Credit Agreement relating to a US$105,000,000 Term Loan Facility
CONFORMED
COPY
Mesquite
Gold Mine Project
Credit
Agreement relating to a US$105,000,000 Term Loan Facility
Dated
30 March 2007
Western
Mesquite Mines, Inc.
(as
Borrower)
Western
Goldfields, Inc.
(as
Guarantor)
Investec
Bank (UK) Limited
(as
Arranger)
Investec
Bank (UK) Limited
(as
Agent)
Investec
Bank (UK) Limited
(as
Security Trustee)
The
Banks
The
Hedging Banks
DentonWildeSapte...
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One
Fleet Place
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T+44
(0)20 7242 1212
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▇▇▇▇▇▇
▇▇▇▇ ▇▇▇
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F
▇▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇
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United
Kingdom
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▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇
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Contents
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1
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Definitions
and interpretation
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1
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2
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Facility
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24
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3
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Conditions
precedent
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25
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4
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Drawdown
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25
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5
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Interest
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27
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6
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Repayment
of Loan
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28
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7
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Cancellation
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30
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8
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Changes
in circumstances
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31
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9
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Payments
and deliveries
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33
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10
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Representations
and warranties
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36
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11
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Undertakings
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42
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12
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Facility
Accounts and Permitted Investments
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52
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13
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Triggers
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55
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14
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Default
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59
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15
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Fees
and expenses
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61
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16
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Amendments
and waivers
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63
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17
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Set-off
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64
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18
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Pro
rata sharing
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64
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19
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The
Agent
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66
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20
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Miscellaneous
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71
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21
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Notices
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71
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22
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Assignments,
transfers and syndication
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73
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23
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Indemnities
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76
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24
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Confidentiality
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77
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25
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Law
and jurisdiction
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78
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Contents
(i)
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Schedule
1 - The Banks
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80
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Schedule
2 - Part 1 - Conditions Precedent
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81
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Schedule
2 - Part 2 - Mining Claims
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85
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Schedule
3 - Drawdown Notice
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104
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Schedule
4 - Costs Certificate
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105
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Schedule
5 - Compliance Certificate
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106
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Schedule
6 - Repayment Schedule
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107
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Schedule
7 - Form of Transfer Certificate
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108
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Schedule
8 - Not Used
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111
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Schedule
9 - Mandatory Cost formulae
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112
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Schedule
10 - Permits
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114
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Schedule
11 - Reclamation Bonds
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116
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Schedule
12 - Form of Consent to Assignment
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117
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Schedule
13 - Contract Packages
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118
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Contents
(ii)
Dated
30 March 2007
Between:
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(1)
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Western
Mesquite Mines, Inc., a
Nevada corporation, with its principal executive office at ▇▇▇▇
▇. ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the Borrower);
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(2)
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Western
Goldfields, Inc., an
Idaho corporation, with its principal executive office at ▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, Box 110, Toronto, Ontario, Canada ▇▇▇ ▇▇▇ (the
Guarantor);
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(3)
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Investec
Bank (UK) Limited of
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the Arranger);
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(4)
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Investec
Bank (UK) Limited of
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the Agent);
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(5)
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Investec
Bank (UK) Limited of
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the Security
Trustee);
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| (6) |
The
financial institutions listed
in Schedule 1 Part A, as Banks;
and
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| (7) |
The
financial institutions listed
in Schedule 1 Part B, as Hedging
Banks.
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It
is agreed:
| 1 |
Definitions
and interpretation
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| 1.1 |
Definitions
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In
this
Agreement:
Account
Bank means
Bank of America Corporation and its successors in title and each successor
Account Bank from time to time appointed by the Borrower with the consent of
the
Agent (not to be unreasonably withheld or delayed).
Account
Control Agreement means
the
agreement dated on or about the date of this Agreement
entered into between the Borrower, the Security Trustee and the Account
Bank.
Accounts
means,
in
respect of the Borrower, its unaudited accounts and in respect of the
Guarantor,
its audited consolidated accounts (in each case including all additional
information and
notes
to the accounts), together with any relevant directors' report and auditors'
report.
Additional
Cost Rate has
the
meaning given in Schedule 9.
Additional
Drawing Conditions mean
each
of the following:
| (a) |
in
accordance with the Base Case Model (which shall be consistent with
the
Development Plan) the:
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| (i) |
Project
Life Cover Ratio is greater than
2:0;
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| (ii) |
Loan
Life Cover Ratio is greater than 1.7:0;
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| (iii) |
forward
looking Debt Service Cover Ratio is greater than 1.5:0;
and
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Page
1
| (iv) |
Reserve
Tail is greater than 30 per cent,
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in
each
case as such terms are defined in the Base Case Model;
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(b)
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appropriate
revisions have been agreed and made to the Approved Hedging Programme;
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(c)
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no
Default or Trigger has occurred and is continuing or would occur
as a
result of making
the relevant Advance; and
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(d)
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the
repayment schedule set out in Schedule 6 has been amended to the
extent
necessary
to reflect the amount of the Loan on the basis that the relevant
Advance
is made.
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Advance
means
an
advance made or to be made to the Borrower under the Facility or, as the
case
may
be, the outstanding principal amount of any such advance (including, for the
avoidance of doubt, any such Advances as consolidated in accordance with Clause
5.2.6).
Affiliate
means,
in
relation to a person or entity, a Subsidiary or a Holding Company of that person
or entity and any other Subsidiary of that Holding Company.
Agency
Fees Letter means
the
letter dated on or about the date of this Agreement from the Agent to the
Borrower relating to certain fees payable to the Agent by the Borrower in
relation to
the
Financing Documents, being described on its face as the "Agency Fees
Letter".
Agent
means
Investec Bank (UK) Limited in its capacity as agent for the Banks, its
successors in title and each successor appointed in accordance with Clause
19.
Agreed
Insurance Programme means
the
insurance programme entered into by the Borrower
and the Agent on or prior to the Effective Date and relating to the insurances
to be effected
and maintained by the Borrower in relation to the Project throughout the
Security Period,
such programme to include, without limitation:
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(a)
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undertakings
from the Borrower in relation to the insurances to be effected and
maintained;
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(b)
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details
of the insurance policies to be effected and maintained, including
details
as to the
type of cover, the names of the insured parties, details of the property
insured, commencement
and expiry dates, levels of insurance cover, maximum deductibles,
geographical limits and principal extensions and
exclusions;
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(c)
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to
the extent not included in the Security Documents, a form of notice
of
assignment of insurances;
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| (d) |
full
wording of the Financing Party endorsements;
and
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| (e) |
a
form of broker's letter to the
Agent,
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as
the
same may be amended from time to time with the consent of the Borrower and
the
Agent.
Approved
Committed Equity means
Committed Equity in an amount no greater than the lesser
of:
| (a) |
US$20,000,000;
and
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(b)
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such
amount as would ensure that, on the making of the relevant Advance,
the
ratio of the Loan to Equity is no greater than
80:20.
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Page
2
Approved
Fuel Hedging Counterparty means
any
Qualifying Bank other than a Bank or a Hedging
Bank that has been approved in writing by the Agent (acting on the instructions
of the Majority
Banks, such approval not to be unreasonably withheld or delayed).
Approved
Fuel Hedging Derivative Transaction means
any
Derivative Transaction for the forward purchase of fuel or other options
strategies relating to the purchase of fuel by the Borrower that has been
approved in writing by the Agent (acting on the instructions of the Majority
Banks, such approval not to be unreasonably withheld or delayed).
Approved
Fuel Hedging Document means
any
document relating to an Approved Fuel Hedging
Derivative Transaction entered into by the Borrower with an Approved Fuel
Hedging Counterparty.
Approved
Fuel Hedging Expenses means
in
respect of a period, all amounts payable during that period in respect of the
Borrower's liabilities under any Approved Fuel Hedging Document.
Approved
Hedging Programme means
the
approved hedging programme entered into by the
Borrower and the Hedging Banks on or prior to the Effective Date and relating
to
the Derivative
Transactions to be entered into between the Borrower and the Hedging Banks
for
the Facility and relating to the Project, as the same may be amended from time
to time with the consent of the Borrower, the Agent and the Hedging
Banks.
Arrangement
Fee Letter means
the
letter dated on or about the date of this Agreement from the Arranger to the
Borrower relating to arrangement fees for the Facility, being described on
its
face as the "Arrangement Fee Letter".
Assets
means
all
such assets and rights to enable the Borrower (or a prudent mining developer
and
operator) to design, construct, own, operate, manage, maintain and repair a
project such as the Project, in accordance with the Transaction Documents,
including:
| (a) |
land
and buildings;
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(b)
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any
equipment or other property (whether acquired, leased or held and
used or
intended for use in connection with the
Project);
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(c)
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books
and records (including operating and maintenance manuals, health
and
safety manuals, design and other technical
information);
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| (d) |
spare
parts, tools and other assets;
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| (e) |
any
contractual rights;
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| (f) |
intellectual
property rights,
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and
including all works and operations in connection with the construction,
development, expansion,
maintenance and operation of the Mesquite Mine.
Auditors
means
H.J. and Associates, PriceWaterhouseCoopers or any other firm of chartered
accountants of internationally recognised standing that has been appointed
as
auditors of the Guarantor.
Available
Commitment means,
in
relation to a Bank, its Commitment in the Facility less its Participation
in the Loan.
Available
Facility means
the
aggregate of the Available Commitments.
Availability
Period means
the
period starting on the date of this Agreement and ending on:
| (a) |
in
respect of US$ 85,000,000 of the total Commitments, the earlier of
the
Completion Date
and the Longstop Date; and
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Page
3
| (b) |
in
respect of the total Commitments available for refinancing the Approved
Committed Equity, the date falling 12 Months after the Completion
Date.
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Bank
Liabilities means
all
obligations and liabilities (whether present or future, actual or contingent,
as principal or surety and whether severally or jointly) of the Security
Companies to the
Financing Parties under or arising out of or in connection with the Financing
Documents.
Banks
means
the
banks and other financial institutions listed as such in Schedule 1, Part A
and
any
Bank transferee pursuant to a Transfer Certificate, together with their
respective successors
in title, and Bank
means
any
of them, provided that any bank or financial institution
which transfers all of its Commitment and Participation (as applicable) in
accordance with
Clause 22 shall cease to be a Bank.
Banks'
Advisers means
the
Banks' Insurance Adviser, the Independent Technical Consultant,
the Banks' Model Auditor, the Banks' Legal Advisers and such other advisers
or
consultants as the Agent may appoint in connection with the Project or any
Transaction Document
with the prior approval of the Majority Banks (but to avoid doubt, excluding
any
such
advisers or consultants individually appointed by any Bank (other than the
Agent)) and Bank's
Adviser means
any
of them.
Banks'
Insurance Adviser means
▇▇▇▇▇▇ or such other person or entity as the Agent may appoint to perform such
role with the prior approval of the Majority Banks.
Banks'
Legal Advisers means
▇▇▇▇▇▇ ▇▇▇▇▇ Sapte LLP in respect of matters of English law, Holland
& ▇▇▇▇ LLP in respect of matters of US law or such other person(s) or
entity(ies) as the Agent
may
appoint to perform any such role with the prior approval of the Majority
Banks.
Banks'
Model Auditor means
Duff & ▇▇▇▇▇▇ LLC or such other person or entity as the Agent may appoint to
perform such role with the prior approval of the Majority Banks.
Base
Case Model means
the
projected production, income and expenditure of the Borrower (in respect of
each
Monthly period for the period from the date of this Agreement until the
Target
Completion Date and thereafter in respect of each six Month period) based on
the
Development Plan, Reserve Statement and on prudent assumptions and agreed by
the
Borrower and the Agent as the base case model for the purposes of this Agreement
and delivered
in accordance with Schedule 2, Part 1, paragraph 3(e), including the methodology
used for computing such projections.
Break
Costs means
the
amount (if any) by which:
|
(a)
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the
interest which a Bank should have received for the period from the
date of
receipt of
all or any part of its participation in an Advance or Unpaid Sum
to the
last day of the current
Interest Period in respect of that Advance or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day
of that
Interest Period,
|
exceeds:
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(b)
|
the
amount which that Bank would be able to obtain by placing an amount
equal
to the principal
amount or Unpaid Sum received by it on deposit with a leading bank
in the
London
Interbank Market for a period starting on the Business Day following
receipt or recovery and ending on the last day of the current Interest
Period.
|
Business
Day means
a
day (other than a Saturday or Sunday) on which banks are open for general
business in London and New York.
Capital
Expenditure means
any
expenditure which will be treated as capital expenditure in accordance with
United States GAAP.
Capital
Lease means
any
lease or hire purchase contract which would, in accordance with United States
GAAP, be treated as a finance or capital lease.
Page
4
Certified
Copy means,
in
relation to a document, a copy of that document bearing the endorsement
"Certified a true, complete and accurate copy of the original", which has been
signed and dated by a duly authorised officer of the relevant company and which
complies with that endorsement.
CFADS
means,
in
respect of a period, the cash flow available for Debt Service in respect of
that
period, and shall be equal to Operating Revenues for that period less Operating
Costs for that
period.
Commitment
means,
in
relation to a Bank, the amount which that Bank has committed to the Facility.
The initial Commitment of each Bank in respect of the Facility is set out
opposite its name in Schedule 1, Part A or the amount of Commitment transferred
to such bank pursuant to Clause 22 as set out in the relevant Transfer
Certificate.
Committed
Equity means
US$48,400,000 of Equity.
Commitment
Fees means
the
fees payable by the Borrower pursuant to Clause 15.4.
Completion
means
the
satisfaction and completion by the Borrower of the Completion Test as certified
by the Independent Technical Consultant (with respect to the technical and
performance tests) and as certified by the Agent to the Borrower and the other
Financing Parties in accordance with the procedure set out in the Completion
Test.
Completion
Date means
the
date on which Completion occurs.
Completion
Test means
the
tests and conditions set out in the document referred to in Schedule 2 Part
1,
paragraph 7.
Compliance
Certificate means
a
certificate executed by an authorised officer of the Borrower, in the form
set
out in Schedule 5.
Consent
to Assignment means,
for any Material Contract, a written consent to the collateral assignment
of such Material Contract to the Secured Parties under the Security Agreement
substantially in the form of Schedule 12, together with such amendments or
supplements as are reasonably required by the Agent having regard to such
Material Contract and the rights and
obligations arising thereunder.
Cost
Overrun means
Capital Expenditure or Operating Costs, not being a Variation, incurred or
to be
incurred by the Borrower to achieve Completion that have been certified in
writing by the
Agent
(in consultation with the Independent Technical Consultant) as not having been
provided for adequately in the Base Case Model and the Initial Development
Plan
having taken
account of:
|
(a)
|
any
contingency amount or items provided for in the Base Case Model and
the
Development Plan; and
|
|
(b)
|
other
line items in the Base Case Model and the Development Plan that could
be
applied
in respect of such Capital Expenditure or Operating Costs to the
extent
that those
line items have either:
|
| (i) |
already
been completed and the Capital Expenditure or Operating Costs applied
in completing those line items was less than anticipated in the Base
Case
Model and the Development Plan; or
|
| (ii) |
not
been completed but the Borrower has demonstrated to the satisfaction
of
the Agent (in consultation with the Independent Technical Consultant)
that
the Capital
Expenditure or Operating Costs to be applied in completing those
line
items
will be less than is anticipated in the Base Case Model and the
Development
Plan.
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Page
5
Cost
Overrun Account means
the
account of that name held and maintained by the Borrower pursuant to Clause
12.7.
Costs
Certificate means
a
certificate of the Borrower in the form attached at Schedule 4 certifying that
the amounts in respect of which the relevant Advance is to be applied are
Permitted Capital Expenditure or Operating Costs and certifying:
|
(a)
|
the
value of the works completed (not being Cost Overruns or Variations)
as at
the date
of the relevant certificate and the amount which is due to be paid
in
connection with
such completed works;
|
|
(b)
|
all
other amounts to be paid as part of such Permitted Capital Expenditure
(not being Cost
Overruns or Variations) or Operating Costs and, in respect of any
such
items of Permitted
Capital Expenditure with a value of US$250,000 or more, itemizing
the
same;
and
|
|
(c)
|
any
Cost Overruns and approved Variations and itemizing any Permitted
Capital
Expenditures in relation to the
same.
|
Dangerous
Materials means
any
element or substance, whether consisting of gas, liquid, solid
or
vapour, identified by any applicable Environmental Law to be, to have been,
or
to be capable
of being or becoming, harmful to mankind, human senses or any living organism
or
ecological system or damaging to the Environment.
Debt
means
the
aggregate of:
| (a) |
the
Bank Liabilities; and
|
| (b) |
the
Hedging Liabilities (if any).
|
Debt
Service means,
in
respect of a period, the amount of Financing Costs and Financing Principal
payable during that period.
Debt
Service Reserve Account means
the
account held and maintained by the Borrower pursuant to Clause
12.6.
Deed
of Trust means
the
deed of trust dated on or about the date of this Agreement and entered
into between the Borrower and the Security Trustee.
Default
means
an
Event of Default or any event or circumstance specified in Clause 14 which
would
(with the expiry of a grace period, the giving of notice, the making of any
determination or the satisfaction of any condition under the Financing Documents
or any combination of any of the foregoing) be an Event of Default.
Derivative
Transaction means
any
transaction which is (a) a rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index
swap,
equity or equity index option, bond option, interest rate option, foreign
exchange transaction,
forward commodity transaction, credit derivative transaction, repurchase or
reverse
repurchase transaction, securities lending transaction, cap transaction, floor
transaction,
collar transaction, currency swap transaction, cross-currency rate swap
transaction,
currency option or any other similar transaction (including any option with
respect to any of these transactions) or (b) any combination of these
transactions.
Development
Plan means
the
Initial Development Plan or the latest Development Plan (if any) delivered
to
and approved by, the Agent in accordance with Clause 11.1 (c).
Disposal
means
a
sale, assignment, transfer or other disposition or disposal (including byway
of
lease or loan) by a person or entity of all or part of its assets, whether
by
one transaction or a series of transactions and whether at the same time or
over
a period of time.
Page
6
Distribution
means
any
payment, repayment, dividend, redemption, discharge by way of set-off,
counterclaim or otherwise or other distribution, whether in cash or in kind,
made by or on behalf of the Borrower to the Guarantor or any other Affiliate
howsoever the same may arise and whether pursuant to the terms of an agreement
or otherwise, provided that the following payments shall not constitute
Distributions:
|
(a)
|
payments
by the Borrower to the Guarantor in accordance with the Management
Agreement; and
|
|
(b)
|
payments
by the Borrower to the Guarantor to reimburse the Guarantor for costs
incurred
by it in accordance with the Development Plan and the Base Case
Model.
|
Distributions
Account means
the
account held and maintained by the Borrower pursuant to Clause
12.
Drawdown
Date means
the
date on which an Advance is made, or is proposed to be made, as the case may
be.
Drawdown
Notice means
a
notice substantially in the form set out in Schedule 3.
Effective
Date has
the
meaning given to it by Clause 3.1.
Encumbrance
means
any
mortgage, charge, pledge, lien, assignment by way of security, retention
of title provision, or other security interest securing any obligation of any
person or entity
or
any other agreement or arrangement in any jurisdiction having a similar
effect.
Environment
means
all
or any of the following media: air (including air within buildings or other
structures and whether above or below ground); land (including buildings and
any
other structures
or erections in, on or under it and any soil and anything below the surface
of
land); land
covered with water; and water (including sea, ground and surface
water).
Environmental
Authorisations means
all
permits, consents, consent decrees, licences and authorisations required
pursuant to applicable Environmental Law for any of the development of the
Project and operation of the Mining Operations.
Environmental
Law means
any
Law concerning:
|
(a)
|
pollution
or contamination of the Environment or the removal, abatement, remediation
or
reclamation thereof or other response
thereto;
|
|
(b)
|
harm,
whether actual or potential, to mankind and human senses, living
organisms
and ecological systems;
|
|
(c)
|
the
generation, manufacture, processing, management, distribution, use
(including abuse),
treatment, storage, disposal, transport or handling of Dangerous
Materials; or
|
|
(d)
|
the
emission, leak, release or discharge into the Environment of any
noise,
vibration, dust,
fumes, gas, odours, smoke, steam, effluvia, heat, light, radiation
(of any
kind), infection, electricity or any Dangerous Material and any matter
or
thing capable of constituting a nuisance or an actionable tort of
any kind
in respect of such matters;
|
provided
that where the Equator Principles would impose a greater obligation or standard
than any
applicable Environmental Law, those Equator Principles shall be deemed to be
an
Environmental
Law for the purposes of this definition to the extent such Equator Principles
are by
their
terms applicable to the Borrower or the Project and provided further that the
Equator Principles
will not apply to the Borrower or the Project at any time if such application
of, or the Borrower's
or the Project's compliance with, the Equator Principles will breach or
otherwise result in a non-compliance with any Law applying to the Borrower
or
the Project at that time.
Page
7
Equator
Principles mean
the
framework principles entitled the Equator Principles adopted by the World
Bank/International Finance Corporation and various other financial institutions
in determining,
assessing and managing environmental and social risk in project financing as
updated
by such institutions from time to time.
Equipment
Purchase Orders means
the
following purchase orders made by the Borrower for equipment in connection
with
the Project:
| (a) |
No.
2976 to Empire Machinery for the purchase of two O&K hydraulic
excavators;
|
| (b) |
No.
2977 to Terex Corporation for the purchase of eleven unit rigs model
MT3700AC;
|
| (c) |
No.
2978 to Empire Machinery for the purchase of two Caterpillar 16M
graders;
|
| (d) |
No.
2979 to Empire Machinery for the purchase of three Drilltech drill
rigs;
|
| (e) |
No.
2980 to Empire Machinery for the purchase of Caterpillar 834H wheel
dozer;
|
| (f) |
No.
2981 to Empire Machinery for the purchase of two Caterpillar D10T
tractors;
|
| (g) |
No.
2982 to Empire Machinery for the purchase of two 777 off-highway
water
trucks; (h) No.
2983 to GCR Tire Center for the purchase of truck tires;
and
|
| (i) |
No.
2974 to ▇▇▇▇▇▇▇▇▇▇ Sales & Service for the purchase of one L-1350
Front End Loader Base Machine and related
items.
|
Equity
means,
at
any time, the aggregate of:
|
(a)
|
the
amount of the fully paid up ordinary share capital in the Borrower
subscribed for in cash
at that time; and
|
| (b) |
Subordinated
Debt.
|
Event
of Default any
event
or circumstance specified as such in Clause 14.
Excess
Cashflow means,
on
any Repayment Date, the amount by which A exceeds B
where:
| A |
is
the amount (as estimated by the Borrower on the Business Day falling
2
Business Days
before the relevant Repayment Date) that will be standing to the
credit of
the Proceeds
Account on that Repayment Date following the payments or transfers
referred
to in Clauses 12.5.2(a) to 12.5.2(d) less the amount, if any, actually
standing to the credit of the Proceeds Account on the previous Repayment
Date following the payments or transfers made on that previous Repayment
Date in accordance with Clauses
12.5.2(a) to 12.5.2(d), that was retained in the Proceeds Account;
and
|
| B |
is
US$4,000,000.
|
Excluded
Taxes means:
| (a) |
Tax
assessed on a Financing Party under the Law of the jurisdiction in
which
that Financing
Party is incorporated or, if different, the jurisdiction (or
jurisdictions) in which that
Financing Party is treated as resident for tax purposes or under
the Law
of the jurisdiction
in which that Financing Party's Facility Office is located, in respect
of
amounts received or receivable in that jurisdiction if, in either
case,
that Tax is imposed
or calculated by reference to the net income received or receivable
by
that Financing
Party;
|
Page
8
|
(b)
|
for
any period with respect to which a Financing Party has failed to
provide
the Borrower
with the forms required by Clause 9.7.4, any United States withholding
tax
imposed
by reason of such failure; and
|
|
(c)
|
any
Taxes imposed as a direct result of a Financing Party voluntarily
effecting a change after the date of this Agreement in its jurisdiction
of
principal operations (but excluding any change as a result of, or
in
response to, any Law or change in Law after the date of this
Agreement).
|
Facility
means
the
US Dollar term loan facility granted to the Borrower under this Agreement.
Facility
Accounts means
each account listed in Clause 12.2.1.
Facility
Limit means
US$105,000,000 as increased, reduced or cancelled in accordance with the express
terms of this Agreement.
Facility
Office means
the
office or offices notified by a Bank to the Agent in writing on or before
the date it becomes a Bank (or, following that date, by not less than five
Business Days' written
notice) as the office or offices through which it will perform its obligations
under this Agreement.
Feasibility
Study means
the
study titled "Feasibility Study on the Mesquite Mine Expansion, Imperial
County, California", prepared by Micon International Limited and dated 15 August
2006 delivered to the Agent prior to the date of this Agreement, and including
any further studies
conducted by the Borrower or pursuant to the Bank's due diligence process prior
to the Effective
Date.
Fees
Letters means
the
Arrangement Fee Letter and the Agency Fees Letter.
Final
Hedging Maturity Date means
31
December 2014.
Final
Repayment Date means
31
December 2014, or such earlier date as the Loan is repaid in
full.
Financial
Year means
the
calendar year ending 31 December of that year.
Financing
Costs means,
in
respect of a period, the aggregate of:
|
(a)
|
interest
paid or payable in that period under this Agreement (including default
interest paid
or payable pursuant to Clause 5.4) and any sums paid or payable in
respect
of Clauses
8.1, 8.2, 8.6 and 9.7; and
|
|
(b)
|
all
commitment fees paid or payable under Clause 15.4 and fees paid or
payable
pursuant to Clause 15.6 and the Agency Fees
Letter,
|
plus
net
payments, if any, by the Borrower under any Hedging Document in that period
or
less net
payments, if any, to the Borrower under any Hedging Document in that period
(as
the case may
be).
Financing
Documents means
all
or any of:
| (a) |
this
Agreement;
|
| (b) |
the
Intercreditor Agreement;
|
| (c) |
the
Hedging Documents;
|
| (d) |
the
Security Documents;
|
| (e) |
the
Fees Letters; and
|
Page
9
| (f) |
such
other agreements and documents in respect of the Facility and the
Project
entered
into from time to time pursuant to any of the foregoing to which
any of
the Security
Companies or Key Contractual Counterparties are a counterparty with
any
Financing
Party or Hedging Bank and which (i) are in form and substance satisfactory
to
the Borrower and (ii) the Agent determines shall be a Financing
Document.
|
Financing
Parties means
the
Agent, the Arranger, the Security Trustee and the Banks and Financing
Party means
any
of them.
Financing
Principal means,
in
respect of a period, principal repaid or repayable under this Agreement
in that period.
First
Repayment Date means
31
December 2008.
Guarantee
means
the
guarantee issued by the Guarantor on or about the date of this Agreement
in favour of the Security Trustee guaranteeing the obligations of the Borrower
under the Financing Documents.
Hedging
Banks means
the
banks and financial institutions listed as such in Schedule 1, Part B and their
respective assignees, transferees or successors in title under the Hedging
Documents
with respect to transfers or assignments made in accordance with Clause 22.6
and
Hedging
Bank means
any
of them, provided that any bank or financial institution which transfers all
its
rights and obligations under the Hedging Documents shall cease to be a
Hedging
Bank.
Hedging
Documents means:
|
(a)
|
the
ISDA Master Agreements and schedules thereto between the Borrower
and any
Hedging
Bank;
|
|
(b)
|
each
other document entered into by the Borrower and any Hedging Bank
from time
to time
confirming each transaction entered into pursuant to any such ISDA
Master
Agreement
and the schedule thereto; and
|
|
(c)
|
any
other agreement entered into by the Borrower with any Hedging Bank
pursuant to the
Approved Hedging Programme or in respect of Hedging
Liabilities.
|
Hedging
Expenses means
in
respect of a period, all amounts payable during that period in respect of the
Borrower's Hedging Liabilities.
Hedging
Liabilities means
all
Indebtedness of the Borrower to the Hedging Banks under any Permitted Hedging
Transaction.
Historic
DSCR means,
as
at a Repayment Date and the Completion Date and in respect of the 6 Month period
immediately preceding that Repayment Date or, as the case may be, the Completion
Date, the ratio of:
| (a) |
the
CFADS of the Borrower for that 6 Month period;
to
|
| (b) |
the
Debt Service of the Borrower for that 6 Month
period.
|
Holding
Company means
(i)
in respect of any corporation, any person or entity which directly or
indirectly, owns or controls more than 50% of the issued and outstanding equity
securities having
ordinary voting power to elect a majority of the board of directors or such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation
shall or might have voting power upon the occurrence of any contingency) at
the
time
(ii)
in respect of any partnership, joint venture, limited liability company or
other
entity, any person
or
entity which directly or indirectly, owns or controls more than 50% of the
equity interest having the power to vote, direct or control the management
of
such partnership, limited liability company, joint venture or other entity
at
the time.
Page
10
Indebtedness
means,
any indebtedness for or in respect of:
| (a) |
moneys
borrowed;
|
| (b) |
any
amount raised by acceptance under any form of acceptance credit
facility;
|
|
(c)
|
any
amount raised pursuant to any note purchase facility or the issue
of
bonds, notes, debentures,
loan stock or any similar
instrument;
|
| (d) |
the
amount of any liability in respect of any Capital
Lease;
|
|
(e)
|
receivables
sold or discounted (other than any receivables to the extent they
are sold
on
a non-recourse basis);
|
|
(f)
|
any
amount raised under any other transaction having the commercial effect
of
a borrowing;
|
| (g) |
any
Derivative Transaction;
|
| (h) |
the
supply of any goods or services on payment terms in excess of 180
days
(excluding
any terms agreed in the ordinary course of business for scheduled
payments
against supplies being made over a period in excess of 180 days)
or the
supply of any goods or services which is more than 180 days past
the
original due date for payment;
|
| (i) |
any
counter-indemnity obligation in respect of the guarantee, indemnity,
bond,
standby or documentary letter of credit or any other instrument issued
by
a bank or financial institution;
|
| (j) |
any
shares which are expressed to be
redeemable;
|
| (k) |
trade
creditors in the ordinary course of business but only if in a total
aggregate amount
at any time greater than US$5,000,000 (or its equivalent in any other
currency);
and
|
| (l) |
the
amount of any liability in respect of any guarantee or indemnity
for any
of the items referred to in paragraphs (a) to (k)
above.
|
When
calculating the value of any such Derivative Transaction for the purpose of
the
definition of Indebtedness such value shall be as determined by the Agent
(acting reasonably) to be the gross
marked to market value and shall only be taken into account if such value
results in a gross
exposure to such person or entity.
Independent
Technical Consultant means
Chlumsky ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLC or such other independent
technical consultant as maybe appointed by the Agent (acting on the instructions
of the Majority Banks) and agreed by the Borrower (acting reasonably) from
time
to time.
Initial
Development Plan means
the
business plans for the Borrower and the Mining Operations
respectively describing the nature and extent of, and prospects for, the
Borrower's businesses
and operations as set out in the Feasibility Study (and which shall incorporate
the Reserve
Statement, the Base Case Model and Operating Budget), delivered pursuant to
Schedule
2, Part 1, paragraph 3(f).
Information
Package means:
| (a) |
the
Feasibility Study;
|
| (b) |
the
Accounts of the Borrower for the 2006 Financial
Year;
|
| (c) |
the
Accounts of the Guarantor for the 2006 Financial
Year;
|
Page
11
| (d) |
the
unaudited results of the Borrower and the Guarantor for the first
3 Months
of 2007;
|
|
(e)
|
copies
of the Mineral Lease and Landfill Facilities Lease Agreement, the
Equipment Purchase Orders and the Refining
Agreement;
|
| (f) |
a
draft copy of the Management Agreement;
and
|
| (g) |
the
Initial Development Plan (including the Base Case
Model).
|
Insurances
means,
at
any time, the insurances effected and maintained at such time pursuant
to
the
Agreed Insurance Programme.
