LONG-TERM DEBT FINANCING AGREEMENT
|Agreement No: DFA.2021.ZA0001.2109-AA11|
|Client Information Sheet|
|Customer||VISTON UNITED SWISS AG|
|Adresses||Haggenstreet 9, 9014 St.Gallen Switzerland|
|Tel||+49 160 2900919|
|Bank Name||Alpha Rheintal Bank AG|
|Account Holder||VISTON UNITED SWISS AG|
|Account Name||VISTON UNITED SWISS AG|
|Bank Officer Name||Patrik Keller|
|Tel||+41 71 747 95 95|
Note: I hereby certify that above information is correct and true;
|/s/ Zbigniew Roch|
LONG-TERM DEBT FINANCING AGREEMENT
PARTIES AND DEFINITIONS
: UNIEXPRESS INVESTMENT HOLDING PLC, Third Floor, 207 Regent Street, London,
United Kingdom, W1B 3HH shall give the Debt and hereinafter shall be referred
to as Lender.
: VISTON- UNITED SWISS AG, Haggenstreet 9, 9014 St. Gallen Switzerland shall
borrow the Debt and hereinafter shall be referred to as Borrower.
: Mr. Roch Zbigniew, Schloss 0-74229 Oedhiem, Germany, does guarantee in favor of
the Lender the Borrowers use of the Debt and hereinafter shall be referred to as Guarantor.
: Shall be carried out by Borrower and its subsidiaries, and hereinafter shall be referred to as Project and shall include the acquisition of shares and/or businesses and/or debt restructuring and/or machine park innovation and/or product development and design and/or working capital, and developing business development projects relating to the Project, in the field of energy and energy extraction.
: Shall mean the required funding by Borrower for the Project and hereinafter shall be referred to as Debt.
: means the guarantee provided by the Guarantor (an UNCONDITIONAL, Non-cash, Insurance, Guarantee, Collateral).
vii. Party (Parties)
: under this Agreement means Lender, Borrower and Guarantor; hereinafter shall be referred to as separately as a Party, and collectively as the Parties.
THE PARTIES IN THIS AGREEMENT, AGREE AS FOLLOWS:
SUBJECT OF THE AGREEMENT
This Agreement is entered into to provide the amount of Debt by the Lender and Guarantor through various Financing Funds (the Fund) for the required finance of the Project to be carried out by Borrower, the repayment of the Debt, and determination of the duties and responsibilities of the Parties during usage of the Debt and until the Debt is repaid.
In case there is no provision in this Agreement; all applicable special law provisions and relevant legislation provisions shall be binding on the Parties.
DEBT AMOUNT and USAGE PROCEDURES
2.1. Required Total Debt Amount of Project to be carried out by Borrower shall be 420.000.000 (Four Hundred Twenty Million ) EURO.
2.2. Debt shall be transferred to domestic bank accounts of Borrower (and/or through Borrower to its wholly owned subsidiaries) through European banks via Lender and / or Guarantor. Debt to be used by Lender shall be supplied from the accepted instruments of international commercial and financial markets and obtained from sources of legal commercial activities.
2.3. Signing of this agreement between the Parties, and transfer time and rates of Debt to be carried out and the total amount as 420.000.000 (Four Hundred Twenty Million) EURO shall be paid to Borrowers account submitted in agreement after the first demand of the Borrower.
2.4. Debt maturity is 120 (one hundred and twenty) months from first advance of the Debt.
2.5. Borrower accepts and undertakes to make all legal payments to be incurred or likely to be incurred with regard to this Agreement.
2.6. Lender or Guarantor will fulfill each of the acts that arose, arise or will arise from this Agreement required in performing this Agreement. Borrower now accepts this covenant.
2.7. Borrower shall authorize Lender and Guarantor to negotiate the terms regarding debt payment with BANK/ OFFICIAL INSTITUTIONS AND ORGANIZATIONS/ to negotiate regarding the Debt and Interest discount and undertaking mortgages after advancing the Debt payment. In case mortgage holder is a person and private company, this provision shall also be applicable.
2.8. In case that Borrower unilaterally renounces to draw on and use the Debt made available by Lender and Guarantor, then Borrower accepts and declares to pay all expenses of Lender and Guarantor including filing and survey fees in cash. Such losses and expenses will not be less than 100.000 (One Hundred Thousand) USD.
2.9. Borrower shall not assign and transfer their contractual rights and debts without previously written and clear confirmation from Lender or Guarantor. Contrary situation shall not ensure or bind Lender or Guarantor.
2.10. In cases that Borrower and Lender or Guarantor with consent of each other agree to defer debt repayment terms, Lender or Guarantor shall have the right to change profit share according to conditions of deferred time and current price profit share during that period. Parties accept and undertake that even if new payment plan to be created has a new project number, it doesnt mean that the Debt is renewed, and all rights incurred or to be incurred from commitments and fulfilled legal actions are reserved.
