FRAMEWORK AGREEMENT No. UR 081/99
FOR VARIOUS FORMS OF CREDIT TRANSACTIONS
This Framework Agreement (the "Agreement") was entered into on February 24,
1999, between:
1. INTERNATIONAL FAST FOOD POLSKA, a limited liability company (the
"Borrower"), having its seat in Warsaw at 00 Xxxxxxxxxxxx Xxx., according
to an extract from the entry in the Commercial Register under no. RHB
32513, maintained by the District Court for the capital city of Warsaw,
Commercial Court, XVI, Commercial and Registration Division; the Management
Board of the Borrower consists of the following persons: Xxxxxxx Xxxxxx
Xxxxx - President of Management Board; the share capital of the Borrower is
PLN 28.876.082,33;
represented by the following persons duly authorized:
Xxxxx X. Xxxxxx
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and
2. Citibank (Poland) S.A. (the "Bank") having its seat in Warsaw at 16
Senatorska Str., according to an extract from the entry in the Commercial
Register under no. RHB 29183, maintained by the District Court for the
capital city of Warsaw, Commercial Court, XVI Commercial and Registration
Division; the Management Board of the Bank consists of the following
persons: Xxxxxxx Xxxx - President, Xxxxxx X. Xxxx - Vice President, Xxxxx
Xxxxxx - Vice President, Xxxxx X. Meechie - Director, Xxxxxxxxx Xxxxxxxx -
Director, Xxxxx X. Xxxxxxxxx - Director, Xxxxxx Xxxxxx - Director, Xxxxxxx
Xxxxx - Director, Xxx Xxxxxxxxx - Director, Xxxxxx Xxxxxx - Director, Xxxxx
Xxx - Director, Xxxxxx May - Director, Xxxxx Xxxxxxxxx - Director. The
share capital of the Bank is PLN 310.064.040.00;
represented by the following persons duly authorized:
Xxxxxx X. Xxxxxx
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name illegible
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The Parties agree as follows:
1. FORMS OF FACILITY
(1) The Bank may make available to the Borrower on its request
various forms of short-term credits (the "Facility") including
short-term credits and current account credits (the "Credits")
and letters of credit, bank guarantees and other banking
products (the "Products") on the terms agreed from time to
time between the parties to the Agreement.
(2) The Facility shall be made available from the date of this
Agreement, on the terms and conditions set out herein, until
the termination of this Agreement.
2. USE OF THE FACILITY
(1) The Borrower may from time to time request that the Bank makes
available specified Products and/or Credits. The Products
and/or Credits shall be made available at the sole discretion
of the Bank. In particular, without limiting the foregoing,
the Bank may refuse to make available Products and/or Credits
if that results in a breach of the laws and regulations
applicable to the Bank.
(2) Subject to the Bank's acceptance, the Borrower shall be able
to use the Facility by carrying out transactions: (i) in case
of Credits, in accordance with the terms as set out in the
Credit Agreement, substantially in the form contained in
Schedule A hereto, and (ii) in case of Products, in accordance
with the terms as set out in a completed request for the bank
guarantee or letter of credit in the form made available by
the Bank (jointly (i) and (ii) the "Facility Agreement"), and
by
(a) delivering to the Bank at least two business days
prior to the proposed day of availability of Credits
and/or Products the Facility Agreement duly signed by
the Borrower; and
(b) providing payment instructions or other instructions
to debit the current account of the Borrower in the
case of a current account credit, or submitting other
instructions, which require the Borrower's current
account to be debited, as provided for in the then
current Banking Law, orders of the President of the
National Bank of Poland or banking customs.
3. CONDITIONS PRECEDENT
The right of the Borrower to request the Products and/or Credits
pursuant to the Facility shall be contingent on the Borrower carrying
out the following as determined by the Bank:
(a) opening a current account at the Bank (the
"Account");
(b) establishing security, if required by the Bank;
(c) providing certified copies of all the permits
necessary for the Borrower to use the Facility and to
provide documents confirming the current shareholding
structure of the Borrower and guarantors and sureties
for the Borrower's obligations under the Facility;
(d) providing copies of constitutive documents including
deed of association and statutes of both the Borrower
and all the guarantors and sureties for the
Borrower's obligations under the Facility.