Insurers
means,
at
any time, the insurers and underwriters of all or any of the risks insured
under
the
Insurances at that time, or any of them as approved by the Agent pursuant to
the
Agreed Insurance Programme.
Intercreditor
Agreement means
the
intercreditor agreement between the Borrower, the Guarantor,
the Agent, the Security Trustee, the Banks and the Hedging Banks dated on or
about the date of this Agreement.
Interest
Date means
the
last day of an Interest Period.
Interest
Margin means
in
respect of each Advance:
|
(a)
|
2.20
per cent per annum from the date of this Agreement until the Interest
Date
immediately following the Completion Date;
and
|
|
(b)
|
1.75
per cent per annum following the Interest Date immediately following
the
Completion Date.
|
Interest
Period means,
in
relation to an Advance, each period determined in accordance with Clause
5.2 and, in relation to an Unpaid Sum, each period determined in accordance
with
Clause
5.3.
ISDA
Master Agreement means
the
ISDA Master Agreement (Multicurrency-Cross Border) as published in 2002 by
the
International Swap and Derivatives Association Inc..
ITC
Report means
the
report (including an environmental appraisal) by the Independent Technical
Consultant in the agreed form to be prepared every 3 Months from the period
commencing as at the date of this Agreement until the Completion Date and from
the Completion
Date on an annual basis or as may be otherwise requested by the Agent (acting
on
the instructions of the Majority Banks) from time to time.
Key
Contractual Counterparty means:
| (a) |
the
Refiner;
|
|
(b)
|
any
other person or entity (other than a Security Party) who, after the
date
of this Agreement, enters into a Material Contract of the type listed
in
paragraph (f) of the definition of Material Contract and who the
Agent
reasonably determines should be a "Key Contractual
Counterparty".
|
Law
means
any
applicable legislation, any common or customary law, constitution, decree,
judgment,
order, ordinance, treaty, regulation or other legislative measure in any
jurisdiction having
legal or judicial effect whether of a civil or criminal nature.
Page
12
▇▇▇▇▇
Pad Construction Contract means
the
contract entered or to be entered into by the Borrower and a contractor relating
to the ▇▇▇▇▇ pad construction work contemplated in the Initial Development
Plan
and Base Case Model, in a form and substance satisfactory to the Agent (acting
reasonably).
LIBOR
means,
in
relation to any Advance:
| (a) |
the
applicable Screen Rate; or
|
|
(b)
|
(if
no Screen Rate is available for US Dollars for the Interest Period
of that
Advance) the arithmetic mean (rounded upwards to four decimal places)
of
the rates as supplied to
the Agent at its request quoted by the Reference Banks to leading
banks in
the London
interbank market,
|
as
of
11.00 am on the Quotation Day for the offering of deposits in US Dollars and
for
a period comparable
to the Interest Period for that Advance.
Loan
means,
from time to time, the aggregate of all Advances outstanding at such time.
Longstop
Date means
the
date falling 6 Months after the Target Completion Date.
Majority
Banks means:
| (a) |
whilst
no Event of Default is continuing:
|
| (i) |
a
Bank or Banks whose Participations;
and
|
| (ii) |
Hedging
Bank or Hedging Banks whose Hedging
Liabilities,
|
together
exceed 662/3 per cent. of the aggregate of the
Loan and the Hedging Liabilities or, at any time when no Advance is outstanding,
a Bank or Banks whose Commitments and Hedging Bank or Hedging Banks whose
Hedging Liabilities together exceed 662/3 per
cent. of the aggregate of the total Commitments and the Hedging
Liabilities,
PROVIDED
THAT, for purposes of making the required calculations of the aggregate of
the
Loan and the Hedging Liabilities in order to determine whether "Majority Banks"
exist, the Hedging Liabilities shall not at any time exceed 75% of the Loan;
and
| (b) |
whilst
an Event of Default is continuing:
|
| (i) |
a
Bank or Banks whose Participations;
and
|
| (ii) |
Hedging
Bank or Hedging Banks whose Hedging
Liabilities,
|
together
exceed 662/3
per cent. of the aggregate of the Loan and the Hedging Liabilities
or, at any time when no Advance is outstanding, a Bank or Banks whose
Commitments
and Hedging Bank or Hedging Banks whose Hedging Liabilities together
exceed 662/3
per cent. of the aggregate of the total Commitments and the Hedging
Liabilities.
For
the
purposes of these calculations:
| (A) |
the
Hedging Liabilities shall be determined by the Agent based on information
received
from the relevant Hedging Bank (acting in a commercially reasonable
manner) on such date as the Agent shall reasonably specify on a marked
to
market valuation
and, for the avoidance of doubt, in the event that a particular Hedging
Transaction shall be out of the money from the relevant Hedging Bank's
perspective, for the purpose of determining the Majority Banks the
corresponding Hedging Liability shall be treated as zero;
and
|
Page
13
| (B) |
if,
in accordance with paragraph (a) above, the Hedging Liabilities for
the
purposes of determining
whether "Majority Banks" exist are reduced to 75% of the Loan, the
Hedging
Liability for each of the Hedging Banks shall be reduced on a pro
rata
basis to
the extent necessary so that the aggregate of the Hedging Liabilities
following such reduction
is equal to 75% of the Loan.
|
Management
Agreement means
the
agreement dated on or about the date of this Agreement entered into between
the
Borrower and the Guarantor.
Mandatory
Cost means
the
percentage rate per annum calculated by the Agent in accordance with Schedule
9.
Material
Adverse Effect means
a
material adverse effect on:
|
(a)
|
the
ability of any Security Company to comply with its obligations under
the
Transaction Documents to which it is a
party;
|
|
(b)
|
the
business, financial condition or assets of any Project Party to the
extent
that the same affects its ability to comply with its obligations
under the
Transaction Documents to which it is a
party;
|
| (c) |
the
validity or enforceability of any Transaction Document;
or
|
|
(d)
|
the
Project (as a whole) or any material part thereof, or its implementation
or operation.
|
Material
Contract means:
| (a) |
the
Refining Contract;
|
| (b) |
the
Mineral Lease and Landfill Facilities Lease
Agreement;
|
| (c) |
the
Management Agreement;
|
| (d) |
the
▇▇▇▇▇ Pad Construction Contract;
|
| (e) |
the
Equipment Purchase Orders; and
|
|
(f)
|
any
contract or agreement entered into by the Borrower that requires
the
consent of the Agent in accordance with Clause 11.4(m)(ii)(aa) and
(cc).
|
Mesquite
Mine means
the
deposit, the mine, processing plant and land relating thereto required
to exploit the Mining Claims, Mining Rights, complete and conduct the Mining
Operations and otherwise develop the Project; such plant, mine, deposit and
land
being more particularly described in the Feasibility Study and the Development
Plan.
Mineral
Lease and Landfill Facilities Lease Agreement means
the
agreement dated 11 June 1993 between ▇▇▇▇▇▇ Natural Resources Company, Hospah
Coal Company and Santa Fe Pacific Minerals Corporation.
Mining
Claims means
all
fee property, all patented mining and millsite claims, all unpatented
mining,
millsite and lode claims, all leaseholds relating to real property, all
easements and rights-of-way
owned or held, all water rights, and all other rights, titles and interests
in
and to real
property, all as described in Schedule 2, Part 2 and Mining
Claim shall
mean any of them.
Mining
Operations means
the
plant and Mining Rights and land relating thereto acquired or to
be
acquired by the Borrower for the purposes of the Project, at the Mesquite Mine
and such other plant and Mining Rights and land as is agreed by the Agent
(acting on the instructions of the
Majority Banks) to be acquired and/or developed in accordance with the
Development Plan.
Page
14
Mining
Right means
any
right to investigate the presence of, explore for, develop, extract,
process
or sell any metal or mineral (and any by-product thereof), including the
carrying out of any
geological survey or scientific experiment by the Borrower and Mining
Rights means
all
of
them.
Moody's
means
▇▇▇▇▇'▇ Investors Service, Inc.
Month
means
a
period starting on one day in a calendar month and ending on the numerically
corresponding day in the next calendar month, except that:
|
(a)
|
(subject
to paragraph (c) below) if the numerically corresponding day is not
a
Business Day,
that period shall end on the next Business Day in that calendar month
in
which that period is to end if there is one or, if there is not,
on the
immediately preceding Business
Day;
|
|
(b)
|
if
there is no numerically corresponding day in the calendar month in
which
that period is to end, that period shall end on the last Business
Day in
that calendar month; and
|
|
(c)
|
if
an Interest Period begins on the last Business Day of a calendar
month,
that Interest Period
shall end on the last Business Day in the calendar month in which
that
Interest Period
is to end.
|
The
above
rules (a) to (c) will only apply to the last Month of any period.
Monthly
Report means,
in
relation to the Borrower, a report showing, in respect of the previous
Month:
|
(a)
|
Capital
Expenditure incurred by it or on its behalf compared against budgeted
forecast;
|
|
(b)
|
production,
costs and revenue details and environmental performance compared
against
budgeted forecast;
|
| (c) |
a
summary of trade creditors as of the date of the
report;
|
|
(d)
|
full
details of any new claim under the Insurance where such claim exceeds
US$25,000
or its equivalent or the aggregate amount of claims during such period
exceeds
US$250,000;
|
| (e) |
Monthly
management accounts of the Borrower;
and
|
|
(f)
|
copies
of all statements produced by the Account Bank of all transactions
(whether debits
or credits) and showing opening and closing balances in respect of
each of
the Facility
Accounts.
|
Operating
Budget means,
in
relation to the Borrower, a report in the agreed form and consistent with the
Development Plan, reflecting forecast production, Operating Revenue,
Financing
Principal, Financing Costs and Operating Costs for each Month during the twelve
Month
period to which the Operating Budget relates and which has been delivered and
approved
by the Agent pursuant to Clause 11.1 (c).
Operating
Costs means,
in
respect of a period, the aggregate amounts paid or to be paid by the Borrower
during that period in connection with the Project, including:
| (a) |
Taxes;
|
Page
15
|
(b)
|
sums
payable pursuant to the Transaction Documents (other than Financing
Costs
and Financing Principal);
|
| (c) |
Royalty
Expenses;
|
| (d) |
premiums
on Insurances;
|
| (e) |
Permitted
Capital Expenditure;
|
| (f) |
Hedging
Expenses and Approved Fuel Hedging
Expenses;
|
|
(g)
|
general
corporate and administrative expenses provided for in the Operating
Budget
including
those covered in the Management
Agreement;
|
| (h) |
scheduled
amounts payable under the Reclamation Bonds and any other surety
bonds
contemplated
in the Development Plan;
|
| (i) |
amounts
payable under Permitted Capital
Leases;
|
| (j) |
trade
payables in the ordinary course of business provided for in the Operating
Budget;
and
|
| (k) |
all
other costs and expenses set out in the most recent Operating Budget,
calculated in accordance with United States
GAAP.
|
Operating
Revenues means,
in
respect of a period, all moneys received by the Borrower during
that period of a revenue or income nature (in each case determined on a receipts
basis, actual
or, as the case may be, forecast and only to the extent that the same are not
potentially refundable
or repayable) including (but without double counting between any such
moneys):
| (a) |
revenue
derived from the sale of gold;
|
| (b) |
pursuant
to the terms of any Transaction
Document;
|
| (c) |
interest
accrued on the Facility Accounts;
|
| (d) |
refunds
of Tax; and
|
| (e) |
proceeds
of business interruption insurance.
|
Participation
means,
in
relation to a Bank and an Advance, the part of that Advance made available
or to be made available by that Bank and thereafter the part of that Advance
owing to that
Bank
from time to time.
Party
means
a
party to this Agreement.
Permit
means
each permit listed in Schedule 10.
Permitted
Capital Expenditure means
any
Capital Expenditure but only to the extent such Capital
Expenditure is included in the Development Plan or the Operating Budget and
is
incorporated
in the Base Case Model.
Permitted
Capital Lease means
any
Capital Lease or Capital Leases entered into by the Borrower in relation to
the
Project where the total aggregate amount of the Indebtedness under
such Capital Lease or Capital Leases does not, at any time, exceed
US$5,000,000.
Permitted
Encumbrance means:
|
(a)
|
any
Encumbrance created, subsisting or permitted under or in connection
with
any Financing Document;
|
Page
16
|
(b)
|
any
right of set-off or lien, in each case arising or imposed by operation
of
Law , including, any Encumbrance such as materialmen's, mechanic's,
carrier's, workmen's and
repairmen's Encumbrances and any other Encumbrance arising in the
ordinary
course
of business;
|
|
(c)
|
any
Encumbrance arising out of title retention provisions in a contractor's,
sub contractor's
or other supplier's standard conditions of supply of goods, property
or
equipment or any purchase money security interest, in respect of
goods,
property or equipment
acquired or held by the Borrower for the purposes of the Project
and in
the ordinary course of its
business;
|
|
(d)
|
any
Encumbrance created, subsisting or permitted under or in connection
with
any Permitted
Capital Lease provided that the asset secured by such Encumbrance
is the
asset that is the subject of the Permitted Capital Lease and no other
asset of the Borrower;
|
|
(e)
|
any
Encumbrance created, subsisting or permitted under or in connection
with
any Reclamation Bond provided that the asset secured by such Encumbrance
is a cash deposit and no other asset of the
Borrower;
|
| (f) |
any
Encumbrance created, subsisting or permitted over the Distributions
Account;
|
| (g) |
Encumbrances
reflected in the Accounts of the
Guarantor;
|
| (h) |
any
Encumbrance created, subsisting or permitted in the ordinary course
of
business and on standard terms and conditions as a result of the
Borrower
making deposits or similar
arrangements with utility providers pursuant to Clause 11.4(d)(iii)
provided that the
asset secured by such Encumbrance is a cash deposit and no other
asset of
the Borrower
and provided further that such Encumbrances shall only constitute
Permitted Encumbrances
if the total value of the Borrower's liabilities at any time relating
to
or arising under or in respect of all such Encumbrances is less than
US$500,000 in aggregate at that
time;
|
| (i) |
any
Encumbrance arising or imposed by operation of Law in respect of
an unpaid
or undischarged
Taxes, assessments and governmental charges or levies that are being
contested
by the Borrower in accordance with, and subject to, Clause
11.3(a);
|
| (j) |
any
Encumbrance arising or imposed in the ordinary course of business
and by
operation
of Law to secure obligations under workers' compensation Laws or
similar
legislation
or to secure public or statutory obligations applicable to the
Borrower
and the
Mining Operations provided that the liabilities giving rise to
such
Encumbrances are at all times insured by the Borrower on standard
commercial terms for such liabilities;
|
| (k) |
any
Encumbrance arising or imposed to secure the performance of bids,
trade
contracts
and leases, surety bonds, performance bonds and other obligations
of a
like nature incurred in the ordinary course of business and consistent
with the Development
Plan provided that the asset secured by such Encumbrance is a cash
deposit
and no other asset of the Borrower;
|
| (l) |
Encumbrances
securing judgments (or the payment of money not constituting a
Trigger
Event under Section 13.1(e)) or securing appeal or other surety bonds
related to
such judgments provided that such Encumbrances shall only constitute
Permitted Encumbrances
if the total value of the Borrower's liabilities at any time relating
to
or arising under or in respect of such Encumbrances is less than
US$750,000 in aggregate at that time;
and
|
Page
17
| (m) |
any
replacement, extension or renewal of the Encumbrances listed in paragraphs
(a) to
(l) upon, over or in the same asset that is subject to such Encumbrance
and on the same
terms.
|
Permitted
Hedging Transaction means:
|
(a)
|
each
and any Derivative Transaction entered into or to be entered into
between
the Borrower and the Hedging Banks in relation to the Project pursuant
to
the Hedging Documents
and in accordance with the Approved Hedging Programme;
and
|
| (b) |
each
and any Approved Fuel Hedging Derivative Transaction.
|
Permitted
Indebtedness means:
| (a) |
Indebtedness
outstanding under any Financing
Document;
|
| (b) |
Subordinated
Debt;
|
| (c) |
Indebtedness
outstanding under any Permitted Capital Lease;
or
|
| (d) |
Indebtedness
outstanding under any Approved Fuel Hedging Document.
|
Permitted
Investments means:
|
(a)
|
U.S.
Government Obligations, in each case having a final maturity of 90
days or
less from
the date of purchase thereof;
|
|
(b)
|
direct
obligations of, or obligations the principal of and interest on which
are
unconditionally
guaranteed by, the Government of Canada or of any Canadian province
(or by any agency thereof to the extent such obligations are backed
by the
full faith and credit of the Government of Canada or of such Canadian
province), in each
case maturing within one year from the date of acquisition
thereof;
|
|
(c)
|
certificates
of deposit issued by, or bankers' acceptances of, or time deposits
with,
any bank,
trust company or national banking association incorporated or doing
business under
the Laws of the United States of America or one of the states thereof
having combined capital and surplus and retained earnings as of its
last
report of condition of at least $500,000,000 and having a short-term
deposit debt rating of A1 by S&P or P1 by Moody's (or, if neither such
organisation shall rate such short-term deposits at any time,
a rating equal to the highest ratings the highest ratings assigned
by any
nationally
recognized rating organisation in the United States of America) and
having
a final
maturity of one year or less from date of purchase
thereof;
|
|
(d)
|
commercial
paper of any holding company of a bank, trust company or national
banking
association described in sub-clause (c) above and commercial paper
of any
corporation
or finance company incorporated or doing business under the Laws
of the
United States of America or any state thereof having a rating assigned
to
such commercial
paper of A1 by S&P or P1 by Moody's (or, if neither such organisation
shall
rate such commercial paper at any time, a rating equal to the highest
ratings assigned by any nationally recognised rating organisation
in the
United States of America)
and having a final maturity of 180 days or less from the date of
purchase
thereof;
and
|
|
(e)
|
investments
in certificates of deposit, banker's acceptances, commercial paper
and
time deposits maturing within 180 days from the date of acquisition
thereof issued or guaranteed
by or placed with, and money market deposit accounts issued or offered
by,
any domestic office or any commercial bank organised under the Laws
of
Canada or of any Canadian province having, at such date of acquisition,
a
credit rating on its long-term unsecured debt of at least "A-" by
S&P.
|
Page
18
If
none
of the above investments is available, the entire amount to be invested may
be
used to purchase
U.S. federal funds overnight from an entity described in sub-clause (c)
above;
provided
that in all cases, the same remain subject to the Security and transferable
to
the Security
Trustee on an enforcement of the Security.
Pledge
Agreement means
the
pledge agreement dated on or about the date of this Agreement
entered into between the Guarantor and the Security Trustee.
Proceeds
Account means
the
account held and maintained by the Borrower pursuant to Clause
12.5.
Project
means
the
design, development, expansion, engineering, construction, equipment,
testing,
commissioning, management, operation, maintenance and repair of the Mesquite
Mine and the extraction, production, recovery, sale, transportation, storage,
processing and delivery of
gold
doré in all respects in accordance with the Transaction Documents and the
Development
Plan.
Project
Parties means:
| (a) |
each
Security Company; and
|
| (b) |
each
Key Contractual Counterparty, and
Project
Party means
any of them.
|
Project
Team means
the
professional team appointed or to be appointed by the Borrower to manage
the Project during either the design, the construction and commissioning phase
and/or
the operation and maintenance phase (as applicable).
Qualifying
Bank means
a
bank or financial institution, or a trust, fund or other entity which is
regularly
engaged in or established for the purpose of making, purchasing or investing
in
loans, securities or other financial assets, the long-term senior unsecured
credit of which is rated at least BB+ by Fitch or the equivalent rating from
any
other internationally recognised rating
agency.
Quotation
Day means,
in
relation to any period for which an interest rate is to be determined,
two
Business Days before the first day of that period unless market practice differs
in the London
interbank market in which case the Quotation Day will be determined by the
Agent
in accordance with market practice in the London interbank market (and if
quotations would normally be given by leading banks in the London interbank
market on more than one day, the Quotation Day will be the last of those
days).
Reclamation
Bonds means
the
reclamation and reimbursement bonds listed in Schedule 11 or
as
approved by the Agent from time to time.
Reference
Banks means
the
principal London offices of The Royal Bank of Scotland plc, Barclays
PLC and HSBC Bank plc or such other banks as may be selected by the Agent with
the consent of the Borrower.
Refiner
means
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc. and any replacement thereof approved by the Agent (acting
on the instructions of the Majority Banks).
Refining
Contract means
the
agreement entered or to be entered into between the Borrower and the Refiner
for
the refining of the gold dore mined at the Mesquite Mine.
Repayment
Date means
30
June and 31 December in each year commencing on the First Repayment Date until
the Final Repayment Date.
Repayment
Schedule means
the
Schedule of dates and amounts as set out in Schedule 6.
Page
19
Repeating
Representations means
each of the representations set out in Clause 10.1 (a) to 10.1
(f)
(inclusive).
Replacement
Key Contractual Counterparty means
a
person or entity who fulfils the criteria set
out
in paragraphs (a) to (d) below and is approved by the Agent (such approval
not
to be unreasonably
withheld or delayed):
|
(a)
|
the
legal capacity, power and authority of such proposed Replacement
Key
Contractual
Counterparty to become a party to and perform obligations equivalent
to
those
of the original Key Contractual Counterparty under the relevant Material
Contracts,
including all relevant consents;
|
|
(b)
|
the
financial standing of such proposed Replacement Key Contractual
Counterparty, whether by way of initial capitalisation cash collateral
or
by a letter of credit or guarantee or other credit support acceptable
to
the Banks, is sufficient;
|
|
(c)
|
the
technical competence or the technical resources available to such
proposed
Replacement
Key Contractual Counterparty (whether directly or by way of contractual
arrangements)
to perform obligations equivalent to those of the original Key Contractual
Counterparty under the relevant Material Contracts;
and
|
|
(d)
|
where
required by the Agent, such proposed Replacement Key Contractual
Counterparty
has irrevocably undertaken to the Agent to enter into a direct agreement
or other contractual arrangement with the Secured Parties or Security
Trustee on terms
similar to the direct agreement or other contractual arrangements
executed
by the
original Key Contractual
Counterparty.
|
Reserve
Statement means
a
statement prepared by the Borrower and confirmed by the Independent
Technical Consultant relating to the Mining Operations in form and substance
satisfactory
to the Agent (acting reasonably), showing a number of ounces of proven and
probable reserves as defined under National Instrument 43-101 issued by the
Canadian Institute
of Mining, Metallurgy and Petroleum, as updated by the Borrower in accordance
with Clause
11.1 (g) from time to time.
Royalty
Expenses means
any
royalties or overriding royalties, production payments, net profit interests,
net smelter return interests, other rights or interests in ore bodies or
production or revenues
therefrom or rental payments, in each case payable by the Borrower under the
Mining
Claims, any Material Contract or otherwise in connection with the Mesquite
Mine.
Screen
Rate means
the
British Bankers' Association Interest Settlement Rate for dollars for the
relevant period for the relevant period, displayed on the appropriate page
of
the Reuters screen.
If the agreed page is replaced or service ceases to be available, the Agent
may
specify
another page or service displaying the appropriate rate after consultation
with
the Borrower and the Banks.
Secured
Collateral means
all
rights, properties (real and personal), interests and other assets (of every
form, kind and nature) of each Security Company that are subject to the
Security.
Secured
Obligations means
the
obligations and liabilities of the Security Companies under the
Financing Documents, all of which are secured by the Security.
Secured
Parties means
the
Financing Parties and the Hedging Banks from time to time and Secured
Party means
any
of them.
Security
means
the
Encumbrances created by the Security Documents.
Security
Agreement means
the
security agreement dated on or about the date of this Agreement
entered into between the Borrower and the Security Trustee.
Security
Companies means:
|
(a)
|
the
Borrower;
|
Page
20
| (b) |
if
applicable, any Subsidiary of the Borrower from time to time;
and
|
| (c) |
the
Guarantor.
|
Security
Documents means:
| (a) |
the
Guarantee;
|
| (b) |
the
Pledge Agreement;
|
| (c) |
the
Security Agreement;
|
| (d) |
the
Deed of Trust;
|
| (e) |
the
Account Control Agreement;
|
| (f) |
any
Consent to Assignment; and
|
|
(g)
|
any
other guarantee or document creating, evidencing or acknowledging
security
in respect
of any of the obligations and liabilities of the Security Companies
under
any Financing Document.
|
Security
Period means
the
period starting on the date of this Agreement and ending on the date on which
the liabilities of the Security Companies under each Financing Document are
irrevocably
discharged in full and no Financing Party has any commitment or liability,
whether present or future, actual or contingent, in relation to the Facility
and
no Hedging Bank has any commitment or liability, whether present or future,
actual or contingent, in relation to any Permitted Hedging
Transaction.
Security
Trustee means
Investec Bank (UK) Limited in its capacity as trustee for the Secured Parties,
its successors in title and each successor appointed from time to time under
and
in accordance with the provisions of the Intercreditor Agreement.
Standard
& Poor's or
S&P
means
Standard & Poor's Rating Services, currently a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
Subordinated
Debt means
Indebtedness incurred by the Borrower to the Guarantor pursuant to
the
Subordinated Loan Agreement or any other Affiliate of the Borrower or the
Guarantor and
which
is subordinated to the Facility under the terms of the Intercreditor
Agreement.
Subordinated
Loan Agreement means
the
loan agreement entered or to be entered into between the Borrower and the
Guarantor.
Subsidiary
means
in
respect of any corporation or limited liability company or other
entity:
|
(a)
|
any
corporation of which more than 50% of the issued and outstanding
equity
securities
having ordinary voting power to elect a majority of the board of
directors
of such
corporation (irrespective of whether at the time capital stock of
any
other class or classes
of such corporation shall or might have voting power upon the occurrence
of any
contingency) is at the time directly or indirectly owned or controlled
by
such corporation,
limited liability company or entity and one or more of its other
Subsidiaries or
by one or more of the Subsidiaries of such corporation, limited liability
company or entity;
or
|
|
(b)
|
any
partnership, joint venture, limited liability company or other entity
of
which more than 50% of the equity interest having the power to vote,
direct or control the management of such partnership, limited liability
company, joint venture or other entity is at the time directly or
indirectly owned and controlled by such corporation, limited liability
company or entity and one or more to the other Subsidiaries or by
one or
more of the other Subsidiaries of such corporation, limited liability
company or entity.
|
Page
21
Sunk
Equity means
any
Equity invested in the Borrower certified by the Agent (in consultation
with
the
Independent Technical Consultant) as having been applied towards Project costs
provided
for in the Development Plan and Base Case Model.
Syndication
means
the
syndication of the Facility including byway of primary syndication,
sub-participation or other transfer.
Target
Completion Date means
30
June 2008.
Taxes
includes
all present and future taxes, charges, imposts, duties, levies, deductions
or
withholdings
of any kind whatsoever, or any amount payable on account of or as security
for
any
of
the foregoing, by whomsoever on whomsoever and wherever imposed, levied,
collected,
withheld or assessed, together with any penalties, additions, fines, surcharges
or interest relating thereto and Tax
and
Taxation
shall
be
construed accordingly.
Transaction
Documents means
the
Financing Documents, the Mining Claims, the Permits and the Material
Contracts.
Transfer
Certificate means
a
certificate in the form set out in Schedule 7.
Treasury
Obligations means
U.S. Treasury securities (including STRIPS) maintained in the commercial
book entry system entitled Treasury/Reserve Automated Debt Entry System
("Trades") pursuant to the Treasury Regulations or any successor commercial
book
entry system for U.S. Treasury securities maintained by Federal Reserve
Banks.
Treasury
Regulations means
31
CFR Part 357, as amended from time to time.
Trigger
means
a
Trigger Event or any event or omission which with the expiry of a grace
period,
the giving of notice, the making of any determination or the satisfaction of
any
condition under
the
Financing Documents or any combination of any of the foregoing, would be a
Trigger
Event.
Trigger
Event means
any
event or circumstance specified as such in Clause 13.
United
States GAAP means
general accounting principles in the United States of America and
concepts, bases and policies consistently applied and adopted and accepted
in
the United States
of
America.
Unpaid
Sum means
any
sum due and payable but unpaid by the Borrower under the Financing
Documents.
US
Dollars and US$ means
the
lawful currency for the time being of the United States of America.
US
Government Obligations means
(a)
Treasury Obligations, (b) direct obligations of the United
States of America and (c) obligations guaranteed by, or otherwise carrying
the
full faith and
credit of, the United States of America.
Variation
means
any
Capital Expenditure which is not, as at the date of this Agreement, included
within the Base Case Model or the Development Plan, provided such additional
Capital
Expenditure is included within a change to the Development Plan agreed in
accordance
with Clause 11.1 (c) and the Base Case Model, and the Independent Technical
Consultant confirms that the same has been or is to be properly and reasonably
incurred in connection
with the Project.
VAT
means
value added tax as provided for in the Value Added Tax ▇▇▇ ▇▇▇▇ and any other
tax of a similar nature.
Page
22
Waste
means,
as
to any person or entity, any act(s) or circumstance (other than a Disposal)
that
result(s), individually or collectively, in the abandonment, conversion,
seizure, waste, depletion, removal or loss of identity of any asset of such
person or entity, or results in any such asset being characterized as a fixture
or accession to goods of another person or entity.
| 1.2 |
Headings
|
The
headings in this Agreement are for convenience only and shall be ignored in
construing this Agreement.
| 1.3 |
Interpretation
|
| 1.3.1 |
In
this Agreement (unless otherwise
provided):
|
| (a) |
words
importing the singular shall include the plural and vice
versa;
|
|
(b)
|
references
to Clauses and Schedules are to be construed as references to the
clauses
of, and schedules to, this
Agreement;
|
|
(c)
|
references
to any Transaction Document or any other document shall be construed
as
references
to that Transaction Document or that other document, as amended,
varied,
novated
or supplemented in accordance with the terms thereof and, if applicable,
in accordance with this Agreement;
|
|
(d)
|
references
to any statute or statutory provision include any statute or statutory
provision
which amends, extends, consolidates or replaces the same, or which
has
been amended, extended, consolidated or replaced by the same, and
shall
include any
orders, regulations, instruments or other subordinate legislation
made
under the relevant statute;
|
|
(e)
|
references
to a document being in
the agreed form means
that document the form and content of which has been approved by
the Agent
and the Borrower and which has been initialled by or on behalf of
the
Agent and the Borrower;
|
|
(f)
|
references
to assets
shall
include revenues and property and the right to revenues and
property and rights of every kind, present, future and contingent
and
whether tangible
or intangible (including uncalled share
capital);
|
|
(g)
|
indebtedness
includes
any obligation, whether incurred as principal or as surety, for the
payment or repayment of money, whether present or future, actual
or
contingent and whether owed jointly or severally or in any other
capacity;
|
| (h) |
liabilities
includes
any obligation whether incurred as principal or as surety, whether
or
not in respect of indebtedness, whether present or future, actual
or
contingent and whether
owed jointly or severally or in any other
capacity
|
| (i) |
the
words including
and
in
particular shall
be construed as being by way of illustration
or emphasis only and shall not be construed as, nor shall they take
effect
as,
limiting the generality of any foregoing
words;
|
| (j) |
the
words other
and
otherwise
shall
not be construed to restrict the interpretation of any
foregoing words to those of the same nature or category where a wider
construction
is possible;
|
| (k) |
references
to a person
or
entity
shall
be construed so as to include that person's or entity's
assigns, transferees or successors in title and shall be construed
as
including references to an individual, firm, partnership, joint venture,
company, corporation, body corporate, unincorporated body of persons
or
any state or any agency of a state;
|
Page
23
| (l) |
material
shall
be construed as a reference to material to, or in the context of,
the
interests
of the Financing Parties (or any of them) under the Financing Documents
(or any
of them);
|
| (m) |
where
there is a reference in this Agreement to any amount, limit or threshold
specified
in US Dollars, in ascertaining whether or not that amount, limit
or
threshold has been attained, broken or achieved, as the case may
be, a
non-US Dollar amount shall be calculated on the basis of the equivalent
in
US Dollars of that amount using the Agent's relevant spot rate of
exchange;
|
| (n) |
accounting
terms shall be construed so as to be consistent with United States
GAAP;
and
|
| (o) |
references
to time are to London time.
|
| 1.3.2 |
A
Default or Trigger (other than an Event of Default or Trigger Event)
is
continuing
if
it has not
been remedied or waived in writing and an Event of Default or Trigger
Event is continuing
if
it has not been waived in writing.
|
| 1.4 |
Third
party rights
|
|
1.4.1
|
Unless
expressly provided to the contrary in this Agreement a person or
entity
who is not a Party
has no right under the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
(the
Third
Parties Act)
to
enforce or to enjoy the benefit of any term of this
Agreement.
|
|
1.4.2
|
Notwithstanding
any term of any Financing Document, the Parties may rescind, vary,
waive,
release,
assign, novate or otherwise dispose of all or any of their respective
rights or obligations
under this Agreement without the consent of any person or entity
who is
not a Party.
|
| 2 |
Facility
|
| 2.1 |
Facility
|
Subject
to the terms of this Agreement the Banks have agreed to make available to the
Borrower the Facility up to a maximum principal amount of
US$105,000,000.
| 2.2 |
Limitation
|
Notwithstanding
any other term of this Agreement, no Bank shall be obliged to lend more than
its
Commitment.
| 2.3 |
Obligations
several
|
The
obligations of each Financing Party under the Financing Documents are several.
