicting with the requirements of the legislation of the Republic of
Kazakstan. The specific purposes of the Loan shall be determined in the
Accessorial Agreement.
ARTICLE 4. Rights and obligations of the Bank and the Company
- -------------------------------------------------------------
4.1. The Bank shall be entitled:
(a) to collect (withdraw), without any notification or dispute, in any
currency (regardless of the currency of the Loan) any amounts of the
Debt (including outstanding) of the Company under the Agreement (any
Accessorial Agreements) [including (but not limited to) the following
amounts: the Loan, compensation (interest), forfeit (fine, penalties),
commissions for risks, other commissions provided for by the Agreement
and also by the Bank's Tariffs in effect when the corresponding
transaction is effected (hereinafter "the Bank Tariffs"), losses and
expenses relating to (caused by) any breach by the Company of any
obligation under the Agreement] by way of direct debiting the
Company's accounts with Kazkommertsbank OJSC, and also by way of
presentation, to bank accounts of the Company (the Borrower and/or the
Affiliated parties) established with any banks (organizations
exercising any particular types of banking operations, and other
credit organizations) in the Republic of Kazakstan and abroad, of
payment orders executable without acceptance or other documents
necessary for collection (withdrawal) of the money without acceptance
and/or dispute. The payment order of the Bank shall be executed for
the amount of money actually deposited on the bank account of the
Company (the Borrower and/or the Affiliated parties) indicated in it,
and for collection (withdrawal) of the entire sum of money indicated
in the Bank's payment order, in the event of insufficiency of the
money, the Bank's payment order shall be kept in the File to the bank
account. In the event of collection of the money without acceptance in
any currency other that the currency of the Loan, conversion of the
collected money into the currency of the Loan shall be effected, at
the Bank's option, at the rate established by the Bank for buying or
selling of the collected currency or currency of the Loan;
(b) to request and obtain from the Company all necessary information,
including that of the financial status of the Company, to check on its
financial and economical situation, usage of the Loan for the purpose
specified, availability and condition of the Security, to demand that
auditor's confirmation of the information provided be presented, and
to independently assign (at the Company's expense) audit of the
Company in the event of the Default;
(c) to suspend or cease granting the Credit Line (to annul the Limit)
unilaterally;
(d) to refuse to grant the Credit Line in the event of failure to fulfil
any of the conditions stipulated in Article 2.3. of the Agreement;
(e) to demand that any transactions executed by the Company in defiance of
the provisions of the Agreement be annulled or nullified;
(f) to revise (reduce), at any time and at its own discretion, the limit
of overdrafts indicated in subparagraph (d), Article 2.1. of the
Agreement, including the event of decline in the credit turnover
(without taking into consideration crediting resources, temporary
financial assistance, and payments inside the company) on the current
accounts of the Company with Kazkommertsbank OJSC
(g) to assign any rights and obligations under the Agreement (any of the
Accessorial Agreements) to any third party (parties) without the
Company's consent.
4.2. The Company shall be entitled:
(a) to repay the entire debt under the Agreement (including under any of
the Accessorial Agreements) or any part of it to the Bank before the
maturity date, providing that there are no written objections of the
Bank, subject to payment of the compensation (interest) for the actual
time of using the Loan and the commission for the advanced repayment
of the Loan (as specified in paragraph (a), Article 7.1. of the
Agreement), having the Bank notified of that 10 operational days prior
to the proposed date of effecting such advanced repayment.
(b) The Borrower and Affiliated persons are entitled to fulfil each
others' obligations under the Agreement by way of transferring to the
Bank of corresponding sums of money.
