LOAN AGREEMENT
Exhibit
10.173
This Loan Agreement (hereinafter referred to as the
"Agreement") was entered into in Warsaw on June
13, 2006
between:
1. Century Casinos Europe GmbH, 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 referred to as the
"Lender"
and
2. 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, hereinafter referred to as the
"Borrower", represented by: Xxxxxxxxxx Xxxxx Xxxxxxxx-Angierman,
Xxxxx
Xxxxxxx, Xxxxx Xxxxxx Nassius, and Przemysław Xxxxxxx Xxxxxxxxxxx, acting
in the capacity of management board members
WHEREAS
The Borrower is obliged to re-pay Original
Loans
as defined below to certain Polish Entities.
WHEREAS
The Lender has expressed its willingness
to grant
the Borrower the New Loan, on the terms and in the amounts described herein.
WHEREAS
The New Loan is solely and exclusively
purposed
for the repayment of the Original Loans.
THE PARTIES HAVE AGREED TO THE
FOLLOWING:
§ 1.
Definitions
Wherever used in this Agreement, unless the context requires
otherwise, the following terms have the following meanings:
"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 registered pledge to
be established over all the shares in the Borrower by its shareholders to
secure
the timely repayment of the Total Repayment Amount in the form set forth
in
Schedule No. 1 of this Agreement;
"Drawdown Date" means the 3rd
Business Day after the establishment of the Collateral as envisaged in § 2
section 3 of this Agreement;
"Default Interest" means the 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;
"Final Maturity Date" means the day falling
5 (five) years after the Drawdown Date, which is the date when the Borrower
must
pay to the Lender the Total Repayment Amount under this Agreement;
"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;
"Maturity Date" means, with respect to any
repayment of the principal amount of the New Loan - the Final Maturity Date
and,
with respect to any payment of interest including the Default Interest -
the
relevant Interest Payment Date;
"New Loan" means a loan which is to be
extended to the Borrower by the Lender hereunder;
"Original Loans" means loans in the total
amount of 15,000,000 PLN inclusive of all interest accrued thereon, previously
extended to the Borrower by the Polish Entities,
"Original Loan Agreements" means,
cumulatively, all the loan agreements between the Polish Entities and the
Borrower under the provisions of which the Original Loans were extended to
the
Borrower by the Polish Entitles, the copies of all the Original Loan Agreements
are appended hereto as Schedule No. 2;
"Party" or "Parties" means,
respectively the Borrower and the Lender under this Agreement;
"PLN" or "Zloty" means the
currency of the Republic of Poland;
"Polish Entities" means creditors who
extended to the Borrower the Original Loans;
"Share Sale Agreement" means the agreement
for the sale of all shares in the share capital of the Borrower concluded
between the shareholders of the Borrower and Century Casinos Europe GmbH,
incorporated and existing under the laws of Austria, whose registered office
is
Xxxxxxxxxx Xxx., 00, 0000, Xxxxxx, Xxxxxxx;
"Total Repayment Amount" means the principal
amount of the New 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 which 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 1 Business Day prior
to
the date on which any payment is made, in accordance with this Agreement.
§ 2.
Loan
1. Subject to the terms and conditions of this Agreement,
the
Lender agrees to extend to the Borrower, a New Loan in the principal amount
of
USD Equivalent of PLN 15,000,000 (fifteen million Polish zlotys), subject
to §3
section 2 hereof.
2. The Borrower is obliged to repay to the Lender, on
the
Final Maturity Date, the principal amount of this New Loan in the amount
of USD
___. The interest on the principal amount of the New Loan will be calculated
with the use of USD principal amount of the New Loan as stated in the latter
sentence.
3. The New Loan will be extended to the Borrower, if
the
Borrower ensures, by no later than 3 Business Days of the date hereof, the
establishment of the Collateral to secure - unless and until the Share Sale
Agreement comes into force in accordance with the provisions of it - the
timely
payment of the Total Repayment Amount to the Lender. The said condition
precedent is stipulated for the sole benefit of the Lender which can, any
time,
waive the fulfilment of it. For the avoidance of doubt, the Parties confirm
that
the establishment of Collateral means: (i) execution, and delivery to the
Lender
of the relevant registered pledge agreement, and (ii) delivery to the Lender
by
the shareholders of the Borrower of an original of a complete application
bearing a competent court’s seal to confirm a proper filing of that application,
to be signed and filed by all the shareholders of the Borrower at their own
expense, for the registration of the Collateral. .