Failure by
a
Financing Party to perform its obligations under the Financing Documents does
not affect the
obligations of any other Financing Party under the Financing Documents. No
Financing Party
is
responsible for the obligations of any other Financing Party under the Financing
Documents.
| 2.4 |
Rights
separate
|
|
2.4.1
|
The
rights of each Financing Party under or in connection with the Financing
Documents are separate
and independent rights and any debt arising under the Financing Documents
to a Financing Party from a Security Company shall be a separate
and
independent debt.
|
|
2.4.2
|
A
Financing Party may, except as otherwise stated in the Financing
Documents, separately enforce its rights under the Financing
Documents.
|
Page
24
| 2.5 |
Purpose
|
The
Borrower shall apply amounts borrowed by it under the Facility
towards:
| (a) |
Permitted
Capital Expenditures,
|
| (b) |
Financing
Costs in respect of capitalised interest and commitment
fees;
|
| (c) |
Operating
Costs; and
|
| (d) |
refinancing
Approved Committed Equity.
|
in
each
case, arising during the Availability Period and as provided for in the
Development Plan and the Base Case Model.
| 2.6 |
No
monitoring
|
No
Financing Party shall be obliged to investigate or monitor the use or
application of drawings under
the
Facility or the proceeds of the Advances.
| 3 |
Conditions
precedent
|
| 3.1 |
Conditions
precedent
|
Notwithstanding
any other term of this Agreement, none of the Financing Parties shall be under
any obligation to make the Facility available to the Borrower unless the Agent
has notified
the Borrower that all the conditions set out in Schedule 2, Part 1 have been
satisfied or waived
(the date of such notice being the Effective
Date).
| 3.2 |
Confirmation
of satisfaction
|
The
Agent
shall only be required to certify whether or not the conditions set out in
Schedule 2, Part
1
have been satisfied or, as the case may be, waived once it is satisfied that
all
such conditions have been satisfied or waived.
| 4 |
Drawdown
|
| 4.1 |
Drawdown
of the Facility
|
|
4.1.1
|
Subject
to the remaining provisions of this Agreement, Advances shall be
made to
the Borrower
at any time during the Availability Period when requested by means
of a
Drawdown Notice issued in accordance with Clause
4.4.
|
|
4.1.2
|
At
the close of business on the last Business Day of the Availability
Period
the undrawn amount of each Bank's Commitment shall be automatically
cancelled and no longer available for
drawing.
|
| 4.2 |
Conditions
to Advances
|
The
obligation of each Bank to make available its Participation in any Advance
is
subject to Clause 4.3 and to the conditions that, on the date on which the
relevant Drawdown Notice is given
and
on the Drawdown Date:
| (a) |
the
Effective Date has occurred;
|
| (b) |
the
Drawdown Date falls during the Availability
Period;
|
| (c) |
the
Repeating Representations are true in all material
respects;
|
Page
25
|
(d)
|
no
Default or Trigger has occurred and is continuing or would occur
on the
making of the
Advance;
|
|
(e)
|
in
respect of the first Advance only, the Agent is satisfied that all
amounts
in respect of Committed
Equity have been applied towards Permitted Capital Expenditures and
Operating Costs in accordance with the Development Plan;
and
|
|
(f)
|
in
respect of any Advance to be made for the purpose of refinancing
Approved
Committed Equity, the Agent has notified the Borrower and the Banks
that
all of Additional Drawing Conditions have been satisfied or
waived.
|
| 4.3 |
Limitations
and authorisation on
Advances
|
The
following limitations shall apply to Advances:
| (a) |
the
Drawdown Date of an Advance shall be a Business
Day;
|
| (b) |
the
principal amount of any Advance shall be a minimum amount of
US$1,000,000;
|
|
(c)
|
no
Advance shall be made if the making of that Advance would result
in the
Loan exceeding
the Facility Limit; and
|
| (d) |
there
shall be no more than 10 Advances outstanding at any
time.
|
4.4 Drawdown
Notice
Whenever
the Borrower wishes to drawdown an Advance under the Facility, the Borrower
shall deliver to the Agent:
| (a) |
a
duly completed Drawdown Notice;
|
| (b) |
a
Costs Certificate; and
|
|
(c)
|
copies
of any individual invoices against which such Advance is to be applied
where the
value of such invoice exceeds
US$250,000,
|
in
each
case, to be received not later than 11.00 a.m. on the third Business Day before
the relevant
Drawdown Date.
|
4.5
|
A
Drawdown Notice shall be irrevocable and the Borrower shall be obliged
to
borrow in accordance with its
terms.
|
| 4.6 |
Notification
to Banks
|
The
Agent
shall promptly notify each Bank of the details of each Drawdown Notice received
by it.
| 4.7 |
Participations
|
Subject
to the terms of this Agreement, each Bank acting through its Facility Office
shall make available
to the Agent on the Drawdown Date for an Advance an amount equal to its
Participation
in that Advance. A Bank shall participate in an Advance in the proportion borne
by its Available Commitment to the Available Facility on the Drawdown Date
of
that Advance.
Page
26
| 5 |
Interest
|
| 5.1 |
Interest
rate for Advances
|
Interest
shall accrue on each Advance from and including the relevant Drawdown Date
to,
but excluding,
the date the Advance is repaid at the rate per annum which is the aggregate
of:
| (a) |
the
applicable Interest Margin for such
Advance;
|
| (b) |
LIBOR;
|
| (c) |
Mandatory
Costs, if any; and
|
| (d) |
any
additional amounts incurred pursuant to Clause 13.2.1
(c).
|
| 5.2 |
Interest
Periods for Advances
|
|
5.2.1
|
Interest
payable on each Advance prior to the Completion Date shall be calculated
by reference
to successive Interest Periods of 1, 2, 3 or 6 Months duration (or,
in
each case, such other
interest periods as the Agent may allow) subject to the remaining
provisions of this Clause
5.2.
|
|
5.2.2
|
The
first Interest Period for each Advance shall begin on the Drawdown
Date of
that Advance. Each succeeding Interest Period for that Advance shall
begin
on the Interest Date of the previous
Interest Period. The Borrower shall specify in the relevant Drawdown
Notice the duration of the first Interest Period for the each Advance.
In
relation to subsequent Interest Periods
for each Advance, the Borrower shall notify the Agent in writing
2
Business Days before the end of the then current Interest Period
of the
duration of the next Interest Period. If the Borrower fails to provide
such notice within the required time, the duration for the next Interest
Period shall be one Month.
|
|
5.2.3
|
If
an Interest Period would otherwise end on a day which is not a Business
Day, that Interest Period shall instead end on the next Business
Day in
the same calendar Month (if there is one) or the preceding Business
Day
(if there is not).
|
|
5.2.4
|
If
an Interest Period begins on the last Business Day in a calendar
Month or
a Business Day for
which there is no numerically corresponding day in the calendar Month
in
which that Interest
Period is to end, such Interest Period shall end on the last Business
Day
of such later calendar
Month.
|
|
5.2.5
|
If
an Interest Period for an Advance would otherwise extend beyond a
Repayment Date, it shall be shortened so that it ends on such Repayment
Date.
|
|
5.2.6
|
If
an Interest Period relating to a new Advance begins at the same time
as
any other Interest Period
relating to any Advance, the Interest Period for such new Advance
shall
end at the same
time as the other Interest Period. If two or more Interest Periods
for
Advances end on the
same date, such Advances shall be consolidated into, and be treated
as, as
a single Advance
on the last day of such Interest
Period.
|
| 5.3 |
Calculation
and payment of interest
|
|
5.3.1
|
At
the beginning of each Interest Period, the Agent shall notify to
the
Borrower and the Banks the rate and the amount of interest payable
for
such Interest Period.
|
| 5.3.2 |
Interest
due from the Borrower under this Agreement
shall:
|
| (a) |
accrue
from day to day at the rate calculated under this Clause
5;
|
Page
27
|
(b)
|
except
as otherwise provided in this Agreement, be paid by the Borrower
to the
Agent in arrears on the last date of the relevant Interest Period,
as well
as on the relevant Final Repayment
Date;
|
|
(c)
|
be
calculated on the basis of the actual number of days elapsed and
a 360 day
year; and
|
| (d) |
be
payable both before and after
judgement.
|
| 5.3.3 |
Provided
always that no Default has occurred which is subsisting, the Borrower
shall (subject to complying with Clause 4 and this Clause 5.3.3)
be
entitled to capitalise interest and Commitment Fees accrued at the
end of
any Interest Period falling within the period from the date of this
Agreement until the last Interest Date falling prior to the First
Repayment Date (unless the Borrower notifies the Agent to the contrary
by
at least 5 Business Days' Notice) and
such capitalised interest and Commitment Fees shall automatically
be
deemed a new Advance
provided only that such Advance when aggregated with all other Advances
made or to be made shall not exceed the Facility Limit. After such
capitalisation, interest will accrue on such
interest so capitalised at the interest rate in accordance with Clause
5.1
(or if not paid on the
due date or otherwise capitalised, under Clause
5.4).
|
| 5.4 |
Default
interest
|
|
5.4.1
|
If
the Borrower fails to pay any amount payable under any Financing
Document
on the due date,
it shall pay default interest on the overdue amount from the due
date to
the date of actual payment
calculated by reference to successive Interest Periods of one Month
at the
rate per annum
being the aggregate of (a) 1 per cent. per annum, (b) the applicable
Interest Margin (if any) and (c)
LIBOR.
|
|
5.4.2
|
So
long as the overdue amount remains unpaid, the default interest rate
shall
be recalculated in accordance with the provisions of this Clause
5.4 on
the last day of each such Interest Period of one Month and any unpaid
interest shall be compounded at the end of each Interest Period.
|
| 6 |
Repayment
of Loan
|
| 6.1 |
Repayment
|
|
6.1.1
|
The
Borrower shall repay the Loan by payment to the Agent (for the account
of
the Banks) in consecutive semi-annual instalments (each a Repayment
Instalment) on
each of the Repayment
Dates. The first Repayment Instalment shall be paid on the First
Repayment
Date and
the final Repayment Instalment shall be paid on the Final Repayment
Date.
|
|
6.1.2
|
The
amount of the Repayment Instalment due on each Repayment Date set
out in
Column 1 of
Schedule 6 shall be the amount set opposite that Repayment Date in
Column
2 of Schedule
6.
|
|
6.1.3
|
In
the event that the Facility is not fully drawn during the Availability
Period, the Repayment Instalments shall be reduced on a pro rata
basis by
an amount equal to the undrawn amount at
the end of the Availability Period and Schedule 6 shall be amended
by the
Agent accordingly.
|
|
6.1.4
|
In
the event of any prepayment of the Loan in accordance with Clauses
6.2,
6.3, 6.4 or 6.5 below,
the Agent shall amend Schedule 6
accordingly.
|
| 6.2 |
Optional
prepayment
|
| 6.2.1 |
The
Borrower may, by giving the Agent not less than 10 Business Days'
prior
notice, prepay the
whole or part of the Facility at any time during an Interest
Period.
|
Page
28
| 6.2.2 |
Any
amounts prepaid pursuant to Clause 6.2.1 shall be applied in prepayment
of
Repayment Instalments
of the Loan in inverse order of maturity and pro rata between the
Banks in
respect of their Participations in the
Loan.
|
| 6.3 |
Mandatory
prepayment
|
Notwithstanding
the other provisions of this Agreement, on each Repayment Date the Borrower
shall apply an amount equal to 50% of Excess Cashflow in prepayment of
Repayment
Instalments of the Loan in inverse order of maturity and pro rata between the
Banks
in
respect of their Participations in the Loan.
| 6.4 |
Right
of repayment and cancellation in relation to a single
Bank
|
| 6.4.1 |
If:
|
| (a) |
any
sum payable to any Bank is required to be increased under Clause
9.7;
|
| (b) |
any
Bank claims indemnification from the Borrower under Clause 9.7 or
Clause
8.2; or
|
| (c) |
any
Bank claims its Mandatory Costs from the
Borrower,
|
the
Borrower may, whilst the circumstance giving rise to the requirement,
indemnification or claim
continues, give the Agent not less than seven Business Days' (or such shorter
period as the Majority Banks may agree) prior notice of cancellation of the
Commitment of that Bank and its intention to either (a) procure the repayment
of
that Bank's Participation in the Loan or (b) procure
a
Qualifying Bank to purchase such Bank's Participation in the Loan for an amount
equal
to
the outstanding principal amount of all Advances made by it and all accrued
and
unpaid
interest thereon as of the date of such purchase and otherwise on terms
satisfactory to the
Bank
(acting reasonably).
|
6.4.2
|
On
receipt of a notice referred to in Clause 6.4.1, the Commitment of
that
Bank shall immediately
be reduced to zero.
|
|
6.4.3
|
On
the last day of each Interest Period which ends after the Borrower
has
given notice under Clause
6.4.1 (or, if earlier, the date specified by the Borrower in that
notice),
the Borrower shall prepay
that Bank's Participation in the
Loan.
|
| 6.5 |
Prepayment
and Hedging
|
| 6.5.1 |
In
the event of a prepayment of the whole of the Loan by the
Borrower:
|
|
(a)
|
the
Borrower shall be entitled to terminate the Permitted Hedging Transactions
in whole
or in part on the date of such prepayment of the whole of the
Loan;
|
|
(b)
|
in
the event that a termination of all of the Permitted Hedging Transactions
on the date of
such repayment of the whole of the Loan would result in the Hedging
Banks
incurring
a liability to the Borrower, the Hedging Banks shall be entitled
to
terminate the
Permitted Hedging Transactions; and
|
|
(c)
|
in
the event that a termination of all of the Permitted Hedging Transactions
on the date of
such repayment of the whole of the Loan would result in the Borrower
incurring an aggregate liability to the Hedging Banks not exceeding
US$1,000,000, the Hedging Banks
shall be entitled to terminate the Permitted Hedging
Transactions.
|
|
6.5.2
|
In
the event of any prepayment of part of the Loan by the Borrower the
Borrower shall be entitled to terminate any Permitted Hedging Transactions
effected in respect of any period during
which the Loan is not forecast to be outstanding following the changes
to
the Repayment Instalments resulting from such prepayment and the
revisions
to Schedule 6 pursuant
to Clause 6.1.4.
|
Page
29
| 6.6 |
Restrictions
|
|
6.6.1
|
Any
notice of prepayment given by the Borrower under this Clause 6 shall
be
irrevocable and, unless a contrary indication appears in this Agreement,
shall specify the date or dates upon which
the relevant prepayment is to be made and the amount of that
prepayment.
|
| 6.6.2 |
Any
prepayment under this Agreement:
|
|
(a)
|
if
in part, shall be in a minimum amount of US$1,000,000 and the Agent
acting
reasonably
must be satisfied that the Borrower will have sufficient funds available
from time
to time to enable it to implement the Development
Plan;
|
|
(b)
|
shall
be made together with accrued interest on the amount prepaid and
any Break
Costs but otherwise without premium or penalty;
and
|
|
(c)
|
will
not be permitted during the Availability Period save for a prepayment
made
under Clause
6.4.1.
|
|
6.6.3
|
The
Borrower may not repay or prepay all or any part of the Advances
except as
expressly provided in this
Agreement.
|
| 6.7 |
No
re-borrowing
|
Any
amount of the Facility repaid or prepaid may not be re-borrowed and the Facility
Limit shall
be
reduced accordingly by the sum so repaid or prepaid in accordance with this
Clause 6 and the Commitment of each Bank shall be reduced rateably in accordance
with the amount of such repayment or prepayment.
| 7 |
Cancellation
|
|
7.1
|
The
Borrower may, on not less than 10 Business Days' prior written notice
to
the Agent, cancel all or part of the Available Facility, provided
that:
|
|
(a)
|
the
Borrower may not cancel, save for a cancellation made under Clause
6.4.1,
any part
of the Facility if the Agent notifies the Borrower that the Majority
Banks
are not satisfied
(acting reasonably) that the Borrower will have sufficient funds
available
from time
to time to enable it to implement the Development Plan and such notice
is
issued to
the Borrower within 10 days of making such determination;
and
|
|
(b)
|
in
the event of cancellation of all of the Facility, the Borrower has
paid
all outstanding fees,
costs and expenses payable to the Financing Parties under the Financing
Documents.
|
|
7.2
|
The
Agent shall promptly notify the Banks of receipt of any notice delivered
pursuant to Clause 7.1.
|
| 7.3 |
Any
notice of cancellation shall be irrevocable and shall specify
the date on
which the cancellation
shall take effect and the amount of the
cancellation.
|
| 7.4 |
The
Borrower may not utilise any part of the Facility which has been
cancelled.
|
Page
30
| 7.5 |
Any
cancellation shall reduce each Bank's Commitment rateably save for
a
cancellation under Clause
6.4.1.
|
| 8 |
Changes
in circumstances
|
| 8.1 |
Illegality
|
If
it
becomes unlawful in any applicable jurisdiction for a Bank to perform any of
its
obligations as
contemplated by this Agreement or to fund or maintain its Participation in
any
Advance:
| (a) |
that
Bank shall promptly notify the Agent upon becoming aware of that
event;
|
|
(b)
|
upon
the Agent notifying the Borrower, the Commitment of that Bank will
be
immediately
cancelled; and
|
|
(c)
|
the
Borrower shall repay that Bank's Participation in the Loan on the
last day
of the Interest Period for each Advance occurring after the Agent
has
notified the Borrower or,
if earlier, the date specified by the Bank in the notice delivered
to the
Agent (being no
earlier than the last day of any applicable grace period permitted
by
Law).
|
| 8.2 |
Increased
Costs
|
|
8.2.1
|
Subject
to Clause 8.4, the Borrower shall, within 10 Business Days of a demand
by
the Agent, pay
for the account of a Financing Party the amount of any Increased
Costs
incurred by that Financing
Party or any of its Affiliates as a result of (i) the introduction
of or
any change after the date of this Agreement in (or in the interpretation,
administration or application of) any Law or regulation, (ii) compliance
with any Law or regulation made after the date of this Agreement
or (iii)
compliance with any Law or regulation relating to capital adequacy,
made
after the date of this Agreement.
|
| 8.2.2 |
In
this Agreement Increased
Costs means:
|
|
(a)
|
a
reduction in the rate of return from the Facility or on a Financing
Party's (or its Affiliate's)
overall capital;
|
| (b) |
an
additional or increased cost; or
|
| (c) |
a
reduction of any amount due and payable under any Financing
Document,
|
which
is
incurred or suffered by a Financing Party or any of its Affiliates to the extent
that it is attributable
to that Financing Party having entered into its Commitment or funding or
performing its obligations under any Financing Document.
| 8.3 |
Increased
cost claims
|
|
8.3.1
|
A
Financing Party intending to make a claim pursuant to Clause 8.2
shall
notify the Agent of the
event giving rise to the claim, following which the Agent shall promptly
notify the Borrower.
|
|
8.3.2
|
Each
Financing Party shall, as soon as practicable after a demand by the
Agent,
provide a certificate confirming the amount of its Increased
Costs.
|
| 8.4 |
Exceptions
|
Clause
8.2 does not apply to the extent any Increased Cost is:
| (a) |
attributable
to a Tax deduction required by Law to be made by the
Borrower;
|
Page
31
|
(b)
|
compensated
for by Clause 9.7 (or would have been compensated for under Clause
9.7 but was not so compensated solely because any of the exclusions
in
sub- clause 9.7.2 of Clause 9.7
applied);
|
| (c) |
compensated
for by the payment of the Mandatory
Cost;
|
|
(d)
|
attributable
to the wilful breach by the relevant Financing Party or its Affiliates
of
any Law
or regulation; or
|
|
(e)
|
not
notified in writing to the Borrower within 90 days of the Financing
Party
becoming aware
of such Increased Cost.
|
| 8.5 |
Absence
of quotations
|
Subject
to Clause 8.6, if LIBOR is to be determined by reference to the Reference Banks
but a Reference Bank does not supply a quotation by 11.00am on the Quotation
Day, the applicable LIBOR
shall be determined on the basis of the quotations of the remaining Reference
Banks.
| 8.6 |
Market
disruption
|
|
8.6.1
|
If
a Market Disruption Event occurs in relation to an Advance for any
Interest Period, then the rate
of interest on each Bank's Participation in that Advance for the
Interest
Period shall be the percentage
rate per annum which is the sum of:
|
| (a) |
the
Interest Margin;
|
|
(b)
|
the
rate notified to the Agent by that Bank as soon as practicable and
in any
event before
interest is due to be paid in respect of that Interest Period, to
be that
which expresses
as a percentage rate per annum the cost to that Bank of funding its
participation
in that Loan from whatever source it may reasonably select;
and
|
| (c) |
the
Mandatory Cost, if any, applicable to that Bank's Participation in
the
Advance.
|
| 8.6.2 |
In
this Agreement Market
Disruption Event means:
|
|
(a)
|
at
or about noon on the Quotation Day for the relevant Interest Period
the
Screen Rate is not available and none or only one of the Reference
Banks
supplies a rate to the Agent
to determine LIBOR for the relevant Interest Period;
or
|
|
(b)
|
before
close of business in London on the Quotation Day for the relevant
Interest
Period,
the Agent receives notifications from a Bank or Banks (whose
participations in a Loan exceed 33 per cent of that Loan) that the
cost to
it or them of obtaining matching deposits in the London Interbank
Market
would be in excess of LIBOR.
|
| 8.7 |
Alternative
basis of interest or
funding
|
|
8.7.1
|
If
a Market Disruption Event occurs and the Agent or the Borrower so
requires, the Agent and the
Borrower shall enter into negotiations (for a period of not more
than 30
days) with a view to agreeing
a substitute basis for determining the rate of
interest.
|
|
8.7.2
|
Any
alternative basis agreed pursuant to Clause 8.7.1 shall, with the
prior
consent of all the Banks
and the Borrower, be binding on all
Parties.
|
| 8.8 |
Break
Costs
|
| 8.8.1 |
The
Borrower shall, within three Business Days of demand by a Financing
Party,
pay to that Financing
Party its Break Costs attributable to all or any part of an Advance
or
Unpaid Sum being paid by the Borrower on a day other than the last
day of
an Interest Period for that Advance or Unpaid
Sum.
|
Page
32
| 8.8.2 |
Each
Bank shall, as soon as reasonably practicable after a demand by the
Agent,
provide a certificate
confirming the amount of its Break Costs for any Interest Period
in which
they accrue.
|
| 8.9 |
Mitigation
|
|
8.9.1
|
Each
Financing Party shall, in consultation with the Borrower, take all
reasonable steps to mitigate
any circumstances which arise and which would result in any amount
becoming payable under or pursuant to, or cancelled pursuant to,
any of
Clauses 8.1, 8.2, 9.7 or Schedule 9 including (but not limited to)
transferring its rights and obligations under the Financing Documents
to
another Affiliate or Facility
Office.
|
|
8.9.2
|
Sub-clause
8.9.1 above does not in any way limit the obligations of any Security
Company under the Financing
Documents.
|
| 8.10 |
Limitation
of liability
|
|
8.10.1
|
The
Borrower shall indemnify each Financing Party for all costs and expenses
reasonably incurred by that Financing Party as a result of steps
taken by
it under Clause 8.9.
|
|
8.10.2
|
A
Financing Party is not obliged to take any steps under Clause 8.9
if, in
the opinion of that Financing
Party (acting reasonably), to do so might be prejudicial to
it.
|
| 9 |
Payments
and deliveries
|
| 9.1 |
Payments
|
|
9.1.1
|
Each
payment by the Borrower or a Bank shall be made to the Agent to such
account as the Agent
shall have notified to the Borrower or the Banks for such purpose.
If the
Agent receives a
payment insufficient to discharge all the amounts then due and payable
by
the Borrower under
this Agreement, the Agent shall apply that payment towards the obligations
of the Borrower
under this Agreement in the following order (which order shall override
any appropriation
made by the Borrower):
|
|
(a)
|
first,
in or towards payment of any unpaid fees, costs and expenses of the
Agent,
the Arranger, the Security Trustee and the Account Bank under any
Financing Document;
|
|
(b)
|
second,
in or towards payment pro rata of any accrued interest due but unpaid
under this Agreement in respect of the
Loan;
|
|
(c)
|
third,
in or towards payment pro rata of any principal due but unpaid under
this
Agreement in respect of the Loan;
and
|
|
(d)
|
fourth,
in or towards payment pro rata of any other sum due but unpaid under
this
Agreement.
|
|
9.1.2
|
The
Agent shall, if so directed by all the Banks, vary the order set
out in
Clauses 9.1.1 (a) to 9.1.1
(d).
|
| 9.2 |
Change
of account
|
The
Agent
may change its receiving account by not less than 5 Business Days' notice to
the
Borrower.
| 9.3 |
Currency
|
| 9.3.1 |
All
payments under this Agreement relating to costs, losses, expenses
or Taxes
shall be made in the currency in which the relative costs, losses,
expenses or taxes were incurred to the extent permitted by Law. Any
other
amount payable under this Agreement shall, except as otherwise specified
in this Agreement, be made in US
Dollars.
|
Page
33
| 9.3.2 |
All
payments to the Agent under this Agreement shall be made for value
on the
due date in freely
transferable and readily available funds. Payments in US Dollars
shall be
made in funds for same day settlement in the New York Clearing House
Interbank Payments System (or such other
funds as the Agent may specify as being customary for the settlement
in
New York City of
international banking transactions in US
Dollars).
|
| 9.4 |
Distribution
|
|
9.4.1
|
The
Agent may apply any amount received by it for the Borrower in or
towards
payment (on the
date and in the currency and funds of receipt) of any amount due
from the
Borrower under this Agreement or in or towards the purchase of any
amount
of any currency to be so applied.
|
|
9.4.2
|
Where
a sum is to be paid to the Agent under this Agreement for another
Party,
the Agent is not
obliged to pay that sum to that Party until it has established that
it has
actually received that
sum. The Agent may, however, assume that the sum has been paid to
it in
accordance with this Agreement, and, in reliance on that assumption,
make
available to that Party a corresponding amount. If the sum has not
been
made available but the Agent has paid a corresponding
amount to another Party, that Party shall immediately on demand by
the
Agent refund
the corresponding amount together with interest on that amount from
the
date of payment
to the date of receipt, calculated at a rate determined by the Agent
to
reflect its cost of
funds.
|
| 9.5 |
No
set-off by Borrower
|
All
payments to be made by the Borrower under the Financing Documents shall be
calculated and
be
made without (and free and clear of any deduction for) set-off or counterclaim,
save to the extent that the Borrower and the Hedging Banks are expressly
permitted to exercise set off and netting rights in any Hedging
Document.
| 9.6 |
Business
Days
|
|
9.6.1
|
Any
payment which is due to be made on a day that is not a Business Day
shall
be made on the
next Business Day in the same calendar Month (if there is one) or
the
preceding Business Day
(if there is not).
|
|
9.6.2
|
During
any extension of the due date for payment of any principal or Unpaid
Sum
under this Agreement,
interest is payable on the principal or Unpaid Sum at the rate payable
on
the original
due date.
|
| 9.7 |
Grossing-up
|
|
9.7.1
|
Subject
to Clause 9.7.2, all sums payable to any Financing Party pursuant
to or in
connection with
any Financing Document shall be paid in full free and clear of all
deductions or withholdings
whatsoever (excluding Excluded Taxes) and except only as may be required
by Law.
|
|
9.7.2
|
If
any deduction or withholding is required by Law in respect of any
payment
due from the Borrower
to any Financing Party pursuant to or in connection with any Financing
Document, the
Borrower shall:
|
|
(a)
|
ensure
or procure that the deduction or withholding is made and that it
does not
exceed
the minimum legal requirement
therefor;
|
|
(b)
|
pay,
or procure the payment of, the full amount deducted or withheld to
the
relevant Taxation
or other authority in accordance with the applicable
Law;
|
Page
34
|
(c)
|
except
with respect to Excluded Taxes, increase the payment in respect of
which
the deduction
or withholding is required so that the net amount received by that
Financing Party
after the deduction or withholding (and after taking account of any
further deduction
or withholding which is required to be made as a consequence of the
increase) shall be equal to the amount which the payee would have
been
entitled to receive
in the absence of any requirement to make any deduction or withholding;
and
|
|
(d)
|
promptly
deliver or procure the delivery to the relative payee of receipts
evidencing each
deduction or withholding which has been
made.
|
|
9.7.3
|
If
the Agent is obliged to make any deduction or withholding from any
payment
to any Bank (an Agency
Payment) which
represents an amount or amounts received by the Agent from the Borrower
under any Financing Document, then, except with respect to Excluded
Taxes,
the Borrower shall pay directly to that Bank such sum (an Agency
Compensating Sum) as
shall,
after taking into account any deduction or withholding which the
Borrower
is obliged to make
from the Agency Compensating Sum, enable that Bank to receive, on
the due
date for payment of the Agency Payment, an amount equal to the Agency
Payment which that Bank would have received in the absence of any
obligation to make any deduction or
withholding.
|
|
9.7.4
|
Each
Financing Party organized under the Laws of a jurisdiction outside
the
United States shall,
on or prior to the date of its execution and delivery of this Agreement
in
the case of each Existing
Bank or on or prior to the date of the assignment pursuant to which
a New
Bank becomes a Financing Party, provide each of the Agent and the
Borrower
with two original Internal Revenue Service Forms W-8BEN or W-8ECI,
or any
successor or other form prescribed by the Internal Revenue Service,
certifying that such Financing Party is exempt from or entitled to
a
reduced rate of United States withholding tax on payments pursuant
to this
Agreement or any other Financing Document. In addition, each such
Financing Party agrees
to update such forms upon their expiration date or upon the reasonable
written request of the Borrower where such forms require updating
or
amending pursuant to Law, unless such Financing Party is unable to
do so
due to a change in the applicable Law, or in the interpretation
or application thereof, occurring after the date on which the Financing
Party was originally
required to provide such form, certificate or other
document.
|
|
9.7.5
|
If
the Borrower is required to make an increased payment for the account
of a
Bank under Clause
9.7.2, then, without prejudice to that obligation and so long as
such
requirement exists the
Borrower may prepay all, but not part, of that Bank's Participation
in
accordance with Clause
6.4.
