Exhibit 10.2
Additional agreement
to the Agreement for establishing a credit line # 250 dated May 6, 2002
City of Almaty May 6, 2002
1) Kazkommertsbank OJSC hereinafter referred to as "the Bank" in the person of
the Deputy Chairman of the Board of Directors Mr. A. L. Dautov acting on
the basis of the Power of Attorney # 490 dated January 31, 2002, and
2) Closed joint-stock company Karakudukmunay hereinafter referred to as "the
Company" 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,
collectively referred to as "the Parties" and separately as indicated above
or "the Party" have concluded this Additional agreement (hereinafter
referred to as "the Additional agreement") to the Agreement for
establishing a credit line # 250 dated May 6, 2002 (hereinafter referred to
as "the Agreement") on the following:
1. To change the definition of the term of "the Company" in Article
1.1. of the Agreement and formulate it as follows:
"Company the person having concluded this Agreement
with the Bank - Closed joint-stock company
Karakudukmunay (hereinafter referred to as
"the Borrower")
2. To change the definition of the term of "the Accessorial
Agreement" in Article 1.1. of the Agreement and formulate it as
follows:
"Accessorial Agreement (a) agreement(s) [concluded between the
---------------------- Bank and the Company 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 [paragraphs (a)
and (b)] and each separately;
3. To change the definition of the term of "the Debt" in Article
1.1. of the Agreement and formulate it as follows:
"Debt the amount of (a) the Loan (principal
----- debt) [including but not limited to the
amounts 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.]; (b)
compensation (interest) charged; forfeit
(fine, penalties); payments provided by
the Tariffs of the Bank; (c) all other
commissions and payments to be paid by
the Company to the Bank under the
Agreement;"
4. To exclude Article 2.2. of the Agreement.
5. To change Article 2.3. of the Agreement and formulate it as
follows:
"2.3. The Credit Line shall be granted to the Company by means of
concluding a corresponding Accessorial Agreement. The mandatory
requirements (unless the Bank determines otherwise), fulfillment of
which is necessary for granting the Credit Line to the Company by the
Bank are as follows:
(a) applying to the Bank by the Company 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 fulfillment of the existing obligations by the
Company;
(c) providing by the Company notarized copies of all documents
requested by the Bank [including but not limited to:
notarized copies of the Company's foundation documents;
resolutions of authorized agencies of the Company to
conclude the Agreement (or to accede to it) and to provide
the Security; other documents confirming use of the Credit
Line for the purposes specified and the financial status of
the Company];
(d) providing by the Company and/or third parties the Security
meeting the requirements of the Bank that would assure
fulfillment of all obligations of the Company arising from
the Agreement;
(e) adopting a positive resolution with regard to concluding the
Accessorial Agreement by the authorized bodies of the Bank
based on the results of examining the corresponding request
of the Company."
6. To change subparagraph (a) of Article 4.1. of the Agreement and
formulate it as follows:
"(a) In the event of violation by the Company of any of its
obligations under the Agreement, to collect (withdraw),
without acceptance 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
(under any Accessorial Agreement) [including (but not
limited to) the following amounts: the Loan, compensation
(interest), forfeit (fine, penalties), commissions
(including those provided for by the Bank's Tariffs in
effect when the corresponding transaction is effected
(hereinafter "the Bank Tariffs"), except for commissions for
risks and other commissions inapplicable to the Agreement),
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 (Borrower and/or Affiliated persons) 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 persons) 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;"
7. To change subparagraph (b) of Article 4.1. of the Agreement and
formulate it as follows:
"(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,
use 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,
subject to agreement with the Company, to assign (at the
Company's expense) audit of the Company in the event of the
Default;"
8. To change subparagraph (c) of Article 4.1. of the Agreement and
formulate it as follows:
"(c) in the event of the Default, to suspend or cease granting
the Credit Line (to annul the Limit) unilaterally;"
9. To change subparagraph (f) of Article 4.1. of the Agreement and
formulate it as follows:
"(f) in the event of the Default and the Cross-default, to revise
(reduce) the limit of overdrafts indicated in paragraph (d)
of 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;
10. To change Article 4.2. of the Agreement and formulate it as
follows:
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, subject to
payment of the compensation (interest) for the actual
time of using the Loan, having the Bank notified of
that 10 operational days prior to the proposed date of
effecting such advanced repayment;
(b) to repay to the Bank the entire Debt or a part of it by
way of transferring the money to the Bank's account by
third parties, subject to the requirements of the
existing legislation of the Republic of Kazakstan."