4.3. The Company shall be obliged:
(a) to use the Loans in accordance with the purpose specified and to
render maximal assistance to the Bank in verification of their usage
for the purpose specified;
(b) to notify the Bank immediately in writing of any circumstances that
can negatively affect the regular (normal) economic activities of the
Company, repayment of the Loan in due time, payment of the
compensation (interest) and any other payments provided for by the
Agreement, including:
- detection of a threat (possibility) of liquidation,
bankruptcy, or reorganization of the Company from: (i)
authorized governmental agencies, or (ii) creditors of the
Company, or (iii) participants (shareholders) of the
Company, or (iv) any third parties;
- distraining by third parties upon the Company's property
and/or its bank accounts with any banks (organizations
exercising any particular types of banking operations, and
other credit organizations);
- receiving claims and writs sent to the Company by third
parties with regard to hearings in any state or arbitration
courts [including (but not limited to): concerning
collecting money or property from the Company, recognition
of ownership of the Company's property, revoking the
Company's license, nullification or rescinding of any
transactions concluded by the Company with third parties
and/or the Bank);
(c) not to effect voluntary liquidation and/or reorganization in any form
and not to establish, by itself or jointly with any third persons, any
other legal entity without prior obtaining a written consent of the
Bank to effecting such (similar) actions;
(d) not to conclude pledge agreements, loan agreements (including credit
agreements) with any third persons, not to present any guarantee or
security; not to encumber its assets (fixed assets and other
property), current and future income, not to distribute any net income
received if there is an outstanding debt under the Agreement, not to
alienate any fixed assets (immovable property and equipment) to any
third parties in any form whatsoever [including (but not limited to):
founder's contributions to authorized funds of legal entities being
established, or payment for purchasing stock or share in the
authorized fund of any legal entity), not to alter its foundation
documents without prior obtaining a written consent of the Bank to
effecting such (similar) actions;
(e) to ensure that all the money to be received by the Company from any
transactions are deposited only on the bank accounts of the Company
with Kazkommertsbank OJSC;
(f) to present to the Bank a full list of all bank accounts of the Company
with all banks (organizations exercising any particular types of
banking operations, and other credit organizations) on the territory
of the Republic of Kazakstan and abroad, and also information on
existence and amount of the Company's debt to them, to inform, without
delay, the Bank in writing of any alterations and/or amendments made
to the foundation documents (including those made as a result of
re-registration), of establishing new bank accounts with any banks
(organizations exercising any particular types of banking operations,
and other credit organizations) on the territory of the Republic of
Kazakstan and abroad (indicating the number of such account and the
name of the bank), and also of any changes of its mailing details,
legal address, composition of participants (shareholders) of the
Company and bodies of the Company (executive, control, etc.);
(g) to properly fulfil all additional (including financial) obligations
specified in Appendix # 4 to the Agreement;
(h) not to assign any rights and obligations under the Agreement (any
Accessorial Agreement) to any third party (parties) without prior
obtaining a written consent of the Bank;
(i) at the first inquiry of the Bank, to provide the latter with:
- any documents necessary to check on the Security, whether
the Loan is used for the purpose specified, and whether the
Company observes the environmental regulations;
- contracts, agreements, and covenants with all attachments
and additional agreements to them (including those being the
bases for concluding an Accessorial Agreement);
- financial information (balance sheets, reports of the
results of financial and economic activities, cash flow
reports, etc.), reports of audits and auditing commissions,
and also any other information of financial and economic
nature and documents allowing to obtain information relating
to financial status of the Company and its using the Loan;
(j) to inform the Bank, without delay, in writing of occurrence of any
circumstances, due to which (as a result of which) the Bank may assert
the Company's default;
(k) to effect all payments to the Bank relating to repayment of the debt
under the Agreement without deducting any sums of money from them
(including sums of the withholding tax) and, if effecting such
deductions is compulsory, to increase the amounts of money payable to
the Bank under the Agreement by the extent of such deductions;
(l) to reimburse the Bank for all, without exception, losses and expenses
caused by violation of the environmental regulations by the Company;
(m) to include into all bank account agreements that are or will be
concluded by the Company with any other banks (organizations
exercising any particular types of banking operations, and other
credit organizations) a clause that any unsatisfied (due to
insufficiency of money on the bank account) payment orders of the Bank
should be placed in the File and stored for one year;
(n) not to reduce the average monthly credit turnover (without taking into
consideration crediting resources, temporary financial assistance, and
payments inside the company) on the current accounts of the Company
with Kazkommertsbank OJSC, the amount of which is determined by the
Bank.