|
|
9.7.6
|
If
any Bank determines that it has received, realised, utilised and
retained
a Tax benefit by reason of any deduction or withholding in respect
of
which the Borrower has made an increased payment under this Clause
9.7,
that Bank shall, provided that it has received all amounts
which are then due and payable by the Borrower under any Financing
Document, pay to the Borrower (to the extent that the Bank can do
so
without prejudicing the amount of the
benefit or repayment and the right of that Bank to obtain any other
benefit, relief or allowance which may be available to it) such amount,
if
any, as that Bank, in its absolute discretion shall determine, will
leave
that Bank in no worse position than it would have been in if the
deduction
or withholding had not been required, provided
that:
|
|
(a)
|
each
Bank shall have an absolute discretion as to the time at which and
the
order and manner in which it realises or utilises any Tax benefit
and
shall not be obliged to arrange its business or its Tax affairs in
any
particular way in order to be eligible for any credit or refund or
similar
benefit;
|
|
(b)
|
no
Bank shall be obliged to disclose any information regarding its business,
Tax affairs or
Tax computations;
|
|
(c)
|
if
any Bank has made a payment to the Borrower pursuant to this Clause
9.7.6
on account
of any Tax benefit and it subsequently transpires that that Bank
did not
receive that Tax benefit, or received a lesser Tax benefit, the Borrower
shall, on demand, pay to that Bank such sum as that Bank may determine
as
being necessary to restore its after-tax position to that which it
would
have been had no adjustment under this Clause 9.7.6 been
made.
|
Page
35
|
9.7.7
|
If
a Financing Party, in its sole discretion, determines that it has
received
a refund of any taxes or
with respect to which the Borrower has paid additional amounts pursuant
to
this Clause 9.7, it shall pay to the Borrower an amount equal to
such
refund (but only to the extent of the taxes or
additional amounts paid by the Borrower under this Clause 9.7 with respect
to the taxes giving
rise to such refund); provided that the Borrower, upon the request
of the
Financing Party, agrees to repay the amount paid over to the Borrower
to
the Financing Party if the Financing Party is required to repay such
refund to such taxing authority.
|
|
9.7.8
|
No
Bank shall be obliged to make any payment under Clause 9.7 if, by
doing
so, it would contravene
the terms of any applicable Law or any notice, direction or requirement
of
any governmental or regulatory authority (whether or not having the
force
of Law).
|
| 10 |
Representations
and warranties
|
| 10.1 |
Borrower
representations and
warranties
|
Each
Financing Party and Hedging Bank has entered into this Agreement in reliance
on
the representations
of the Borrower and the Guarantor set out in this Clause 10, and each of the
Borrower and the Guarantor warrants to each Financing Party and each Hedging
Bank on the date of this Agreement as set out in this Clause 10.
|
(a)
|
Status:
Each
Security Company is a company duly incorporated and existing under
the
Laws of the jurisdiction of its incorporation, and it possesses the
capacity to ▇▇▇ and be sued in its own name and has the power to
carry on
its business and to own its property and other
assets.
|
|
(b)
|
Powers
and authority: Each
Security Company has power to execute, deliver and perform
its obligations under the Transaction Documents to which it is a
party and
to carry
out the transactions contemplated by those documents and to grant
and
create the Security and all necessary corporate, shareholder and
other
action has been or will
be taken to authorise the execution, delivery and performance of
the same
and no limitation on the powers of the Borrower to borrow or the
Guarantor
to guarantee will be exceeded as a result of borrowings under this
Agreement.
|
| (c) |
Binding
obligations, security and Secured
Collateral:
|
| (i) |
Each
of the Security Parties' obligations under the Transaction Documents
to
which it is a party constitute its legal, valid, binding and enforceable
obligations (subject to the reservations and qualifications in respect
of
such matters in the opinions delivered pursuant to Schedule 2, Part
1,
paragraph 5(i)).
|
| (ii) |
Each
Encumbrance expressed to be created under each Security Document
(when
entered into) is and will remain a first priority legal, valid and
binding
and
(subject to the reservations and qualifications in respect of such
matters
in the
opinions delivered pursuant to Schedule 2, Part 1, paragraph 5(i))
enforceable
and perfected Encumbrance over the Secured Collateral, subject
only
to Permitted Encumbrances (including with respect to
priority).
|
| (iii) |
All
surface and mining leases constituting Secured Collateral are valid
and
subsisting
in all material respects, and to the best knowledge of the Borrower,
all
mining leases are superior and paramount to all other leases or
other
Mining
Rights respecting the Mesquite
Mine.
|
Page
36
| (iv) |
Except
as expressly described in the Base Case Model, the Borrower has not
assigned,
sold or created in any other person or entity any right or interest
which
would give rise to a Royalty
Expense.
|
|
(d)
|
Contraventions:
The
execution, delivery and performance by each Security Company of
the Financing Documents and Material Contracts to which it is a party
does
not:
|
| (i) |
contravene
any applicable Law or regulation or any order of any governmental
or other
official authority, body or agency or any judgment, order or decree
of any
court having jurisdiction over it;
|
| (ii) |
conflict
with, or result in any breach of any of the terms of, or constitute
a
default under, any of the Permits or Mining
Claims;
|
| (iii) |
conflict
with, or result in any material breach of any of the terms of, or
constitute
a material default under, any agreement or other instrument to
which
it is a party or any licence or other authorisation to which it is
subject
or by
which it or any of its property is bound;
or
|
| (iv) |
contravene
or conflict with its constitutional documents or by-laws or any
resolution
of its board of directors.
|
|
(e)
|
Insolvency:
Each
Security Company is able to pay its debts (including trade debts)
as
the
same become due. None of the Security Companies has taken any action
nor
have
any steps been taken, petition presented or resolution passed or
legal
proceedings
been started or threatened against it in respect of any bankruptcy
proceeding
or for the winding-up, dissolution, liquidation or re-organisation
of it
or any of its assets, the enforcement of any Encumbrance over its
assets
or for the appointment of a receiver, administrative receiver, or
administrator, trustee or similar officer of it or of any of its
assets.
|
| (f) |
No
default or trigger:
|
| (i) |
no
Default or Trigger has occurred or will occur as a result of making
any
Advance; and
|
| (ii) |
no
Security Company is (nor would be with any of the giving of notice,
the
lapse
of time, the determination of materiality, or the satisfaction
of any
other condition)
in breach of or in default
under:
|
| (aa) |
any
Material Contract to which it is a party or any Permit or Mining
Claim;
|
| (bb) |
any
other agreement to which it is a party or which is binding on it
or
any
of its assets which could reasonably be expected to have a Material
Adverse Effect.
|
|
(g)
|
Litigation:
Other
than as set out in the letter dated 28 March 2007 from the Borrower
to the
Agent, no action, litigation, arbitration or administrative proceeding
has
been commenced,
or is pending or, to the knowledge of the Borrower, threatened, against
any Security Company which, if decided adversely, could reasonably
be
expected to have
a Material Adverse Effect, nor, to the knowledge of the Borrower,
is there
subsisting any unsatisfied judgments or awards given against it by
any
court, arbitrator or
other body for amounts exceeding US$250,000 in aggregate in respect
of any
Security
Company.
|
| (h) |
Accounting
Principles: Each
of the latest Accounts and other financing statements prepared
by the Guarantor and delivered by the Borrower to the Agent under
this
Agreement have been prepared consistently with United States
GAAP.
|
Page
37
| (i) |
Encumbrances:
No
Encumbrance other than Permitted Encumbrances exists over all or
any part
of the assets of the Borrower or the
Guarantor.
|
| (j) |
No
Encumbrances created: The
execution by each of the Security Companies of the Financing
Documents to which it is or is to be a party and the exercise of
its
rights and the
performance of its obligations under the Financing Documents does
not and
will not
result in the creation of, or any obligation to create, any Encumbrance
over or in respect of its assets other than in favour of the Secured
Parties pursuant to the Financing
Documents.
|
| (k) |
Authorisations:
|
| (i) |
All
Permits listed in Schedule 10, Part A and other consents, licences,
permits, approvals
and authorisations required by Law and which are
necessary:
|
| (aa) |
to
carry out the Project;
|
| (bb) |
for
the ownership of the Secured Collateral and the conduct of the Borrower's
business and (where relevant) to implement the Initial Development
Plan;
|
| (cc) |
for
the performance and discharge of its obligations under the Transaction
Documents to which it is a party;
and
|
| (dd) |
in
connection with the execution, delivery, validity, enforceability
or
admissibility
in evidence of the Transaction Documents to which it is a party,
|
(in
each
case, other than those other consents, licenses, permits, approvals and
authorisations referred to in sub-clause (k)(ii) below) have been validly issued
and obtained and are valid and in full force and effect and there is not (nor
has there been) a breach or default of their terms and conditions (other than
a
breach or default that has been remedied in full by the Borrower and in
respect
of which there is no outstanding liability), in all cases, other than in the
case
of
the Permits, which could reasonably be expected to have a Material Adverse
Effect and:
| (AA) |
no
notice has been served or delivered by any person to revoke, suspend
or
vary any such Permits or such other consents,
licences, permits, approvals and authorisations;
and
|
| (BB) |
to
the knowledge of the Borrower, no steps have been taken to
revoke, suspend or vary any such Permits or such other consents,
licences, permits, approvals and
authorisations.
|
| (ii) |
In
respect of any Permit listed in Schedule 10, Part B or other consent,
licence,
permit, approval and authorisations which are required by Law at
any
given
time after the date of this Agreement and which are necessary to
do the
following at such time:
|
| (aa) |
to
carry out of the Project;
|
| (bb) |
for
the ownership of the Secured Collateral and the conduct of the Borrower's
business and (where relevant) to implement the Initial Development
Plan;
|
| (cc) |
for
the performance and discharge of its obligations under the Transaction
Documents to which it is a party;
and
|
Page
38
| (dd) |
in
connection with the execution, delivery, validity, enforceability
or admissibility
in evidence of the Transaction Documents to which it is a party,
|
the
Borrower has no reason to believe that such Permit, consent, licence,
permit,
approval or authorisation will not be obtained when the same becomes required
by
Law for the purposes specified above.
| (iii) |
No
statement made by any Security Company for the purpose of any grant
of
any
consent, licence, permit, approval or authorisation necessary for
the
carrying out of the Project was false or misleading in any material
respect or was recklessly made.
|
| (l) |
Taxes:
Each
Security Company has complied with all Taxation Laws in all jurisdictions
in which it is subject to Taxation and has paid all Taxes due and
payable
by it and no claims
are being asserted against it in respect of Taxes except for Taxes
or
assessments
in relation to the ordinary course of its business or claims contested
in
good faith and in respect of which adequate provision has been made
and
disclosed in the
latest Accounts or other information delivered to the Agent under
this
Agreement.
|
| (m) |
Information
Package:
|
| (i) |
The
factual information contained in the Information Package was, at
the date
of the relevant report or document, true and accurate and not misleading
in any material respect;
|
| (ii) |
there
are no other facts the omission of which would make any fact or
statement
in the Information Package misleading in any material respect and
nothing
has occurred which would render any fact or statement in the Information
Package untrue or misleading in any material
respect;
|
| (iii) |
all
estimates, forecasts and projections contained or referred to in
the
Information
Package and all assumptions and presumptions upon the basis of
which
the same were made, were, in the opinion of the Borrower and the
Guarantor
acting reasonably, fair and reasonable at the time they were made,
and,
to the knowledge of the Borrower and the Guarantor, nothing has occurred
since the date the same were made which would necessitate a materially
adverse revision to any of those estimates, forecasts or projections
in
order for them to be fair and reasonable;
and
|
| (iv) |
there
are no facts, transactions, events or occurrences (other than general
political
or economic facts, transactions, events or occurrences) which
could easonably
be expected to materially adversely affect the business, assets,
liabilities
or financial condition of any Security Company and which have not
been
disclosed to the Agent.
|
| (n) |
Accounting
reference date: The
accounting reference date of the Borrower is 31 December.
|
Page
39
| (o) |
Environmental:
|
| (i) |
Each
Security Company has at all times since 7 November 2003 complied
(and
continues to do so) with all relevant applicable Environmental Laws
and
Environmental
Authorisations in connection with the conduct of its business and
the ownership, use, exploitation or occupation of its assets and
there has
been
no default in the observance of the conditions and restrictions (if
any)
imposed in, or in connection with, any of the same and to the best
of its
information,
knowledge and belief, no circumstances have
arisen:
|
| (aa) |
which
would entitle any person or entity to revoke, suspend, amend, vary,
withdraw or refuse to amend any Environmental Authorisation;
or
|
| (bb) |
which
might give rise to a claim against
it.
|
| (ii) |
Since
7 November 2003 no circumstances have arisen relating to the treatment,
storage, manufacture, generation, refining or use of Dangerous
Materials
from, in, upon, or under any real property owned or occupied by any
Security
Company which might reasonably be expected to have an adverse effect
on the Environment.
|
| (iii) |
To
the best of its information, knowledge and belief, prior to 7 November
2003:
|
| (aa) |
there
was no material default in the observance of the conditions and
restrictions
(if any) imposed in, or in connection with, any of the relevant applicable
Environmental Laws and Environmental Authorisations in connection
with the
conduct of the business of the Mesquite Mine and the ownership, use,
exploitation or occupation of the
Mesquite Mine assets;
|
| (bb) |
no
circumstances arose which might give rise to a claim against any
Security
Company that could reasonably be expected to have a Material
Adverse Effect; and
|
| (cc) |
no
circumstances arose relating to the treatment, storage, manufacture,
generation, refining or use of Dangerous Materials from, in, upon,
or
under any real property of the Mesquite Mine which could reasonably
be expected to have a material adverse effect on the Environment.
|
| (p) |
Capital
Expenditure: The
Borrower has (taking into account the Commitments of the Banks hereunder)
sufficient committed funds available to it to enable it to make the
Permitted Capital Expenditures anticipated in the Initial Development
Plan.
|
| (q) |
No
material adverse change,
etc.:
|
| (i) |
since
the date of the latest Accounts delivered to the Agent, no event
has
occurred
which has had or could be reasonably expected to have a Material
Adverse
Effect and which has not been taken into account in the Development
Plan;
|
| (ii) |
since
7 November 2003, the Borrower (aa) has not undertaken any trading
activity
other than the operation and development of the Mesquite Mine or
as
contemplated by the Development Plan, the Mining Claims, the Permits
or
the Material Contracts or other contracts or agreements in respect
of the
Project and (bb) has not acquired any assets or liabilities except
for
assets and liabilities which may arise pursuant to the Mining Claims,
the
Permits and the Material Contracts or other contracts or agreements
in
respect of the Project and liabilities which are included in the
Development Plan; and
|
Page
40
| (iii) |
the
Borrower does not carry on any trade or business other than the
Project.
|
| (r) |
Title:
The
Borrower has good, marketable and indefeasible title to, and is the
beneficial owner
of, all Secured Collateral, free and clear of any Encumbrance other
than
any Permitted Encumbrance.
|
|
(s)
|
Hedging:
the
Borrower has not entered into any Derivative Transaction other than
the
Permitted Hedging Transactions.
|
| (t) |
Transaction
Documents and Consents:
|
| (i) |
The
copies of the Transaction Documents and authorisations, approvals,
licences
and consents which are delivered to the Agent by the Borrower from
time to
time are true and complete copies of such documents as at the date
on
which they are delivered, and include copies of all side letters
relating
thereto (if
any).
|
| (ii) |
None
of the documents referred to in Clause 10.1 (t)(i) has been materially
varied
or supplemented in any way since the relevant copies were delivered
to
the
Agent except by means of a document, a Certified Copy of which
has
been
given to the Agent.
|
| (iii) |
There
are no other material agreements or arrangements to which any Security
Company is a party on the date of this Agreement relating to the
Project,
Certified Copies of which have not been delivered to the Agent prior
to
the
date of this Agreement.
|
| (u) |
Insurances:
|
| (i) |
All
Insurances required pursuant to the Agreed Insurance Programme and
by
Law
to be in place have been placed, are in full force and effect and
no event
or
circumstance has occurred nor has there been any omission to disclose
a
fact which in any such case could entitle any Insurer to avoid or
otherwise reduce its liability under or in respect of any such insurances
to less than the amount provided in the relevant
policy.
|
| (ii) |
There
are no insurances in effect under which the Borrower is insured or
has any
rights except for the Insurances.
|
| (v) |
Development
Plan and Operating Budget:
|
| (i) |
The
most recent Development Plan and Operating Budget required to be
delivered
to the Agent under this Agreement and the assumptions on which
such
documents were based were arrived at by the Borrower and its directors
in
good faith, with due care and proper
consideration.
|
| (ii) |
It
is not aware of any fact, event or circumstances which makes the
most
recent
Development Plan and/or Operating Budget inaccurate or misleading
in
a
manner that could reasonably be expected to have a Material Adverse
Effect.
|
| (iii) |
As
at the date of this Agreement the Base Case Model takes due account
of:
|
| (aa) |
all
provisions of the Transaction Documents and other authorisations,
approvals,
licences and consents;
|
| (bb) |
all
applicable Laws as they apply (including those relating to Taxes);
and
|
Page
41
| (cc) |
all
other relevant facts and circumstances affecting the Project that
are
known
to the Security Companies.
|
| 10.2 |
Repetition
|
The
representations set out in this Clause 10 shall survive the execution of this
Agreement and
the
Repeating Representations are deemed to be repeated by the Borrower and, until
the Completion Date, by the Guarantor by reference to the facts and
circumstances then existing on
each
Drawdown Date, the first date of each Interest Period, the Completion Date
and,
for the benefit of the Hedging Banks only, on the date each ISDA Master
Agreement is entered into and the date on which each Transaction (as defined
in
the relevant ISDA Master Agreement)
is entered into.
| 11 |
Undertakings
|
| 11.1 |
Information
undertakings
|
The
undertakings in this Clause 11.1 are made by the Borrower to each Financing
Party and each
Hedging Bank and shall remain in force during the Security Period, unless the
Agent (acting
on the instructions of the Majority Banks) otherwise agrees.
|
(a)
|
Annual
Accounts: As
soon as the same become available (and in any event within 120
days after the end of each of its Financial Years), the Borrower
shall
deliver to the Agent
in sufficient copies for all the Banks its Accounts and the Accounts
of
the Guarantor for each Financial Year which shall, in the case of
the
Guarantor's Accounts, have been audited by the
Auditors.
|
|
(b)
|
Interim
Accounts: As
soon as the same become available (and in any event within 45
days after the end of each of the first three quarter periods of
each of
its Financial Years), the Borrower shall deliver to the Agent in
sufficient copies for all the Banks its management
accounts and the unaudited interim consolidated accounts of the
Guarantor
for each such quarter period.
|
| (c) |
Development
Plan and Operating
Budgets:
|
The
Borrower shall:
| (i) |
provide
to the Agent (with sufficient copies for the Banks and the Independent
Technical
Consultant) for the Agent's approval any proposed material alterations
to the Development Plan to reflect any change to the Project or any
Variation.
The Agent may commission the undertaking of an independent study
to
evaluate such proposed alteration, such independent study to be at
the
Borrower's expense. Until the Agent has approved such alterations
(acting
on the instructions of the Majority Banks) the previously approved
Development Plan will continue in
effect;
|
| (ii) |
provide
to the Agent for the Agent's approval (such approval to be given
in
accordance
with the instructions of the Majority
Banks):
|
| (aa) |
not
less than 45 days prior to the first Repayment Date following the
Completion
Date and thereafter no later than 30 days prior to the end of
each Financial Year; and
|
| (bb) |
at
the same time as any alteration to the Development Plan is proposed
in accordance with sub-clause (i) above following the Completion
Date,
|
an Operating
Budget for the twelve Month period following such Repayment Date
or
alteration to the Development Plan. Each such Operating Budget shall be
consistent with the Development Plan, (except where any alteration to the
Development Plan is being proposed, in which case it shall be consistent
with
the proposed Development Plan) or in the event that it is not so consistent,
the Borrower shall simultaneously propose an alteration to the Development
Plan
(in accordance with sub-clause (i) above) and explain the reason
for any such alteration thereto. Until the Agent has approved such Operating
Budget (acting on the instructions of the Majority Banks) the Borrower shall
be
obliged to comply with the most recently approved Operating Budget which
will
continue in effect; and
Page
42
| (iii) |
on
a request of the Agent or, if the Borrower shall determine that any
of the
estimates,
forecasts, assumptions (whether technical or economic) or other
projections
contained within the Development Plan and/or the Operating Budget
are materially incorrect and/or should be materially different from
those
set
out in the then current Development Plan or Operating Budget (as
the case
may be), then immediately following such request or determination,
provide
to the Agent revised estimates forecasts, assumptions or other projections
and revise the Development Plan and the Operating Budget accordingly
provided that in the event of any dispute as to whether such estimates,
forecasts, assumptions or projections are materially incorrect, the
Agent
(acting reasonably) shall determine the applicable estimates, forecasts
assumptions
and projections which shall apply on the basis of that which it considers
to be prudent at the time (but in the case of technical issues, after
consultation with the Independent Technical
Consultant).
|
|
(d)
|
Monthly
Reports: The
Borrower shall deliver to the Agent (in sufficient copies for all
the
Banks and the Independent Technical
Consultant):
|
| (i) |
a
Monthly Report; and
|
| (ii) |
a
Monthly summary of management information regarding the Guarantor
and its
Subsidiaries,
|
in
each
case, not more than 30 days after the end of each calendar Month.
|
(e)
|
Information
on request: The
Borrower shall promptly following the Agent's request, and at the
Borrower's expense, provide or procure the provision to the Agent
of such
other
information, estimates, forecasts or projections in relation to any
Security Company
and any of the businesses, assets, financial condition, ownership
or
prospects of any Security Company as the Agent may reasonably
require.
|
|
(f)
|
Compliance
certificates: On
each Repayment Date, the Borrower shall provide to the Agent a Compliance
Certificate.
|
|
(g)
|
Reserve
Statements: The
Borrower shall provide the Agent with all revised Reserve Statements
which
have been prepared pursuant to changes to the Development Plan or
as
required by Law.
|
| (h) |
ITC
Report: The
Borrower shall co-operate with, and provide all
reasonable
|
assistance
to, the Independent Technical Consultant including access during normal
working
hours to financial and technical information and data and relevant directors
and
other
personnel to enable the ITC Report being made available (at the expense of
the
Borrower) no later than 30 days after the relevant date, which shall
be:
| (i) |
prior
to the Completion Date, the last day of each three Month period after
the
date of this Agreement;
|
| (ii) |
the
Completion Date; and
|
Page
43
| (iii) |
following
the occurrence of the Completion Date, each anniversary thereof,
if
required
by the Agent (acting on the instructions of the Majority Banks, acting
reasonably).
|
| (i) |
Accounting
Principles: The
Borrower shall ensure that all Accounts and other financial
statements submitted to the Agent and the Banks under this Agreement
are
prepared
in accordance with United States
GAAP.
|
| (j) |
Default,
litigation, etc.: The
Borrower shall, promptly upon becoming aware of the same
and, in any event, within 5 Business Days of becoming aware of the
same,
notify
the Agent and provide details of:
|
| (i) |
the
occurrence of a Default or Trigger;
|
| (ii) |
any
litigation, arbitration or administrative proceeding (including any
notification
from any governmental or administrative authority in respect of any
alleged
breach of Environmental Law) commenced against any Security Company
or the Secured Collateral (or any part thereof) either involving
a
potential liability in excess of US$250,000 or which could reasonably
be
expected to have a Material Adverse
Effect;
|
| (iii) |
any
notice, order, direction, requisition, permission or other like matter
whatsoever
issued by any competent person or entity or government authority
or
department to the any Security Company relating to such company,
or any of
its respective undertaking, rights or assets the effect of which
could
reasonably be expected to have a Material Adverse
Effect;
|
| (iv) |
any
occurrence (including the occurrence of any event beyond the reasonable
control
of the Borrower (other than general political or economic events
of
occurrence)
or any third party claim or liability) which could reasonably be
expected
to have a Material Adverse Effect;
|
| (v) |
any
occurrence which causes the unscheduled cessation or disruption to
construction
or operation of the Mining Operations or refining operations for
a period
of three or more days; and
|
| (vi) |
any
proposal (whether formal or informal) for the material amendment,
cancellation,
waiver, surrender, abandonment, termination or other similar action
in relation to any Mining Claim, Permit, Mining Right or Material
Contract
other than any such proposal in relation to any Mining Claim, Permit,
Mining
Right or Material Contract that is not, at the time of such proposal
required in the Development
Plan.
|
| (k) |
Insurances:
The
Borrower shall notify the Agent promptly on the happening of any
event
which could reasonably be expected to affect, render void, voidable,
unenforceable, suspend, impair or defeat any of the Insurances in
a
material manner; or of any fact, event or circumstance which has
caused or
may cause the Borrower to be in breach of any material requirement
in
relation to the Insurances.
|
| (l) |
Contracts:
The
Borrower shall provide to the Agent Certified Copies of any contract,
or
agreement entered into by the Borrower after the date of this Agreement
in
accordance with Clause 11.4(m)(ii).
|
| 11.2 |
Guarantor
undertakings
|
| 11.2.1 |
The
Guarantor undertakes to each Financing Party and each Hedging Bank
that
prior to the Completion Date, it shall unless the Agent (acting on
the
instructions of the Majority Banks) otherwise
agrees:
|
|
(a)
|
maintain
a consolidated net worth equal to or greater than US$25,000,000,
computed
in accordance with United States
GAAP;
|
Page
44
|
(b)
|
maintain
Current Assets in excess of Current Liabilities (as such terms are
defined
in its
latest Accounts) by 1.1:1;
|
|
(c)
|
not
incur any additional Indebtedness after the date of this Agreement
in
excess of US$5,000,000
outstanding at anytime;
|
| (d) |
own,
directly or indirectly, 100% of the voting rights in the Borrower;
and
|
|
(e)
|
provide
to the Borrower such non-monetary support and assistance using its
reasonable
commercial efforts as is necessary for Completion to be achieved
by the
Target Completion Date provided that such support and assistance
does not
constitute a payment or performance guarantee and provided further
that
the Guarantor shall not be liable for any losses, costs, expenses,
damages
or other amounts arising from the failure
to achieve Completion by the Target Completion Date, other than to
the
extent set
out in the Guarantee.
|
|
11.2.2
|
The
Guarantor undertakes to each Financing Party and each Hedging Bank
that
following the Completion
Date and until expiry of the Security Period, it shall, unless the
Agent
(acting on the instructions of the Majority Banks) otherwise agrees
own at
least 50.1% of the voting rights in the Borrower and provide to the
Borrower such non-monetary support and assistance using its reasonable
commercial efforts as is necessary for the Mining Operations to be
conducted in a manner that would be expected of a professional, prudent
operator of a mine of the size, location
and characteristics comparable to the Project and in the manner and
with
the skill and care
of a reasonable business man, provided that such support and assistance
does not constitute a payment or performance guarantee and provided
further that the Guarantor shall not
be liable for any losses, costs, expenses, damages or other amounts
arising from the failure of the Mining Operations to be so
conducted.
|
|
11.2.3
|
The
Parties acknowledge that the Guarantor intends to enter into certain
transactions as contemplated in the "Agreement and Plan of Merger
between
Western Goldfields, Inc, Western
Goldfields US Inc and Western Goldfieds Inc" (for the purpose of
this
Clause, the Merger
Agreement) appended
to the United States Securities and Exchange Commission Form
S - 4 dated 26 March 2007 (for the purpose of this Clause, the
Restructure).
|
If
the
Restructure is approved by the stockholders of the Guarantor and the Guarantor
proceeds
with the implementation of the Restructure, the Guarantor shall procure, prior
to completion
of the Restructure and to the satisfaction of the Agent (acting on the
instructions of the
Majority Banks):
|
(a)
|
that
if the Restructure occurs prior to the Completion Date, the ultimate
Holding Company of the Guarantor (for the purpose of this Clause,
the
Parent)
issues
in favour of the Financing Parties and the Hedging Banks a guarantee
on
the terms of the Guarantee;
|
| (b) |
that
the Parent accede to this Agreement on the same terms as the
Guarantor;
|
|
(c)
|
that
the immediate Holding Company of the Borrower (for the purpose of
this
Clause, the HoldCo)
enters
into a stock pledge agreement or agreements on the terms of the Pledge
Agreement;
|
|
(d)
|
that
the HoldCo accedes to this Agreement in order to give the covenants
set
out in Clauses
11.2.1 (d) and 11.2.2; and
|
|
(e)
|
in
relation to the Parent and the HoldCo and the transactions contemplated
in
(a) to (d) above,
the provision of such legal opinions, corporate resolutions and such
other
documentation (including know your customer documentation) as the
Agent
may reasonably
request.
|
Page
45
|
11.2.4
|
If,
at any time after the date of this Agreement and during the Security
Period, the Guarantor proposes to make or effect, or submits any
filings
to make or effect, any material changes to the
Restructure, it shall no later than 10 Business Days prior to such
material amendments being
made or effected or such filings being
submitted:
|
|
(a)
|
notify
the Agent in writing of such proposals to be made or effected, or
filings
to be submitted;
and
|
|
(b)
|
consult
with the Agent in respect of such proposals to be made or effected,
or
filings to be
submitted and the affect the same would have on the interests of
the
Financing Parties
and Hedging Banks under the Financing
Documents.
|
If,
in
the Agent's opinion (acting reasonably and on the instructions of the Majority
Banks and in consultation with the Banks' Legal Advisers) such material
changes:
| (i) |
could
be expected to have a Material Adverse
Effect;
|
| (ii) |
could
be expected to render any or all of the undertakings and conditions
referred to in Clause 11.2.3 above inapplicable or unenforceable;
or
|
| (iii) |
result
in a different:
|
| (AA) |
final
corporate group structure (including the additional of interim
holding
companies); or
|
| (BB) |
management
team and board of directors, in
each case, to that contemplated in the Merger Agreement and the
Restructure
and which could reasonably be expected to have an adverse effect
on the Financing Parties and Hedging Banks' interests under the
Financing
Documents,
|
the
Guarantor shall not make or effect, or submit any filings to make or effect,
such material changes until the Parties have agreed, to the satisfaction of
the
Agent (acting on the instructions of the Majority Banks), such changes to the
undertakings and conditions referred to
in
Clause 11.2.3 above as are appropriate and necessary with regard to the
Financing Parties
and Hedging Banks' interests under the Financing Documents.
|
11.2.5
|
On
satisfaction of the conditions set out in Clauses 11.2.3 and 11.2.4
above,
the Guarantee and
the Pledge Agreement shall terminate and the Guarantor shall have
no
further liabilities under
those documents or this Agreement save for any liabilities that arose
prior to the satisfaction of such conditions and which remain outstanding
at such time.
|
|
11.2.6
|
Any
information received by the Agent pursuant to Clause 11.2.4 shall
be
treated as "Confidential Information" for the purposes of Clause
24.2.
|
| 11.3 |
Positive
undertakings
|
The
undertakings in this Clause 11.3 are made by the Borrower to each Financing
Party and each
Hedging Bank and shall remain in force during the Security Period, unless the
Agent (acting
on the instructions of the Majority Banks) otherwise agrees.
| (a) |
Pay
Taxes: The
Borrower shall pay and discharge all Taxes and governmental charges
payable by or assessed upon it prior to the date on which the same
become
overdue
unless, and only to the extent that, such Taxes and charges shall
be
contested
in good faith by appropriate proceedings, pending determination of
which
payment may lawfully be withheld, and there shall (if the Auditors
so
advise) be set aside adequate reserves with respect to any such Taxes
or
charges so contested in accordance with United States
GAAP.
|
Page
46
|
(b)
|
Insurances:
The
Borrower shall comply with all its obligations set out in the Agreed
Insurance Programme.
|
|
(c)
|
Authorisations:
The
Borrower shall obtain, maintain and comply with the terms of any:
|
| (i) |
Permit;
and
|
| (ii) |
any
other permit, authorisation, approval, licence, consent, exemption,
clearance,
filing or registration necessary:
|
| (aa) |
for
the conduct of its business in accordance with the Development
Plan;
and
|
| (bb) |
to
enable it to perform its obligations under, or for the validity,
enforceability
or admissibility in evidence of, any Transaction Document,
other
than where the absence of such permit, authorisation, approval, licence,
consent,
exemption, clearance, filing or registration could not reasonably
be
expected to have a Material Adverse
Effect.
