THIS DEED OF VARIATION TO THE LOAN AGREEMENT DATED 9TH NOVEMBER 2005 is made on 18th June 2007. BETWEEN:
Exhibit 10.35
THIS
DEED OF VARIATION TO THE LOAN AGREEMENT DATED 9TH
NOVEMBER 2005 is made on 18th
June
2007.
BETWEEN:
OOO
ZAURALNEFTEGAZ, a limited liability company incorporated under the
laws of the Russian Federation under the main state registration number (ORGN)
0000000000000, located at 00 Xxxxx Xxxxxx, Xxxxxx, 000000, Xxxxxx Oblast,
Russian Federation (“ZNG”); and
CASPIAN
FINANCE LIMITED, a company incorporated in England and Wales under
company number 05530897 and whose registered office is at Millennium Xxxxxx
Xxxxx, 0 Xxxxxxx Xxxx, Xxxxxx XX0X 0XX Xxxxxx Xxxxxxx
(the “Lender”).
WHEREAS:
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A.
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ZNG
and the Lender entered into a loan agreement on 9th
November
2005 (“Loan Agreement”), whereby, inter alia, the Lender
agreed to make available to ZNG a new loan facility of US$6,874,325
(the
“Initial
Facility”).
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B.
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ZNG
and the Lender further entered into a Deed of Variation of the Loan
Agreement dated 16 January 2007 (“Jan Agreement”)
whereby, inter alia, the Lender agreed to make available to ZNG an
additional loan facility of US$2,000,000 (“Jan
Facility”)
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C.
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ZNG
and the Lender further entered into an additional Deed of Variation
of the
Loan Agreement dated 23rd
April 2007
(“Apr Agreement”) whereby, inter alia, the Lender agreed
to make available to ZNG an additional loan facility of US$300,000
(“Apr Facility”) (together the Loan Agreement, the Jan
Agreement, the Apr Agreement and this Deed are referred to as the
“ZNG Loan
Agreements”).
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D.
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ZNG
has drawn down in full each of the Initial Facility and the Jan Facility.
The Apr Facility has at the date hereof been drawn down in the amount
of
US$156,276.41.
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E.
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The
Lender is willing to make available to ZNG a further additional loan
amount of US$7,359,190 (the “Additional Loan”) upon and
subject to the terms of this Deed and the Loan
Agreement.
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IT
IS THEREFORE AGREED AS FOLLOWS:
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1.
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Terms
and Definitions
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1.1
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Terms
and Definitions used in this Deed shall have the same meaning as
given in
the Loan Agreement unless otherwise defined herein or the context
otherwise requires.
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1.2
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Save
as expressly varied or amended by or otherwise stated in this Deed,
the
terms and conditions of the Loan Agreement shall remain in full force
and
legal effect and shall apply
to this Deed and the Additional Loan mutatis
mutandis.
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2.
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Loan
and Purpose
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The
Lender hereby agrees to lend to ZNG, upon and subject to the terms of this
Deed
and the Loan Agreement, a further loan amount of US$7,359,190 (“Additional Loan
Sum”). The terms relating to the Commitment in the Loan Agreement shall, where
relevant, refer to the Additional Loan Sum for the purpose of this
Deed.
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3.
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Drawdown
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The
Drawdown Notice to be used for the Additional Loan must be in the form set
out
in Schedule 1 to this Deed or in such other form as may be acceptable to Lender
and shall relate to only to the party and the purpose set out in the agreed
work
programme and budget for ZNG attached as Schedule 2 to this deed. The
Drawdown Notice shall specify the Drawdown Date and the amount of the
Advance.
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4.
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Variation
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4.1
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The
Lender and ZNG hereby agree to delete clause 6.2 of the Loan Agreement
as
follows and replace the same as follows for all purposes with effect
from
the date of the Loan Agreement:
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“6.2
Interest will be calculated and accrue on a compound daily basis: (calculated
on
a year of 365 days and number of days elapsed) and added daily to the
outstanding total loan amounts outstanding by ZNG under all or any of the ZNG
Loan Agreements from time to time .
Interest
is payable with effect as follows:
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a)
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the
earlier of (i) the date on which ZNG’s monthly turnover as shown by its
monthly management accounts exceeds US$200,000 and (ii) the fifth
anniversary of this Deed; and
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b)
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thereafter,
on a monthly basis on the final day of each calendar month using
all
available turnover provided that if the interest due in any amount
thereafter exceeds the monthly turnover of ZNG then all of the turnover
save for the direct budgeted operating expenses of ZNG and management
fees
agreed to be paid to SEG under the Joint Venture Agreement shall
be
allocated prior to the payment of the said interest and any interest
not
able to be paid under this clause 4.1(b) shall accrue and be payable
as
soon as the level of turnover (less the said SEG fees)
permits.”