§ 3.
Use of Proceeds; Drawdown
1. Use of Proceeds from the New Loan
The New Loan is granted by the Lender on the express
condition that all of the proceeds from it be solely used for the purpose
of
repayment of the Original Loans to the Polish Entities, and the Borrower
covenants to use the proceeds from the New Loans solely for such purpose.
2. Drawdown
The New Loan is to be drawn down in full by the Borrower,
in
accordance with Schedule No. 3, on the Drawdown Date, or at a such a later
date
as set forth in Schedule No. 3 by way of the New Loan being transferred by
the
Lender, acting in the name of the Borrower, under authority extended to the
Lender, hereby, into the bank accounts indicated in Schedule No. 3 for the
purpose of the repayment of the entirety of the Original Loans. For the purpose
of the interpretation of this Agreement, the Lender shall be deemed to have
extended to the Borrower the New Loan on the Drawdown Date if it has made,
by
that date, a relevant money transfer commission, regardless of when the money
have reached the designated bank account(s) of the money recipient(s).
§ 4
Interest and Interest Payments
1. Interest
The outstanding amount of the principle amount of the
New
Loan is to be charged with interest on each Interest Payment Date under the
Interest Rate. Interest, including Default Interest, is to be determined
on the
basis of a year consisting of 360 (three hundred and sixty) days and a month
consisting of 30 (thirty) days.
2. Interest Payments
The interest is payable on respective Interest Payment
Date
in USD until the Final Maturity Date.
§ 5
Payments
1. Total Repayment Amount
The principal amount of the New 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 in USD.
2. Manner of Payments
On each date on which any sum is due from the Borrower
in
accordance with the 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 may therefore not be deducted on such sum.
3. (purposely left blank)
4. Prepayment
Neither in whole, nor in part, is the Borrower permitted
to
prepay the New Loan.
5. Taxes
All payments in respect of the New Loan are to be made
without withholding, or deducting, or on account of any present or future
taxes,
duties, assessments or governmental charges of whatever nature ("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 regulation. In that event,
the
Borrower will pay to the Lender such additional amounts as may be necessary
in
order that the net amounts received by the Lender after such withholding,
or
deduction are to be equal to the amount which would have been receivable
in
respect of the New 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 forthwith.
§6
Status of the New Loan
The New Loan is to, at all times throughout the New Loan’s
life, constitute a direct, secured, general obligation of the Borrower, subject
to further security agreement.
§ 7
Representations and Warranties of the
Borrower
The Borrower, hereby, represents and warrants to the
Lender
that as of the date of the signing of the Agreement:
(i)
it is a limited
liability company properly organised and validly existing under the laws
of
Poland;
(ii)
it has obtained
all necessary permits and authorisations to enter into the Agreement and
make
payments hereunder;
(iii)
it has taken
all required actions to perform its obligations under this Agreement, and
such
performance will not breach its statute, bylaws, or other corporate
documents;
(iv)
it will utilize
the New Loan solely for the purpose referred to in §3 sec.1 hereof;
(v)
It has a right to
prepay the Original Loans on dates set forth by the Share Sale Agreement;
and
(vi)
it will not
divest, or encumber, Shares No. 2 as those are defined in the Share Sale
Agreement without a prior written consent of the Lender, unless it is explicitly
permitted by Lender.
§ 8
Representations and Warranties of the
Lender
The Lender, hereby, represents and warrants to the Borrower
that as of the date of signing of the Agreement:
(i)
it is a company
properly organised and validly existing under the laws that apply to the
location of its registered office;
(ii)
it does not need a
foreign exchange permit to fulfill the obligations it has
hereunder.
