Loan Agreement
Exhibit
10.4D
hereinafter
referred to as the “Agreement”,
concluded on 1 February 2007 in Warsaw,
between
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Century
Casinos Europe GmbH,
a
company incorporated and existing under the laws of Austria, whose
registered office is Xxxxxxxxxx Xxx. 00, 0000, Xxxxxx, Xxxxxxx,
represented by Xx Xxxxxxxxx Xxxxxxx acting in the capacity of a managing
director, hereinafter the “Lender”,
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and
-
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G5
Sp. z o.o., a
company incorporated and existing under the laws of the Republic
of
Poland, whose registered office is at xx.
Xxxxxxx 00/00 xx. 00, 00-000 Xxxxxx, registered in the National Court
Register - Register of Entrepreneurs, under number KRS No.
90606, represented
by Xxxxxxxxxx Xxxxxxxx-Angierman, Xxxxx Xxxxxxx, Piotr Nassius and
Xxxxxxxxxx Xxxxxxxxxxx,
acting
in the capacity of management board members,
hereinafter the “Borrower”
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Whereas
The
parties hereto assumed that the Debt Repayable to One of the Polish Entities
was
lower by approximately PLN 3,000,000 than it is currently alleged to
be.
Whereas
One
of
the Polish Entities is ready to finally settle the Debt Repayable to One of
the
Polish Entities for payment of not more than PLN 3,000,000.
Whereas
The
Parties, hereto, are willing to have the Debt Repayable to One of the Polish
Entities finally settled between the Borrower and One of the Polish Entities
in
return for a one-off payment of not more than PLN 3,000,000, to be made by
the
Borrower to One of the Polish Entities, even though the Borrower deems the
Debt
Repayable to One of the Polish Entities to have been already
repaid.
Now,
and therefore, the Parties agree as follows
§ 1.
Definitions
Wherever
used in this Agreement, unless the context requires otherwise, the following
terms have the following meanings:
“Annex
to the SSPA” means
the
document indicated § 2.3 item (1) (iii) below;
“Bank”
means
the
bank indicated in § 2.4 below;
“Bank
Account” means
the
bank account indicated in § 2.2 below;
“Bank
Guarantee” means
the
bank guarantee indicated in § 2.4 below;
“Business
Day”
means
a
day, other than a Saturday, or a Sunday, on which commercial banks are open
for
business in Warsaw, Poland;
“Collateral”
means
the
collateral indicated in § 2.4 below;
“Default
Interest”
means
interest of 5 % per annum above the Interest Rate calculated for the period
from the date any payment, hereunder, becomes due and payable until the day
of
actual payment, thereof;
“Drawdown
Date”
means
the date when Loan has been transferred to the bank account indicated in § 2.2
below;
“EURO”
means
the
common currency used in some member countries of the European Union;
“EURO
Equivalent of PLN” means
in
relation to any amount denominated in PLN the amount of EURO that would be
realised upon the sale of such PLN amount under the average exchange rate quoted
by the National Bank of Poland prevailing on the date falling 3 Business Day
prior to the date on which such amount is to be paid, or as of which date any
such amount is to be computed, in accordance with this Agreement; should any
EURO Equivalent of a PLN amount be bound to be paid within the deadline set
forth, hereunder, that EURO Equivalent of PLN amount will be computed by using
the average exchange rate quoted by the National Bank of Poland on the date
falling 3 Business Day prior to the first day of such deadline;
“Final
Maturity Date”
means
the fifth anniversary of the date when the Loan has been transferred to the
bank
account indicated in § 2.2 below, which is the date when the Borrower must pay
to the Lender the Total Repayment Amount under this Agreement;
“Information”
means
the
Information as defined in § 6.1 item 1 below;
“Instalments”
mean
all
the instalments in which the Loan will be utilized for the repayment of the
Debt
Repayable to One of the Polish Entities and an “Instalment”
mean
any
one of the Instalments;
“Interest
Payment Date”
means
the Business Day that comes 365 days after the Drawdown Date and, afterwards,
each first Business Day of the anniversary of the initial Interest Payment
Date,
in arrears;
“Interest
Rate”
means
interest at the rate of LIBOR offered as at 3 Business Days before a relevant
Interest Payment Date for 1-month deposits, plus 2 %, per annum;
”Loan”
means
a
loan which
is
to be extended to the Borrower by the Lender, hereunder;
“Maturity
Date”
means,
with respect to any repayment of the principal amount of the Loan - the Final
Maturity Date and, with respect to any payment of interest including the Default
Interest - the relevant Interest Payment Date;
“Party”,
or
“Parties”,
means
the Borrower, or the Lender under this Agreement, or both, as the case may
be;
“Pledge”
means
the
right of registered pledge over 1/3 of all the shares in Casinos Poland
Sp.