ARTICLE 5. Liabilities under the Agreement
- ------------------------------------------
5.1. If any of the following events occurs:
(a) breach by the Company (the Borrower and/or any of the Affiliated
parties) of any of its obligations under the Agreement (any of the
Accessorial Agreements); and/or
(b) ascertainment by the Bank of the fact that the Company does not have
money sufficient to fulfill all and/or current and/or regular
obligations of the Company under the Agreement; and/or
(c) if the Company and/or any of the third parties providing the Security
are involved in any law proceedings with the amount of the suit
constituting a considerable, in the Bank's opinion, value, and/or if
the Company's property and/or any of its bank accounts is distrained
or collected, or a real threat of that exists; and/or
(d) ascertainment by the Bank of a threat to fullness and/or timeliness of
fulfillment by the Company of its obligations under the Agreement,
including, but not limited to any of the following events: suspected
voluntary or forced bankruptcy or liquidation or reorganization of the
Company and/or any of the third parties providing the Security;
occurrence of death or missing of any participant or shareholder of
the Company or a member of an individual (or a head of a collective)
executive body of the Company; imposing a preventive punishment in the
form of restraint upon any of the persons indicated in this
subparagraph; departure of any of the persons indicated in this
subparagraph from the Republic of Kazakstan for permanent residence;
the Bank's lack of information of location of any of the persons
indicated in this subparagraph; the information of composition of
participants or shareholders of the Company and/or executive and/or
any other body of the Company presented by the Company to the Bank is
contrary to fact; the Company does not have a properly, that is in
accordance and foundation documents of the Company, elected (or
appointed) executive and/or any other body; any changes in the
composition of the executive and/or any other body of the Company
and/or participants or shareholders of the Company without a prior
approval of the Bank; and/or
(e) if the Company and/or a third party (surety, guarantor) have not
provided, within the period appointed by the Bank, the Security
stipulated by the Agreement and/or any other agreement, or violated
any of their obligations under the Security agreements (including, but
not limited to property pledge agreements, guarantees and/or surety
provided, etc.) and/or
(f) if the Company failed to pay to the Bank any amounts of money under
the Agreement (any Accessorial Agreement) in time and/or fully; and/or
(g) if the Company violated any of its obligations to any third parties to
a considerable, in the Bank's opinion, amount; and/or
(h) if the Company used and/or is using the Loan not for the purpose
specified; and/or
(i) if the Company presented inadequate financial statements or inadequate
information with regard to its income and/or availability (condition)
of the Security; and/or
(j) if the Company violated any of the guarantees specified in Article 8
of the Agreement,
then the Bank may assert the Company's Default and shall acquire the following
rights:
(i) to demand that the Company should, before the appointed time (within
a period named by the Bank), fulfill all its obligations under the
Agreement (Accessorial Agreement): to repay the full amount of the
Loan, to pay the compensation (interest) charged, as well as any
other sums of the debt under the Agreement; and/or
(ii) to collect the Security (exercise its rights with regard to the
Security); and/or
(iii) to assert the Company's Cross-Default (that is, exercise the same
rights that the Bank acquires under the Agreement in the event of the
Default with regard to all other transactions, not related to the
Agreement, concluded between the Bank and the Company); and/or
(iv) to demand that the Company should transfer to the Bank money in the
amount fully covering any obligations existing as of the date of the
Default or possible in the future:
(a) of the Bank, assumed by the latter to any third parties under the
Agreement (Accessorial Agreements) [including but not limited to:
letters of credit opened by the Bank; guarantees, security
provided by the Bank; notes guaranteed and/or accepted by the
Bank; payment cards issued by the Bank, etc.] for the Bank to
form a coverage (reserve) on all such obligations of the Bank to
the third parties, and also
(b) of the Company to the Bank under the Agreement, and/or
(v) to effect withdrawal (collection) of the corresponding amounts of
money without acceptance and dispute by way of direct debiting the
Company's accounts with Kazkommertsbank OJSC, and also by way of
presentation, to bank accounts of the Company (the Borrower and the
Affiliated parties) established with any banks (organizations
exercising any particular types of banking operations, and other
credit organizations) in the Republic of Kazakstan and abroad, of
payment orders executed without acceptance or other documents (not
requiring acceptance by the Company) that are necessary for collection
(withdrawal) of the money without acceptance and/or dispute with a
view to forming a cover (reserve) for obligations of the Company to
the Bank under the Agreement and for the obligations assumed to any
third parties under the Accessorial Agreements concluded by the Bank
with the Company
5.2. In the event of a breach by the Company of any of its non-financial
obligations, and also in the event of violation by the Company and/or third
parties (including surety and guarantors) of any obligations concerning
providing the Security (including in the event of evasion (i) of conclusion
and/or registration of the property pledge agreement, or (ii) of providing
guarantee or surety, or (iii) of fulfillment of the obligation on effecting
payments relating to the conclusion and/or registration (re-registration) of the
pledge agreements and/or additional agreements to them with authorized agencies
and/or authorized persons, etc.),
the Company shall pay to the Bank a penalty (fine) in the amount of _____ % of
the sum of the Limit (Article 2.1 subparagraph (a) of the Agreement) for each
day of the violation.