§ 9
Events of Default
The Lender may, upon notice to the Borrower, declare
the
principal amount of the New Loan together with all accrued interest thereon
(plus any other amounts accrued or payable under the Agreement), as due and
payable within 14 Business Days from the date of the notice of the default
of
the Agreement, if any of the events specified below occur after the date
hereof:
(i)
the Borrower
fails to pay within due time any principal amount of the New Loan or interest
thereon, as required by this Agreement, and such default continues for a
period
of ten (10) days after the Borrower receives notice thereof;
(ii)
any competent
authority nationalises, seizes, or expropriates any substantial part of the
Borrower’s property, or takes control of such property, or takes any action that
prevents the Borrower from carrying on its business operations and such action
is not remedied for a period of ninety (90) days after the Borrower receives
notice thereof; or
(iii)
a legally
justified motion is filed for the Borrower’s bankruptcy or composition
proceedings are initiated pursuant to the Polish Bankruptcy and Recovery
Law of
28 February 2003 (or pursuant to any other legislation having similar effects),
and such motion is not rejected for a period of one hundred and twenty (120)
days after the Borrower receives notice thereof;
(iv)
any proceeds
from the New Loan have been used by the Borrower in contravention of § 3 section
1 above; or
(v)
Shares No. 2 as
those are defined in the Share Sale Agreement has been divested by the Borrower,
or encumbered, in contravention of this Agreement.
§10
Acceleration
1. Automatic Acceleration
Any amounts accrued, or payable, under the Agreement
are to
become immediately due and payable, without any notice from the Lender,
if:
(i)
the Borrower is
dissolved;
(ii)
the Borrower is
declared bankrupt, or a composition decision is issued pursuant to the Polish
Bankruptcy and Recovery Law (or pursuant to any other legislation having
similar
effect) and the Lender’s receivables under the Agreement are not included in
such proceedings.
2. Reporting
The Borrower must promptly notify the Lender of the
occurrence of any event specified in herein, together with the description
of
the steps that the Borrower is taking to remedy such an event.
§ 11
Miscellaneous
1. Language of Documents
All documents and notices to be furnished, or made, under
this Agreement are to be in English. This Agreement is drawn in English and
in
Polish, and one copy in each language version is for each Party. In the case
of
discrepancies between the Polish and the English version, the English version
is
to prevail.
2. Dispute Resolution
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.
3. Term of the Agreement
This Agreement is to continue in force until all amounts
payable hereunder have been fully paid in accordance with the provisions
hereof.
4. Transaction Tax
(i)
The Parties
acknowledge that the New Loan is subject to 2% transaction tax under the
Polish
Act on Tax on Civil Law Transactions.
(ii)
The tax amount
is to be paid by the Borrower.
5. Schedules
The following Schedules constitute integral part of this
Agreement:
(i)
Schedule No. 1 –
Contents of the Registered Pledge Agreement
(ii)
Schedule No. 2 –
Copies of the Original Loan Agreements
(iii)
Schedule No. 3
– Mode of the Drawn Down of New Loan
Contents of the Registered Pledge
Agreement
Registered Pledge Agreement
hereinafter referred to as the "Agreement", concluded
on
_____________ in ________ between:
- Xxxxxxxxxx Xxxxx
Xxxxxxxx-Angierman, a citizen of Poland, residing at xx. Xxxxxxxxx 00, 00-000
Xxxxxxx, Xxxxxx, hereinafter referred to as “Seller No. 1”, and
- Xxxxx Xxxxxxx, a
citizen of Poland, residing at xx. Xxxxxxx 00, 00-000 Xxxxxxx, Xxxxxx,
hereinafter referred to as “Seller No. 2”, and
- Xxxxx Xxxxxx Nassius, a citizen of Poland, residing
at xx.
Xxxxxx Xxxx 0/0, 00-000 Xxxxxx, Xxxxxx, hereinafter referred to as "Seller
No.
3", and
- Przemysław
Xxxxxxx Xxxxxxxxxxx, a citizen of Poland, residing at xx. Xxxxx 0X, 00-000
Xxxxxxxxx, Xxxxxx, hereinafter referred to as “Seller No. 4",
on one side, cumulatively referred to as the
"Pledgor"
and
Century Casinos Europe GmbH, 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"
WHEREAS:
Pursuant to the loan agreement dated ___, hereinafter
the
"Loan Agreement", between Century Casinos Europe GmbH, incorporated and existing
under the laws of Austria, whose registered office is Xxxxxxxxxx Xxx.