|
|
(d)
|
Access:
For
the purpose of monitoring the performance of the Borrower's obligations
under the Transaction Documents the Borrower shall permit the Agent
or the
Banks and
any person or entity (being an accountant, auditor, solicitor, valuer
or
other professional
adviser of the Agent or the Banks and including the Independent
Technical
Consultant) authorised by the Agent, at all reasonable times during
normal
business
hours and on reasonable notice, to have access to its property, premises
and
accounting books and records and to its officers, but in no event
more
than once in any 12 Month period other than (i) when a Trigger Event
or an
Event of Default has occurred
and is continuing and then as often as the Agent deems necessary
or
advisable and (ii) in respect of the Agent and the Independent Technical
Consultant who together shall be entitled to have such access to
its
property, premises and accounting
books and records and to its officers four times during any 12 Month
period from
the date of this Agreement until the Completion
Date.
|
|
(e)
|
Mining
Operations: The
Borrower shall develop, maintain and operate the Mining Operations
in
accordance with the Development Plan in all material respects and
procure
that the same and other assets of the Borrower are maintained and
diligently operated
for the extraction, production, transportation, storage, processing
and
delivery of gold in a good and workmanlike manner and in accordance
with
(a) prudent industry practices, (b) the Transaction Documents and
(c) in
all material respects, all applicable Laws, rules and regulations,
and
procure that appropriate action is taken according to practices of
prudent
operators in the industry to maintain and manage the Mining Operations
and
all operations on such sites and procure that all machinery, equipment
and
facilities of any kind now or hereafter forming part of the same
or on
such sites as necessary for the extraction, production, transportation,
storage, processing, delivery or marketing of gold are provided and
are
kept in all material respects in good and efficient operating condition
(taking into account reasonable wear and
tear).
|
| (f) |
Maintenance
of Secured Collateral:
|
The
Borrower shall:
| (i) |
maintain
all tangible Secured Collateral in good condition and repair (ordinary
wear and tear accepted);
|
| (ii) |
defend
the Secured Collateral against all claims by persons or entities
other
than the Agent; and
|
Page
47
| (iii) |
take
all commercially reasonable steps necessary to release or discharge
any
Encumbrance
(other than a Permitted Encumbrance) on the Secured Collateral
in favour of any third party, including by paying any amounts owed
in
respect thereof in compliance with the Financing Documents, unless
the
Borrower is contesting such Encumbrance in good faith by proper legal
proceedings; provided that in the event the Borrower fails to release,
discharge
or contest any such Encumbrance promptly, the Agent may (but shall
not be obligated to) satisfy or contest such Encumbrance, and the
Borrower
shall reimburse the Agent for all sums expended to so satisfy or
contest
on demand.
|
| (g) |
Mining
Rights and Material
Contracts:
|
The
Borrower shall:
| (i) |
carry
out its business including the operations which are the subject
of the
Mining Rights in a manner consistent with prudent industry
practice;
|
| (ii) |
pay
when due all claims, maintenance fees, rents, Royalty Expenses and
other
royalties and other sums and make all filings with government agencies
as
are required to maintain the Mining Rights and the Mining Claims
in good
standing; and
|
| (iii) |
comply
with the terms of each of the Material Contracts except to the extent
that
non-compliance could not reasonably be expected to have a Material
Adverse
Effect.
|
| (h) |
Ranking
of obligations: The
Borrower shall ensure that its obligations under the FinancingDocuments
to which it is a party insofar as the same are not secured under
any of
the Security Documents, shall at all times rank at least pari passu
with
all its other
present and future Indebtedness except for any obligations which
are
mandatorily
preferred by Law and not by
contract.
|
| (i) |
Priority
of Security: The
Borrower shall ensure that its payment obligations to the Banks
and the Hedging Banks under the Financing Documents to the extent
that
they are secured under the Security Documents, shall at all times
rank in
all respect in priority to all its other Indebtedness other than
such
Indebtedness as would be preferred by applicable
Law.
|
| (j) |
Further
documents: The
Borrower shall at the request of the Agent, do or procure the
doing of all such things and execute or procure the execution of
all such
documents
as are, in the opinion of the Agent acting reasonably, required to
ensure
that
the Secured Parties obtain all the rights and benefits intended to
be
conferred on them
under the Security Documents.
|
| (k) |
Compliance
with Laws (other than Environmental Laws): The
Borrower shall maintain
all Secured Collateral in compliance with and otherwise comply in
all
respects
with the Law, excluding Environmental Laws, except to the extent
any
non-compliance
could not reasonably be expected to have a Material Adverse
Effect.
|
| (l) |
Compliance
with Environmental Laws: The
Borrower shall comply in all respects with Environmental
Law.
|
| (m) |
Dangerous
Materials: The
Borrower shall ensure that all Dangerous Materials treated,
kept and stored, produced, manufactured, generated, refined or used
from,
in, upon, or under any of the property owned or occupied by it are
held
and kept upon such property in compliance with applicable Law and
in such
a manner consistent with prudent industry
practice.
|
Page
48
| (n) |
Consent
to Assignment: At
the request of the Agent, the Borrower shall deliver to the Agent
a Consent to Assignment in respect of any Material Contract described
under Clause
11.4(m)(ii)(cc).
|
| (o) |
Maintenance
of Existence: The
Borrower shall do all things necessary to preserve and
keep in full force and effect its existence, franchises, rights and
privileges under the
Laws of the State of Nevada.
|
| 11.4 |
Negative
undertakings
|
Theundertakings
in this Clause 11.4 are made by the Borrower to each Financing Party and
each
Hedging Bank and shall remain in force during the Security Period, unless
the
Agent (acting
on the instructions of the Majority Banks) otherwise agrees.
|
(a)
|
Negative
Pledge: The
Borrower shall not create or permit to subsist any Encumbrance over
any of
its assets other than Permitted
Encumbrances;
|
| (b) |
Disposal
of assets: The
Borrower shall not make a Disposal other
than:
|
| (i) |
Disposals
of mineral production in the ordinary course of its operating or
trading
activities at arm's length and on commercial terms and not inconsistent
with
the Development Plan;
|
| (ii) |
Disposals
in respect of which the book value of any single asset disposed of
by the
Borrower does not exceed US$250,000 (or the equivalent thereof) or
in
respect of which all assets disposed of by the Borrower in any 12
Month
period does not exceed US$500,000 (or the equivalent thereof), provided
that such Disposal:
|
| (aa) |
is
not inconsistent with the Development Plan;
or
|
| (bb) |
does
not adversely affect the Borrower's ability to implement the Development
Plan;
|
| (iii) |
a
Disposal at arm's length and on commercial terms of obsolete assets
or of
assets
which are promptly replaced by other assets of equivalent or greater
utility;
|
| (iv) |
a
Disposal of any Permitted Investment held in an account subject to
the
Account
Control Agreement;
|
| (v) |
the
grant of any option or other right to purchase any asset in a transaction
that
would be permitted under this Clause 11.4(b);
or
|
| (vi) |
Disposals
of any assets, including without limitation any Permitted Investment,
held
in the Distribution Account.
|
For
the
purposes of this paragraph, the value of any asset shall be the greater of
its
book
value and the consideration received for it.
|
(c)
|
Mergers:
The
Borrower shall not enter into any amalgamation, demerger, merger
or
reconstruction.
|
|
(d)
|
Loans:
The
Borrower shall not make any loans or grant any credit to or for the
benefit of any person or entity, other
than:
|
| (i) |
amounts
of credit allowed in the ordinary course of its trading
activities;
|
Page
49
| (ii) |
loans
and advances to employees in the ordinary course of the business
of the
Borrower as presently conducted in an aggregate principal amount
not to
exceed $500,000 at any time outstanding;
and
|
| (iii) |
deposits
or similar arrangements with utility providers made in the usual
course
of dealings with such utility providers provided that reasonable details
of
any such deposits or similar arrangements made after the date of
this
Agreement
have been provided in writing to the
Agent.
|
|
(e)
|
Issue
of shares: The
Borrower shall not issue any further shares (other than to the
Guarantor
and provided that such shares are subject to the Pledge Agreement)
or
alter
any rights attaching to its issued shares in existence at the date
of this
Agreement.
|
|
(f)
|
Indebtedness:
The
Borrower shall not incur or permit to subsist any Indebtedness other
than
Permitted Indebtedness.
|
| (g) |
Restriction
on expenditure: The
Borrower shall not incur:
|
| (i) |
Capital
Expenditure during any period other than the Permitted Capital Expenditure
for the relevant period;
|
| (ii) |
Cost
Overruns in excess of the amount standing to the credit of the Cost
Overrun
Account; and
|
| (iii) |
Operating
Costs during any period other than in accordance with the Operating
Budget for the relevant period or otherwise as required by
Law,
|
provided
that the Borrower may incur emergency expenditures during any period that
are
not
included in the Operating Budget for the relevant period provided that the
Borrower
(acting reasonably) has certified to the Agent and the Independent Technical
Consultant
within 5 Business Days of incurring such emergency expenditures that (i)
such
emergency expenditures were necessary in order to avoid, remedy or mitigate
any
breach or default or any potential breach or default of or in connection with
any Transaction
Document or any Law (including any Environmental Law) and (ii) the circumstances
giving rise to such emergency expenditures were not reasonably foreseeable.
| (h) |
Hedging:
The
Borrower shall not enter into any Derivative Transaction other than
a
Permitted Hedging Transaction.
|
| (i) |
Distributions:
The
Borrower shall not make any transfer into the Distribution Account,
except
in accordance with Clause 12.5.2(f), and only subject to the following
conditions being satisfied:
|
| (i) |
the
Repayment Date falling after the Completion Date has passed;
|
| (ii) |
no Default or Trigger has occurred
and is
continuing;
|
| (iii) |
the Historic DSCR is greater
than
1.25:1;
|
| (iv) |
the
mandatory prepayment obligations set out in Clause 6.3 have been
complied
with in full;
|
| (v) |
the
transfer is made within 30 days following a Repayment Date;
and
|
| (vi) |
no
Default or Trigger would occur, and the ratio in Clause 11.4(i)(iii)
would
not fail
to be achieved at the level referred to herein, as a result of such
transfer.
|
Page
50
| (j) |
Change
of business, deviation from Development Plan: The
Borrower shall not make
any material change to the nature or scope of its business from that
agreed in the
Development Plan.
|
| (k) |
Development
Plan: The
Borrower shall not make any material change, variation, amendment
or supplement to the Development Plan other than as permitted under
the
Financing Documents.
|
| (l) |
Mining
Claims, Permits, Mining Rights: The
Borrower shall not amend, vary, release,
terminate, cancel, surrender, abandon or concur in the same, or do
or omit
to do
or suffer anything which renders terminable or cause to be frustrated
or
waive any rights available to it under (or agree to any of the same)
any
of the Mining Claims, Permits or Mining
Rights:
|
| (i) |
that
are required in the implementation of the Development Plan;
or
|
| (ii) |
where
such amendment, variation, release, termination,
cancellation, surrender,
abandonment, frustration or waiver could reasonably be expected to
have a
Material Adverse Effect.
|
| (m) |
Material
Contracts: The
Borrower shall not:
|
| (i) |
amend,
vary or terminate any Material Contract where such amendment, variation
or termination could reasonably be expected to have a Material
Adverse
Effect; or
|
| (ii) |
enter
into any other contract or agreement in respect of the Project other
than:
|
| (aa) |
a
replacement or substitute contract for a Material Contract that has
expired or been terminated provided that the Agent has approved in
writing
that replacement or substitute contract prior to the Borrower entering
into the same (such approval not to be unreasonably withheld or
delayed);
|
| (bb) |
the
contracts and agreements described in Schedule 13;
or
|
| (cc) |
any
contract or agreement in respect of the Project (other than those
referred
to in (aa) and (bb) above) provided that the Agent has approved
in writing that contract or agreement prior to the Borrower entering
into the same (such approval not to be unreasonably withheld or
delayed) if, in respect of that contract or
agreement:
|
| (AA) |
the
term is greater than 12 Months;
|
| (BB) |
the
annual value is greater than US$1,000,000;
or
|
| (CC) |
is
inconsistent with the Development
Plan.
|
| (n) |
Abandonment
of mine: The
Borrower shall not abandon, or give notice of its intention
to, or do anything, or suffer anything, which evidences its intention
to
abandon
conduct of all or a substantial part of the Mining Operations other
than
in accordance
with the Development Plan.
|
| (o) |
Waste:
The
Borrower shall not cause, permit or suffer, directly or indirectly,
any
Waste in respect of the Secured Collateral other than any portion
thereof
with respect to which
Waste thereof could not reasonably be expected to have a Material
Adverse
Effect.
|
Page
51
| 11.5 |
The
Base Case Model
|
|
11.5.1
|
The
Borrower shall not make any revision to the Base Case Model except
in
accordance with this Clause 11.5,
|
|
11.5.2
|
By
notice to the Borrower, the Agent may at any time make, or require
the
Borrower in the manner
directed by the Agent to make, in each case, with the consent of
the
Borrower (acting reasonably),
such revisions to the Base Case Model as may be required for the
purpose
of:
|
| (a) |
correcting
any deficiency in the form or structure of the Base Case Model;
or
|
|
(b)
|
incorporating
any additional or revised assumptions required to reflect any changes
to
the
Development Plan made in accordance with this
Agreement.
|
|
11.5.3
|
If
the Agent and the Borrower are unable to agree such revisions to
the Base
Case Model as may
be required within 10 Business Days of the Agent giving notice to
the
Borrower pursuant to
Clause 11.5.2, the Independent Technical Consultant shall determine
such
revisions. In this case, the Independent Technical Consultant's
determination of the revisions that are required shall
(in the absence of fraud or manifest error) be final and conclusive.
During the period in which any determination is being made by Independent
Technical Consultant in accordance with this Clause, the Base Case
Model
shall remain in its form prior to the Agent giving notice to
the Borrower pursuant to Clause
11.5.2.
|
|
11.5.4
|
If
the Base Case Model is revised, the Agent shall promptly notify each
Bank
and Hedging Bank of the revision.
|
| 12 |
Facility
Accounts and Permitted
Investments
|
| 12.1 |
Account
Bank
|
|
12.1.1
|
The
Borrower represents and warrants that it has appointed the Account
Bank to
open, maintain
and operate the Facility Accounts in accordance with the provisions
of the
Financing Documents.
|
|
12.1.2
|
The
Agent and the Borrower may agree to change the branch at which the
Facility Accounts are maintained from time to time, such agreement
to be
in writing.
|
| 12.2 |
Facility
Accounts
|
|
12.2.1
|
During
the Security Period the Borrower shall maintain the following bank
accounts denominated in US$ in its name at the relevant branch of
the
Account Bank (unless otherwise specified):
|
| (a) |
a
Proceeds Account;
|
| (b) |
a
Debt Service Reserve Account;
|
| (c) |
a
Cost-Overrun Account; and
|
| (d) |
a
payroll account.
|
|
12.2.2
|
The
Borrower shall not open or maintain any bank, deposit, savings or
other
account except for the Facility Accounts other
than:
|
| (a) |
the
Distributions Account;
|
| (b) |
a
physical gold account with the Refiner;
and
|
| (c) |
the
AIG commutation account.
|
Page
52
|
12.2.3
|
Each
Facility Account shall be a separate account at the Account Bank.
The
Proceeds Account,
the Debt Service Reserve Account and the Cost-Overrun Account shall
be
subject to the Account Control
Agreement.
|
|
12.2.4
|
If
the Borrower receives any moneys for crediting to a Facility Account
in a
currency other than US
Dollars it shall within a commercially reasonable period of time
(unless
otherwise agreed with the Agent) convert or, as the case may be,
request
the Account Bank promptly to convert these
moneys into US Dollars and transfer the same to the Proceeds
Account.
|
|
12.2.5
|
None
of the restrictions on the withdrawal of funds from Facility Accounts
contained in this Clause
12 shall affect the obligations of the Borrower to make all payments
of
any amount required
to be made by it to the Agent, or the Banks, on the due date for
payment
thereof in accordance
with the Financing Documents.
|
|
12.2.6
|
The
Facility Accounts shall be subject to, and pledged by the Borrower
on, the
terms and conditions of the Pledge Agreement and the Account Control
Agreement. The Agent agrees that
it will send a Notice (as defined the Account Control Agreement)
only upon
the occurrence and
during the continuance of an Event of Default or a Trigger Event.
Upon the
cessation of an
Event of Default or a Trigger Event, the Agent shall send a notice
to the
Bank under the Account Control Agreement stating that the Activation
Period (as defined therein) has
ceased.
|
| 12.3 |
Withdrawals
|
|
12.3.1
|
No
payments to, or withdrawals from, any Facility Account shall be made
except as expressly permitted
by this Clause 12 and in accordance with the Account Control
Agreement.
|
| 12.3.2 |
The
Borrower may not make any withdrawal from any Facility
Account:
|
|
(a)
|
if
an Event of Default or a Trigger Event has occurred and is continuing
or
would result from
that withdrawal; and
|
|
(b)
|
the
Security Trustee has given notice to the Account Bank pursuant to
the
Account Control Agreement on the occurrence of that Event of Default
or
Trigger Event.
|
| 12.4 |
Access
to books and records
|
|
12.4.1
|
The
Borrower irrevocably grants the Agent or any of its appointed
representatives access to review
the books and records of its Facility Accounts and agrees to deliver
to
the Agent copies of
statements and other information relevant to the Facility Accounts
as may
be requested by the Agent from time to time. Subject to Clause 24,
the
Borrower irrevocably waives any right of confidentiality that may
exist in
respect of such books, records, statements and other information.
The
Borrower irrevocably authorises the Account Bank to give the Agent,
Security
Trustee and each Bank unrestricted access on reasonable prior notice
to
review such books, records, statements and other information held
by the
Account Bank, and to provide by fax, mail or telephone such additional
information or records as the Banks or the Agent shall request and
the
Borrower shall take all such further steps or actions necessary to
confirm
or continue such authorisation.
|
|
12.4.2
|
Nothing
in this Clause 12.4 shall require the Account Bank to disclose to
any
person or entity any
books, records or other information which the Account Bank would
not be
required to disclose
to the Borrower.
|
| 12.5 |
Proceeds
Account
|
| 12.5.1 |
The
Borrower shall pay into the Proceeds
Account:
|
| (a) |
the
proceeds of all Advances;
|
| (b) |
all
amounts received in respect of Committed
Equity;
|
Page
53
| (c) |
any
net proceeds received pursuant to the Hedging
Documents;
|
|
(d)
|
all
other receipts of the Borrower (including, without limitation, pursuant
to
any Disposals); and shall
procure that all its Operating Revenues and other sums owing to it
are
paid directly into the
Proceeds Account.
|
|
12.5.2
|
The
Borrower may only withdraw sums from the Proceeds Account for the
following purposes and in the following order of
priority:
|
|
(a)
|
first,
for paying Operating Costs (including transfers to the pay roll account)
and, prior to
the Completion Date, Permitted Capital Expenditure, in each case
consistent with those costs and expenditures projected in the most
recent
Development Plan and Operating
Budget;
|
|
(b)
|
second,
to meet unpaid fees, costs and expenses of the Agent, the Security
Trustee, the
Arranger and the Account Bank incurred under the Financing
Documents;
|
|
(c)
|
third,
to meet its Debt Service liabilities under this Agreement and any
Hedging
Liabilities
pursuant to any Permitted Hedging
Transaction;
|
|
(d)
|
fourth,
on any Repayment Date, to transfer amounts to its Debt Service Reserve
Account
in accordance with Clause 12.6;
|
|
(e)
|
fifth,
on any Repayment Date, to make any mandatory prepayments in accordance
with Clause 6.3; and
|
|
(f)
|
sixth,
to make transfers into the Distributions Account provided that the
conditions in Clause
11.4(i) have been satisfied in
full.
|
|
12.5.3
|
Amounts
standing to the credit of the Proceeds Account may be invested by
the
Borrower in Permitted Investments in accordance with the Account
Control
Agreement.
|
| 12.6 |
Debt
Service Reserve Account
|
|
12.6.1
|
Having
satisfied its obligations under Clause 12.5.2(a) to 12.5.2(c), the
Borrower shall on or prior to the Completion Date transfer from its
Proceeds Account directly to the Debt Service Reserve Account such
amounts
(if any and if available) as is required to ensure that the amount
standing to the credit of its Debt Service Reserve Account at the
Completion Date is equal to the Required Level for the Debt Service
Reserve Account and shall thereafter maintain
the Required Level pursuant to this Clause by transferring out of
monies
available for transfer
under Clause 12.5.2(d).
|
|
12.6.2
|
The
Required
Level for
the Debt Service Reserve Account is, at any time, the Debt Service
which
will become payable on the next Repayment
Date.
|
|
12.6.3
|
The
Borrower may only withdraw sums from the Debt Service Reserve Account
with
the prior written
approval of the Agent which shall be produced to the Account Bank
by the
Borrower, prior
to any such withdrawal and for the following
purposes:
|
|
(a)
|
to
pay Debt Service payable to the Banks, to the Agent as and when it
falls
due to the extent (but only to the extent) that the amount standing
to the
credit of the Proceeds Account when the relevant Debt Service falls
due is
insufficient to pay it in full; or
|
|
(b)
|
to
the extent that the amount standing to the credit of the Debt Service
Reserve Account at any time exceeds the Required Level for the Debt
Service Reserve Account
at that time and the amount withdrawn is transferred directly to
the
Proceeds Account, with respect to which the approval of the Agent
shall
only be required if an Event of Default or Trigger Event shall have
occurred and is continuing.
|
Page
54
|
12.6.4
|
The
Borrower may satisfy its obligations to maintain at all times the
Required
Level for the Debt
Service Reserve Account pursuant to this Clause by procuring the
issue in
favour of the Agent
of a letter of credit in an amount no less than the Required Level
for the
Debt Service Reserve Account provided that such letter of credit
is at all
times:
|
| (a) |
in
a form, and on terms, acceptable to the Agent (acting reasonably);
and
|
|
(b)
|
issued
by a bank or other financial institution acceptable to the Agent
and who
has, to the
satisfaction of the Agent (acting reasonably), no recourse whatsoever
to
the Borrower,
the Assets or the Project in respect of any liability or indebtedness
arising as a result of the issue of, or payment under, such letter
of
credit.
|
|
12.6.5
|
Amounts
standing to the credit of the Debt Service Reserve Account may be
invested
by the Borrower in Permitted Investments in accordance with the Account
Control Agreement.
|
| 12.7 |
Cost
Overrun Account
|
|
12.7.1
|
The
Borrower shall deposit US$7,500,000 into the Cost Overrun Account
prior to
the first Advance.
|
| 12.7.2 |
The
Borrower may withdraw sums from the Cost Overrun
Account:
|
|
(a)
|
prior
to the Completion Date, for the purpose of financing any Cost Overrun
provided that
in the case of any such Cost Overrun, the Development Plan and the
Base
Case Model have been updated to reflect the additional Capital Expenditure
and the Agent (in consultation with the Independent Technical Consultant)
has confirmed that such Capital Expenditure has been or is to be
properly
and reasonably incurred in connection with the Project and is a Cost
Overrun;
|
|
(b)
|
upon
the Completion Date, to transfer the amount (if any) standing to
the Cost
Overrun Account to the Debt Service Reserve Account to the extent
required
to satisfy the
requirements of Clause 12.6 and thereafter to transfer any balance
to an
account nominated
by the Borrower.
|
|
12.7.3
|
Amounts
standing to the credit of the Cost Overrun Account may be invested
by the
Borrower in Permitted Investments in accordance with the Account
Control
Agreement.
|
| 12.8 |
Distributions
Account
|
|
12.8.1
|
Having
satisfied its obligations under Clause 12.5.2(a) to (e), the Borrower
may,
subject to Clause 11.4(i), transfer amounts (if any) standing to
the
credit of the Proceeds Account directly to the Distribution
Account.
|
|
12.8.2
|
The
Borrower shall be entitled to withdraw, at anytime, all and any amounts
transferred pursuant to this Agreement into the Distribution
Account.
|
| 13 |
Triggers
|
| 13.1 | Trigger Event |
Each
of
the following events shall be a Trigger Event:
| (a) |
Breach
of Undertakings: Any
Security Company breaches any one or more of its obligations
(other than: (i) a payment obligation (which shall be an Event of
Default
under
and in accordance with Clause 14.1 (a) and (ii) in the case of the
Guarantor only, (A)
its obligations in respect of its ownership in the voting shares
of the
Borrower under
each of Clause 11.2.1 (d) and Clause 11.2.2 (which shall be an Event of
Default under
and in accordance with Clause 14.1 (j)(i)) and (B) any of its other
obligations under Clause 11.2 (which shall be a Trigger Event under
and in
accordance with Clause
13.1 (b)) under any Financing Document, or any condition attached
to any
waiver or consent given under any Financing Document is not fulfilled
on
the due date provided
that a Trigger Event shall not occur under this Clause 13.1 (a) in
respect
of a breach
by the Borrower of any one or more of its obligations under Clause
11.3(l)
or Clause
11.3(m) if, in either case,:
|
| (i) |
such
breach is capable of being remedied by the
Borrower;
|
Page
55
| (ii) |
the
amounts spent or to be spent by the Borrower to remedy such breach
are
equal to or less than US$50,000;
and
|
| (iii) |
such
breach is remedied by the Borrower within 10 days after the earlier
of (i)
notice
of that breach being given by the Agent to the Borrower and (ii)
the
Borrower becoming aware of such
breach.
|
|
(b)
|
Other
defaults: Any
Security Company breaches any of its obligations under any Transaction
Document to which it is a party (other than obligations or conditions
referred to in Clause 13.1(a) or 14.1(a)) and such breach could reasonably
be expected to have a Material Adverse Effect and if it is capable
of
remedy, it is not remedied
within 10 Business Days after the earlier of (i) notice of that breach
being given
by the Agent to the Borrower and (ii) the relevant Security Party
becoming
aware of such breach.
|
|
(c)
|
Breach
of representation or warranty: Any
representation, warranty or written statement
made or deemed to be repeated by any Security Company under any Financing
Document or in any document delivered by or on behalf of the Borrower
under
or in connection with any Financing Document is incorrect or inaccurate
when made
or deemed to have been made unless the circumstances giving rise
to the
representation,
warranty or statement being incorrect or
inaccurate:
|
| (i) |
are
capable of cure or remedy; and
|
| (ii) |
are
remedied within 15 Business Days such that if the representation,
warranty
or statement were repeated it would not be incorrect or
misleading.
|
|
(d)
|
Cross-default:
Any
Indebtedness of the Borrower in excess of, in aggregate, US$250,000
or its equivalent, or any Indebtedness of the Guarantor in excess
of, in
aggregate,
US$500,000 or its equivalent:
|
| (i) |
is
not paid on its due date for payment (taking into account any relevant
grace period);
|
| (ii) |
is
declared to be or otherwise becomes due and payable prior to its
specified
maturity, or
|
| (iii) |
any
creditor of any of the same becomes entitled to declare any such
Indebtedness
due and payable prior to its specified
maturity.
|
|
(e)
|
Attachment
or distress: A
creditor or encumbrancer attaches or takes possession of, or a distress,
execution, sequestration, foreclosure, action or notice to reduce
a claim
to
judgement or other process is instituted, levied or enforced upon
or sued
out against, any of the assets of any Security Company (in respect
of an
amount of at least
US$250,000 in aggregate or its equivalent);
or
|
|
(f)
|
Project
production: In
any consecutive three Month period:
|
|
(i)
|
the
ore-grade into the Mesquite Mine;
|
| (ii) |
the
amount of ore placed on the ▇▇▇▇▇
pads;
|
Page
56
| (iii) |
the
processing recovery; or
|
| (iv) |
the
aggregate actual production of gold recovered from the Mining Operations,
is
less than 90 per cent of that projected for such period in the most
recent
Operating Budget
provided however that no Trigger Event shall occur under this Clause
if
any of the
items in (i) to (iii) above are less than 90% of that projected for
such
period, but item (iv) is equal to or more than 90% of that projected
for
such period and no Trigger Event
shall have occurred under Clause 13.1 (g)
below.
|
| (g) |
Project
Margin: in
any consecutive three Month period the operating margin (being the
weighted average revenue per ounce of production sold during such
period
less Capital Expenditure and Operating Costs per ounce of production
sold
during such period) is less than US$ 150 per ounce of
gold.
|
| (h) |
Mining
Claims, Permits and Mining Rights: any
steps are taken or proposals made for the amendment, cancellation
or
termination in relation to any of the terms and conditions of the
Mining
Claims, Permits, Mining Rights or any condition thereto is not
met
in full by the date specified for the meeting of the same in each
case to
the extent required
in the Development Plan.
|
| (i) |
Reserves:
at
any time, and as stated in the latest Reserve Statement at that time,
the
proven and probable reserves of gold that are forecast to remain
at the
Mesquite Mine beyond the later of the Final Repayment Date and the
Final
Hedging Maturity Date are less than 30% of the proven and probable
reserves of gold that are forecast to remain at
the Mesquite Mine in the Reserve Statement as at the date of this
Agreement.
|
| (j) |
Completion:
the
Completion Date has not occurred by the Longstop Date, (k)
Material
Contracts:
|
| (i) |
Any
Key Contractual Counterparty breaches any of its material obligations
under
any Material Contract to which it is a party and if that breach or
failure
is capable
of remedy, it is not remedied within a period of 20 Business Days
following the date of such breach, provided that such a breach will
not
constitute
a Trigger Event if a Replacement Key Contractual Counterparty has
been
found to assume the obligation of such Key Contractual Counterparty
under
the relevant Transaction Documents within 20 Business Days of the
date of
occurrence of such event, and such Replacement Key Contractual
Counterparty
enters into such agreement within 30 Business Days of the date of
occurrence of such event.
|
| (ii) |
Any
Material Contract is not renewed, replaced or substituted with a
counterparty
and on terms substantially similar to the Material Contract being
replaced
or substituted for within 30 Business Days of the termination or
expiry
of
any such Material Contract where the renewal of such Material Contract
was
contemplated in the Development
Plan.
|
| (l) |
Key
Contractual Counterparty: There
occurs, in relation to any Key Contractual Counterparty,
in any country or territory in which any of them carries on business
or to
the
jurisdiction of whose courts any part of their assets is subject,
any
event which in that
country or territory corresponds with, or has an effect equivalent
or
similar to any of
those events referred to in Clause 13.1 (d), Clause 14.1 (c), Clause
14.1
(d), Clause 14.1(e),
14.1 (f), 14.1(g), 14.1(h), 14.1
(i)
(Provided that in the case of Clause 13.1 (d) or Clause
14.1(e) the relevant amounts referred to therein shall be deemed
to be
US$1,000,000 (or its equivalent)); and in these circumstances a
Replacement Key Contractual Counterparty has not been found to assume
the
obligation of such Key Contractual Counterparty under the relevant
Transaction Documents within 20 Business Days of the date of occurrence
of
such event, and such Replacement Key Contractual
Counterparty has not entered into such agreement within 30 Business
Days
of the date of occurrence of such
event.
|
Page
57
| (m) |
Security:
There
occurs (in the opinion of the Agent, acting reasonably) any event
or
circumstance
which adversely affects the Security or the Security
Documents.
|
| (n) |
Permitted
Encumbrance: A
beneficiary of a Permitted Encumbrance (other than of the
type referred to in paragraph (a) of the definition for Permitted
Encumbrance) commences any formal action or exercises any rights
in
connection with that Permitted Encumbrance
against the Borrower, the Mesquite Mine or any of the other assets
of
the
Borrower and, in each case:
|
| (i) |
the
amount of the Indebtedness secured by that Permitted Encumbrance
is
greater
than US$250,000 (unless the Agent is satisfied that such formal action
or
exercise of rights is frivolous or vexatious following submission
to the
Agent of all relevant documentation relating to the same by the Borrower
within 5 Business Days of it becoming aware of the same);
or
|
| (ii) |
the
commencement of such formal action or the exercise of such rights
could
reasonably be expected to have a Material Adverse
Effect.