4. PAYMENTS AND THEIR SCHEDULE
(1) The Borrower shall make all payments under the Facility in
respect of Products and/or Credits in Polish approved currency
or in another currency in which they are due, in compliance
with the provisions of the foreign exchange law and so that
the funds are immediately available in the accounts specified
in the Facility Agreement on the due date. If the due date for
any payment under this Agreement or any Facility Agreement
would otherwise fall on a day which is not a business day,
then such payment shall instead be due on the next succeeding
business day.
(2) Any amounts payable by the Borrower in convertible currencies may
be paid as follows:
(a) in a convertible currency by debiting the currency
account specified in the Facility Agreement; or
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(b) in a convertible currency purchased from the Bank at
the exchange rate for the selling of such currency
prevailing at the Bank on the day of purchase by
debiting the zloty account specified in the Facility
Agreement, provided that the Borrower is entitled to
purchase such currency in accordance with the foreign
exchange law; or
(c) in zlotys in an amount being the equivalent of the
amount due in the convertible currency at the
exchange rate for the selling of such currency
prevailing at the Bank on the day of purchase by
debiting the zloty account specified in the Facility
Agreement.
(3) If a payment is made in a currency other than the currency of
the given obligation, the Borrower shall notify the Bank of
such payment at least 2 business days before it is made,
specifying the kind of currency in which the payment is to be
made.
(4) In the case of payments in convertible currencies other than
the currency of the given obligation, the amount to be paid in
the given currency shall be determined by reference to the
relevant rate of exchange of that currency into zlotys used by
the Bank. The zloty amount shall then be converted into the
amount of the currency as determined by the Facility
Agreement.
(5) Sums repaid by the Borrower in the performance of its
obligations shall be applied (regardless of the Borrower's
instructions) towards the payment of the following and in the
following order:
(a) commissions, fees and costs under the given Facility
Agreement;
(b) ancillary amounts which are due;
(c) default interest;
(d) contract interest;
(e) the principal;
provided that if there are a number of due and payable debts
under clause 5(a), (b), (c), (d) or (e), sums repaid shall be
applied in the order of the maturity of those debts.
(6) The Borrower is not permitted any set-off against the amounts
owed to it by the Bank.
5. DISBURSEMENT OF CREDITS AND/OR PRODUCTS
(1) Credits and/or Products shall be disbursed as specified in the
Facility Agreement.
(2) The Bank may refuse to disburse a Credit and/or Product if in
the Bank's opinion the Borrower has not fulfilled the
conditions precedent hereunder and conditions (if any) for the
disbursement of the Credit and/or Product, and, in particular,
if any security set out in the Facility Agreement has not been
established or the Borrower has failed to pay on time
commissions and fees set out in the Facility Agreement which
are due and payable to the Bank.
6. INTEREST
Unless the Facility Agreement provides otherwise, all interest due to
the Bank shall be payable on the last business day on each calendar
month. Interest shall be calculated on the basis of a 365-day year or a
360-day year, in accordance with the Bank's policies, as advised from
time to time, and the actual number of days elapsed (including the
first but excluding the last day) in the relevant interest period.
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7. FEES
(1) The Bank may charge fees for the granting of Products and/or
Credits, in particular a fee for the management of the Credit
and/or Products, a commitment fee, a fee for the granting of a
bank guarantee or the issuing of a letter of credit. The
amount and method of payments of such fees, if any, shall be
set out in the Facility Agreement.
(2) The Bank may also charge fees and commissions for banking
actions related to the making available of the Products and/or
Credits in the amount specified in the schedules of fees
prevailing at the Bank on the day of a given action or in the
amount agreed with the Borrower.
8. COSTS AND EXPENSES
(1) The Borrower shall pay on demand all the expenses, including
legal fees, incurred by the Bank in connection with the
negotiation, preparation and execution of this Agreement,
and/or Facility Agreements or the enforcement of the Bank's
rights under this Agreement and/or the Facility Agreements
and/or any security agreement.
(2) The Borrower undertakes to pay to the Bank all amounts which,
according to the written statement by the Bank, are necessary
to cover additional costs, taxes and other fees resulting from
the Bank's compliance with changes in Polish laws, including
requirements in respect of mandatory reserves, mandatory funds
including Bank Guarantee Fund or special deposits, if the
necessity to cover such costs is directly related to the use
of the Products and/or Credits.