00, 0000,
Xxxxxx, Xxxxxxx, hereinafter the “Lender” and 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; hereinafter the "Borrower", under which Loan
Agreement the Borrower is obliged to repay the Lender the principal amount
of a
loan of 15,000,000 PLN (in words: fifteen million PLN) together with all
interest accrued thereon (plus any other amounts accrued, or payable under
the
Loan Agreement), hereinafter the "Debt".
NOW AND THERFORE, the parties agree as
follows:
§1.
Creation of Security
1. Establishment of the Pledges
The Pledgor, hereby, establishes in favour of the Lender
a
first ranking registered pledge, hereinafter the "Registered Pledge", over
the
Shares owned by the Pledgor, to secure the payment of the Debt by the Borrower,
up to the maximum secured amount of 25,000,000.00 PLN (in word: twenty five
million zloty).
The Pledgor, hereby, establishes in favour of the Lender
a
first ranking pledge, hereinafter the "Ordinary Pledge", over the Shares
to
secure the payment of the Debt, to which the provisions of Article 327 and
the
subsequent articles of the Civil Code apply. For the purpose of interpretation
in this Agreement "Shares" mean all 80 shares in the share capital of the
Borrower, of a nominal value of PLN 11,250 each share.
The Lender, hereby, consents to the establishment of
the
Pledges.
2. Registration of the Registered Pledge
The Pledgor is to procure that the application for the
registration of the Registered Pledge is properly filed with a relevant court.
The application for entry of the Registered Pledge in
the
register of pledges is to be submitted to the relevant registration court
by the
Pledgor within 3 (three) Business days of the date of this Agreement, and
copies
of the application - together with the evidence of filing it in the relevant
registration court and proper payment of all court fees - is to be forthwith
sent to the Lender. The court fees payable upon entering the Registered Pledge
in the register of pledges are to be paid by the Pledgor.
3. Notice of Pledges and Assignment
The establishment of the Ordinary Pledge and the intention
to
establish the Registered Pledge are to be notified to the Borrower, by attaching
one copy of this Agreement to the notice. The notice is to be served by the
Pledgor, and a copy of it is to be sent to the Lender, within 2 (two) days
of
the date of this Agreement, in the form of Schedule 1. The Pledgor will use
its
best endeavours to procure that the Borrower’s management board registers the
establishment of the Ordinary Pledge in the relevant share register within
5
(five) days from the date of receipt of the above notice of establishment
of the
Ordinary Pledge. The Pledgor is to submit to the Borrower and the Lender
a
notification of the establishment of the Registered Pledge within 2 (two)
days
after receipt by the Pledgor of a relevant court decision entering the
Registered Pledge in the register of pledges, and the Pledgor will use its
best
endeavours to procure that the Borrower's management board registers the
establishment of the Registered Pledge in the relevant share register within
5
(five) days from the date of receipt of the notification.
4. Power of Attorney
So as to perform the provisions in Clause 5.2 (voting
rights
and other non-property rights), the Pledgor will, on the date of this Agreement,
grant to the Lender a power of attorney in the form in Schedule 2, authorising
the Lender to exercise on behalf of the Pledgor the voting rights attaching
to
the Shares, and to exercise other non-property rights in respect of the Shares,
to which the Pledgor is entitled as a shareholder of the Borrower. The Lender
undertakes not to use the said power of attorney for any purpose other than
asserting rights and protecting the security of the Lender hereunder. Such
power
of attorney is to be irrevocable, until the date on which the Debt is paid
in
full. The Lender is to accept the power of attorney granted pursuant to this
clause. At the request of the Lender, the Pledgor will grant to the Lender
all
other powers of attorney that may be required to exercise the rights over
the
Shares.
§2.
Release from Security
On the date that the Debt is paid, the Lender at the
written
request and expense of the Pledgor is to:
1) take whatever action is necessary to release the Shares
from the Registered Pledge and
2) take whatever action is necessary to release the Shares
from the Ordinary Pledge established under this Agreement, or confirm the
expiry
of all the claims under the Loan Agreement;
The Lender will not be obliged to release the Shares
from the
Registered Pledge and Ordinary Pledge established hereunder, if the Borrower's
performance under the Loan Agreement could be deemed to be ineffective, or
invalid, in accordance with Article 127 point 3 of the Polish Bankruptcy
and
Recovery Law of 28th February, 2003.