|
| 13.1.2 |
The
Trigger Events listed in Clause 13.1 in respect of the Guarantor
shall
only constitute a Trigger Event if any of them occur prior to the
Completion Date (other than a Trigger Event arising under Clause
13.1 (b)
in relation to the Guarantor as a result of a breach of its obligations
under Clause 11.2.2 (other than its obligations in respect of its
ownership in the voting
shares of the Borrower), 11.2.3(c), (d) or (e) or
11.2.4).
|
| 13.2 |
Exercise
of rights
|
| 13.2.1 |
If
a Trigger Event occurs and remains unremedied and unwaived, the
Agent may
if instructed by
the Majority Banks, and shall if so instructed by the Majority
Banks, by
notice to the Borrower
and subject to Clause 13.2.2 in the case of a Trigger Event under
Clauses
13.1 (a), 13.1
(d),
13.1(e)or13.1(h)only:
|
| (a) |
enforce
its rights to exercise the Guarantor's voting rights attached
to the
shares in the Borrower
in accordance with the Pledge
Agreement;
|
| (b) |
exercise
any or all of its rights under Clause
14.3.1;
|
| (c) |
charge
an additional one per cent on the Interest Margin applicable to the
Loan;
and/or
|
|
(d)
|
require
that all technical information relating to Mining Operations be audited
and certified
by the Independent Technical
Consultant.
|
| 13.2.2 |
The
Agent may exercise the rights set out in Clause 13.2.1 if instructed
by
the Majority Banks if
a Trigger Event has occurred
under:
|
| (a) |
Clause
13.1 (a), after a period of 10 Business Days from the earlier
of (i)
notice of such non
performance or non compliance being given by the Agent to the
Borrower and
(ii) the
relevant Security Party becoming aware of such non performance
or non
compliance;
|
| (b) |
Clause
13.1
(d),
after a period of 10 Business Days from the earlier of (i) notice
of such
cross
default event being given by the Agent to the Borrower and (ii)
the
Borrower or the
Guarantor becoming aware of such cross default
event;
|
| (c) |
Clause
13.1 (e), after a period of 30 Business Days from the earlier
of (i)
notice of such
action being given by the Agent to the Borrower and (ii) the
relevant
Security Party
becoming aware of such action;
or
|
Page
58
| (d) |
Clause
13.1 (h), after a period of 10 Business Days from the earlier of
(i)
notice of such
steps or proposals being given by the Agent to the Borrower and (ii)
the
Borrower or
the Guarantor becoming aware of such steps or
proposals.
|
| 14 |
Default
|
| 14.1 |
Default
|
Each
of
the following events shall be an Event of Default:
| (a) |
Non-payment:
Any
Security Company does not pay on or within 2 Business Days following
the due date any amount payable by it under the Financing Documents
at
the
place at and in the currency and funds in which it is expressed
to be
payable.
|
| (b) |
Unlawfulness
or repudiation: It
is unlawful for any Security Company to perform or comply
with, or any Security Company
repudiates:
|
| (i) |
any
of its obligations under any Financing Document or any such obligation
is
not
legally binding and enforceable; or
|
| (ii) |
any
of its material obligations under any Transaction Documents (other
than
the
Financing Documents) or any such obligation is not legally binding
and
enforceable.
|
| (c) |
Cross-default:
Any
Indebtedness of the Borrower in excess of, in aggregate, US$1,000,000
or its equivalent, or any Indebtedness of the Guarantor in excess
of, in
aggregate,
US$2,500,000 or its equivalent:
|
| (i) |
is
not paid on its due date for payment (taking into account any relevant
grace period);
|
| (ii) |
is
declared to be or otherwise becomes due and payable prior to its
specified
maturity, or
|
| (iii) |
any
creditor of any of the same becomes entitled to declare any such
Indebtedness
due and payable prior to its specified
maturity.
|
| (d) |
Enforcement
of security: A
beneficiary of an Encumbrance (other than a Permitted Encumbrance)
over any of the assets of any Security Company commences any
formal
action or exercises any rights in connection with that Permitted
Encumbrance against
that Security Company, the Mesquite Mine or any of the other
assets of
that Security
Company (unless the Agent is satisfied that such formal action
or exercise
of rights
is frivolous or vexatious following submission to the Agent of
all
relevant documentation
relating to the same by the relevant Security Company within
5
Business
Days of it becoming aware of the
same).
|
| (e) |
Inability
to pay debts: Any
Security Company:
|
| (i) |
suspends
payment of its debts or is unable or admits its inability to pay
its
debts
as they fall due; or
|
| (ii) |
begins
negotiations with its creditors as a whole with a view to the readjustment,
rescheduling or forgiveness of all or a substantial part of its
Indebtedness
which it may otherwise be unable to pay;
or
|
| (iii) |
proposes
or enters into any composition or other arrangement for the benefit
of
its creditors generally or any class of creditors in respect of
Indebtedness which it may otherwise be unable to
pay.
|
Page
59
| (f) |
Insolvency
proceedings: Any
person or entity takes any action or any legal proceedings
are started or other steps taken (including the presentation
of a petition
unless
the Agent is satisfied that the same is frivolous or vexatious
following
submission
to the Agent of all relevant documentation relating to the same
by the
relevant
Security Company within 5 Business Days of it becoming aware
of the same)
for:
|
| (i) |
any
Security Company to be adjudicated a bankrupt or found insolvent;
|
| (ii) |
the winding up, dissolution or
liquidation
of any Security Company;
|
| (iii) |
the
reorganisation, readjustment, arrangement, winding up, dissolution
or
liquidation
of any Security Company other than in connection with a solvent
reconstruction,
the terms of which in respect of a Security Company have been
previously approved in writing by the Agent (acting on the instructions
of
the
Majority Banks); or
|
| (iv) |
the
appointment of a trustee, receiver, administrator, administrative
receiver, trustee
in bankruptcy, examiner or similar officer in respect of any Security
Company,
liquidator or any of their respective
assets.
|
| (g) |
Adjudication
or appointment: Any
adjudication, order or appointment is made under or
in relation to any of the proceedings referred to in Clause 14.1
(f).
|
| (h) |
Analogous
proceedings: Any
event occurs or proceeding is taken with respect to any
Security Company as applicable in any jurisdiction to which it is
subject
which has an
effect equivalent or similar to any of the events mentioned in Clause
13.1
(e), 14.1(e),
14.1 (f) or 14.1 (g) taking into account any qualifications thereto
or
grace periods.
|
| (i) |
Cessation
of business: Any
Security Company suspends, ceases or threatens to suspend
or cease to carry on all or a substantial part of its business and,
in
relation to the
Guarantor only, such event or circumstances could reasonably be expected
to have
a Material Adverse Effect;
|
| (j) |
Change
of control: At
any time:
|
| (i) |
the
Guarantor transfers any interest in the shares of the Borrower (other
than
as
permitted pursuant to Clause 11.2);
or
|
| (ii) |
the
ultimate parent company of the Borrower ceases to have its ordinary
shares
listed on a recognised investment
exchange.
|
| (k) |
Material
adverse change: Any
event or series of events occur which could reasonably be expected
to have
a Material Adverse Effect.
|
| (l) |
Trigger
Event: A
Trigger Event is occurring on the date falling four Months after
the
occurrence
of the same.
|
| 14.1.2 |
The
Events of Default listed in Clause 14.1 in respect of the Guarantor
(other
than under Clause 14.1 (j)) shall only constitute Events of Default
if any
of them occur prior to the Completion
Date.
|
| 14.2 |
Acceleration
|
| 14.2.1 |
If
an Event of Default occurs and remains unremedied and unwaived, the
Agent
may, acting upon
the instructions of the Majority Banks, and shall if so instructed
by the
Majority Banks, by notice
to the Borrower:
|
| (a) |
cancel
the Facility (to the extent there are outstandings under such
Facility);
|
Page
60
|
(b)
|
declare
the Facility (to the extent there are outstandings under such Facility)
due and payable;
and
|
|
(c)
|
require
the Borrower immediately to repay all or any of the Loan together
with
accrued interest
and all other sums payable under each such
Facility.
|
| 14.2.2 |
Upon
the service of any such notice the Banks' obligations under this
Agreement
shall be terminated,
the Facility shall be cancelled and the Facility Limit (as applicable)
shall be reduced
to zero.
|
| 14.3 |
Facility
Accounts
|
| 14.3.1 |
The
Agent shall, if so instructed by the Majority Banks, at anytime
and
without the consent of the
Borrower (a) whilst an Event of Default or Trigger Event is continuing
and
for the purpose of
curing such Event of Default or Trigger Event (b) following service
of a
notice by the Agent under
Clause 14.2.1:
|
|
(a)
|
give
notice to the Account Bank that it is to be the sole signatory on
any or
all of the Facility
Accounts; and/or
|
|
(b)
|
give
notice to the Account Bank that no withdrawal may be made from any
or all
of the Facility
Accounts except with the prior consent of the Agent;
and/or
|
|
(c)
|
apply
all amounts in the Facility Accounts in or towards payment of Financing
Principal,
Financing Costs, Hedging Expenses and such other amounts as the Majority
Banks
may agree; and
|
|
(d)
|
appropriate
the amounts to be applied under Clause 14.3.1 (c) against the obligations
against
which they are to be applied in such order as the Agent thinks fit
(but
subject, as
between the Financing Parties and without conferring any rights on
the
Borrower, to Clause
12.1).
|
| 14.3.2 |
No
amount shall be payable to the Borrower, or may be withdrawn
by the
Borrower, from or in respect
of any Facility Account at any time after the Agent gives a notice
of the
kind described in
Clause
14.3.1.
|
| 15 |
Fees
and expenses
|
| 15.1 |
Transaction
expenses
|
| 15.1.1 |
The
Borrower shall promptly on demand pay the Arranger, the Agent,
the
Security Trustee and the
Account Bank:
|
|
(a)
|
the
amount of all costs and expenses (including legal fees and the fees
of the
Banks' Advisers)
reasonably incurred by any of them in connection with the negotiation,
preparation,
printing, execution and syndication of the Financing Documents (including
the
ITC Report);
|
|
(b)
|
the
amount of all costs and expenses in making any site visits and in
meeting
the fees and
expenses of the Independent Technical Consultants in respect of the
ITC
reports and
site visits or otherwise or any legal, insurance or other consultants'
fees to the extent
that the same are reasonably and properly incurred;
and
|
|
(c)
|
the
cost and expenses incurred by them in respect of the services of
the
Banks' Advisers
to be performed after the date of this
Agreement.
|
| 15.1.2 |
The
Borrower shall be provided with reasonably detailed accounts
and invoices
for such costs and
expenses as described in Clause
15.1.1.
|
Page
61
| 15.2 |
Amendment
costs
|
If
a
Security Company requests an amendment, waiver or consent the Borrower shall,
within three
Business Days of demand, reimburse the Agent for the amount of all costs and
expenses
(including legal fees) reasonably incurred by the Agent in responding to,
evaluating, negotiating
or complying with that request or requirement.
| 15.3 |
Enforcement
costs
|
The
Borrower shall, within 10 Business Days of demand, pay to each Financing Party
the amount
of
all costs and expenses (including legal fees) incurred by that Financing Party
in connection with the enforcement of, or the preservation of any rights under,
any Financing Document.
| 15.4 |
Commitment
fee
|
| 15.4.1 |
The
Borrower shall pay to the Agent (for the account of each Bank)
a fee
computed at the rate of
0.75 per cent. per annum on that Bank's Available Commitment
for the
Availability
Period.
|
| 15.4.2 |
Subject
to Clause 5.3.3, the accrued commitment fee is payable on the
last day of
each successive
period of three Months which ends during the Availability Period,
on the
last day of the
Availability Period and, if cancelled in full, on the cancelled
amount of
the relevant Bank's Commitment
at the time the cancellation is
effective.
|
| 15.5 |
Arrangement
fee
|
The
Borrower shall pay to the Arranger an arrangement fee in the amount and at
the
times agreed in the Arrangement Fee Letter.
| 15.6 |
Agency
fee
|
The
Borrower shall pay to the Agent (for its own account) an agency fee in the
amount and at the times agreed in the Agency Fees Letter.
| 15.7 |
Stamp
taxes
|
The
Borrower shall pay and, within three Business Days of demand, indemnify each
Financing Party against any cost, loss or liability that Financing Party incurs
in relation to all stamp duty, registration and other similar Taxes payable
in
respect of any Financing Document.
| 15.8 |
VAT
|
| 15.8.1 |
All
amounts set out, or expressed to be payable under a Financing
Document by
any Party to a
Financing Party which (in whole or in part) constitute the
consideration
for VAT purposes shall
be deemed to be exclusive of any VAT which is chargeable on
such supply,
and accordingly,
subject to paragraph 15.8.2 below, if VAT is chargeable on
any supply made
by any
Financing Party to any Party under a Financing Document, that
Party shall
pay to the Financing
Party (in addition to and at the same time as paying the consideration)
an
amount equal
to the amount of the VAT (and such Financing Party shall promptly
provide
an appropriate
VAT invoice to such
Party).
|
| 15.8.2 |
If
VAT is chargeable on any supply made by any Financing Party (the
"Supplier") to any other Financing
Party (the "Recipient") under a Financing Document, and any Party
(the
"Relevant Party")
is required by the terms of any Financing Document to pay an
amount equal
to the consideration
for such supply to the Supplier (rather than being required to
reimburse
the Recipient
in respect of that consideration), such Party shall also pay
to the
Supplier (in addition
to and at the same time as paying such amount) an amount equal
to the
amount of such
VAT. The Recipient will promptly pay to the Relevant Party an
amount equal
to any credit
or repayment from the relevant tax authority which it reasonably
determines relates to the
VAT chargeable on that
supply.
|
Page
62
| 15.8.3 |
Where
a Financing Document requires any Party to reimburse a Financing
Party for
any costs or
expenses, that Party shall also at the same time pay and indemnify
the
Financing Party against
all VAT incurred by the Financing Party in respect of the costs or
expenses to the extent that the Financing Party reasonably determines
that
neither it nor any other member of the group of which it is a member
for
VAT purposes is entitled to credit or repayment from the relevant
tax
authority in respect of the VAT.
|
| 15.9 |
Indemnity
payments
|
Where
in
any Financing Document the Borrower has an obligation to indemnify or reimburse
any
Financing Party in respect of any loss or payment, the calculation of the amount
payable by
way of
indemnity or reimbursement shall take account of the likely Tax treatment in
the
hands of that Financing Party (as conclusively determined by that Financing
Party acting in good
faith and in the absence of any manifest error) of the amount payable by way
of
indemnity or reimbursement and of the loss or payment in respect of which that
amount is payable.
| 16 |
Amendments
and waivers
|
| 16.1 |
Required
consents
|
| 16.1.1 |
Subject
to Clause 16.2 any term of the Financing Documents may be amended
or
waived only with
the consent of the Majority Banks and the Security Companies
and any such
amendment or
waiver will be binding on all
Parties.
|
| 16.1.2 |
The
Agent may effect, on behalf of any Financing Party, any amendment
or
waiver permitted by
this Clause.
|
| 16.2 |
Exceptions
|
| 16.2.1 |
An
amendment or waiver that has the effect of changing or which relates
to:
|
| (a) |
the
definition of Majority
Banks in
Clause 1.1;
|
| (b) |
an
extension to the date of payment of any amount under the Financing
Documents;
|
|
(c)
|
a
reduction in the Interest Margin or a reduction in the amount of
any
payment of principal,
interest, fees or commission
payable;
|
| (d) |
an
increase in or an extension of any
Commitment;
|
| (e) |
an
extension of the Availability
Period;
|
| (f) |
a
change to the Security Companies;
|
| (g) |
any
provision which expressly requires the consent of all the
Banks;
|
| (h) |
Clauses
2.2, 2.3, 22 or this Clause 16;
|
| (i) |
a
change in the currency of any payment under any Financing Document;
|
| (j) |
any change to Clauses 5, 6, 7,
15.4 or 18;
or
|
| (k) |
a
release or partial release of any Encumbrance created, evidenced
or
granted under the Financing
Documents,
|
shall
not
be made without the prior consent of all the Banks and in the case of (a),
(f),
(j) and (k)
all
the Banks and the Hedging Banks.
Page
63
| 16.2.2 |
An
amendment or waiver which relates to the rights or obligations of
the
Agent, the Security Trustee
or the Arranger may not be effected without the consent of the Agent,
the
Security Trustee
or the Arranger.
|
| 16.3 |
Consents
|
Any
consent or approval by the Agent, Security Trustee, any Bank or Hedging Bank,
the Majority
Banks, the Account Bank or the Borrower under any provision of the Financing
Documents must be in writing. Any waiver or consent may be given subject to
any
conditions thought
fit by the person or entity giving it and will be effective only in the instance
and for the purpose
for which it is given.
| 16.4 |
Majority
Banks procedure
|
| 16.4.1 |
Where
any consent, approval, determination, waiver or other decision
is required
to be given, made
or taken by the Majority Banks under this Agreement, the Agent
shall by
notice to the Banks
specify the period of time (not being less than 5 Business Days
(except in
the case of an
emergency) nor more than 15 Business Days) within which replies
are
required and whether
the procedure in Clause 16.4.2 shall
apply.
|
| 16.4.2 |
Each
Bank or Hedging Bank shall be entitled to one vote per US Dollar
(in the
case of a Bank) of
its relative Participation (or if no Advances are outstanding,
its
Commitments) or (in the case of
a Hedging Bank) its Hedging Liabilities (in accordance with the
definition
of Majority Banks herein)
provided that each Bank or Hedging Bank shall be entitled to
exercise its
votes in its absolute
discretion and need not exercise its votes
consistently.
|
| 16.4.3 |
Unless
as otherwise provided for in any Financing Document, if any Bank
or
Hedging Bank does
not vote within the period specified by the Agent, the amount
of its
Participation or its Commitment
or the Hedging Liability outstanding to it (as the case may require)
shall, if the Agent
has in the notice specified that this Clause 16.4.2 shall apply,
be
disregarded in the denominator
for the purpose of determining whether or not the requisite percentage
vote has been
achieved.
|
| 16.5 |
Remedies
and waivers
|
No
failure to exercise, nor any delay in exercising, on the part of any Financing
Party, any right or
remedy
under the Financing Documents shall operate as a waiver, nor shall any single
or
partial
exercise of any right or remedy prevent any further or other exercise or the
exercise of any other right or remedy. The rights and remedies provided in
this
Agreement are cumulative and not exclusive of any rights or remedies provided
by
Law.
| 17 |
Set-off
|
Subject
to the provisions of the Intercreditor Agreement, a Financing Party may set
off
any matured obligation due from the Borrower under the Financing Documents
(to
the extent beneficially owned by that Financing Party) against any matured
obligation owed by that Financing Party to the Borrower, regardless of the
place
of payment, booking branch or currency
of either obligation. If the obligations are in different currencies, the
Financing Party may convert either obligation at a market rate of exchange
in
its usual course of business for the purpose of the set-off.
| 18 |
Pro
rata sharing
|
| 18.1 |
Payments
to Financing Parties
|
If
a
Financing Party (a Recovering
Financing Party) receives
or recovers any amount from the Borrower or any other person or entity other
than in accordance with Clause 9 and applies that
amount to a payment due under the Financing Documents then:
Page
64
|
(a)
|
the
Recovering Financing Party shall, within three Business Days, notify
details of the receipt
or recovery to the Agent;
|
| (b) |
the
Agent shall determine whether the receipt or recovery is in excess
of the
amount the
Recovering Financing Party would have been paid had the receipt
or
recovery been
received or made by the Agent and distributed in accordance with
Clause 9,
without
taking account of any Tax which would be imposed on the Agent
in relation
to the
receipt, recovery or distribution; and
|
|
(c)
|
the
Recovering Financing Party shall, within three Business Days
of demand by
the Agent,
pay to the Agent an amount (the Sharing Payment) equal to such
receipt or
recovery
less any amount which the Agent determines may be retained by
the
Recovering
Financing Party as its share of any payment to be made, in accordance
with
Clause 9.
|
| 18.2 |
Redistribution
of payments
|
The
Agent
shall treat the Sharing Payment as if it had been paid by the Borrower and
distribute
it between the Financing Parties (other than the Recovering Finance Party)
in
accordance
with Clause 9.1.
| 18.3 |
Recovering
Financing Party's rights
|
| 18.3.1 |
On
a distribution by the Agent under Clause 18.2, the Recovering
Financing
Party will be subrogated
to the rights of the Financing Parties which have shared in the
redistribution.
|
| 18.3.2 |
If
and to the extent that the Recovering Financing Party is not
able to rely
on its rights under Clause
18.3.1, the Borrower shall be liable to the Recovering Financing
Party for
a debt equal to
the Sharing Payment which is immediately due and
payable.
|
| 18.4 |
Reversal
of redistribution
|
If
any
part of the Sharing Payment received or recovered by a Recovering Finance Party
becomes
repayable and is repaid by that Recovering Finance Party, then:
| (a) |
each
Financing Party which has received a share of the relevant Sharing
Payment
pursuant
to Clause 18.2 shall, upon request of the Agent, pay to the Agent
for
account of
that Recovering Financing Party an amount equal to the appropriate
part of
its share
of the Sharing Payment (together with an amount as is necessary
to
reimburse that
Recovering Financing Party for its proportion of any interest
on the
Sharing Payment
which that Recovering Financing Party is required to pay);
and
|
| (b) |
that
Recovering Financing Party's rights of subrogation in respect
of any
reimbursement
shall be cancelled and the Borrower will be liable to the reimbursing
Financing
Party for the amount so
reimbursed.
|
| 18.5 |
Exceptions
|
| 18.5.1 |
This
Clause 18 shall not apply to the extent that the Recovering Financing
Party would not, after
making any payment pursuant to this Clause, have a valid and
enforceable
claim against the
Borrower.
|
| 18.5.2 |
A
Recovering Financing Party is not obliged to share with any other
Financing Party any amount
which the Recovering Financing Party has received or recovered
as a result
of taking legal
or arbitration proceedings,
if:
|
| (a) |
it
notified that other Financing Party of the legal or arbitration
proceedings; and
|
|
(b)
|
that
other Financing Party had an opportunity to participate in those
legal or
arbitration proceedings
but did not do so as soon as reasonably practicable having received
notice
and did not take separate legal or arbitration
proceedings.
|
Page
65
| 18.5.3 |
no
Hedging Bank shall be obliged to share any amount set off pursuant
to any
provision of any Hedging
Document provided that this Clause 18.5.3 shall not apply to any
such
amount set off pursuant to section 6(f) of a document which is a
Hedging
Document within sub-paragraph (a) of the definition
thereof.
|
| 19 |
The
Agent
|
| 19.1 |
Appointment
of Agent
|
Each
Bank
and Hedging Bank hereby appoints the Agent to act as its agent in connection
with each
of
the Financing Documents and authorises the Agent to exercise such rights,
powers, authorities
and discretions as are specifically delegated to the Agent by the Financing
Documents together with all such rights, powers, authorities and discretions
as
are reasonably incidental
thereto.
| 19.2 |
Agent's
rights
|
The
Agent
may:
| (a) |
assume
that:
|
| (i) |
any
representation made by any Project Party in connection with any
Transaction Document is true;
|
| (ii) |
no
Default has occurred;
|
| (iii) |
no
Project Party is in breach of or default under its obligations under
any
Transaction
Document; and
|
| (iv) |
any
right, power, authority or discretion vested herein upon the Majority
Banks,
the Banks or any other person or entity or group of persons or entities
has
not been exercised,
|
unless
it
has, in its capacity as Agent, received notice to the contrary from any other
party
to
a Transaction Document;
| (b) |
assume
that the Facility Office of each Bank and Hedging Bank is that
identified
in Schedule
1, the relevant Transfer Certificate or other such document that
evidences
the
transfer of a Bank or Hedging Bank's rights and interests until
it has
received from such
Bank or Hedging Bank a notice designating some other office to
replace its
Facility
Office and act upon any such notice until the same is superseded
by a
further such
notice;
|
|
(c)
|
engage
and pay for the advice or services of any lawyers, accountants, surveyors
or other
professional or technical experts whose advice or services may to
it seem
necessary,
expedient or desirable and rely upon any advice so
obtained;
|
| (d) |
appoint
any agent or delegate to any person or entity reasonably determined
by the
Agent
to be suitable qualified and experienced all or any of the rights,
powers
and authorisations
vested in it by the Financing Documents and the Agent shall not
be
bound
to supervise or be in anyway liable for any loss incurred by
any such
person or entity
by reason of any misconduct or default on the part of any such
agent or
delegate;
|
|
(e)
|
rely
as to any matters of fact which might reasonably be expected to be
within
the knowledge
of a Project Party upon a certificate signed by or on behalf of that
Project Party;
|
Page
66
| (f) |
rely
upon any communication or document believed by it to be
genuine;
|
| (g) |
refrain
from exercising any right, power or discretion vested in it as
Agent under
this Agreement
unless and until instructed by the Majority Banks as to whether
or not
such right,
power or discretion is to be exercised and, if it is to be exercised,
as
to the manner
in which it should be exercised;
and
|
| (h) |
refrain
from acting in accordance with any instructions of the Majority Banks
to
begin any legal action or proceeding arising out of or in connection
with
this Agreement until it shall have received such security as it may
require (whether by way of payment in advance or otherwise) for all
costs,
claims, losses, expenses (including, without limitation, legal fees)
and
liabilities together with any VAT or any other similar tax thereon
which
it may incur in complying with those
instructions.
|
| 19.3 |
Agent's
obligations
|
The
Agent
shall:
|
(a)
|
promptly
inform each Bank and Hedging Bank of the contents of any notice or
document
received by it in its capacity as Agent from the Borrower under any
Financing
Document;
|
|
(b)
|
promptly
notify each Bank and Hedging Bank of the occurrence of any Default
or any
default
by the Borrower in the due performance of or compliance with its
obligations under
any Financing Document of which the Agent has notice from any other
Party;
|
|
(c)
|
except
as otherwise provided in this Agreement, act as agent under the Financing
Documents
in accordance with any instructions given to it by the Majority Banks,
which
instructions shall be binding on all the Banks and Hedging Banks;
and
|
|
(d)
|
promptly
respond to and consider any and all documents sent by Borrower to
the
Agent
with respect of Completion, including providing confirmation as required
under the
Completion Test; and
|
|
(e)
|
if
so instructed by the Majority Banks, refrain from exercising any
right,
power or discretion
vested in it as Agent under any Financing
Document.
|
| 19.4 |
Agent's
protections
|
Notwithstanding
anything to the contrary in this Agreement, the Agent shall not:
| (a) |
be
bound to enquire as to:
|
| (i) |
whether
or not any representation made by any Project Party in connection
with
any Transaction Document is true;
|
| (ii) |
the
occurrence or otherwise of any
Default;
|
| (iii) |
the
performance by any Project Party of its obligations under any Transaction
Document;
or
|
| (iv) |
any
breach of or default by any Project Party of its obligations under
any
Transaction
Document;
|
|
(b)
|
be
bound to account to any Bank or Hedging Bank for any sum or the profit
element of any
sum received by it for its own
account;
|
|
(c)
|
be
bound to disclose to any other person or entity any information relating
to any Project
Party if such disclosure would or might in its opinion constitute
a breach
of any Law
or regulation or be otherwise actionable at the suit of any person
or
entity;
|
Page
67
|
(d)
|
be
liable to any Bank or Hedging Bank or any other party in respect
of any
waiver or confirmation
or agreement given under this Agreement at the request of the Borrower
and
in accordance with the instructions of the Majority Banks; or
|
|
(e)
|
be
under any obligations other than those for which express provision
is made
in this Agreement.
|
| 19.5 |
Indemnity
|
Each
Bank
and Hedging Bank shall indemnify the Agent on demand (to the extent not
reimbursed
by the Borrower) rateably according to that Bank's Participation in the Facility
(or, if no
Advance shall then be outstanding, its Commitment in respect of the Facility)
or
that Hedging Bank's Hedging Liabilities from and against all liabilities, losses
and expenses of any kind
or
nature whatsoever (except in respect of any fee due to the Agent) which may
be
incurred
by the Agent in relation to the Financing Documents or any action taken or
omitted in enforcing
or preserving the rights of the Banks and Hedging Banks under the Financing
Documents,
provided that no Bank or Hedging Bank shall be liable for any such liabilities,
losses or expenses resulting from the gross negligence or wilful misconduct
of
the Agent.
| 19.6 |
Responsibility
|
No
Financing Party or Hedging Bank accepts any responsibility for the accuracy
or
completeness
of any information supplied by the Borrower in connection with the Project
or
for the
legality, validity, effectiveness, adequacy or enforceability of any Transaction
Document and
the
Agent shall not be under any liability as a result of taking or omitting to
take
any action in relation to any Transaction Document, except in the case of gross
negligence or wilful misconduct.
| 19.7 |
Agent's
directors, officers and
employees
|
Each
Bank
and Hedging Bank agrees that it will not assert or seek to assert against any
director,
officer or employee of the Agent from time to time any claim it might have
against any of them in respect of the matters referred to in Clause
19.6.
| 19.8 |
Agent's
business
|
The
Agent
may accept deposits from, lend money to and generally engage in any kind of
banking or other business with any Project Party.
| 19.9 |
Resignation
and removal of Agent
|
| 19.9.1 |
The
Agent may resign or transfer to a related company within the same
group
its appointment under
this Agreement at any time without assigning any reason therefor
by giving
not less than 30
days' prior written notice to that effect to each of the other
Parties,
and the Majority Banks may
remove the Agent from its appointment under this Agreement without
assigning any reason
therefor by giving not less than 30 days' prior notice to that
effect to
the Agent and each of the other Parties, provided that no such
resignation, transfer or removal shall be effective
until:
|
| (a) |
a
successor Agent has accepted its appointment as such for the
purposes of
the Financing
Documents in accordance with Clause 19.10 and has agreed to
be bound
by
and comply with the obligations and to enjoy the rights of
the retiring
Agent thereunder
as if the successor Agent had been a party thereto in place
of the
retiring Agent;
and
|
| (b) |
without
prejudice to paragraph (a), the successor Agent has executed
and delivered
all
deeds and documents required under the terms of any Financing
Document
in relation
to its
appointment,
|
Page
68
whereupon:
| (i) |
the
retiring Agent shall cease to be a party to the Financing Documents
in its
capacity as such and shall have no further rights and be discharged
from
any further obligation thereunder (but without prejudice to any
liabilities accrued thereunder but unperformed by the retiring
Agent) but
shall remain entitled to the benefit of this Clause 19;
and
|
| (ii) |
the
successor Agent and each other party to the Financing Documents shall
have
the same rights and obligations amongst themselves as they would
have had
if the successor Agent had been a party thereto in place of the retiring
Agent,
|
and
the
Borrower shall execute and deliver all deeds and documents and do all acts
and
things as the retiring Agent or the successor Agent may reasonably require
in
relation to the appointment
of the successor Agent. The retiring Agent shall make available to the successor
Agent all records and documents held by it as Agent, and shall co-operate with
the successor Agent in order to ensure an orderly transition.
| 19.9.2 |
In
the event that the successor Agent is not a Bank or an Affiliate
of a
Bank, the Banks shall, other
than where an Event of Default has occurred and is continuing,
obtain the
consent of the Borrower
(not to be unreasonably delayed or withheld) prior to the appointment
of a
successor Agent.
|
| 19.9.3 |
The
successor Agent shall promptly notify the other Parties of its
appointment.
|
| 19.9.4 |
Subject
to the express provisions of this Agreement to the contrary,
each party
shall bear its own
costs or expenses incurred in connection with the resignation
or removal
of the Agent.
|
| 19.10 |
Successor
Agent
|
If
the
Agent gives notice of its resignation or if the Majority Banks give the Agent
notice of removal pursuant to Clause 19.9, then the Majority Banks may, with
the
consent of the Borrower
(not to be unreasonably delayed or withheld) and other than where an Event
of
Default
has occurred and is continuing, appoint as a successor to the Agent (after
consultation with
the
Borrower) any reputable and experienced bank or other financial institution
but,
if no such successor is so appointed before the fifth Business Day prior to
the
expiry of the period of
such
notice, the Agent may, with the consent of the Borrower (not to be unreasonably
delayed
or withheld) and other than where an Event of Default has occurred and is
continuing, appoint such a successor itself.
| 19.11 |
Credit
decisions
|
Each
Bank
and Hedging Bank agrees that it has itself been, and will continue to be, solely
responsible
for making its own independent appraisal of and investigations into the
financial condition,
creditworthiness, condition, affairs, status and nature of each Project Party
and of the
Project and, accordingly, each Bank and Hedging Bank represents and warrants
to
each Financing
Party, the Agent and to the Arranger that it has not relied on and will not
hereafter rely
on
it:
| (a) |
to
check or enquire on its behalf into the adequacy, accuracy or
completeness
of any information
provided by any Project Party or any other person or entity in
connection
with
any Transaction Document or the transactions contemplated in
the
Transaction Documents
(whether or not such information has been or is after the date
of this
Agreement
circulated to such Bank by the Agent);
or
|
| (b) |
to
assess or keep under review on its behalf the financial condition,
creditworthiness, condition,
affairs, status or nature of any Project Party or of the
Project.
|
Page
69
| 19.12 |
Agent's
agency division
|
Each
division or department of the Agent (including, for so long as Investec Bank
(UK) Limited is
the
Agent, the Commodities and Resource Financing Department) of Investec Bank
(UK)
Limited
shall be treated as a separate entity from any other division or department
of
the Agent.