9. REPRESENTATIONS
(1) The representations contained in this clause 9 constitute an
element of the credit evaluation of the Borrower and they
belong to (in common intention of the parties) the material
provisions of this Agreement and the Facility Agreements.
(2) The Borrower represents as follows:
(a) The Borrower has the power to enter into and perform
under, and has done all that is necessary to
authorize the entry into and performance of this
Agreement and the Facility Agreements as well as the
transactions contemplated thereby;
(b) This Agreement and the Facility Agreements shall
constitute legal, valid and binding obligations of
the Borrower enforceable in accordance with its
terms;
(c) There has been no material adverse change in the
financial or business condition of the Borrower since
the date to which the most recent audited accounts
delivered to the Bank were drawn up;
(d) No litigation, arbitration or administrative
proceedings are current or, to the Borrower's best
knowledge, pending, suspended or threatened, which
might, if adversely determined, have a material
adverse effect on the business condition (financial
or otherwise) or the ability of the Borrower to
perform its obligations under this Agreement or the
Facility Agreements.
(3) The representations set out in this clause 9 are made on the
date of conclusion of this Agreement. Furthermore, the
Borrower agrees to repeat these representations on each date
of execution of each Facility Agreement, in which case the
representations are deemed to be made implicitly by signing of
the Facility Agreement by the Borrower.
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10. UNDERTAKINGS
For as long as any financial obligations of the Borrower under this
Agreement and/or Facility Agreements have not been discharged in full,
the Borrower undertakes:
(a) to comply with all the applicable provisions of law
and the Borrower's by-laws and statutes;
(b) to promptly fulfill all of its obligations, including
tax obligations;
(c) to establish on demand within the time limit
prescribed by the Bank the additional security
required by the Bank, if in the opinion of the Bank
the value of the security established by the Borrower
has decreased or its economic or financial conditions
has deteriorated;
(d) maintain monthly inflows into the Account at the
level of not less than 400.000 zlotys;
(e) not to create any lien on any of its assets for any
financial debt, unless such lien equally and rateably
secures the repayment of the Products and/or Credits
and in the creation of any such lien express
provisions are made to that effect;
(f) that all obligations of the Borrower under the
Products and/or Credits rank and will rank at least
pari passu with all its other unsecured obligations
subject to mandatory provisions of law.
11. EVENTS OF DEFAULT
(1) Any of the following shall be deemed "Events of Default"
under the Facility:
(a) the Borrower fails to make any payment to the Bank
at a time fixed under this Agreement or any Facility
Agreement;
(b) the Borrower fails to perform or improperly performs
any of its obligations under this Agreement or any
Facility Agreement;
(c) any representation made by the Borrower to the Bank
in accordance with clause 9 of this Agreement is
found to be untrue or misleading when made;
(d) the Borrower breaches any of the Undertakings;
(e) a situation arises whereby any security or
undertaking in favor of the Bank, which secures the
Borrower's obligations under this Agreement or any
Facility Agreement, is withdrawn, or is no longer
valid and enforceable, or the Borrower defaults on
any agreement establishing such security;
(f) a petition is filed for the bankruptcy of the
Borrower or for the institution of arrangement
proceedings with its creditors, or a competent court
makes an order or a relevant authority resolves to
dissolve the Borrower;
(g) the Borrower fails to perform its obligation to make
a payment under a final and binding court judgment or
order;
(h) the Borrower is in breach of or defaults under any
agreement or document evidencing or regulating its
indebtedness;
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(i) any indebtedness of the Borrower becomes due and
payable prior to its original maturity or any
circumstances occur having the effect of permitting
any creditor of the Borrower to cause any
indebtedness of the Borrower to such creditor to
become due and payable prior it its stated maturity;
(j) a registered pledge is established in favor of a
third party over (i) the Account, (ii) any account in
which funds are frozen in favor of the Bank, or (iii)
any account in respect of which the Bank obtained a
power of attorney as a security in its favor;
(k) any event or series of events occurs which, in the
Bank's opinion, might have a material adverse effect
on the business condition (financial or otherwise) or
the results of operations of the Borrower or on the
ability of the Borrower to comply with its
obligations under this Agreement and/or any Facility
Agreement;
(l) any event or series of events occur which, in the
Bank's opinion, might have a material adverse effect
on the business condition (financial or otherwise) of
International Fast Food Corporation or on the results
of its operations or on its ability to comply with
any of its obligations (if any).