The power of attorney granted to the Lender under Clause
1.4,
hereinafter "Power of Attorney", will expire automatically on the date on
which
the Debt is paid in full.
§3.
Representations and Warranties of the
Pledgor
The Pledgor, hereby, represents and warrants to the Lender
that:
1) the Borrower’s share capital is PLN 900,000 and is divided
into 80 Shares, each share having a nominal value of PLN11,250;
2) it is the owner of 80 Shares in the share capital
of the
Borrower, which constitute all the shares issued thereby,
3) the Shares are fully paid, and are free from any pledges,
encumbrances, or third party rights; and
4) the Borrower’s articles of association do not contain a
prohibition that prevents shareholders from participating in shareholder
meetings and executing voting rights by proxy.
§4.
General Undertakings
1. Duration
The undertakings in § 4, hereof, are to remain in force until
the repayment of the Debt in full.
2. Negative covenants
The Pledgor shall not:
1)
sell, assign, or
otherwise dispose, of any of the Shares; or
2)
encumber any of
the Shares by any third party rights.
3. Share register and minutes book
The Pledgor will procure that the Lender will, upon giving
reasonable notice to the Pledgor, have at any time the right to inspect the
share register of the Borrower and the minutes book of the Borrower.
4. Exercising the Lender's rights
The Pledgor will, at its own expense, execute and deliver
to
the Lender any documents and take whatever action the Lender may reasonably
require for the perfecting, protecting, or maintaining, the Registered Pledge
and Ordinary Pledge, intended to be established under this Agreement.
5. Obligations under the Shares
The Pledgor is to remain liable to observe and perform
all
conditions and obligations assumed by it in respect of the Shares and the
Lender
will not be under any obligation, or liability, arising out of the Shares.
§5.
Voting Right
1. Exercise of voting right
The Lendor will not exercise voting rights in respect
of the
Shares in a manner that could:
1) adversely affect the scope of rights attached to the
Shares;
2) diminish the proportion of the Shares in the
Borrower’s share capital;
3) cause any merger, takeover, or transformation of the
Borrower; or
4) otherwise adversely affect the Registered Pledge and
Ordinary Pledge created by this Agreement.
5) revoke or suspend any member of the Management Board
of
the Borrower
The Lender undertakes not to use voting rights for any
purpose other than asserting rights and protecting the security of the Lender
hereunder.
2. The voting rights and other non-property
rights
So as to satisfy the claims of the Lender under the Loan
Agreement and to preserve its rights hereunder, the Lender will acquire the
right to exercise voting rights in respect of the Shares and other non-property
rights in respect of the Shares vested in the Pledgor as the Borrower's
shareholder, and, specifically, the right to request the convening of an
extraordinary meeting of the shareholders of the Borrower. The Lender will
be
entitled to exercise those voting rights and other non-property rights on
the
basis of the power of attorney granted to it in accordance with § 1 section 4
above.
The Pledgor is obliged to notify the Lender of each meeting
of the shareholders, within 7 (seven) days prior to such meeting.
§6.
Enforcement of Security
1. Rights of the Lender
The Lender can enforce the Registered Pledge and Ordinary
Pledge established under this Agreement, if written notice is given by the
Lender to the Pledgor in the situation where either this Agreement or the
Loan
Agreement has been breached by the Pledgor or the Borrower. In such a case,
the
Lender can, in its absolute discretion, and subject to the provisions of
the
relevant provisions of Polish law, enforce the Pledges established under
this
Agreement through court enforcement proceedings or, in the case of the
Registered Pledges, also by one of the methods specified in Clause 6.2 (Sale
of
the Shares by public auction) or § 6 section 3 (Seizure of title to the Shares).
2. Sale of the Shares by public auction
The Registered Pledge can be enforced by the sale of
the
shares by public auction by a notary, or public bailiff, pursuant to Article
24
of the Pledge Law, within 14 days of the Lender’s application for such
sale.