z o.
o. with the registered office in Warsaw, at ul. Wolność 3a, which Pledge has
been established in favour of One of the Polish Entities by the Borrower to
secure repayment of all the receivables of One of the Polish Entities under
the
Settlement of the
Debt
Repayable to One of the Polish Entities;
“PLN”,
or
“Zloty”,
means
the currency of the Republic of Poland;
“PLN
Equivalent of USD” means
in
relation to any amount denominated in USD the amount of PLN that would be
realised upon the sale of such USD amount under the average exchange rate quoted
by the National Bank of Poland prevailing on the date falling 3 Business Day
prior to the date on which such amount is to be paid, or as of which date any
such amount is to be computed, in accordance with this Agreement; should any
PLN
Equivalent of USD amount be bound to be paid within the deadline set forth,
hereunder, that PLN Equivalent of USD amount will be computed by using the
average exchange rate quoted by the National Bank of Poland on the date falling
3 Business Day prior to the first day of such deadline;
“Share
Sale and Purchase Agreement” means
the
agreement which with all the annexes and amendments, thereto, will be appended,
hereto, as a schedule hereof;
“Taxes”
means
the
Taxes as defined in § 5.4 below;
“Total
Repayment Amount”
means
the principal amount of the Loan, plus interest, if any, including the Default
Interest, accrued, thereon, but unpaid during the term of this
Agreement;
“USD”
means
the currency of the United States of America;
“USD
Equivalent of PLN”
means
in relation to any amount denominated in PLN the amount of USD that would be
realised upon the sale of such PLN amount under the average exchange rate quoted
by the National Bank of Poland prevailing on the date falling 3 Business Day
prior to the date on which such amount is to be paid, or as of which date any
such amount is to be computed, in accordance with this Agreement; should any
USD
Equivalent of PLN amount be bound to be paid within the deadline set forth,
hereunder, this USD Equivalent of PLN amount will be computed by using the
average exchange rate quoted by the National Bank of Poland on the date falling
3 Business Day prior to the first day of such deadline;
“One
of the Polish Entities” means
the
entity which is entitled to receive the repayment of the Debt Repayable to
One
of the Polish Entities;
“Debt
Repayable to One of the Polish Entities”
means
the entirety of the indebtedness of the Borrower to One of the Polish Entities
under the Settlement of the Debt Repayable to One of the Polish Entities, which
Debt Repayable to One of the Polish Entities according to representations made
by the Borrower to the Lender:
(i)
as to
the principal amount of it, has already been repaid by the Borrower to One
of
the Polish Entities, (ii) as to the outstanding interest accrued on the
principal amount of it, is now subject to a dispute between One of the Polish
Entities and the Borrower, and (iii) is offered by One of the Polish Entities
to
be finally settled between One of the Polish Entities and the Borrower in return
for payment of not more than PLN 3,000,000, to be made by the Borrower to One
of
the Polish Entities,
“Settlement
of the Debt Repayable to One of the Polish Entities” means
the
settlement between One of the Polish Entities and the Borrower dated July
24th,
2003,
together with all annexes and attachments, thereto, copies of which will be
appended, hereto, as a schedule hereof.
§ 2.
Grant
of a loan
1.
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The
Lender, hereby, grants to the Borrower the Loan, in an amount of
USD
1,000,000.
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2.
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The
amount of the Loan is to be transferred, within 3 Business Days from
the
date hereof, to the bank account no. 95
1060 0076 0000 3210 0009 9939 maintained
by Bank BPH SA, Branch Office in Warsaw (hereinafter “Bank
Account”),
which the Borrower will be able to access and use only when acting
with,
and on the basis of, a written consent of the Lender, to be issued
in the
future for a specific operation to be made in, or through, the Bank
Account. The Parties expressly confirm that: (i) the Lender will
not consent to the Loan being utilized for purposes other than those
indicated in clause 2.3 and 2.4 below, and (ii) the Lender will not
withhold, without a valid cause, its consent for the Borrower to
use the
Loan for the purposed indicated in clause 2.3 and 2.4 below.
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3.