11. To change subparagraph (a) of Article 4.3. of the Agreement and
formulate it as follows:
"(a) to use the Loans in accordance with the purpose
specified and to render maximal assistance to the Bank
in verification of their use for the purpose specified.
However, such verifications should not interfere with
the normal activities of the company;"
12. To change subparagraph (e) of Article 4.3. of the Agreement and
formulate it as follows:
"(e) to ensure that all the monies to be received by the
Company from any transactions are deposited only on the
bank accounts of the Company with Kazkommertsbank OJSC,
except for the cases when the Bank gives a written
permission to transferring the money to other accounts
of the Company;"
13. To change subparagraph (i) of Article 4.3. of the Agreement and
formulate it as follows:
"(i) at the first inquiry of the Bank, to provide the latter
with:
- notarised copies of any documents
necessary to check on the Security,
whether the Loan is used for the purpose
specified;
- notarised copies of contracts and
agreements with all attachments and
additional agreements to them (including
those serving as the basis for
concluding the 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 use of the Loan;"
14. To exclude subparagraph (l) of Article 4.3. of the Agreement.
15. To change subparagraph (a) of Article 5.1. of the Agreement and
formulate it as follows:
"(a) breach by the Company (the Borrower and/or any of the
Affiliated persons) of any of its obligations under the
Agreement (any of the Accessorial Agreements); and/or
16. To change subparagraph (b) of Article 5.1. of the Agreement and
formulate it as follows:
"(b) ascertainment by the Bank of the fact that the Company
does not have money sufficient to fulfill current
and/or regular obligations of the Company under the
Agreement; and/or"
17. To change subparagraph (c) of Article 5.1. of the Agreement and
formulate it as follows:
"(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(s) in aggregate
exceeding an equivalent of US$100,000 (one hundred
thousand) at the current exchange rate of the National
Bank of the Republic of Kazakstan and/or if the
Company's property (the value of which exceeds an
equivalent of US$100,000 (one hundred thousand) at the
current exchange rate of the National Bank of the
Republic of Kazakstan) and/or any of its bank accounts
is distrained or collected in the amount exceeding an
equivalent of US$100,000 (one hundred thousand) at the
current exchange rate of the National Bank of the
Republic of Kazakstan, or a real threat of that exists;
and/or"
18. To change subparagraph (g) of Article 5.1. of the Agreement and
formulate it as follows:
"(g) if the Company violated any of its obligations to any
third parties to the amount exceeding an equivalent of
US$100,000 (one hundred thousand) at the current
exchange rate of the National Bank of the Republic of
Kazakstan, except for the obligations, of which the
Company had notified the Bank in writing by the time of
concluding the Agreement; and/or"
19. To change subparagraph (i) of Article 5.1. of the Agreement and
formulate it as follows:
"(i) to demand that the Company should, before the appointed
time (within a period named by the Bank, but not
earlier than 10 (ten) working days from receiving by
the Company the first written claim of the Bank),
fulfil all its obligations under the Agreement (all
Accessorial Agreements): 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"
20. To change subparagraph (v) of Article 5.1. of the Agreement and
formulate it as follows:
"(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 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."
21. To exclude Article 5.4. of the Agreement
22. To exclude Article 5.5. of the Agreement
23. To change Article 5.6. of the Agreement and formulate it as
follows:
"5.6. The Security provided for the Bank by the Company and/or
third parties shall assure fulfillment of all obligations of the
Company under the Agreement."
24. To exclude Article 5.8. of the Agreement
25. To change Article 6.1. of the Agreement and formulate it as
follows:
"6.1. The Company shall effect repayment of the Loan and payment
of the compensation (interest) and effect other payments within
the time, in the amount, and in accordance with the procedure
specified in the Agreement (including the corresponding
Accessorial Agreement)."
26. To change Article 6.2. of the Agreement and formulate it as
follows:
"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 compensation (interest);
(3) sum of the Loan [including (but not limited to the
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.].