3. Seizure of title to the Shares
1.
The Registered
Pledge can be enforced by the seizure of title to the Shares by the Lender,
pursuant to Article 22 of the Pledge Law. The parties agree that the value
of
one Share for that purpose is PLN 11,250.
2.
The seizure of
title to the Shares is to be effected by a written statement of the Lender
on
the seizure of title to the Shares, to be served on the Pledgor no earlier
than
7 (seven) days after receipt by the Pledgor of the notice in accordance with
Clause 6.1 (Rights of the Lender).
§7.
Application of Proceeds
Any moneys received by the Lender as a result of the
enforcement of the Registered Pledge and Ordinary Pledge constituted by this
Agreement must be applied in the following order of priority:
1)
first, in, or
towards, payment of, or provision for, all costs and expenses incurred by
the
Lender in connection with the enforcement of the Registered Pledge and Ordinary
Pledge constituted by this Agreement;
2)
second, in, or
towards, payment of Loan Agreement, and
3)
third, in payment
of the surplus (if any) to the Pledgor, or other person entitled to it.
§8.
Indemnity
1. The Pledgor will indemnify the Lender and keep it
at all
times harmless from, and against, all reasonable costs and expenses incurred
by
it in connection with the Pledgor's breach and enforcement, or either, of
this
Agreement and any rights, or either, vested in them pursuant, hereto, except
that the Lender is not to be indemnified in respect of any costs and expenses
incurred by it as a result of its own gross negligence, or wilful
misconduct.
2. The Lender is not to be liable for any losses arising
from
the execution, or enforcement, of any of its rights, hereunder, except where
such losses arise as a result of its own gross negligence, or wilful
misconduct.
§ 9.
Language and Counterparts
1. This Agreement has been executed in 5 (five) counterparts,
each counterpart containing a Polish and English version of the Agreement,
for
each Party.
2. The English language version of the Agreement is to
prevail over any discrepancy between the language versions.
§ 10.
Disputes Resolution
Any dispute, controversy, or claim arising out of, or
relating to this Agreement, or the breach, termination, or invalidity hereof,
is
to be settled by Polish common courts.
§ 11.
Governing Law
This Agreement is to be governed by Polish law.
Copies of the Original Loan Agreements
1.
Copy of the Settlement Agreement between W.A.S. Ltd. and G5 Ltd dated July
24th,
2003.
2.
Copy of the Loan Agreement between CP Nieruchomosci Ltd and G5 Ltd. dated
July
23rd, 2004.
3.
Copy of the Settlement no. 2002/2002 between Polski Kredyt Bank S.A. and
G5 Ltd
dated January 23rd, 2002.
4.
Copy of the Loan Agreement between Xxxxxxxxxx Xxxxxxxx-Angierman and G5 Ltd
dated October 5th, 2000.
5.
Copy of the Loan Agreement between Piotr Nassius and G5 Ltd dated October
5th,
2000.
6.
Copy of the Loan Agreement between Xxxxxxxxxx Xxxxxxxxxxx and G5 dated October
5th, 2000.
7.
Copy of the Loan Agreement between Xxxxx Xxxxxx and G5 Ltd dated October
5th,
2000.
To: G5
Sp. z o.o.,
With Copy for: Century
Casinos
Europe GmbH
Subject:
Pledge of shares
Dear Sirs,
We, undersigned (cumulatively the "Pledgor"), hereby,
give
you notice that by the Agreement for Registered Pledge and Ordinary Pledge
over
all the shares in the share capital of the Borrower (the "Registered Pledge
Agreement"), a copy of which is attached hereto, have established a Registered
Pledge over the all the shares in the share capital of the Borrower and
the
Ordinary Pledge over these shares, in accordance with Art. 327 and the
subsequent articles of the Civil Code in favour of Century Casinos
Europe GmbH, incorporated and existing under the laws of Austria, whose
registered office is Xxxxxxxxxx Xxx. 00, 0000, Xxxxxx, Xxxxxxx (the
"Lender").