(2) If any of the Events of Default occurs the Bank shall be
entitled to:
(a) suspend disbursements related to the use by the
Borrower of the Facility, unless this conflicts with
the substance of the bank transaction being carried
out;
(b) request the Borrower to provide collateral for
repayment of Credits and/or Products;
(c) terminate the Facility Agreement in its entirety or
in part;
(d) declare all the sums owed by the Borrower to the Bank
under the Credits and/or Products to be due and
payable on a date to be notified by the Bank to the
Borrower.
(3) Omission or delay by the Bank to ascertain an Event of Default
shall not constitute a waiver by the Bank of its
right to ascertain such Event of Default at a later date.
12. SET-OFF
(1) In the case of an Event of Default, the Bank may set-off,
without any prior notification to the Borrower, any mutual
obligations, whether or not matured, and apply towards the
repayment of the outstanding obligations of the Borrower any
money (whether or not expressed in the same currency as the
indebtedness of the Borrower) held by the Borrower in its
account with the Bank or credited to such account at a later
date until all the Bank's claims are satisfied. If such
amounts owed to the Bank are expressed in various currencies,
for the purpose of set-off the Bank shall adopt the
appropriate exchange rate prevailing at the Bank on the
set-off date.
(2) The above set-off right shall not prejudice any claims the
Bank may have in respect of the Borrower in the case of
an improper performance of an obligation.
13. INFORMATION
(1) The Borrower undertakes to deliver to the Bank its annual
audited accounts within 180-days of the end of the fiscal year
of the Borrower, F-01 financial statements on a quarterly
basis within 20 days after each quarter and/or at the request
of the Bank, interim financial statements and other
information reasonably required by the Bank not later than 14
days after the announcement.
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(2) The Borrower undertakes to immediately notify the Bank of any
events which endanger or may endanger the timely servicing or
repayment of the Credit, materially alter its economic or
legal situation, reduce the value of the security established,
or otherwise endanger or may endanger the fulfillment of
obligations set out in this Agreement or Agreements entered
into hereunder.
14. ASSIGNMENT OF RIGHTS
(1) No rights under this Agreement or Facility Agreements may be
assigned by the Borrower without Bank's written consent.
(2) The Bank has the right to assign all its rights and benefits
under this Agreement and/or any Facility Agreement.
(3) The Borrower hereby authorizes the Bank to disclose
information relating to the Borrower, this Agreement and/or
Facility Agreements and copies thereof to any assignee or
potential assignee as might be necessary to properly fulfill
any assignment agreement or agreements.
15. NOTICES
(1) All notices or other communications under this Agreement
and/or Facility Agreement shall be given in writing and,
unless otherwise stated, may be by registered letter or
facsimile.
(2) Any notices to the Bank shall be deemed to be given upon
actual receipt.
(3) Any notices to the Borrower shall be deemed to be given as
follows:
(a) if by letter, when delivered personally on actual
receipt, or when sent by mail five days after sending
or upon actual receipt (whichever occurs earlier); or
(b) if by facsimile, when dispatched, but only if, at the
time of transmission, the correct confirmation report
appears at the beginning and at the end of the
sender's copy of the notices.
(4) A notice given in accordance with the above but received by
the Bank on a day other than a business day or after business
hours at the place of receipt will only be deemed to be given
as of the next applicable business day.
16. TERMINATION
Notwithstanding the provisions of clause 11.2:
(a) the Bank may at any time terminate this Agreement on
30 days' notice in writing provided that no
obligations are outstanding to the Bank under any
Facility Agreement;
(b) the Borrower may terminate this Agreement on 30 days'
notice in writing provided that no obligations are
outstanding to the Bank under any Facility Agreement.
17. SETTLEMENT OF DISPUTES
Any disputes, arising from or related to this Agreement, shall be
settled by the common court competent in respect of the seat of the
Bank.
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18. FINAL PROVISIONS
(1) This Agreement is executed in both English and Polish
languages, one copy of each language version for each party.
In the event of any discrepancies or litigation, the Polish
version shall prevail.