2.12. Borrower accepts and undertakes to act on its own behalf and not to act vicariously.
TERMINATION OF AGREEMENT
3.1. Borrower shall have the right to terminate this Agreement unilaterally and without showing cause, in the event that Lender does not transfer funds on time. However, in the event that fund transfer results from Borrowers failure to perform its obligations under this Agreement, this provision shall not be applicable.
3.2. In the case of termination of this Agreement unilaterally and before its time by Borrower or by Lender with a valid reason; the amount of the Debt advanced by Lender shall be returned by
Borrower to Lender within 3 (three) days without considering value of income and in form of capital balance after discounting the installments paid by Borrower in reference to Annex 3 until the termination date. In case of unjust termination of this Agreement by Borrower or rightful termination by Lender, the security deposit (amount equal to 5 % of requested debt amount) shall not be returned to Borrower. In this way Parties shall be considered to release each other.
4.1. Borrower shall notify the Parties in case of legal actions and activities occurred/to be occurred in planned workflow and cash flow that can cause material changes to results on cash flow and decision making.
4.2. Addresses of the Parties stated in article 1 are their written notification addresses and notifications shall be sent to these addresses. Parties agree to notify each other about changes to notification addresses at least 1 (one) week in advance of any change.
5- NO CONFIDENTIALITY COMMITMENT
5.1. On condition to use in both relationships with its bank and banking transactions to be made for consideration of the Project and the income to be achieved with this Agreement, Borrower now accepts that there is no confidentiality obligation on Lenders side and any such condition is released.
5.2. Assignment: Lender is provided with the right to assign Borrowers assets to third parties with written commitment according to payment schedule shown in Annex 4 in case of determination of the insolvency or bankruptcy of Borrower and where it is determined to be impossible to complete the Project on time.
·6- INFORMING AJ\ID REPORTING
6.1. In accordance with this Agreement Lender may request information about Borrower and Project, and such records belong to this Agreement and to Guarantor. Borrower is obliged to provide Lender all required information as soon as possible when it receives a request. In the event that Lender finds the information provided is insufficient, it may obtain commercial files about Borrower including tax records and also examine workplaces of Borrower at any time. In such a case, Borrower shall give necessary permissions to Lender. In case of rightful reasons, Borrower may be controlled by independent organizations to be mutually agreed and in such a case control expenses shall be paid by Borrower.
6.2. At request of Lender, Borrower shall make annual and quarterly reports including working condition, planned measures for the future and appearance of works, etc.
7- CONTRACTUAL PENALTIES
Lender may take legal action in respect to Debt amounts whose repayment is a problem. In such condition Borrower shall not raise any objection. In case a waiver is provided to postpone the performance by Borrower of any acts required to be undertaken with consent of Lender or in the case of unjust or early termination of this Agreement, Parties irrevocably accept, declare and undertake that the Borrower will pay to the Lender the sum of 300.000 (Three Hundred Thousand) Euro in damages without the need to provide any warning and notice. Borrower irrevocably accepts, declares and undertakes to abide by the terms of this penal clause.
8- AMENDMENTS TO AGREEMENT AND LEGAL VALIDITIY
8.1. All amendments of this Agreement to be made have to be in written form.
8.2. In case of any paragraph (article/sentence) of this Agreement being deemed invalid or unenforceable, the rest of the Agreement shall not be affected.
8.3. If any force majeure event makes one or more provisions of this Agreement ineffective or unexecutable, the rest of the provisions of this Agreement shall survive unaffected.
9- SECURITY DEPOSIT ·
Borrower (VISTON UNITED SWISS AG) irrevocably accepts, declares and undertakes to deposit directly into account of Guarantor, to be vested with the amount equal to 1% of the Debt as a part of financing insurance to be obtained and as a security deposit. The deposit shall be made into the account of Guarantor specified by agreement or in a single sum as a security deposit for repayment of the total amount of the Debt with the payment to be made 1 (one) day after signing of such agreement.
10- INTEREST AND EXPENSE COMMITMENT FOR REPAYMENT
10.1 Interest is payable on the respective outstanding debt at the rate of 1.9% per annum based on a 365-day year. Interest and principal payments shall be made quarterly in arrears, with the first interest payment commencing three months and the first principal payment commencing on the second anniversary of the first advance on the debt.
10.2 The first eight (8) payments are equal-interest-only payments, followed by another twenty-eight (28) payments consisting of equal-principal payments and decreasing interest payments
10.3 Repayments shall be paid IN CASH on payment days stated in the Payment Schedule arranged by Borrower in compliance with the repayment program set out in the table shown in Annex 3. Borrower declares and undertakes to accept interest and insurance expenses in respect of the payments stated above.