We, hereby, request you to enter the Ordinary Pledge
established under the Registered Pledge Agreement in the shareholders book
of
the Borrower, in accordance with Article 188 § 1 of the Companies Code, and -
after receipt of a notice from the relevant court of registration of such
Registered Pledge in the pledge register- to enter the Registered Pledge
established under the Registered Pledge Agreement in the shareholders book
of
the Borrower, in accordance with Article 188 § 1 of the Companies Code.
Please confirm your acknowledgement of the above by
signing
the acknowledgement attached to the enclosed duplicate copy of this Notice
of
Establishment of Pledge and return the duplicate together with a properly
signed
acknowledgement to us, and a copy to the Lender.
Yours sincerely,
|
_____, /s/ Xxxxxxxxxx X. Xxxxxxxx-Angierman
(date) (signature certified by a notary)
Xxxxxxxxxx Xxxxx Xxxxxxxx-Angierman
|
_____, /s/ Przemyslaw Xxxxxxx Xxxxxxxxxxx
(date) (signature certified by a notary)
Przemysław Xxxxxxx Xxxxxxxxxxx
|
|
_____, /s/ Xxxxx Cieslak_
(date) (signature certified by a notary)
Xxxxx Xxxxxxx
|
_____, /s/ Xxxxx Xxxxxx Nassius______
(date) (signature certified by a notary)
Xxxxx Xxxxxx Nassius
|
We acknowledge receipt of a Notice of Establishment
of Pledge
of which this is a copy and a copy of the Agreement for Registered Pledge
and
Ordinary Pledge over Shares.
__/s/ G5 Sp. z o.o.___________
On behalf of
the Borrower
the Borrower
granted on June 13th, 2006 in Warsaw by the undersigned
persons(cumulatively, the "Pledgor") acting as shareholders of G5 Sp. z
o.o., a
company incorporated and existing
under the laws of the Republic of Poland, whose registered office is at
xx.
Xxxxxxxx 00/00 xx. 00, 00-000 Xxxxxx, registered in the National Court Register
– Register of Entrepreneurs, under number KRS No. 90606 (the
“Lender”)
§1
1. The Pledgor, hereby, grants to the Lender an irrevocable
power of attorney, which has a power of substitution, to exercise in the
Pledgor's name all and any voting and other non-property rights in respect
of
the shares which the Pledgor, as the sole shareholder of the Borrower,
has, or
might have, pursuant to the company's articles of association and Polish
law.
2. This power of attorney is granted pursuant to Clauses
1.4
and following provisions of the Agreement for Registered Pledge and Ordinary
Pledge over all shares in the share capital of the Borrower, dated
_____________, ____ (the "Registered Pledge Agreement") between the Pledgor
and the Lender.
§2
The Lender, specifically, but without limitation, is
to have
the following rights:
1. the right to demand an extraordinary shareholders'
meeting
be convened by the management board of the Borrower;
2. the right to be informed of each ordinary and
extraordinary shareholders' meeting convened by the management board of
the
Borrower, and upon its request to be present at any shareholders'
meeting;
3. the right to vote over all the shares in the Borrower
pledged in favour of the Lender pursuant to the Registered Pledge Agreement
as
the Pledgor’s proxy pursuant to Article 243 §1 of the Polish Companies
Code; and
4. the right to give any consent, or authorisation
that is
required from a shareholder under the Polish Companies Code and the company's
articles of association.
§3
This power of attorney remains irrevocable upon date
on which
the Debt (as that term is defined in the Registered Pledge Agreement) was
paid.
The Lender is authorised to act on the basis of this power of attorney
in
accordance with the terms of the Registered Pledge Agreement.
|
_____, /s/ Xxxxxxxxxx X. Xxxxxxxx-Angierman
(date) (signature certified by a notary)
Xxxxxxxxxx Xxxxx Xxxxxxxx-Angierman
|
_____, /s/ Przemyslaw Xxxxxxx Xxxxxxxxxxx
(date) (signature certified by a notary)
Przemysław Xxxxxxx Xxxxxxxxxxx
|
|
_____, /s/ Xxxxx Cieslak_______________
(date) (signature certified by a notary)
Xxxxx Xxxxxxx
|
_____, /s/ Xxxxx Xxxxxx Nassius_______
(date) (signature certified by a notary)
Xxxxx Xxxxxx Nassius
|