(2) This Agreement is governed by and shall be construed in
accordance with the Polish law.
(3) This Agreement is not a credit agreement within the meaning
of the Banking Law.
(4) Any amendments to this Agreement must be made in writing,
otherwise being null and void.
On behalf of the Borrower: /s/ Xxxxx X. Xxxxxx
--------------------------
Surname and name: Xxxxx X. Xxxxxx
On behalf of the Bank: /s/ Xxxxxx X. Xxxxxx
--------------------------
Surname and name: Xxxxxx X. Xxxxxx
Schedule A
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Credit Agreement
executed on 24/02/1999 between International Fast Food Polska Sp. z o.o. with
its seat in 15 Jagielonska St, Warsaw (the "Borrower") and Citibank (Poland)
S.A. with its seat in 16 Senatorska St, Warsaw (the "Bank").
1. The provisions of Framework Agreement No. UR 081/99 on various forms of
credit transaction dated 24/02/1999 between the Bank and the Borrower (the
"Framework Agreement") shall apply and shall be effective in respect to the
validity and performance of this Credit Agreement.
2. Unless otherwise provided for in this Credit Agreement, the terms defined in
the Framework Agreement shall have the same meaning in this Credit Agreement.
3. Acting pursuant to the provisions of Banking Law, the Bank hereby undertakes
to extend a credit (the "Credit") to the Borrower upon the terms and conditions
hereunder and the Borrower hereby accepts these terms and conditions:
(1) Type of the Credit: Credit
(2) Amount and currency of the Credit: USD 5,000,000 (in words:
five million's zlotych)
(3) Form of availability of Credit: By crediting the Borrower's
account no. xxxxxx
(4) Purpose of the Credit: Working capital financing
(5) Date of availability of funds to the Borrower: 02/03/89
(6) Method of repayment of the Credit: By debiting by the Bank
the Borrower's account no. xxxxxx
(7) Date of repayment of the Credit: 31/12/1999
(8) Interest base: 360 day year
(9) Interest rate: LIBOR for 1-months deposits applicable on the
first day of every Interest Period 0.85% p.a.
(10) Interest Period: 3 months
(11) Interest Payment Date: The last day of every Interest Period
(12) Security: Guarantee from Burger King Corporation
(13) Fees and costs: N/A
(14) Other provisions:
The Borrower may, upon at least 7 days notice to the Bank, prepay all or a
portion of the Credit at the end of any Interest Period. Such prepayments shall
not be available for redrawing.
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4. In any matters not regulated by this Credit Agreement, the provisions of the
Framework Agreement shall apply.
5. This Credit Agreement is executed in both English and Polish languages, one
copy of each language version for each party. In the event of any discrepancies
or litigation, the Polish version shall prevail.
6. Any amendments to this Agreement must be made in writing, otherwise null and
void.
7. The Borrower hereby declares that, pursuant to Art. 97 of the Banking Law,
submits to execution in favour of the Bank in respect of obligations under this
Credit Agreement up to the amount of USD 6,000,000, as named by the bank
executory entitlements that may be issued by the Bank until 31/03/2000.
Bank Borrower
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
-------------------- --------------------
Authorized signature Authorized signature
-------------------- --------------------
Authorized signature Authorized signature
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ANNEX of 30 March, 1999
to the Loan Agreement (hereinafter referred to as the "Loan Agreement") executed
on 24/02/1999 by and between International Fast Food Poiska Sp. Z o.o. with its
seat in Warsaw at 15 Jagielonska St. (hereinafter referred to as the "Borrower")
and CITIBANK (POLAND) S.A. with its seat in Xxxxxx, 00 Xxxxxxxxxx Xx.
(hereinafter referred to as the "Bank").
ss.1
All of the terms defined in the Loan Agreement and used in this Annex shall have
the same meaning in this Annex as in the Loan Agreement.
ss.2
1. The sub-paragraph 3.7. is replaced by the following:
Date of repayment of the Credit: 15/01/2000
ss.3
The remaining provisions of the Loan Agreement have not been altered and shall
continue to apply.
ss.4
This Annex constitutes a part of the Loan Agreement.
ss.5
This Annex has been executed in two language versions; Polish and English. In
case of any inconsistencies between the two language versions, the Polish
version shall prevail.
Borrower Bank
/s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxxxxxx