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 compensation (interest);
(5) sum of the Loan [including (but not limited to the
amount of): credits, overdrafts, leasing received by
the Company; letters of credit opened by the Bank;
guarantees, security provided by the Bank; notes
guaranteed 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."
27. To change Article 6.4. of the Agreement and formulate it as
follows:
"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 a written notification
(hereinafter "the written notification") to the 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); the compensation shall be paid only for the actual
time of using the Loan. 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 the written notification to the Company,
which shall be an integral part of the Agreement."
28. To change Article 7.1. of the Agreement and formulate it as
follows:
"7.1. The Company is obliged:
(a) 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;
(b) to pay to the Bank commission for organization of
establishing the Credit Line in the amount of _____ %
of the sum of the Limit (subparagraph (a), Article 2.1
of the Agreement) within a _____ day period of
conclusion of the Agreement;
(c) 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 than the _____ day of each
month, beginning from the date of conclusion of the
Agreement until the expiry of a corresponding, for the
non-revolving part of the Limit, Period of Availability
(subparagraph (c), Article 2.1. of the Agreement);"
29. To exclude Article 7.2. of the Agreement.
30. To change subparagraph (b) of Article 8.1. of the Agreement and
formulate it as follows:
"(b) conclusion of the Agreement by the Company for receiving 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; has been 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 approvals 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;"
31. To change subparagraph (d) of Article 8.1. of the Agreement and
formulate it as follows:
"(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 (one hundred thousand) US Dollars at the
current exchange rate of the National Bank of the Republic of
Kazakstan;"
32. To change subparagraph (e) of Article 8.1. of the Agreement and
formulate it as follows:
"(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 (five million) tenge;"
33. To change subparagraph (h) of Article 8.1. of the Agreement and
formulate it as follows:
"(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, except for paragraphs (d), (e),
(f), (g), (j), (k);"
34. To change subparagraph (i) of Article 8.1. of the Agreement and
formulate it as follows:
"(i) fulfillment of the Obligations under the Agreement will be
effected by the Company prior to any other obligations to any
third parties (except for the obligations on payments to the
budget), 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;"
35. To change subparagraph (j) of Article 8.1. of the Agreement and
formulate it as follows:
"(j) there are no violations by the Company of any obligations to
any third parties on any transactions to the amount exceeding an
equivalent of $100,000 (one hundred thousand) US Dollars at the
current exchange rate of the National Bank of the Republic of
Kazakstan, except for the violation, of which the Company had
notified the Bank in writing by the time of concluding the
Agreement;"
36. To change Article 9.3. of the Agreement and formulate it as
follows:
"9.3. All disputes and disagreements that arise with regard to
the Agreement shall be resolved in accordance with the procedure
provided for by the current legislation of the Republic of
Kazakstan."
37. To change Article 10.3. of the Agreement and formulate it as
follows:
"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 Company."
38. To change Article 10.4. of the Agreement and formulate it as
follows:
"10.4. All notifications relating to the terms and conditions of
the Agreement shall be sent by the Bank to the Company at the
address indicated in the Agreement, or any other address
indicated by the Company."
39. To change Article 10.5. of the Agreement and formulate it as
follows:
"10.5. All notifications relating to the terms and conditions of
any particular Accessorial Agreement shall be sent by the Bank to
the Company at the address indicated in the Agreement, or any
other address indicated by the Company."
40. To exclude Appendix # 1 to the Agreement.
41. To change the second line of the second column in the table in
Appendix # 2 to the Agreement and formulate it as follows:
"Title of the executive officer or details of the power of
attorney, signature of the representative"
42. This Additional agreement shall be an integral part of the
Agreement and shall be valid upon signing by authorized
representatives of the Parties.
43. This Additional agreement is executed in three copies having
equal legal force, two for the Bank, one for the Company.
LEGAL ADDRESSES AND BANKING DETAILS OF THE PARTIES:
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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;
COMPANY: Karakudukmunay JSC - Republic of Kazakstan, Mangistau oblast, Aktau,
466200, District 3, Building 82, proceeds account 06467365, currency account
05070546 in Aktau branch of Kazkommertsbank OJSC, RNN 430600001175, residency
code 1, economy sector code 7.
BANK BORROWER
A. L. Dautov U. B. Khairov
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A. L. DAUTOV U. B. KHAIROV