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Save
for that that has been set forth in § 2.4 below, the Loan extended to the
Borrower by the Lender, hereunder, can only be used by the Borrower
for
the purpose of repayment of the entirety of the Debt Repayable to
One of
the Polish Entities. Furthermore, the Parties expressly agree that
the
Loan will only be possible to be retransferred from the Bank Account,
elsewhere, for the purpose of the repayment of the Debt Repayable
to One
of the Polish Entities, in the following Installments, and within
the
following deadlines:
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1)
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first
Installment being the USD Equivalent of PLN 1,000,000 will be
retransferred from the Bank Account not later than 7 days after the
later
of:
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(i)
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the
date when One of the Polish Entities has accepted in writing, and
to the
satisfaction of Lender, a written offer of the Borrower to finally
and
irrevocably settle the entirety of the Debt Repayable to One of the
Polish
Entities, by payment to be made by the Borrower to One of the Polish
Entities of PLN 3,000,000,
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(ii)
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the
date when One of the Polish Entities issues to the Borrower, to the
satisfaction of the Lender, a declaration consenting to the Pledge
being
removed from the Polish Register of Pledges, and
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(iii)
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the
date when the Borrower and the Lender have concluded an annex to
the Share
Sale and Purchase Agreement (hereinafter “Annex
to the SSPA”)
that will reduce, proportionately, all the Purchase Prices as defined
in
the Share Sale and Purchase Agreement, so that the total of all the
Purchase Prices is decreased to the balance of EURO 2,920,000 minus
the
EURO Equivalent of PLN 3,000,000, provided that such EURO Equivalent
is
computed as of the date of the Annex to the
SSPA;
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2)
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a
second Installment in an amount being the remainder of the Loan will
be
retransferred from the Bank Account 7 days after the date of the
issuance
of a final and binding decision of a competent court for deletion
of the
Pledge from the Register of Pledges in Poland, but in any case not
later
than the 30th
of
June 2007.
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4.
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The
Lender confirms that it is aware that in the time between the Drawdown
Date and actual repayment of the Debt Repayable to One of the Polish
Entities with the funds of the Loan, the Borrower intends to utilize
all
amount of the Loan that will be transferred by the Lender into the
Bank
Account for the purpose of establishing collateral (hereinafter
“Collateral”)
to secure the claims of a bank (hereinafter “Bank”)
for issuance by the Bank of a bank guarantee (hereinafter “Bank
Guarantee”)
to be delivered by the Borrower to One of the Polish Entities, so
that the
latter consents to the removal of the Pledge from the Polish Register
of
Pledges. Whenever requested to do so, the Lender will consent to
the
establishment of the Collateral for the Bank Guarantee, provided
that the
following is procured by the
Borrower:
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1)
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The
Bank Guarantee will be for a maximum of PLN
3,000,000;
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2)
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The
Bank Guarantee will secure, exclusively, repayment of the Debt Repayable
to One of the Polish Entities;
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3)
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The
Bank Guarantee will only be possible to be utilized : (i) upon occurrence
of events, within deadlines, and in amounts, set forth in § 2 section 3
items 1), and 2) above, and (ii) after the Lender
unsuccessfully demands from the Borrower, reasonably in advance,
payment of the amounts sought by to be paid under the Bank Guarantee;
and
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4)
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The
Bank Guarantee and the agreement between the Bank and the Borrower
for the
issuance of the Bank Guarantee will provide that should the Bank
demand
from the Borrower repayment of any amounts which have been paid by
the
Bank to One of the Polish Entities under the Bank Guarantee, any
such
repayment will be made from resources extended to the Borrower in
the form
of the Loan, without need for the Bank to obtain a prior consent
of the
Borrower.
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5.
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Immediately
after the payments referred to under §§ 2.2 - 2.4 are made, the Borrower
is to provide the Lender with a written notice regarding the payment
made,
including the precise date and exact amount of the payment, and a
copy of
an official and binding statement from a bank confirming the contents
of
the notice.
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§ 3.
Repayment
of the Debt Repayable to One of the Polish Entities
1.
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Provided
that, and immediately after, the Lender transfers to the Bank Account
any
amounts of the Loan hereunder, the Borrower, within 7 days, will
transfer
to One of the Polish Entities all the amounts so made available by
the
Lender in such a manner as will ensure full repayment of the Debt
Repayable to One of the Polish Entities, in accordance with § 2.3 above,
including the principal amount, any interest accrued, thereon, and
any
related payments, charges, or fees, which One of the Polish Entities
could
request from the Borrower in relation to the Debt Repayable to One
of the
Polish Entities.
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2.
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Nothing
in the provisions of this Agreement is to be construed to require
the
Lender to provide the Borrower, under any contractual, or factual,
basis
whatsoever, any additional amounts in excess of those expressly referred
in § 2.3, including when the amount of the Debt Repayable to One of
the Polish Entities, or of any payments, charges, or fees, referred
to in
§3.1, exceeds PLN 3,000,000.
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3.