5.3. Reimbursement for the expenses and losses and payment of the forfeit (fine,
penalty) shall not release the Company from its liability to fulfill the broken
Obligation in due course.
5.4. Liability of the Borrower and the Affiliated parties to the Bank on any of
there obligations arising out of the Agreement shall be full and collective. In
this regard, the Bank shall be entitle to demand that the Obligations should be
fulfilled by both the Borrower and the Affiliated parties together, and each of
them separately, both in full and as regards the Debt.
5.5. Liability of the Company under the Agreement shall not be limited by
occurrence of force-majeure circumstances.
5.6. The Security provided to the Bank by the Company and/or the third parties
assures fulfillment of all Obligations of the Company (the Borrower and the
Affiliated parties) under the Agreement.
5.7. In the event of violation of obligations on payment of any of the
commissions provided for by Article 7.1. of the Agreement, the Company pays to
the Bank a penalty (fine) in the amount of _____% of the outstanding payment for
each day of the delay.
5.8. In the event of violation of obligations on payment of any of the
commissions provided for by Article 7.2. of the Agreement, the Borrower pays to
the Bank a penalty (fine) in the amount of _____% of the outstanding payment for
each day of the delay.
ARTICLE 6. Repayment procedure
- ------------------------------
6.1. The Company shall effect repayment of the Loan and payment of the
compensation (interest), commission for risks and other payment by way of
transferring the money to the Bank within the time and in the amount
specified in the Agreement (including the corresponding Accessorial
Agreement).
6.2. Repayment by the Company of the debt under the Agreement shall be effected
in the following sequence:
(1) sum of the payments provided for by the Bank Tariffs and/or the
Agreement;
(2) sum of the commission for risks;
(3) sum of the compensation (interest);
(4) sum of the Loan [including (but not limited to): credits, overdrafts,
leasing received by the Company; letters of credit opened by the Bank;
guarantees, security provided by the Bank; notes guaranteed and/or
accepted by the Bank; used credit limit on payment cards issued by the
Bank, etc.].
In the event of occurrence of any outstanding debt on repayment of the Loan
and/or payment of the compensation (interest) charged and/or the
commissions, the debt of the Company under the Agreement shall be repaid in
the following sequence:
(1) sum of expenses and losses of the Bank under the Agreement, including
those provided for in Article 7.3. of the Agreement;
(2) sum of the payments provided for by the Bank Tariffs and/or the
Agreement;
(3) sum of the forfeit (fine, penalty);
(4) sum of the commission for risks;
(5) sum of the compensation (interest);
(6) sum of the Loan [including (but not limited to): credits, overdrafts,
leasing received by the Company; letters of credit opened by the Bank;
guarantees, security provided by the Bank; notes guaranteed and/or
accepted by the Bank; used credit limit on payment cards issued by the
Bank, etc.].
However, the Bank shall be entitled to determine and apply, at its own
discretion, any other sequence of repayment of the debt of the Company
under the Agreement.
6.3. In the event of delay by the Company of payment of any sum of the Loan
and/or compensation (interest) and/or commission and/or forfeit (fine)
under the Agreement (including any of the Accessorial Agreements), the Bank
reserves the right to suspend charging the Loan, compensation (interest),
commission, and forfeit (fine) in accordance with its internal documents.
Subsequently, after fulfillment by the Company of its obligations of
payment of the debts under the Agreement, the outstanding Obligations of
the Company shall be fixed in accordance with the provisions of the
Agreement (the corresponding Accessorial Agreement) without taking the
suspension period into consideration, unless the Bank determines otherwise
in writing.