If
any of the Agent's divisions or departments should act for any Project Party
in
any capacity
(whether as bankers or otherwise) in relation to any other matter, any
information given by that Project Party to any such division or department
may
be treated as confidential and the Agent shall, as between itself and the Banks
and the Hedging Banks, not be obliged to disclose the same to any Bank or
Hedging Bank or any other person or entity.
| 19.13 |
Banks'Advisers
|
The
Agent
shall take such steps as are reasonable and appropriate in the circumstances
to
procure
so far as it is able so to do that the Banks' Advisers punctually perform such
functions as
are
expressed to be performed by them as contemplated in this Agreement or in the
terms of their appointment, provided that the Agent shall not be held
responsible for any failure by a Banks' Adviser to perform any such function.
If
a Banks' Adviser shall cease to be such, whether by reason of removal,
replacement, resignation or otherwise, the Agent shall appoint another
Banks' Adviser as soon as reasonably practicable in order to ensure that those
functions
to be performed by the Banks' Adviser, as contemplated by this Agreement or
in
the terms
of
the appointment of the Banks' Adviser, are performed punctually.
| 19.14 |
Arranger
|
Other
than as specifically provided in the Financing Documents, the Arranger shall
have no obligations or responsibilities under, or in respect of, the Transaction
Documents or the Project.
| 19.15 |
Information
and fees
|
| 19.15.1 |
The
Agent shall provide the Banks and Hedging Banks with all information
and
copies of all notices
which are given to it and which by the terms of this Agreement
are to be
provided or given
to the Banks and Hedging Banks. The Agent may retain for its
own use and
benefit (and shall
not be liable to account to any Bank for all or any part of)
any sums
received by it by way of
agency or management or arrangement fees or by way of reimbursement
of
expenses incurred
by it.
|
| 19.15.2 |
Each
Bank and Hedging Bank confirms in favour of the Agent that, unless
it
notifies the Agent to
the contrary, it will be the beneficial owner of any interest
paid to it
under this Agreement and
it will be within the charge to United Kingdom corporation tax
as respects
that interest.
|
| 19.16 |
Change
of office
|
The
Agent
may at any time in its sole discretion by notice to the Borrower and each Bank
and Hedging Bank designate a different office from which its duties under this
Agreement will be performed.
| 19.17 |
Execution
of Financing Documents
|
Each
Bank
and Hedging Bank irrevocably authorises the Agent to sign or execute and
deliver, as
the
case may be, the following Financing Documents:
| (a) |
the
Intercreditor Agreement; and
|
| (b) |
theSecurity
Documents (except where entered into by the Security Trustee
on behalf
of
the Secured Parties), on
its
behalf.
|
Page
70
| 20 |
Miscellaneous
|
| 20.1 |
Partial
invalidity
|
If,
at
any time, any provision of the Financing Documents is or becomes illegal,
invalid or unenforceable
in any respect under any Law of any jurisdiction, neither the legality, validity
or enforceability
of the remaining provisions nor the legality, validity or enforceability of
such
provision under the Law of any other jurisdiction will in any way be affected
or
impaired.
| 20.2 |
Counterparts
|
Each
Financing Document may be executed in any number of counterparts, and this
has
the same effect as if the signatures on the counterparts were on a single copy
of the Financing Document.
| 21 |
Notices
|
| 21.1 |
Communications
in writing
|
Any
communication to be made under or in connection with the Financing Documents
shall be made in writing and, unless otherwise stated, may be made by fax or
letter.
| 21.2 |
Delivery
|
|
21.2.1
|
Any
communication or document made or delivered by one person or entity
to
another under or
in connection with the Financing Documents will only be
effective:
|
| (a) |
if
by way of fax, when received in legible form;
or
|
|
(b)
|
if
by way of letter, when it has been left at the relevant address or
five
Business Days after
being deposited in the post postage prepaid in an envelope addressed
to it
at that
address;
|
and,
if a particular department or officer is specified
as part of its address details provided under
Clause 21.3, if addressed to that department or officer.
|
21.2.2
|
Any
communication or document to be made or delivered to the Agent will
be
effective only when
actually received by the Agent and then only if it is expressly marked
for
the attention of the
department or officer identified with the Agent's signature below
(or any
substitute department
or officer as the Agent shall specify for this
purpose).
|
| 21.2.3 |
All
notices from or to the Borrower shall be sent through the
Agent.
|
|
21.2.4
|
Any
communication or document made or delivered to the Borrower in accordance
with this Clause
will be deemed to have been made or delivered to each of the
Obligors.
|
| 21.3 |
Addresses
|
| 21.3.1 |
The
address and fax number (and the department or officer, if any, for
whose
attention the communication
is to be made) of each Party for any communication or document to
be made
or
delivered under or in connection with the Financing Documents is
as
identified below or any substitute address or fax number or department
or
officer as the Party may notify to the Agent (or the Agent may notify
to
the other Parties, if a change is made by the Agent) by not less
than five
Business Days' notice:
|
(a)
the
Borrower:
▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
Page
▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇
▇▇▇
▇▇▇▇▇▇▇▇▇:
Chief Financial Officer
Fax:
(▇▇▇)▇▇▇-▇▇▇▇
(b) the
Guarantor:
▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇
▇
▇▇▇
▇▇▇▇▇▇▇▇▇:
Chief Financial Officer
Fax:
(▇▇▇)▇▇▇-▇▇▇▇
(c) the
Agent:
▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Loans
Administration
Fax: ▇▇▇
▇▇
▇▇▇▇ ▇▇▇▇
With
copies of legal notices to:
Attention: Documentation
and Counterparty Management
Fax: ▇▇▇
▇▇
▇▇▇▇ ▇▇▇▇
(d) the
Security Trustee:
▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
Attention: Loans
Administration
Fax: ▇▇▇
▇▇
▇▇▇▇ ▇▇▇▇
With
copies of legal notices to:
Attention: Documentation
and Counterparty Management
Fax: ▇▇▇
▇▇
▇▇▇▇ ▇▇▇▇
| 21.4 |
Notification
of address and fax number
|
Promptly
upon receipt of notification of an address or fax number or change of address
or
fax number
pursuant to Clause 21.3 or changing its own address or fax number, the Agent
shall notify
the other Parties.
Page
72
| 21.5 |
Electronic
communication
|
|
21.5.1
|
Any
communication to be made between the Agent and a Bank under or in
connection with the Financing
Documents may be made by electronic mail or other electronic means,
if the
Agent and
the relevant Bank:
|
|
(a)
|
agree
that, unless and until notified to the contrary, this is to be an
accepted
form of communication;
|
|
(b)
|
notify
each other in writing of their electronic mail address and/or any
other
information required
to enable the sending and receipt of information by that means;
and
|
|
(c)
|
notify
each other of any change to their address or any other such information
supplied
by them.
|
|
21.5.2
|
Any
electronic communication made between the Agent and a Bank will be
effective only when actually
received in readable form and in the case of any electronic communication
made by a Bank
to the Agent only if it is addressed in such a manner as the Agent
shall
specify for this purpose.
|
| 22 |
Assignments,
transfers and syndication
|
| 22.1 |
Assignments
and transfers by the
Borrower
|
The
Borrower may not assign any of its rights or transfer any of its rights or
obligations under the
Financing Documents.
| 22.2 |
Assignments
and transfers by Banks
|
|
22.2.1
|
Subject
to this Clause 22, a Bank (the Existing
Bank) may
transfer by novation any of its rights
and obligations under the Financing Documents listed in Schedule
7 to a
Qualifying Bank,
an Affiliate or another Bank (the New
Bank) provided
that if an Event of Default has occurred
and is continuing the Existing Bank may transfer to any bank or financial
institution, or
a trust, fund or other entity which is regularly engaged in or established
for the purpose of making,
purchasing or investing in loans, securities or other financial
assets.
|
| 22.2.2 |
A
transfer will only be effective if the procedure set out in Clause
22.4 is
complied with.
|
| 22.2.3 |
If:
|
|
(a)
|
a
Bank transfers any of its rights or obligations under the Finance
Documents in accordance
with Clause 22.2.1 or changes its Facility Office;
and
|
|
(b)
|
as
a result of circumstances existing at the date transfer or change
occurs,
the Borrower
would be obliged to make a payment or an increased payment to the
New
Bank
or Bank acting through its new Facility Office under Clause 9,7 or
Clause
8.2,
|
then
the
New Bank or Bank acting through its new Facility Office is only entitled to
receive payment
under those Clauses to the same extent as the Existing Lender or Lender acting
through
its previous Facility Office would have been if the transfer or change had
not
occurred.
|
22.2.4
|
The
New Bank shall, on the date upon which a transfer takes effect, pay
to the
Agent (for its own
account) a fee of $1,000.
|
| 22.3 |
Limitation
of responsibility of Existing
Banks
|
| 22.3.1 |
Unless
expressly agreed to the contrary, an Existing Bank makes no representation
or warranty
and assumes no responsibility to a New Bank
for:
|
Page
73
|
(a)
|
the
legality, validity, effectiveness, adequacy or enforceability of
the
Financing Documents
or any other documents;
|
| (b) |
the
financial condition of the
Borrower;
|
|
(c)
|
the
performance and observance by the Borrower of its obligations under
the
Financing
Documents or any other documents;
or
|
|
(d)
|
the
accuracy of any statements (whether written or oral) made in or
in
connection withany
Financing Document or any other document, and
any representations or warranties implied by Law are
excluded.
|
| 22.3.2 |
Each
New Bank confirms to the Existing Bank and the other Financing
Parties
that it:
|
|
(a)
|
has
made (and shall continue to make) its own independent investigation
and
assessment
of the financial condition and affairs of the Borrower and its
relate
dentities in connection with its participation in this Agreement
and has
not relied exclusively
on any information provided to it by the Existing Bank in connection
with
any
Financing Document; and
|
|
(b)
|
will
continue to make its own independent appraisal of the creditworthiness
of
each Borrower
and its related entities whilst any amount is or may be outstanding
under
the Financing
Documents or any Commitment is in
force.
|
| 22.3.3 |
Nothing
in any Financing Document obliges an Existing Bank
to:
|
|
(a)
|
accept
a re-transfer from a New Bank of any of the rights and obligations
assigned or transferred
under this Clause 22; or
|
|
(b)
|
support
any losses directly or indirectly incurred by the New Bank by reason
of
the non-performance
by the Borrower of its obligations under the Financing Documents
or
otherwise.
|
| 22.4 |
Procedure
for transfer
|
|
22.4.1
|
Subject
to the conditions set out in Clauses 22.1 and 22.2 a transfer is
effected
in accordance with
sub-clause 22.4.3 below when the Agent executes an otherwise duly
completed Transfer Certificate delivered to it by the Existing
Bank and
the New Bank. The Agent shall, subject to paragraph
(b) below, as soon as reasonably practicable after receipt by it
of a duly
completed Transfer
Certificate appearing on its face to comply with the terms of this
Agreement and delivered in accordance with the terms of this Agreement,
execute that Transfer Certificate.
|
|
22.4.2
|
The
Agent shall only be obliged to execute a Transfer Certificate delivered
to
it by the Existing Bank
and the New Bank once it is satisfied it has complied with all
necessary
"know your customer"
or other similar checks under all applicable Laws and regulations
in
relation to the transfer to such New
Bank.
|
| 22.4.3 |
On
the Transfer Date:
|
|
(a)
|
to
the extent that in the Transfer Certificate the Existing Bank seeks
to
transfer by novation
its rights and obligations under the Financing Documents the Borrower
and
the Existing Bank shall be released from further obligations towards
one
another underthe
Financing Documents and their respective rights against one another
under
the Financing Documents shall be cancelled (being the Discharged
Rights andObligations);
|
|
(b)
|
the
Borrower and the New Bank shall assume obligations towards one
another
and/oracquire rights against one another which differ from the
Discharged
Rights and
|
Page
74
Obligations
only insofar as the Borrower and the New Bank have assumed and/or acquired
the
same in place of the Borrower and the Existing Bank;
| (c) |
the
Agent, the Arranger, the New Bank and other Banks shall acquire
the same
rights and
assume the same obligations between themselves as they would have
acquired
and assumed had the New Bank been an original Bank with the rights
and/or
obligations
acquired or assumed by it as a result of the transfer and to that
extent
the Agent,
the Arranger and the Existing Bank shall each be released from
further
obligations to each other under the Financing Documents; and the
New Bank
shall become a Party as a "Bank".
|
| 22.5 |
Copy
of Transfer Certificate to
Borrower
|
The
Agent
shall, as soon as reasonably practicable after it has executed a Transfer
Certificate, send
to
the Borrower a copy of that Transfer Certificate.
| 22.6 |
Assignments
and transfers by Hedging
Banks
|
|
22.6.1
|
Each
Hedging Bank may transfer at its own cost any of its rights and
obligations under any Financing
Document and hereby undertakes to each Financing Party that it
will not
assign, novate, transfer or dispose of any of its rights or obligations
under any Financing Document,other than by way of novation, transfer
or
disposal to a Bank of all or part of its rights and obligations
under the
Hedging Document to which it is a party where such Bank is a Hedging
Bank
or agrees to execute the necessary documentation to become a party
to this
Agreement as a Hedging Bank.
|
|
22.6.2
|
Each
Party agrees that upon the execution of a transfer pursuant to
Clause
22.6.1, the transferee
Bank and each of the other Parties shall have the same rights and
obligations amongst themselves as if that transferee Bank had been
an
original Party to this Agreement as
a Hedging Bank. Each Party hereby irrevocably authorises the Agent
to
execute and deliver the required documentation on its
behalf.
|
| 22.7 |
Disclosure
of information
|
Any
Bank
or Hedging Bank may disclose to any of its Affiliates and any other person
or
entity:
|
(a)
|
to
(or through) whom that Bank assigns or transfers (or may potentially
assign or transfer) all or any of its rights and obligations under
this
Agreement;
|
|
(b)
|
with
(or through) whom that Bank enters into (or may potentially enter
into)
any sub-participation in relation to, or any other transaction
under which
payments are to bemade
by reference to, this Agreement or the Borrower;
or
|
|
(c)
|
to
whom, and to the extent that, information is required to be disclosed
by
any applicable Law or regulation, any information about the Borrower
and
the Financing Documents as that Bank shall consider appropriate.
|
| 22.8 |
Syndication
|
| 22.8.1 |
The
Borrower shall, at the request of the Arranger (acting reasonably),
provide reasonable assistance
to the Arranger in effecting Syndication,
by:
|
| (a) |
providing
such information available to it as may be required by the Arranger
(acting reasonably)
in connection with Syndication including, without limitation, in
connection with
the preparation, revision and approval of the Information Package
for
potential lending
institutions (which shall be in form and substance satisfactory
to the
Arranger and
approved by the Borrower); and
|
Page
75
|
(b)
|
making
management and members of staff of the Borrower available at reasonable
times
and on reasonable notice for the purposes of making presentations
to
potential lending institutions, and otherwise assisting the Arranger,
to
the extent reasonably necessary to achieve
Syndication.
|
| 22.8.2 |
The
Borrower shall give the representation and warranty set out in
Clause 10.1
(m) to each bank or financial institution which enters into a
transfer or
participation agreement in connection
with Syndication at the date or dates of Syndication (each a
Syndication
Date):
|
| 23 |
Indemnities
|
| 23.1 |
Indemnities
|
The
Borrower shall, within three Business Days of demand, indemnify each Financing
Party against any cost, loss or liability incurred by that Financing Party
as a
result of:
| (a) |
the
occurrence of any Event of Default;
|
|
(b)
|
a
failure by a Security Company to pay any amount due under a Financing
Document on its due date, including any cost, loss or liability
arising
as a result of Clause 18;
|
|
(c)
|
funding,
or making arrangements to fund, its participation in an Advance
requested
bythe
Borrower in a Drawdown Notice but not made by reason of the operation
of
anyone or more of the provisions of this Agreement (other than
by reason
of default or negligence
by that Financing Party alone); or
|
|
(d)
|
the
Loan (or part of the Loan) not being prepaid in accordance with
a notice
of prepayment given by the
Borrower.
|
| 23.2 |
Indemnity
to the Agent
|
The
Borrower shall promptly indemnify the Agent against any cost, loss or liability
incurred by the Agent (acting reasonably) as a result of:
| (a) |
investigating
any event which it reasonably believes is a
Default;
|
|
(b)
|
entering
into or performing any foreign exchange contract for the purposes
of
Clause 19; or
|
|
(c)
|
acting
or relying on any notice, request or instruction which it reasonably
believes to be
genuine, correct and appropriately
authorised.
|
| 23.3 |
Currency
indemnity
|
| 23.3.1 |
If
any sum due from the Borrower under the Financing Documents (a
Sum),
or
any order, judgment
or award given or made in relation to a Sum, has to be converted
from the
currency (the
First
Currency) in
which that Sum is payable into another currency (the Second
Currency)
for
the purpose of:
|
| (a) |
making
or filing a claim or proof against the Borrower;
or
|
|
(b)
|
obtaining
or enforcing an order, judgment or award in relation to any litigation
or
arbitration proceedings,
|
the
Borrower shall, as an independent obligation, within three Business Days
of
demand, indemnify each Financing Party to whom that Sum is due against any
cost,
loss or liability arising
out of or as a result of the conversion including any discrepancy between
(i)
the rate of exchange
used to convert that Sum from the First Currency into the Second Currency
and
(ii) the
rate
or rates of exchange available to that person or entity at the time of its
receipt of that
Sum.
Page
76
| 23.3.2 |
The
Borrower waives any right it may have in any jurisdiction to pay
any
amount under the Financing
Documents in a currency or currency unit other than that in which
it is
expressed to be payable.
|
| 23.4 |
Project
indemnities
|
The
Borrower shall, within 10 Business Days of demand, indemnify each Financing
Party and each
Hedging Bank on demand against any loss or expense sustained or incurred
by it
as a result
of:
|
(a)
|
it
incurring any liability under or pursuant to any Environmental
Law or
Environmental Authorisation
which would not have been incurred by it if it was not party to
the
arrangements
established under or pursuant to the Financing Documents;
or
|
|
(b)
|
any
failure on the part of the Borrower to comply with any Environmental
Authorisation or
Environmental Law; or
|
|
(c)
|
any
acts or omissions of any Project Party arising out of or in connection
with the obligations
to be performed by or on behalf of that Project Party pursuant
to the
Transaction Documents, except, in each case, where any such liability
is
due to the gross misconduct or wilful negligence
of any Financing Party.
|
| 24 |
Confidentiality
|
| 24.1 |
Borrower
confidentiality
|
|
24.1.1
|
The
Borrower undertakes not to disclose to any third party any of the
material
financial terms and
conditions of this Agreement or any other Financing Document other
than:
|
| (a) |
to
its auditors or professional
advisers;
|
| (b) |
to
its Affiliates and potential
Affiliates;
|
|
(c)
|
in
any proceedings arising out of or in connection with the Financing
Documents or if required by an order of any court of competent
jurisdiction or in pursuance of any procedure
for disclosure of documents in any proceedings before such
court;
|
|
(d)
|
pursuant
to any request or requirement of an agency or any state or if required
under any
applicable Law or directive as if required by any securities exchange
on
which the securities
of any Security Company or any Affiliate of any Security Company
are
listed;
|
| (e) |
to
the Insurers in fulfilment of any obligation arising under the
Insurances;
or
|
| (f) |
with
the prior consent of the Agent (acting on the instructions of the
Majority
Banks).
|
|
24.1.2
|
Nothing
in this Clause 24.1 shall apply to any information, reports or
documents
which shall have
come into the public domain (otherwise than in consequence of a
breach
of
Clause
24.1). Nor shall Clause 24.1 apply to any information, report or
document
received in good faith by the Borrower otherwise than from a Financing
Party or a person or entity acting on a Financing Party's
behalf.
|
Page
77
| 24.2 |
Financing
Party and Hedging Bank
confidentiality
|
|
24.2.1
|
Subject
to Clause 24.2.4, each Financing Party and each Hedging Bank shall,
at all
times during and after the continuance of this Agreement, hold
confidential and not disclose to any third
party and (except in the context of an accretion to its general
experience, knowledge and expertise
or with the consent of the Borrower) use only for the purposes
of the
Project, the Transaction
Documents all confidential information, reports or documents relating
to
the Project
received by it pursuant to, or in the course of the negotiations
leading
to, the Financing Documents
(Confidential
Information).
|
| 24.2.2 |
A
Financing Party and a Hedging Bank shall be permitted to disclose
Confidential Information:
|
| (a) |
to
its auditors or professional
advisers;
|
| (b) |
to
any of the Banks' Advisers (subject to Clause
24.2.4);
|
|
(c)
|
to
any actual or potential assignee, novatee or sub-participant (in
each case
subject to Clause
24.2.4);
|
|
(d)
|
in
any proceedings arising out of or in connection with the Transaction
Documents or if required by an order by any court of competent
jurisdiction or in pursuance of any procedure
for disclosure of documents in any proceedings before such
court;
|
|
(e)
|
pursuant
to any request or requirement of an agency or any state or if required
under any applicable Law or
directive;
|
| (f) |
to
the Insurers in fulfilment of any obligation arising under the
Insurances;
or
|
|
(g)
|
at
any time after any Security created under or pursuant to the Security
Documents has become exercisable, in connection with the enforcement
of
that Security.
|
|
24.2.3
|
Nothing
in this Clause 24.2 shall apply to any information, reports or
documents
which shall have
come into the public domain (otherwise than in consequence of a
breach of
Clause 24.2). Nor shall Clause 24.2 apply to any information, report
or
document received in good
faith by a Financing Party or a Hedging Bank otherwise than from
the
Borrower or a person
or entity acting on the Borrower's
behalf.
|
|
24.2.4
|
A
disclosure of Confidential Information may only be made under Clause
24.2.2(b) and Clause
24.2.2(c) subject to the relevant Financing Party or Hedging Bank
obtaining from the recipient of such Confidential Information an
undertaking substantially in the terms of Clause
24.2.
|
| 25 |
Law
and jurisdiction
|
| 25.1 |
Law
|
This
Agreement is governed by English Law.
| 25.2 |
Jurisdiction
|
|
25.2.1
|
The
courts of England have exclusive jurisdiction to settle any dispute
arising out of or in connection
with this Agreement (including a dispute regarding the existence,
validity
or termination
of this Agreement) (a Dispute).
|
|
25.2.2
|
The
Parties agree that the courts of England are the most appropriate
and
convenient courts to settle Disputes and accordingly no Party will
argue
to the contrary.
|
This
Clause 25.2 is for the benefit of the Financing Parties only. As a result,
no
Financing Party
shall be prevented from taking proceedings relating to a Dispute in any other
courts with jurisdiction.
To the extent allowed by law, the Financing Parties may take concurrent
proceedings in any number of jurisdictions.
Page
78
25.3
Service of process
Without
prejudice to any other mode of service allowed under any relevant Law, each
of
the Borrower and the Guarantor:
|
(a)
|
irrevocably
appoints Law Debenture Corporate Services of ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ as its agent for service of process in relation
to any
proceedings
before the English courts in connection with any Financing Document;
and
|
|
(b)
|
agrees
that failure by a process agent to notify the Borrower or the Guarantor
(as applicable)
of the process will not invalidate the proceedings
concerned.
|
In
witness whereof
the Parties have caused this Agreement to be duly executed on the date set
out
above.
Page
79
Schedule
1 - The Banks
| Part A: Term Facility Banks | ||
| Bank and Facility Office |
Address
for Notices
|
Commitment
|
| Investec Bank (UK) Limited (London) |
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
US$105,000,000 |
|
Part
B: Hedging Banks
|
||
| Bank and Office |
Address
for Notices
|
|
|
Investec
Bank (UK) Limited (London)
|
▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
Page
80
Schedule
2 - Part 1 - Conditions Precedent
The
Agent
shall have received the items listed in the paragraphs 1 to 7 below in form
and
substance satisfactory to it or is satisfied that any conditions set out
therein
have been met.
| 1. |
Delivery
of Corporate Documents
|
|
(a)
|
A
Certified Copy of the certificate of incorporation (and any relevant
certificate of incorporation on change of name) and constitutional
documents and by-laws of each Security
Company.
|
|
(b)
|
A
Certified Copy of each shareholder resolution and board minutes,
as
applicable, of each Security Company approving and authorising
the
execution, delivery and performance of each Financing Document
to which it
is a party on the terms and conditions of those documents and authorising
a person or persons to sign or otherwise
attest the due execution of those documents and any other documents
to be
executed
or delivered by it pursuant to those documents (including approval
by the
Guarantor's
and the Borrower's boards of directors of the Initial Development
Plan).
|
|
(c)
|
A
Certified Copy of each of the consents, licences, approvals or
authorisations of any governmental or other authority, bureau or
agency
required by each Security Company
party to the Financing Documents in connection with the execution,
delivery, performance,
validity or enforceability of the Financing Documents or any document
to
be delivered under the Financing
Documents.
|
| (d) |
A
solvency certificate of each Security
Company.
|
|
(e)
|
A
certificate from the Borrower stating that there has been no material
adverse change in the condition of the Borrower or the Borrower's
Assets
since 31 December 2006.
|
|
(f)
|
A
secretary's certificate of the Guarantor relating to the corporate
structure of the Security
Companies.
|
|
(g)
|
A
secretary's certificate for each Security Company certifying the
corporate
documentation delivered under this paragraph 1, together with an
incumbency certificate for each Security
Company.
|
| 2. |
Delivery
of original documentation
|
| (a) |
An
original of each Financing
Document.
|
|
(b)
|
Evidence
that the agreed Approved Hedging Programme has been entered into,
any
amounts due and payable to the Hedging Banks thereunder have been
paid and
any Derivative Transactions required to be entered into on or before
the
first Advance to comply
with the terms thereof shall have been entered into. For the purposes
of
entering into the Approved Hedging Programme, the Borrower shall
be
required to satisfy
all other conditions precedent listed in this
Schedule.
|
| (c) |
A
Certified Copy of the Subordinated Loan
Agreement.
|
3. Financial
conditions precedent
| (a) |
Confirmation
that the Facility Accounts have been opened with the Account
Bank.
|
|
(b)
|
Evidence
that an amount equal to the Committed Equity less the Sunk Equity
has been
deposited into the Proceeds
Account.
|
| (c) |
Evidence
that US$7,500,000 has been deposited into the Cost Overrun
Account.
|
Page
81
|
(d)
|
Confirmation
that all requirements under the Fees Letters have been met on or
before
the date of the first Advance, including irrevocable instructions
issued
by the Borrower to
the Agent to pay all amounts due and payable under the Fees Letters
out of
the proceeds
of the first Advance.
|
|
(e)
|
An
agreed Base Case Model to be held with the Agent on behalf of the
Banks
and the Hedging
Banks.
|
|
(f)
|
The
Initial Development Plan covering normal physical mining parameters,
mineral production
and the Agent being satisfied that the cashflow is substantially
the same
as or
higher than as that set out in the Feasibility Study. The Initial
Development Plan shall
include:
|
| (i) |
the
Base Case Model (which shall be consistent with of the Initial
Development
Plan) showing (each as defined in the Base Case
Model):
|
| (aa) |
the
Project Life Cover Ratio is greater than 2:0;
|
| (bb) |
the
Loan Life Cover Ratio is greater than 1.7:0;
|
|
(cc)
|
the
forward looking Debt Service Cover Ratio is greater than 1.5:0;
|
| (dd) |
the
Reserve Tail is greater than 30 per cent; and
|
| (ii) |
a draft Operating
Budget.
|
For
the
purposes of calculating the ratios set out in paragraph (i) above, it shall
be
assumed that the Facility is fully drawn during the Availability Period and
that
the first calculation date in respect of which calculation is made is the
Target
Completion Date or the Interest Date following such date.
|
(g)
|
All
reasonable out-of-pocket expenses due and owing to the Agent in
respect of
the third
party costs, including the reasonable fees and other charges of
▇▇▇▇▇▇
▇▇▇▇▇ Sapte
LLP as counsel for the Agent, shall have been paid, or the Agent
is
satisfied shall be paid, in full to the extent invoiced to the
Borrower on
or before the first Advance.
|
| 4. |
Project
documentation and
authorisations
|
|
(a)
|
Certified
Copies of each Material Contract (other than those Material Contracts
referred
to in paragraph (f) of the definition of Material Contracts) duly
executed
and delivered
by each party thereto on terms and with parties in each case acceptable
to
the
Agent acting reasonably and confirmation that each has become
effective.
|
|
(b)
|
Evidence
that all conditions precedent in the Material Contracts (other
than those
Material Contracts referred to in paragraph (f) of the definition
of
Material Contracts) and the Mining Claims listed in Schedule 2,
Part 2
have been met in full or waived or a certificate of the Borrower
that
there are no such conditions
precedent.
|
|
(c)
|
Evidence
or a certificate that none of the Material Contracts (other than
those
Material Contracts referred to in paragraph (f) of the definition
of
Material Contracts) and/or the Mining
Claims are subject to any condition which would or might prevent
it (or
the rights or obligations of any party under it) from coming into
effect.
|
| (d) |
Certified
Copies of all necessary Mining Claims set out in Schedule 2, Part
2.
|
|
(e)
|
Certified
Copies of the Permits listed in Schedule 10, Part A, together with
Certified Copies
of the Bonding/Reclamation Plans listed in Schedule 10, Part B,
paragraph
1.
|
Page
82
| (f) |
Insurances:
|
| (i) |
the
Agreed Insurance Programme in the agreed
form;
|
| (ii) |
evidence
satisfactory to the Agent that the Insurances required to be in
full
force
and effect on or prior to the Effective Date pursuant to the Agreed
Insurance
Programme are in full force and effect and in accordance with the
terms
thereof, including evidence that the Financing Parties and Hedging
Banks
are included as insured parties on the relevant insurance
policies;
|
| (iii) |
a
letter from the Borrower's brokers in form and substance satisfactory
to
the Agent;
|
| (iv) |
evidence
satisfactory to the Banks' Insurance Adviser that adequate disclosure
has
been made to all the Insurers in respect of the
Insurances;
|
| (v) |
a
report from the Banks' Insurance Adviser confirming that the Insurance
meets
the Banks' and Hedging Banks' requirements hereunder;
and
|
| (vi) |
to
the extent that delay in start up insurance cover is not part of
the
Agreed Insurance Programme, confirmation from the Borrower that
there are
no material delays to the equipment delivery schedule for the Project
(such schedule in the form as at the date of this
Agreement).
|
| 5. |
Miscellaneous
|
|
(a)
|
The
Information Package (to extent not already provided elsewhere under
this
Schedule).
|
|
(b)
|
Evidence
of identification of certain authorised officers of the Borrower
including
certified copies of respective passports and other documentation
evidencing their permanent residential
addresses.
|
|
(c)
|
Written
waivers from the relevant counterparties in respect of all or any
negative
pledges and/or covenants binding on the Guarantor other than under
the
Financing Documents or a certificate from the Borrower that none
are
required.
|
|
(d)
|
Evidence
that the Project Team for the design and construction phase have
been
appointed and evidence of the delivery of the Borrower's plan for
the
Project Team for the operating phase, in each case satisfactory
to the
Agent (acting reasonably).
|
|
(e)
|
Evidence
that each of the Security Companies has appointed an agent for
the service
of
process in the jurisdiction of England and Wales under each Financing
Document expressed
to be governed by English law.
|
|
(f)
|
Reports
from the Model Auditor, the Independent Technical Consultant and
the
Banks' Insurance
Adviser.
|
|
(g)
|
Copies
of all documents and information required by Law for the Banks
to satisfy
their "know-your-customer"
requirements.
|
| (h) |
Certified
Copies of the Reclamation Bonds.
|
| (i) |
The
issue of legal opinions in satisfactory form relating to, amongst
other
things, each Security
Company party to the Security Documents and their obligations under
the
Financing
Documents to which they are a party and perfection of security
interests
granted thereunder issued by:
|
| (i) |
▇▇▇▇▇▇
▇▇▇▇▇ Sapte LLP as to English law;
|
Page
83
| (ii) |
DLA
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ US LLP as to the laws of California;
(iii)
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP as to the laws of Idaho; and
(iv)
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ as to the laws of
Nevada.
|
| 6. |
Delivery
of Security Documents
|
|
(a)
|
All
notices of charge, if any, to be delivered pursuant to the Security
Documents, together with acknowledgements thereof have been delivered
and
acknowledgements received.
|
|
(b)
|
Delivery
of original share certificates, together with duly executed indorsement
certificates in the form of Exhibit A to the Pledge Agreement (or
other
instrument of transfer
or assignment in blank, in form and substance satisfactory to Security
Trustee)
to the Security Trustee in respect of those shares to be pledged
to the
Security
Trustee pursuant to the Pledge Agreement. A certified copy of an
extract
from the
share register in respect of the Borrower for the whole of the
issued
share capital of
the Borrower.
|
|
(c)
|
All
filings, registrations and recordings required for the validity,
enforceability or priority of
the Financing Documents have been made or the Agent is satisfied
will be
made, within
the required time limit (if any).
|
|
(d)
|
Acknowledgements
to the Agent of notice of security over the Facility Accounts from
the
Account Bank as appropriate in the required form (except insofar
as
contained in the Account Control
Agreement).
|
| 7. |
Completion
|
The
Completion Test in the agreed form.