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If
the Borrower makes any payments, whatsoever, in breach of the Agreement,
from the amounts made available by the Lender to the Borrower under
the
Agreement, the Borrower is to immediately repay such payments to
the
Lender, after obtaining a written notice from the Lender to that
effect,
to a bank account to be indicated by the Lender in the notice. The
Lender
is to decide, at its sole discretion, whether to request such repayment
and, if so, will establish the amount of repayment requested, to
be equal
to the aggregate payments made by the Borrower in breach of this
Agreement.
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4.
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If
the Borrower fails, for any reasons whatsoever, to timely transfer
to One
of the Polish Entities, in relation to the Debt Repayable to One
of the
Polish Entities, and in accordance with this Agreement, the aggregate
amount of all Installments of the Loan already obtained from the
Lender
under the Agreement, the Borrower is to immediately repay to the
Lender,
upon it giving written notice, such part of the amount obtained from
the
Lender under the Agreement that was not transferred to One of the
Polish
Entities for the repayment of the Debt Repayable to One of the Polish
Entities.
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§ 4.
Interest
and Interest Payments
1.
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The
outstanding amount of the principle of the Loan is to be charged
interest
on each Interest Payment Date, by the Interest Rate. The interest,
including Default Interest, is to be determined on the basis of a
year of
360 (three hundred and sixty) days and a month of 30 (thirty)
days.
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2. |
The
interest is payable on the Interest Payment Date until the Final
Maturity
Date.
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§ 5.
Payments
1.
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The
principal amount of the Loan, together with all interest accrued
thereon,
but unpaid, is to be repaid in full not later, and not earlier, than
on
the Final Maturity Date.
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2.
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On
each date on which any sum is due from the Borrower under this Agreement,
the Borrower is to make that sum available without set off, or tax,
or
other deductions, to the Lender by payment in immediately available,
freely transferable, cleared funds, to an account designated by the
Lender
for that purpose. All costs in connection with payment of any sum
(including the costs of transfer of payments) are for the account
of the
Borrower, and cannot, therefore, be deducted from such sum.
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3.
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Neither
in whole, nor in part, is the Borrower permitted to prepay the Loan.
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4.
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All
payments in respect of the Loan are to be made without withholding,
or
deducting, on account of any present, or future, taxes, duties,
assessments or governmental charges, whatsoever, (hereinafter the
"Taxes")
imposed, or levied by, or on behalf of, the Republic of Poland, or
any
political subdivision, or any authority thereof, or therein unless
the
withholding, or deduction of such Taxes is required by law, or
regulations. In that event, the Borrower pays to the Lender such
additional amounts as may be necessary so that the net amounts received
by
the Lender after such withholding, or deduction are equal to the
amount
that would have been receivable in respect of the Loan in the absence
of
such withholding, or deduction. As soon as the Borrower is aware
that any
such deduction, withholding, or payment of Taxes is required (or
of any
change in any such requirement), it must notify the Lender of that,
forthwith.
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§ 6.
Other
obligations of the Parties
1.
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The
Parties can disclose the Information to those of its employees and
advisers for whom it is necessary, for the purpose of entering into
this
Agreement, and for the performance of the obligations, hereunder,
provided
that the Parties ensure that the employees and advisers keep the
Information confidential.
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2.
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Any
public announcement, or disclosure, to be made is to be determined
and
made by the Parties acting jointly, except for announcements required
by
law to be made, specifically in relation to the disclosure requirements
applicable to publicly quoted
companies.
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§ 7.
Disputes,
governing law, levies
1. Any
dispute arising out of, or in connection with, this Agreement, including any
question regarding its existence, validity, or termination, is to be referred
to
and finally resolved by arbitration under the Rules of Arbitration and
Conciliation of the International Arbitral Centre of the Austrian Federal
Economic Chamber, which rules are deemed to be incorporated by reference into
this clause. The number of arbitrators is to be three. The location of
arbitration is to be Vienna, Austria. The language to be used in the arbitral
proceedings is to be English. The governing law of the contract is to be the
substantive law of Poland.
2.
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The
Borrower will pay the levy payable on civil law transactions, if
any, of
1% of the total amount of the Loan, as referred to in
§2.1.
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§ 8.
Language
1.
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This
Agreement has been executed in 2 (two) counterparts, each counterpart
containing a Polish and English version of the Agreement, for each
Party.
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3.
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The
English language version of the Agreement is to prevail over
any
discrepancy between the language
versions.
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In
Witness Whereof
the
Parties, hereto, have signed this Agreement on the date first mentioned
above.
_/s/
Xxxxxxxxx Xxxxxxx
/s/
Xxxxxxxxxx Xxxxxxxx-Angierman /s/Xxxxx
Xxxxxxx /s/Piotr Nassius /s/Xxxxxxxxxx
Xxxxxxxxxxx
For
Century Casinos Europe GmbH For
the
Borrower Sp. z o.o.