11.1 In the event that the Debt repayment date agreed between Parties is missed and the Debt is not paid partially or completely on any due date, the default shall be deemed to have occurred without the need of any warning or notice. In compliance with this Agreement, in the matter of neglecting other commitments or losses and damages liable to indemnification or performance; Borrower accepts and undertakes to pay default interest on its obligations to Lender or Guarantor on the basis of one year calculated on the basis of a 360 (three hundred and sixty) days and for determining the interest rate of this Agreement until such time as the default has been cured or the Debt is repaid, and without need to provide any other warning or notice.
11.2 Furthermore Borrower shall be obliged to pay to Lender or Guarantor all expenses of telephone, telex, fax and any kind of communication and transportation, to collect costs of attorney and case, notary, fee, tax, dues, valuable paper and post, leasing that lender and Guarantor made by the reason of drawing protestation of failure to pay. The right to claim for losses of Lender or Guarantor shall have been reserved by Borrower. Borrower accepts and undertakes to make all payments stated in the payment schedule in cash and fully in case that Lender or Guarantor determines, and to pay default interest as of the default date and under this Agreement by the reason of default.
11.3. In the event that the payment of Debt becomes due and payable, Lender or Guarantor may inform Borrower that all Debt accelerates and becomes due and payable and needs to be paid, by
using registered and reply paid letter, telegraph or secured electronic signature of electronic post system through the Notary.
11.4. Borrower accepts and declares to pay all Debt that became due and payable upon receiving the default letter with its share of lost profit damages and reimbursement of expenses in the time stated in the notification and otherwise overdue and address the consequences of such default.
11.5. In case of default, Lender may take action against Borrower by the way of levy or bankruptcy; request, precautionary assessment or interim injunction.
11.6. Within applicable law and without repetition; Lender shall have right to commence execution proceedings to the detriment of Borrower based upon precautionary assessment, general tax lien and commercial bills in relation to agreement, check/bill, invoice, etc., and by this means shall have right to collect.
11.7. If the Borrower fails to meet the payment obligations hereunder it shall pay to the Lender a late payment fee of 40 (forty)% per annum on the amounts in arrears (the Late Payment Fee), accruing on a daily basis from the date of default and payable on the next interest payment date unless a prepayment is made. The Late Payment Fee shall be calculated on the Debt amount past due on a 360-day basis for the actual number of days elapsed.
11.8 The Debt may be totally or partially prepaid provided that the Lender is given irrevocable written notice forty-five (45) days in advance. Such prepayment shall be made on an interest payment date or on any other date acceptable to the Lender and shall be subject to a surcharge equal to 2 (two)% of the prepaid amount prorated on the basis of the number of months remaining to the Loan Maturity Date (the Prepayment Fee). All prepayments shall be applied towards the outstanding Debt principal installments in reverse order of their maturity dates.
12- ACCELERATION AGREEMENT
In case of the occurrence of any acceleration condition, Borrower accepts and undertakes that on condition that an infraction of this Agreement by Borrower has occurred, Lender or Guarantor have the authorization to terminate the Agreement and collect all debts owed.
13- FAX, E-MAIL, REGISTERED ELECTRONIC MAIL AND MISCELLANEOUS COMMUNICATION TOOLS AGREEMENT
13.1. Borrower may transmit the demands, instructions and documents via fax number, e-mail address, registered electronic mail system address or GSM number stated at the end of Agreement. However, Lender or Guarantor shall be totally free to accept transmitted demands, instruction and documents or not.
13.2. Borrower accepts and undertakes that posts will be signed by its authorities and sent via fax number stated at the end of this Agreement and also posts sent via e-mail address, registered electronic mail system address or GSM number emanated by Borrower; and Lender or Guarantor have no obligation to determine the truth or accuracy of such instructions of Borrower, and are entitled to fulfill relevant instructions without confirmation, and all legal and financial results of such instruction are binding on the Borrower.
13.3. Borrower accepts and undertakes that Lender or Guarantor may request submission of original instructions and may not fulfill demands and instructions received in abovementioned ways, in the event such original instructions are not provided, and Lender or Guarantor shall not be responsible if such original instructions are not delivered when requested.
13.4. Borrower accepts and undertakes to fulfill the following matters while making use of communication tools provided by Lender or Guarantor:
13.4.1. Borrower shall send messages to Lender or Guarantor only via fax number, e-mail address, registered electronic mail system or GSM number stated in this Agreement. In case of change of such fax, GSM numbers or e-mail and electronic mail system address, Borrower shall immediately inform Lender or Guarantor about this change.