6.4. In the event of any change of:
- financial and/or credit market; and/or
- conditions and/or sources of attraction and/or formation and/or
placement by the Bank of credit and/or deposit and/or any other
financial resources [including, but not limited to: (i) adoption
of corresponding resolutions by the legislative agencies of the
Republic of Kazakstan or by the Government of the Republic of
Kazakstan, or by the National Bank of the Republic of Kazakstan,
and/or (ii) any adverse for the Bank change of the rate of
refinancing and/or exchange rate (rates) of any foreign currency
(currencies) to tenge, and/or indices of inflation, devaluation,
rise in price of the deposit and/or any other financial resources
attracted by the Bank, etc.]
the Bank reserves the right to unilaterally alter any terms and conditions
of the Agreement (all Accessorial Agreements) [including, but not limited
to: rate of compensation (interest), amount of forfeit (fine), commissions]
on the expiry of 10 (ten) days from the date of sending by the Bank of a
written notification (hereinafter "the written notification") to the
address of Company. In this case the Company shall either (i) accept the
new terms and conditions of the Agreement (all Accessorial Agreements), or
(ii) within 10 (ten) days of the date of sending the written notification
by the Bank to the Company fully repay to the Bank the entire amount of the
debt under the Agreement before the appointed date (without paying the
commission for the advanced repayment indicated in paragraph (a), Article
7.1 of the Agreement), except for repayment of the debt under the
Accessorial Agreements relating to assuming by the Bank obligations to
third parties [including but not limited to: letters of credit opened by
the Bank; guarantees, security provided by the Bank; notes guaranteed
and/or accepted by the Bank; payment cards issued by the Bank, etc.] that
may be repaid before the appointed date only subject to a written consent
of the Bank, and, if the Bank objects to repayment of the debt under such
Accessorial Agreements before the appointed date, the Company shall be
obliged to accept the new terms and conditions of the Agreement. Unless the
Company exercises the right to advanced repayment of the debt, the new
terms and conditions of the Agreement shall come into force and become
binding upon the Company and the Bank on the expiry of 10 (ten) days from
the date of sending by the Bank of the written notification to the Company,
which shall be an integral part of the Agreement.
6.5. In the event of returning by the Bank to the Company of all or part of the
money deposited by the Company to the Bank in tenge as coverage of a letter
of credit and/or guarantee, payment on which should have been made in a
foreign currency or in tenge in the amount equivalent to a certain sum in
the foreign currency, such returning shall be effected by the Bank in tenge
within the limits of the sums of money actually deposited by the Company to
the Bank without taking into account its equivalent in the foreign currency
as of any date.
6.6. Unless the Bank determines otherwise in writing, the amounts of forfeit
(penalty, fine) and commission under the Agreement shall be charged in the
foreign currency (in which the Loan was granted), whereas payment to the
Bank of the sums of forfeit (penalty, fine) and commissions under the
Agreement shall be effected by the Company in tenge in the amount
calculated at the rate of selling of the foreign currency (in which the
Loan is granted) as of the date of payment, respectively, of the forfeit
(penalty, fine) and the commissions established by Kazkommertsbank OJSC
taking into account the Bank's commission for conversion of the amounts of
forfeit (penalty, fine) and commissions from tenge into the foreign
currency (in which the Loan is granted).
ARTICLE 7. Commissions and expenses (losses)
- --------------------------------------------
7.1. The Company is obliged:
(a) to pay to the Bank commission for advanced repayment of the Loan (any
part of it) in the amount of _____ % of the sum of the Bank's
outstanding compensation (interest) under the corresponding
Accessorial Agreement within a ten day period of the date of the
advanced repayment of the Loan (any part of it). The above commission
shall not be charged under any Loans granted by the Bank for a period
less than six months;
(b) to pay to the Bank commission for prolongation of the Accessorial
Agreement in the amount of _____ % of the prolonged sum within a ten
day period of the date of each prolongation.
7.2. The Borrower is obliged:
(a) to pay to the Bank commission for organization of establishing the Credit
Line in the amount of _____ % of the Limit (subparagraph (a), Article 2.1
of the Agreement) within a _____ day period of conclusion of the Agreement;
(b) to pay to the Bank commission for obligation in the amount of _____ % per
year of the non-revolving part of the Limit unused by the Company
(subparagraph (a), Article 2.1 of the Agreement), which shall be paid by
the Borrower not later the _____ day of each month, beginning from the date
of conclusion of the Agreement, until the expiry of the corresponding, for
the non-revolving part of the Limit, Period of Availability (subparagraph
(c), Article 2.1. of the Agreement).
