“Background (A)-(C)
The Transferor and the Borrower entered into various loan agreements under which the Transferor as lender granted loans to the Borrower. The loan agreements inclusive any and all annexes und amendments thereto and the outstanding amounts under such loan agreements as of 26 March 2014 are listed in Schedule 1 of this Agreement.
(... ) seller (...) and the Transferee as buyer entered into an agreement for the sale and purchase of shares (attached hereto as Schedule 2) dated 26 March 2014, pursuant to which the Seller sells its share in the Borrower (the "Share") to the Transferee (the "SPA").
Together with the sale of Share pursuant to the SPA to the Transferee, all rights and obligations of the Transferor as of the Closing Date under the SPA under loan agreements listed in Schedule 1 (except for those rights and obligations retained by the Transferor in accordance with this Agreement) shall be assumed by the Transferee (VertragsÜbernahme).
lnterpretation and definitions - p. 5
"Supplementary Agreements" means supplementary agreements to the Loan Agreements to be entered into by the Transferor, the Transferee and the Borrower for the purposes of registration of amendments to the Loan Agreements with the National Bank of Ukraine due to assumption of Transferor's rights and obligations by the Transferee. The draft supplementary agreements are attached as Schedule 3 Part A and Part B hereto.
lnterpretation and definitions - p. 5
"Supplementary' Agreement to Agreement #UAOO2" means draft supplementary agreement specified in Schedule 3 Part B.
Clause 2.1- p. 6
Subject to the fulfilment of the condition precedent in Clause 2.2 and subject to Clause 2.3 of this Agreement, the Transferee hereby assumes from the Transferor all rights and obligations of the Transferor under the Loan Agreements (except for under Retained Loan Agreement) as of Closing Date under the SPA and the Borrower accepts and consents to such assumption (the "Assumption").
Clause 2.2 - p. 6
The Assumption is subject to and conditional upon
2.2.1The payment in full of the Loan Assumption Consideration pursuant to Clause 3 below and
2.2.2the due payment pursuant to clause 4.1.6 of the SPA;
2.2.3 The Transferor and the Borrower having duly executed and registered in the State Registry of Rights to lmmovable property and their Encumbrances the Properties Pledge Agreement as provided in clause 3.1.8 of the SPA.
Clause 2.3- p. 7
The Transferor shall not transfer and therefore remain a creditor of the Borrower in the amount of USD equivalent of EUR 1.000.000,00 (in words: one million) calculated (...) under the loan agreement specified in Schedule 5 (the 'Retained Loan Agreement'). For this purpose the rights and obligations of the Transferor (...) split between the Transferor and Transferee under the Supplementary Agreement to Agreement #UAOO2 draft of which is attached hereto in Schedule 3 Part B. lnterest on the Retained Loan Amount shall become payable only after the Assumption pursuant to clause 2.4 below.
Clause 2.4- p. 7
Subject to the fulfilment of the obligations of the Borrower and the Transferee pursuant to Clauses 4 and 5 hereof as well as clause 7.2 of the SPA, and confirmation in writing of such fulfilment of all their obligations, the Transferee assumes from the Transferor all rights and obligations of the Transferor under the Retained Loan Agreement for no further consideration and the Borrower accepts and consents to such assumption.
Clause 3.1- p. 7
(...) the amounts outstanding (...) are set out in schedule 1 to this Agreement ("Outstanding Amounts").
The Transferee shall pay to Transferor an amount of EUR 1,00 (in words: one) ("Loan Assumption Consideration") for the Assumed Rights and Obligations (...).
Clause 3.2- p. 8
The payment of the Loan Assumption Consideration shall be made pursuant to Clause 6.2 of the SPA.
Clause 3.3- p. 8
All payments to be made under this Agreement shall be made irrevocably and in EUR (unless respective payments may be executed only in USO in accordance with the underlying agreements) and in full without any set-off or counterclaim and free from any deduction or withholding.
Clause 4.1- p. 8
The Borrower shall repay to the Transferor an additional amount under the Retained Loan Agreement as follows:
In the event that the aggregate of all gross proceeds actually received by the Borrower under or in connection with the Earn-out Leasing Agreements (the "Proceeds") within a period of five years following the Closing Date exceed (the relevant exceeding amount the "Excess Amount") the Refinance Line Repayment Amount (the "Threshold Amount"}, then the Borrower shall additionally repay an amount corresponding to 50% of such excess of the Proceeds over the Refinance Line Repayment Amount (the "Earn-out Amount"). (...)
Clause 5.4- p.10
The Buyer and the Undertaking Party shall jointly and severally procure that the Company directs to the Bank the proceeds from the sale of the Pmperties in accordance with Clause 7.2 of the SPA. If and to the extent the Company fails to direct the proceeds to the Bank (...) liable to pay to the Seller the amount of such proceeds.
Clause 5.5- p. 10
For the purpose of calculation accor·ding to this Clause 5, any amounts received in UAH shall be converted into USD on the date of their receipt by the Borrower in the manner set forth under Clause 4.1.
Clause 6.1- p. 10
Without prejudice to any explicit representations in the SPA, the Transferor does not provide any (implicit or explicit) representations or warranties in relation to the Loan Agreements, the Assumed Rights and Obligations and the Assumption to the Transferee and in particular, shall not be liable in relation to the correctness or collectability of die Outstanding Amounts or the validity of the Loan Agreements in general. (...)