13.4.2. Borrower shall be obliged to provide that messages to be sent are signed / sent only by authorized signatories, sent as true, complete and accurate and necessary measures are made about miscellaneous matters.
13.4.3. Borrower accepts and undertakes to take all measures as a prudent trafficker to prevent the use of e-mail or KEPS address or GSM number by a third persons or unauthorized people, otherwise all responsibility belongs to oneself.
13.4.4. Borrower shall get original and signed copies of instructions to Lender or Guarantor within 1 day as of sending date. By the reason of unsent original and signed copies, if a consequence arose against Borrower for this reason, the Parties accept that Bank, Lender or Guarantor do not have any responsibility. In case there is a difference between original message and received message of Lender or Guarantor, the instruction received by Lender or Guarantor shall be treated as the correct version.
13.4.5. Borrower shall be obliged to report instructions clearly and intelligibly. Borrower shall be responsible for consequences of unclear instructions. All necessary explanations of continuous process shall be stated in instructions.
13.4.6. Records of Lender or Guarantor shall be the basis of determining the time of transmission of messages sent to Lender or Guarantor.
13.5. Computer received form of documents produced by fax machine of Lender or Guarantor and messages sent via e-mail, GSM shall have the characteristics of final evidence in relationships between Lender or Guarantor and Borrower without seeking supporting documentation.
13.6. Parties have accepted that Lender or Guarantor shall not assume responsibility because of failure in communication tools and lines, security and miscellaneous reasons and also accepted that Lender or Guarantor shall be only responsible for fault of their own employees in relation to fax and miscellaneous communication tools.
14- SUE AND LEVY CHARGES, ATTORNEY COST AND PRISON FEE
14.1. Borrower accepts and undertakes to pay Counsels Fee and all kind of fee, tax, due, fund and expense including application fee, collecting fee, prison fee, waiver fee that need to be paid by Lender or Guarantor out of the funded amounts, in cases of making a legal application such as suing or making execution proceedings, precautionary assessment/interim injunction, etc., because of commitments hereunder.
14.2. Commissions need to be paid with stamp tax and miscellaneous tax; fee and dues belong to guarantee letter and miscellaneous documents to be taken for precautionary assessment, interim injunction decision and miscellaneous processes to be taken by Lender or Guarantor against Borrower shall appertain to Borrower and; Lender or Guarantor shall record payments to be made as part of the Debt to the account of Borrower.
15- EVIDENTIAL AGGREMENT
The Parties accept and undertake that books duly kept by Borrower with all books and records of Lender or Guarantor may or may not be supporting document and all computer records including received from Bank computer sent via fax number, e-mail address, address and GSM number of Borrower stated at the end of this Agreement, sound and video recorded by Lender or Guarantor; and records, documents, microfilm, microfiche, etc., shall belong to lender or Guarantor.
16- ADDRESS AGREEMENT
Borrower accepts that written address or last registered address in the Commercial Register shall be the legal residence and notifications are to be sent to these addresses and shall be regarded as received unless notifying of address changes through notary.
Changes of Contact Information; Borrower accepts, declares and undertakes to immediately notify Lender or Guarantor about any changes of address, e-mail, registered electronic mail system address, fax number or GSM number stated at the end of this Agreement in writing; and Borrower accepts, declares and undertakes that all responsibility belongs to itself in case of failing to inform, and Lender or Guarantor shall not be responsible for damages that may arise from such changes.
Borrower accepts, declares and undertakes to immediately notify Lender or Guarantor about changes of authorized signature duly registered by Commercial Register through notary or in writing; and Borrower accepts, declares and undertakes that all responsibility belongs to itself in case of failing to inform, and Lender or Guarantor shall not be responsible for damages that arise from such changes.
17- AUTHORIZED COURTS AND COURT BAILIFFS
European Union legislations shall govern this Agreement (and any kind of controversy, divergence, prosecution or indemnity claim or suit that results from or related to this Agreement or its formation regardless of its qualification). European Union Courts and Court Bailiffs shall have exclusive authority to judge and to conduct all suits, civil lawsuits or prosecution and proceedings, to hold a hearing and deliver a judgment and/or to solve disputes. The language of this Agreement is English only.
1- Passport and Identity Hard Copies of Borrower Company Representative
2- legal Documents of Borrower Company
3- Debt Repayment Schedule
This Agreement consists of 9 (nine) pages and 3 (three) ANNEXES, done and signed as by the Parties with 2 (two) original hard copies in Istanbul on the date of 22th October 2021.
|Date/ Stamp/ Signature||Date/ Stamp/ Signature||Date/ Stamp/ Signature|
|/s/ Zbigniew Roch||/s/ Zbigniew Roch||/s/ Gürkan Vural|
DEBT PAYMENT SCHEDULE
DEBT PAYMENT SCHEDULE