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4.2
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Clause
4.5, 8.1and 8.3 of the Loan Agreement shall not apply to the Additional
Loan Sum. The work programme and budget attached at schedule 2 hereto
shall replace the Work Programme and Budget in respect of the Additional
Loan.
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5.
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Warranties
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ZNG
hereby repeats all of the representations and warranties in clause 12 of the
Loan Agreement with effect from the date hereof and further represents to the
Lender that no Event of Default has occurred.
.
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6.
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Notices
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Any
notice to be given pursuant to the terms of this Deed shall be given in writing
to the party due to receive such notice at the address stated below or such
other address as may have been notified to the other parties in accordance
with
this clause. Notice shall be delivered personally or sent by first
class pre-paid recorded delivery or registered post (air mail if overseas)
or by
facsimile transmission to the numbers and parties detailed below and shall
be
deemed to be given in the case of delivery personally on delivery and in the
case of posting (in the absence of evidence of earlier receipt) 48 hours after
posting (six days if sent by air mail) and in the case of facsimile transmission
on completion of the transmission provided that the sender shall have received
printed confirmation of transmission.
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ZNG:
c/o
Zauralneftegaz Limited
00x
Xxxxxxx Xxxxxx
Xxxxxx
X0X 0XX
Xxxxxx
Xxxxxxx
With
a copy to:
000
Xxxxxxx Xxxxxx
0xx
xxxxx
Xxx
Xxxx, XX 00000
XXX
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Attn.:
Company
Secretary
Attn:
Xxxxx
Xxxxxx
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Fax:
x00
00 0000 0000
Fax:
x0
(000) 000-0000
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The
Lender:
Caspian
Finance Limited
c/o
Salans
Millennium
Bridge House
2
Xxxxxxx Xxxx
Xxxxxx
XX0X 0XX
Xxxxxx
Xxxxxxx
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Attn
:
Xxxxx
Xxxxxx
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Fax:
x00
00 0000 0000
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7.
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Law
and Disputes
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This
Agreement shall be governed by and construed in accordance with the laws of
England. Any dispute arising out of or in connection with this
Agreement, including any question regarding its existence, validity or
termination, or the legal relationships established by this Agreement, shall
be
referred to and finally resolved by arbitration under the Rules of the London
Court of International Arbitration, which Rules are deemed to be incorporated
by
reference into this clause. All arbitration proceedings shall be
conducted in English before a single arbitrator in London. Judgment on any
resulting award may be entered in any court having jurisdiction over the
affected party, and may be executed against the assets of the affected party
in
any jurisdiction.
The
arbitrator shall have jurisdiction to award, and shall award, the prevailing
party its reasonable attorneys fees, costs and expenses.
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8.
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Language
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This
Deed
may be executed in English and in Russian. In case of any conflict
between the English and Russian versions, the terms of the English version
shall
prevail.
IN
WITNESS WHEREOF, the parties have executed this Deed as of the date
first above written.
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Executed
as a Deed by
OOO
ZAURALNEFTEGAZ:
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/S/
Xxxx Xxxxxxxxx
Authorised
signatory [General
Director]
Xxxx
Xxxxxxxxx
Name
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Executed
as a Deed by
CASPIAN
FINANCE LIMITED
acting
by two Directors/
a
Director and the Secretary:
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/S/
Xxxxx
Xxxxxx
Director
Xxxxx
Xxxxxx
Name
/S/
Xxxxxx
Xxxxx
Director/Secretary
Xxxxxx
Xxxxx
Name
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SCHEDULE
1
Form
of Request for an Advance
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To:
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Caspian
Finance Limited
(“Lender”)
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From:
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OOO
Zauralneftegaz.
(“ZNG”)
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Date 2007
Request
for an Advance
We
refer
to the loan agreement dated 9th November
2005 (as
varied by the Deed of Variation of Loan Agreement dated June
2007) between ZNG and the Lender (the “Loan
Agreement). Terms defined in the Loan Agreement have the
same meaning in this letter and references to clauses in this letter are
references to clauses of the Loan Agreement.
We
wish
to borrow an Advance subject to the terms and conditions of the Agreement as
follows:
(a) Amount: [ ]
(b) Purpose: [Specify
purpose]
(c) Drawdown
Date:
(d) Payment
instructions: [To bank as detailed in clause 3.2 ]
We
confirm that the conditions set out in clause 3 will be satisfied on the
Drawdown Date for the proposed Advance.
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Yours
faithfully
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By:
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Authorised
Signatory
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for
and on behalf of
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OOO
Zauralneftegaz
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SCHEDULE
2
Work
Programme and Business Plan