7.3. The Company is obliged, within a five day period of receiving a
corresponding instruction from the Bank, to reimburse the latter for the
following expenses and losses:
o payments for registration of notices of non-fulfillment of
obligations, notices of auctions of the pledged property;
o payments for publication of notices in the press and other mass media
(including those of auctions of the pledged property, commencement of
bankruptcy proceedings, advertising of the pledged property, etc.);
o payment for notary services on verification of authenticity of copies
of the Agreement (all Accessorial Agreements) enclosed when presenting
the payment orders to the Company's bank accounts by the Bank;
o payment of expenses of registration (re-registration) of the pledge
agreements with authorized agencies, organizations, and persons;
o traveling expenses of the Bank's employees when they travel for:
(1) settlement of issues relating to fulfillment of the Obligations
by the Company;
(2) assessment, verification of availability and safety of the
pledged property;
(3) any other aspects relating to implementation of the pledge
agreements;
o payment of expenses relating to assessment and storage of the pledged
property (including payments for public utilities, lease, etc.);
o payments for the services of third parties (including storage of the
pledged property, auditing, assessment);
o any other expenses and losses incurred by the Bank due to violation of
the Obligations by the Company (including when collecting any amounts
of debt under the Agreement from the Company by the Bank).
The expenses and losses of the Bank shall be collected in addition to the
amounts of forfeit (fine, penalty) and need to be confirmed by appropriate
documents.
ARTICLE 8. Guarantees
- ---------------------
8.1. The Company guarantees to the Bank that:
(a) the Company is a legal entity properly established and legally
existent in accordance with the laws of the place of its state
registration, possesses unlimited legal capacity to acquire rights and
bear liabilities under the Agreement, and also all necessary licenses
(permissions) to exercised any activities financed under the
Agreement, and observes all established environmental regulations;
(b) conclusion of the Agreement by the Borrower and acceding of the
Affiliated parties to the Agreement for obtaining the Credit Line does
not conflict with the foundation documents of the Company, the current
legislation of the Republic of Kazakstan and the legislation of the
place of incorporation of the Company, any other transactions
concluded by the Company with any third parties; is approved by the
bodies of the Company authorized by its foundation documents and also
by any other third parties, including governmental agencies (if
obtaining such approval is required by the law). If, subsequently, the
Bank requires that the Company should submit the documents and/or
perform certain actions to confirm the approval of conclusion by the
Company of the Agreement and the Security agreements by the bodies of
the Company and the third parties (including governmental agencies),
such documents will be submitted and actions performed by the Company
within the time appointed by the Bank;
(c) the Company and the third parties providing the Security are not in
the stage of bankruptcy, rehabilitation, reorganization, liquidation,
and that the competent bodies do not have applications for execution
of such actions;
(d) the Company is not involved into any legal proceedings as a defendant
(co-defendant) on any claims for a total amount exceeding 100,000 US
Dollars;
(e) that the debt of the Company on taxes and any other obligatory
payments to the budget does not exceed and will not exceed in the
future 5,000,000 tenge;
(f) that the foundation documents of the Company, composition of its
management bodies and of the participants and/or shareholders of the
Company will not be changed without prior obtaining a written consent
of the Bank;
(g) that there are no obligations that can negatively affect the business
of the Company, its financial and economic status, property and paying
capacity;
(h) that the Security provided by the Company and/or the third parties
properly exists, executed in accordance with the requirements of the
legislation, and that there is no threat of its losing, destruction,
or annulment. The third parties providing the Security comply with all
the provisions specified in Article 8 of the Agreement;
(i) fulfillment of the Obligations under the Agreement will be effected by
the Company prior to any other obligations to any third parties, and
the Company will not assume any obligations to any third parties that
can negatively affect its capacity to fulfill its obligations under
the Agreement properly and promptly, or otherwise infringe upon the
Bank's interests under the Agreement;
(j) there are no violations by the Company of any obligations to any third
parties on any transactions;
(k) the consent granted by the Company to the Bank to collection by the
Bank of any amounts of the Company's Debt under the Agreement, without
acceptance and dispute, by way of direct debiting the Company's bank
accounts with Kazkommertsbank OJSC, and also by way of presenting
payment orders, to be executed without acceptance, to the bank
accounts of the Company established with any banks (organizations
exercising any particular types of banking operations, and other
credit organizations) on the territory of the Republic of Kazakstan
and abroad, is irrevocable and perpetual.
ARTICLE 9. Miscellaneous terms and conditions
- ---------------------------------------------
9.1. Any notification or request required or drawn up in the context of the
Agreement for the Bank or the Borrower shall be presented in a written
form. Such notification or request shall be considered properly presented
or sent when delivered personally or by post to the following address:
For the Bank:
-------------
Open Joint-Stock Company KAZKOMMERTSBANK
Republic of Kazakstan, 480060
Almaty, 135/H Gagarin av.
Attn.: Mr. N. S. Subkhanberdin, Ms. N. A. Zhusupova
For the Borrower:
-----------------
Close Joint-Stock Company Karakudukmunay
Republic of Kazakstan, 466200
Aktau, District 3, Building 82
Attn.: Mr. N. D. Klinchev
9.2. All documents and correspondence shall be written in the Russian language.
9.3. All disputes that arise with regard to the Agreement shall be resolved
using the substantive law of the Republic of Kazakstan and in accordance
with the procedure provided for by the legislation of the Republic of
Kazakstan in a court at the location of the Bank or its affiliate (at the
discretion of the Bank).
ARTICLE 10. Final provisions
- ----------------------------
10.1. Any Accessorial Agreement shall be an integral part of the Agreement.
Provisions of the Agreement shall be directly applied to all legal
relations arising between the Bank and the Company with regard to
conclusion and execution of the Accessorial Agreement.
10.2. In the event of any conflicts between the Agreement and any Accessorial
Agreement, provisions of the Agreement shall have the priority and be
applied, unless the Bank determines otherwise in writing. In the event of
concluding an Accessorial Agreement, some of the provisions of which
exceed the bounds established by the Agreement (for example, exceeding the
Limit, Term of the Credit Line, Period of Availability, etc.), the
Agreement itself and such Accessorial Agreement remain valid in full,
unless the Bank determines otherwise in writing.
10.3. All alterations and/or amendments to the Agreement shall be executed as
additional agreements to it to be signed by representatives of the Bank
and the Borrower, which shall be also binding upon the Affiliated parties
beginning from the date of their conclusion.
10.4. All notifications relating to the terms and conditions of the Agreement
shall be sent by the Bank only to the Borrower at the address indicated in
the Agreement.
10.5. All notifications relating to the terms and conditions of any particular
Accessorial Agreement shall be sent by the Bank only to a party to such
Accessorial Agreement (the Borrower or any of the Affiliated Parties
respectively).
10.6. The Agreement is executed in 3 (three) copies having equal legal force,
two for the Bank, one for the Borrower.
LEGAL ADDRESSES AND BANKING DETAILS OF THE PARTIES:
---------------------------------------------------
BANK: Kazkommertsbank OJSC - Republic of Kazakstan, Almaty, 480060, 135/H
Gagarin av., correspondent account 900161126, MFO 190501926 in the Department of
payment systems of the National Bank of the Republic of Kazakstan, RNN
600400055239, residency code 1, economy sector code 4;
BORROWER: Karakudukmunay JSC - Republic of Kazakstan, Mangistau oblast, Aktau,
466200, District 3, Building 82, proceeds account 06467365, currency account
05070546 in Aktau affiliate of Kazkommertsbank OJSC, RNN 430600001175, residency
code 1, economy sector code 7.
BANK COMPANY
/s/ A. L. Dautov U.B. Khairov
----------------------- -----------------------
A. L. DAUTOV U. B. KHAIROV
Appendix # 1
to Agreement for establishing
a credit line # 250
dated May 6, 2002
Hereby we, the underwritten, having been acquainted with the text of the
Agreement for establishing a credit line # 250 dated May 6, 2002 (hereinafter
"the Agreement") concluded between Kazkommertsbank OJSC ("the Bank") and
Karakudukmunay JSC ("the Borrower"), with a view to our obtaining financing
("the Credit Line"),
- fully accede to the Agreement as the Affiliated parties;
- announce that the Agreement does not contain any provisions that
we (based on our reasonable interests) would like to alter or
annul, and also confirm that in concluding the Agreement each of
us acts of its own free will and in its interests;
- from the moment of signing this Appendix, are bound by the terms
and conditions of the Agreement as the Company, including
confirming all rights of the Bank and assuming all obligations of
the Company provided for by the Agreement;
- assume full joint responsibility to the Bank for each other and
for the Borrower on all, without exception, Obligations arising
out of the Agreement (on any and each of the Accessorial
Agreements);
- agree that the Agreement and all additional agreements to it
shall be signed by representatives of the Borrower and the Bank
without our participation and notification. All additional
agreements to the Agreement concluded this way will be binding
upon us from the date of their execution;
- undertake to fulfill all term and conditions of the Agreement,
including obligations of the Company stipulated in Article 4.3.
of the Agreement.
- --------- -------------------------- ---------------- ------------ ------------------------------ --------------------
Item No. Name of the Affiliated Legal address Banking Title of the manager or Date of signing,
party (legal entity or (place of details details of power of stamp of the
individual) residence) attorney, signature of Affiliated party
representative of the
Affiliated party
- --------- -------------------------- ---------------- ------------ ------------------------------ --------------------
- --------- -------------------------- ---------------- ------------ ------------------------------ --------------------
BANK COMPANY
/s/ A. L. Dautov U. B. Khairov
----------------------- -----------------------
A. L. DAUTOV U. B. KHAIROV
Appendix # 2
to Agreement for establishing
a credit line # 250
dated May 6, 2002
LIST OF AGREEMENTS
considered to be Accessorial Agreements and included into the Agreement
- ------------ ----------------------------------------------- ---------------------------------------------------------
Item No. Date of conclusion, number, name of, parties Title of the manager or details of power of attorney,
to agreements included into the Agreement signature of representative of the Affiliated party and
stamp (if the Affiliated party is a party to an
agreement included into the Agreement as an Accessorial
Agreement)
- ------------ ----------------------------------------------- ---------------------------------------------------------
- ------------ ----------------------------------------------- ---------------------------------------------------------
1. Loan Agreement # 5319/A dated April _____, Administrative Manager
2002, with Karakudukmunay JSC Mr. U. B. Khairov _______________
- ------------ ----------------------------------------------- ---------------------------------------------------------
BANK COMPANY
/s/ A. L. Dautov U. B. Khairov
----------------------- -----------------------
A. L. DAUTOV U. B. KHAIROV
Appendix # 3
to Agreement for establishing
a credit line # 250 of May 6, 2002
Methods of ensuring fulfilment of the Company's Obligations under the Agreement
1. Cash on the deposit;
2. Guarantees of Chaparral Resources, Inc.;
3. Shares of Karakudukmunay JSC belonging to Central Asian Petroleum
(Guernsey) Limited.
On items 2 and 3 the terms of execution shall be 30 days from the date of
signing the Agreement for establishing a credit line.
BANK COMPANY
/s/ A. L. Dautov U. B. Khairov
----------------------- ------------------------
A. L. DAUTOV U. B. KHAIROV
Appendix # 4
to Agreement for establishing
a credit line # 250 of May 6, 2002
Additional (including financial) Obligations of the Company:
1. Providing by the Company a written consent of Shell Capital Services
Limited to conclusion of the Agreement for establishing a credit line
between Kazkommertsbank OJSC and Closed joint-stock company Karakudukmunay
with a limit of 33,000,000 (thirty three million) US dollars;
2. Providing by the Company a written consent of The Law Debenture Trust
Corporation p.l.s. (the Pledgee) to participation of Central Asia Petroleum
(Guernsey) Limited (the Pledger) in the general shareholders meeting of the
Closed joint-stock company Karakudukmunay that was held on April 19 and 20,
2002, and also confirming the right of the Pledger to vote with the shares
pledged under the Pledge Agreement;
3. Signing a debt subordination agreement within 30 days of concluding this
Agreement for establishing a credit line.
BANK COMPANY
/s/ A. L. Dautov U. B. Khairov
----------------------- ------------------------
A. L. DAUTOV U. B. KHAIROV