Page
84
Schedule
2 - Part 2 - Mining Claims
Unpatented
Mining and Millsite Claims Owned by Western Mesquite Mines,
Inc.
The
following-described mining and millsite claims located within Section ▇▇,
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 18 East, and Sections 2-11 and 15, Township 13 South,
Range 19 East, SBB&M, Imperial County,
California:
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
MESQ
7
|
94380
|
1473
|
177
|
1590
|
628-29
|
|||||||||||
|
MESQ
8
|
94381
|
1473
|
178
|
1506
|
572-74
|
|||||||||||
|
MESQ
9
|
94382
|
1473
|
179
|
1590
|
630-31
|
|||||||||||
|
MESQ
31
|
108987
|
1483
|
1092
|
1506
|
578-79
|
|||||||||||
|
MESQ
42
|
108998
|
1483
|
1094
|
|||||||||||||
|
MESQ
43
|
108999
|
1483
|
1095
|
|||||||||||||
|
MESQ
44
|
109000
|
1483
|
1096
|
|||||||||||||
|
MESQ
46
|
115872
|
1491
|
197
|
1495
|
1311-13
|
|||||||||||
|
MESQ
50
|
121208
|
1495
|
32
|
1506
|
607-08
|
|||||||||||
|
MESQ
51
|
121209
|
1495
|
33
|
1506
|
609-10
|
|||||||||||
|
MESQ
52
|
121210
|
1495
|
34
|
1506
|
611-12
|
|||||||||||
|
MESQ
53
|
121211
|
1495
|
35
|
1506
|
613-14
|
|||||||||||
|
SEA
9
|
121212
|
1495
|
36
|
1506
|
629-30
|
|||||||||||
|
SEA
18
|
105163
|
1479
|
1260
|
1506
|
637-38
|
|||||||||||
|
SEA
19
|
105164
|
1479
|
1261
|
1506
|
639-40
|
|||||||||||
|
SEA
20
|
105165
|
1479
|
1262
|
1506
|
641-42
|
|||||||||||
|
SEA
29
|
105166
|
1479
|
1263
|
1506
|
643-44
|
|||||||||||
|
SEA
30
|
105167
|
479
|
1264
|
1506
|
645-46
|
|||||||||||
|
SEA
31
|
105168
|
1479
|
1265
|
1506
|
647-48
|
|||||||||||
|
SEA
32
|
105169
|
1479
|
1266
|
1506
|
649-50
|
|||||||||||
|
SEA
33
|
105170
|
1479
|
1267
|
1506
|
651-52
|
|||||||||||
|
SEA
34
|
105171
|
1479
|
1268
|
1506
|
653-54
|
|||||||||||
|
SEA
35
|
105172
|
1479
|
1269
|
1506
|
655-56
|
|||||||||||
|
SEA
36
|
105173
|
1479
|
1270
|
1506
|
657-58
|
|||||||||||
|
SEA
37
|
105174
|
1479
|
1271
|
1506
|
659-60
|
|||||||||||
|
SEA
38
|
105175
|
1479
|
1272
|
1506
|
661-62
|
|||||||||||
|
SEA
40
|
105177
|
1479
|
1274
|
1506
|
663-64
|
|||||||||||
|
SEA
43
|
105180
|
1479
|
1277
|
1506
|
665-66
|
|||||||||||
|
SEA
44
|
105181
|
1479
|
1278
|
1506
|
667-68
|
|||||||||||
|
SEA
45
|
105182
|
1479
|
1279
|
1506
|
669-70
|
|||||||||||
|
SEA
46
|
105183
|
1479
|
1280
|
1506
|
671-72
|
|||||||||||
|
SEA
47
|
105184
|
1479
|
1281
|
1506
|
673-74
|
|||||||||||
|
SEA
48
|
105185
|
1479
|
1282
|
1506
|
675-76
|
|||||||||||
|
SEA
49
|
105186
|
1479
|
1283
|
1506
|
677-78
|
|||||||||||
|
SEA
56
|
105187
|
1479
|
1284
|
1506
|
679-80
|
|||||||||||
Page
85
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
SEA
58
|
105189
|
1479
|
1286
|
1506
|
681-82
|
|||||||||||
|
SEA
60
|
105191
|
1479
|
1288
|
1506
|
683-84
|
|||||||||||
|
SEA
61
|
105192
|
1479
|
1289
|
1506
|
685-86
|
|||||||||||
|
SEA
89
|
105220
|
1479
|
1317
|
|||||||||||||
|
SEA
98
|
105229
|
1479
|
1326
|
|||||||||||||
|
SEA
107
|
105238
|
1479
|
1335
|
|||||||||||||
|
SEA
121
|
105247
|
1479
|
1344
|
|||||||||||||
|
SEA
123
|
105249
|
1479
|
1346
|
|||||||||||||
|
SEA
125
|
105251
|
1479
|
1348
|
|||||||||||||
|
SEA
127
|
105253
|
1479
|
1350
|
|||||||||||||
|
SEA
129
|
105255
|
1479
|
1352
|
|||||||||||||
|
SEA
131
|
105257
|
1479
|
1354
|
|||||||||||||
|
SEA
133
|
105259
|
1479
|
1356
|
|||||||||||||
|
SEA
135
|
105261
|
1479
|
1358
|
|||||||||||||
|
SEA
137
|
105263
|
1479
|
1360
|
|||||||||||||
|
SEA
139
|
105265
|
1479
|
1362
|
|||||||||||||
|
SEA
141
|
105267
|
1479
|
1364
|
|||||||||||||
|
SEA
327
|
109895
|
1482
|
1160
|
1506
|
703-04
|
|||||||||||
|
SEA
328
|
109896
|
1482
|
1161
|
1506
|
705-06
|
|||||||||||
|
SEA
330
|
109898
|
1482
|
1163
|
1506
|
707-08
|
|||||||||||
|
SEA
332
|
109900
|
1482
|
1165
|
1506
|
709-10
|
|||||||||||
|
SEA
336
|
109904
|
1482
|
1169
|
1506
|
711-12
|
|||||||||||
|
SEA
339
|
109907
|
1482
|
1172
|
1506
|
715-16
|
|||||||||||
|
SEA
340
|
109908
|
1482
|
1173
|
1506
|
717-18
|
|||||||||||
|
SEA
746
|
121213
|
1495
|
37
|
1506
|
721-22
|
|||||||||||
|
SEA
747
|
121214
|
1495
|
38
|
1506
|
723-24
|
|||||||||||
|
SEA
748
|
121215
|
1495
|
39
|
1506
|
725-26
|
|||||||||||
|
SEA
759
|
121217
|
1495
|
41
|
1506
|
727-28
|
|||||||||||
|
SEA
760
|
121218
|
1495
|
42
|
1506
|
729-30
|
|||||||||||
|
SEA
761
|
121219
|
1495
|
43
|
1506
|
731-32
|
|||||||||||
|
SEA
762
|
121220
|
1495
|
44
|
1506
|
733-34
|
|||||||||||
|
SEA
763
|
121221
|
1495
|
45
|
1506
|
735-36
|
|||||||||||
|
SEA
764
|
121222
|
1495
|
46
|
1506
|
737-38
|
|||||||||||
|
SEA
765
|
121223
|
1495
|
47
|
1506
|
739-40
|
|||||||||||
|
SEA
766
|
121224
|
1495
|
48
|
1506
|
741-42
|
|||||||||||
|
SEA
767
|
121225
|
1495
|
49
|
1506
|
743-44
|
|||||||||||
|
SEA
768
|
121226
|
1495
|
50
|
1506
|
745-46
|
|||||||||||
|
SEA
769
|
121227
|
1495
|
51
|
1506
|
747-48
|
|||||||||||
|
SEA
770
|
121228
|
1495
|
52
|
1506
|
1467-68
|
|||||||||||
|
SEA
773
|
121229
|
1495
|
53
|
1506
|
749-50
|
|||||||||||
|
SEA
774
|
121230
|
1495
|
54
|
1506
|
751-52
|
|||||||||||
|
DTL
1
|
238260
|
1655
|
797
|
|||||||||||||
|
LUCKY
STRIKE 1
|
94401
|
1473
|
198
|
1492
|
1294-95
|
|||||||||||
|
LUCKY
STRIKE 2
|
109012
|
1483
|
1079
|
1492
|
1296-97
|
|||||||||||
|
BIG
BROTHER 2
|
24626
|
1178
|
546
|
1590
|
624-25
|
|||||||||||
Page
86
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
BUDDY
5
|
24633
|
1278
|
788
|
1492
|
1265-66
|
|||||||||||
|
BUDDY
6
|
24634
|
1373
|
739
|
1492
|
1267-68
|
|||||||||||
|
BUDDY
7
|
24635
|
1373
|
740
|
1492
|
1269-71
|
|||||||||||
|
BUDDY
11
|
24639
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
1279-81
|
|||||||||||
|
GOLD
BUG 1
|
32398
|
1100
|
22
|
1492
|
1474-75
|
|||||||||||
|
GOLD
BUG 2
|
32399
|
1100
|
24
|
1492
|
1476-77
|
|||||||||||
|
GOLD
BUG 3
|
32400
|
1100
|
321
|
1492
|
1478-79
|
|||||||||||
|
GOLD
BUG 6
|
32403
|
1195
|
384
|
1492
|
1486-88
|
|||||||||||
|
GOLD
BUG 8
|
32405
|
1101
|
296
|
1492
|
1489-91
|
|||||||||||
|
GOLD
BUG 9
|
32406
|
1100
|
321
|
1492
|
1492-93
|
|||||||||||
|
GOLD
BUG 10
|
32407
|
1208
|
768
|
1492
|
1494-95
|
|||||||||||
|
GOLD
BUG 11
|
32408
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
1496-98
|
|||||||||||
|
GOLD
BUG 12
|
32409
|
1101
|
296
|
1493
|
352-53
|
|||||||||||
|
GOLD
BUG 13
|
32410
|
1101
|
296
|
1493
|
350-51
|
|||||||||||
|
GOLD
BUG 14
|
32411
|
1208
|
768
|
1492
|
1499-1500
|
|||||||||||
|
GOLD
BUG 15
|
32412
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
1501-03
|
|||||||||||
|
GOLD
BUG 16
|
32413
|
1215
|
211
|
1492
|
1504-05
|
|||||||||||
|
GOLD
BUG 17
|
32414
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
348-49
|
|||||||||||
|
GOLD
BUG 18
|
32415
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
1506-07
|
|||||||||||
|
GOLD
BUG 19
|
32416
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
1508-10
|
|||||||||||
|
GOLD
BUG 20
|
32417
|
1219
|
803
|
1492
|
1511-12
|
|||||||||||
|
GOLD
BUG 21
|
32418
|
1221
|
69
|
1492
|
1513-15
|
|||||||||||
|
GOLD
BUG 22
|
32419
|
1221
|
69
|
1492
|
1516-18
|
|||||||||||
|
GOLD
BUG 23
|
32420
|
1257
|
327
|
1492
|
1519-21
|
|||||||||||
|
GOLD
BUG 25
|
32422
|
1368
|
1736
|
1493
|
404-05
|
|||||||||||
|
GOLD
BUG 26
|
32423
|
1368
|
1737
|
1492
|
1524-26
|
|||||||||||
|
GOLD
BUG 27
|
109176
|
1483
|
1445
|
1492
|
1527-29
|
|||||||||||
|
GOLD
BUG 28
|
109005
|
1483
|
1085
|
1492
|
1530-32
|
|||||||||||
|
KEYSTONE
1
|
28623
|
1265
|
741
|
1492
|
1468-71
|
|||||||||||
|
KEYSTONE
2
|
109009
|
1483
|
1088
|
1492
|
1472-73
|
|||||||||||
|
GCB
|
17811
|
1423
|
1311
|
1590
|
620-21
|
|||||||||||
|
GCC
|
17812
|
1423
|
1312
|
1492
|
1228-30
|
|||||||||||
|
BEARCAT
|
42165
|
1216
|
926
|
1495
|
89-91
|
|||||||||||
|
BU
BU 1
|
42164
|
1101
|
550
|
1492
|
1400-01
|
|||||||||||
|
BU
BU 3
|
109003
|
1483
|
1083
|
1492
|
1411-13
|
|||||||||||
|
BLACK
IRON 1
|
32876
|
1273
|
827
|
1493
|
1103-05
|
|||||||||||
|
▇▇▇▇▇▇▇
2
|
32887
|
1344
|
261
|
1506
|
555-56
|
|||||||||||
|
▇▇▇▇▇
▇▇▇▇
|
52728
|
1364
|
278
|
1506
|
793-94
|
|||||||||||
|
1446
|
260
|
|||||||||||||||
|
RIBBIT
|
111065
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
791-92
|
|||||||||||
|
BLACK
CAT 1
|
63547
|
1364
|
285
|
1506
|
763-64
|
|||||||||||
|
1446
|
256
|
|||||||||||||||
|
BLACK
CAT 2
|
63548
|
1364
|
286
|
1506
|
765-66
|
|||||||||||
|
1446
|
258
|
|||||||||||||||
Page
87
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
BLACK
CAT 3
|
64791
|
1364
|
287
|
1506
|
767-68
|
|||||||||||
|
1448
|
180
|
|||||||||||||||
|
BLACK
CAT 4
|
64792
|
1364
|
288
|
1506
|
769-70
|
|||||||||||
|
1448
|
181
|
|||||||||||||||
|
BLACK
CAT 5
|
64793
|
1364
|
289
|
1506
|
771-72
|
|||||||||||
|
1448
|
182
|
|||||||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 1
|
52720
|
1364
|
279
|
1506
|
773-74
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 2
|
111060
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
775-76
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 3
|
111061
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
777-78
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 4
|
52724
|
1364
|
712
|
1506
|
779-80
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 5
|
111062
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
781-82
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 6
|
64794
|
1448
|
913
|
1506
|
783-84
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 7
|
64795
|
1448
|
914
|
1506
|
785-86
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 8
|
64796
|
1448
|
915
|
1506
|
787-88
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 9
|
111063
|
▇▇▇▇
|
▇▇▇
|
▇▇▇▇
|
789-90
|
|||||||||||
|
▇▇▇▇▇▇
▇▇▇▇ 10
|
135917
|
1510
|
1128
|
|||||||||||||
|
HIDDEN
GOLD 1
|
65546
|
1448
|
1344
|
1506
|
843-45
|
|||||||||||
|
HIDDEN
GOLD 2
|
65547
|
1448
|
1345
|
1506
|
846-48
|
|||||||||||
|
LADY
BE GOOD
|
43085
|
522
|
399
|
1577
|
1791-92
|
|||||||||||
|
AUTOMATIC
|
52736
|
1362
|
1096
|
1506
|
833-34
|
|||||||||||
|
PI
|
108134
|
1481
|
88
|
1521
|
332-33
|
|||||||||||
|
DONNIES
HOPE 2
|
92559
|
1471
|
1719
|
1506
|
755-58
|
|||||||||||
|
CHEROKEE
2
|
26094
|
1325
|
390
|
1492
|
1418-19
|
|||||||||||
|
CHEROKEE
3
|
29102
|
1436
|
388
|
1492
|
1420-21
|
|||||||||||
|
CHEROKEE
4
|
45364
|
1438
|
1207
|
1492
|
1422-24
|
|||||||||||
|
CHEROKEE
5
|
58590
|
1442
|
1106
|
1492
|
1425-27
|
|||||||||||
|
PAY
DIRT 11
|
15536
|
1419
|
21
|
1492
|
1431-34
|
|||||||||||
|
PAY
DIRT 13
|
15538
|
1419
|
23
|
1492
|
1435-37
|
|||||||||||
|
PAY
DIRT 15
|
15540
|
1419
|
25
|
1492
|
1438-40
|
|||||||||||
|
PAY
DIRT 16
|
15541
|
1419
|
26
|
1492
|
1441-43
|
|||||||||||
|
PAY
DIRT 17
|
109013
|
1483
|
1081
|
1492
|
1444-46
|
|||||||||||
|
▇▇▇▇▇▇
▇. 1
|
37971
|
1438
|
1208
|
1492
|
1447-48
|
|||||||||||
|
▇▇▇▇▇▇
▇. 4
|
37974
|
1438
|
1211
|
1492
|
1453-55
|
|||||||||||
|
▇▇▇▇▇▇
▇. 5
|
37975
|
1438
|
1212
|
1492
|
1456-57
|
|||||||||||
|
STREAK
OF SILVER 1
|
59548
|
1442
|
1350
|
1492
|
1581-83
|
|||||||||||
|
STREAK
OF SILVER 2
|
59549
|
1442
|
1349
|
1492
|
1584-86
|
|||||||||||
|
STREAK
OF SILVER 3
|
59550
|
1442
|
1348
|
1492
|
1587-89
|
|||||||||||
|
PRINCE
1
|
29836
|
624
|
495
|
1590
|
615-16
|
|||||||||||
|
GOLDEN
DREAM 8
|
29861
|
1368
|
1650
|
1492
|
1607-08
|
|||||||||||
|
GOLDEN
DREAM 9
|
29862
|
1368
|
1651
|
1492
|
1609-11
|
|||||||||||
|
GOLDEN
DREAM 10
|
29863
|
1368
|
1652
|
1492
|
1612-13
|
|||||||||||
|
GOLDEN
DREAM 11
|
29864
|
1368
|
1653
|
1492
|
1614-15
|
|||||||||||
|
GOLDEN
DREAM 12
|
29865
|
1368
|
1654
|
1492
|
1616-17
|
|||||||||||
|
GOLDEN
DREAM 13
|
29866
|
1368
|
1655
|
1492
|
1618-20
|
|||||||||||
|
GOLDEN
DREAM 14
|
29867
|
1368
|
1656
|
1492
|
1621-22
|
|||||||||||
Page
88
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
GOLDEN
DREAM 15
|
29868
|
1368
|
1657
|
1492
|
1623-24
|
|||||||||||
|
GOLDEN
DREAM 16
|
29869
|
1368
|
1658
|
1492
|
1625-26
|
|||||||||||
|
GOLDEN
ANNEX 1
|
29842
|
1207
|
751
|
1590
|
626-27
|
|||||||||||
|
GOLDEN
ANNEX C
|
107693
|
1482
|
1585
|
1492
|
1344-46
|
|||||||||||
|
GOLDEN
ANNEX F
|
107696
|
1482
|
1588
|
1590
|
617-19
|
|||||||||||
|
▇▇▇▇▇▇▇▇
|
53972
|
1253
|
56
|
1590
|
613-14
|
|||||||||||
|
▇▇▇▇▇
1
|
1787
|
1258
|
86
|
1590
|
622-23
|
|||||||||||
|
PROVIDENCE
1
|
62094
|
1446
|
789
|
1492
|
1386-87
|
|||||||||||
|
PROVIDENCE
2
|
62095
|
1446
|
790
|
1492
|
1388-89
|
|||||||||||
|
PROVIDENCE
3
|
62096
|
1446
|
791
|
1492
|
1390-92
|
|||||||||||
|
PROVIDENCE
4
|
62097
|
1446
|
792
|
1492
|
1393-94
|
|||||||||||
|
PROVIDENCE
6
|
62099
|
1446
|
794
|
1492
|
1395-96
|
|||||||||||
|
JACMAC
1
|
23747
|
1431
|
987
|
1492
|
1362-64
|
|||||||||||
|
JACMAC
2
|
23748
|
1431
|
989
|
1492
|
1365-66
|
|||||||||||
|
JACMAC
4
|
23750
|
1431
|
993
|
1492
|
1367-68
|
|||||||||||
|
JACMAC
5
|
23751
|
1431
|
995
|
1492
|
1369-70
|
|||||||||||
|
JACMAC
6
|
23752
|
1431
|
997
|
1492
|
1371-72
|
|||||||||||
|
JACMAC
7
|
23753
|
1431
|
999
|
1492
|
1373-74
|
|||||||||||
|
JACMAC
8
|
23754
|
1431
|
1001
|
1492
|
1375-76
|
|||||||||||
|
JACMAC
9
|
23755
|
1431
|
1003
|
1492
|
1377-78
|
|||||||||||
|
JACMAC
10
|
23756
|
1431
|
1005
|
1492
|
1379-81
|
|||||||||||
|
JACMAC
11
|
23757
|
1431
|
1007
|
1492
|
1382-83
|
|||||||||||
|
JACMAC
12
|
109008
|
1483
|
1084
|
1492
|
1384-85
|
|||||||||||
|
NEW
GOLD 1
|
16221
|
1298
|
592
|
1492
|
1234-36
|
|||||||||||
|
NEW
GOLD 2
|
16222
|
1298
|
593
|
1492
|
1237-39
|
|||||||||||
|
NEW
GOLD 3
|
16223
|
1298
|
594
|
1492
|
1240-41
|
|||||||||||
|
NEW
GOLD 4
|
16224
|
1298
|
595
|
1492
|
1242-44
|
|||||||||||
|
GOLD
HILL 2
|
30202
|
317
|
195
|
1497
|
320-21
|
|||||||||||
|
LOLA
4
|
52404
|
1172
|
140
|
1506
|
884-85
|
|||||||||||
|
LOLA
9
|
52409
|
1172
|
145
|
1578
|
7
|
|||||||||||
|
MILS
104
|
171114
|
1549
|
963
|
|||||||||||||
|
MILS
171
|
171176
|
1549
|
1025
|
|||||||||||||
|
MILS
172
|
171177
|
1549
|
1026
|
|||||||||||||
|
MILS
174
|
171179
|
1549
|
1028
|
|||||||||||||
|
MILS
176
|
171181
|
1549
|
1030
|
|||||||||||||
|
MILS
178
|
171183
|
1549
|
1032
|
|||||||||||||
|
MILS
180
|
171185
|
1549
|
1034
|
|||||||||||||
|
MILS
182
|
171187
|
1549
|
1036
|
|||||||||||||
|
MILS
183
|
171188
|
1549
|
1037
|
|||||||||||||
|
MILS
184
|
171189
|
1549
|
1038
|
|||||||||||||
|
MILS
185
|
171190
|
1549
|
1039
|
|||||||||||||
|
MILS
186
|
171191
|
1549
|
1040
|
|||||||||||||
|
MILS
187
|
171192
|
1549
|
1041
|
|||||||||||||
|
MILS
188
|
171193
|
1549
|
1042
|
|||||||||||||
|
MILS
189
|
171194
|
1549
|
1043
|
|||||||||||||
Page
89
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
MILS
190
|
171195
|
1549
|
1044
|
|||||||||||||
|
MILS
191
|
171196
|
1549
|
1045
|
|||||||||||||
|
MILS
192
|
171197
|
1549
|
1046
|
|||||||||||||
|
MILS
196
|
171201
|
1549
|
1050
|
|||||||||||||
|
MILS
197
|
171202
|
1549
|
1051
|
|||||||||||||
|
MILS
198
|
171203
|
1549
|
1052
|
|||||||||||||
|
MILS
199
|
171204
|
1549
|
1053
|
|||||||||||||
|
MILS
204
|
171208
|
1549
|
1057
|
|||||||||||||
|
MILS
205
|
171209
|
1549
|
1058
|
|||||||||||||
|
MILS
206
|
171210
|
1549
|
1059
|
|||||||||||||
|
MILS
207
|
171211
|
1549
|
1060
|
|||||||||||||
|
MILS
208
|
171212
|
1549
|
1061
|
|||||||||||||
|
MILS
209
|
171213
|
1549
|
1062
|
|||||||||||||
|
MILS
210
|
171214
|
1549
|
1063
|
|||||||||||||
|
MILS
211
|
171215
|
1549
|
1064
|
|||||||||||||
|
MILS
212
|
171216
|
1549
|
1065
|
|||||||||||||
|
MILS
213
|
171217
|
1549
|
1066
|
|||||||||||||
|
MILS
214
|
171218
|
1549
|
1067
|
|||||||||||||
|
MILS
215
|
171219
|
1549
|
1068
|
|||||||||||||
|
MILS
216
|
171220
|
1549
|
1069
|
|||||||||||||
|
MILS
217
|
171221
|
1549
|
1070
|
|||||||||||||
|
MILS
218
|
171222
|
1549
|
1071
|
|||||||||||||
|
MILS
219
|
171223
|
1549
|
1072
|
|||||||||||||
|
MILS
220
|
171224
|
1549
|
1073
|
|||||||||||||
|
MILS
221
|
171225
|
1549
|
1074
|
|||||||||||||
|
MILS
222
|
171226
|
1549
|
1075
|
|||||||||||||
|
MILS
223
|
171227
|
1549
|
1076
|
|||||||||||||
|
MILS
224
|
171228
|
1549
|
1077
|
|||||||||||||
|
MILS
225
|
171229
|
1549
|
1078
|
|||||||||||||
|
MILS
226
|
171230
|
1549
|
1079
|
|||||||||||||
|
MILS
227
|
171231
|
1549
|
1080
|
|||||||||||||
|
MILS
228
|
171232
|
1549
|
1081
|
|||||||||||||
|
MILS
229
|
171233
|
1549
|
1082
|
|||||||||||||
|
MILS
230
|
171234
|
1549
|
1083
|
|||||||||||||
|
MILS
231
|
171235
|
1549
|
1084
|
|||||||||||||
|
MILS
232
|
171236
|
1549
|
1085
|
|||||||||||||
|
MILS
234
|
171238
|
1549
|
1087
|
|||||||||||||
|
MILS
236
|
171240
|
1549
|
1089
|
|||||||||||||
|
MILS
237
|
171241
|
1549
|
1090
|
|||||||||||||
|
MILS
250
|
171254
|
1549
|
1103
|
|||||||||||||
|
MILS
253
|
171257
|
1549
|
1106
|
|||||||||||||
|
MILS
254
|
171258
|
1549
|
1107
|
|||||||||||||
|
MILS
255
|
171259
|
1549
|
1108
|
|||||||||||||
|
MILS
256
|
171260
|
1549
|
1109
|
|||||||||||||
Page
90
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
MILS
257
|
171261
|
1549
|
1110
|
|||||||||||||
|
MILS
258
|
171262
|
1549
|
1111
|
|||||||||||||
|
MILS
259
|
171263
|
1549
|
1112
|
|||||||||||||
|
MILS
260
|
171264
|
1549
|
1113
|
|||||||||||||
|
MILS
263
|
171267
|
1549
|
1116
|
|||||||||||||
|
MILS
264
|
171268
|
1549
|
1117
|
|||||||||||||
|
MILS
266
|
171270
|
1549
|
1119
|
|||||||||||||
|
MILS
268
|
171272
|
1549
|
1121
|
|||||||||||||
|
MILS
270
|
171274
|
1549
|
1123
|
|||||||||||||
|
MILS
272
|
171275
|
1549
|
1124
|
|||||||||||||
|
MILS
273
|
171276
|
1549
|
1125
|
|||||||||||||
|
MILS
274
|
171277
|
1549
|
1126
|
|||||||||||||
Page
91
Patented
(Fee) Tracts Owned by Western Mesquite Mines, Inc.
1. (Patent
No. 04-88-0044 dated July 18, 1988, Survey No. 6921) The
following patented millsite claims
located within Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, and ▇▇▇▇▇▇▇
▇,
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇ 19 East, SBB&M, Imperial County, California:
MILS
261
MILS
262
MILS
265
MILS
267
MILS
269
2. (Patent
No. 04-90-0066 dated August 17, 1990, Survey Nos. 6923 and 6924)
The
following patented
millsite claims located within Section ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East,
SBB&M, Imperial
County, California:
MILS
2
MILS
3
MILS
4
MILS
5
MILS
6
MILS
7
MILS
8
MILS
9
MILS
10
MILS
11
MILS
12
MILS
13
MILS
14
MILS
51
MILS
52
MILS
54
MILS
105
MILS
106
MILS
107
MILS
108
3. (Patent
No. 04-88-0045 dated August 5,1988, Survey No. 6901) The
following patented mining claims
located within Sections ▇-▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, SBB&M,
Imperial County, California:
Big
Brother 1
Buddy
8
Buddy
9
Buddy
10
Little
Sister 1
Little
Sister 2
4. (Patent
No. 04-89-0035 dated ▇▇▇▇▇ ▇, ▇▇▇▇, ▇▇▇▇▇▇ No. 6930) The
following patented mining claims
located within Sections 3 and 4, Township 13 South, Range 19 East, SBB&M,
Imperial County, California:
Cherokee
1
Cherokee
6
Bu
Bu 2
Biscuit
Shooter 1
Biscuit
Shooter 2
Biscuit
Shooter 3
Page
92
5. (Patent
No. 04-95-0019 dated March 29, 1995, Survey No. 6933) The
following patented mining claim
located within Sections 5 and 8, Township 13 South, Range 19 East, SBB&M,
Imperial County, California:
Gold
Hill 1
6. (Patent
No. 04-95-0020 dated March 29,1995, Survey No. 6937) The
following patented mining claims
located within Sections 4 and 9, Township 13 South, Range 19 East, SBB&M,
Imperial County, California:
Don
▇▇▇▇ 1
Don
▇▇▇▇ 2
Lady
June ½
Lady
June 1
Lady
June 2
Highway
Fraction 1
Highway
Fraction 2
SEA
775
7. (Patent
No. 04-95-0021 dated March 29, 1995, Survey No. 6935)
The
following patented mining claims
located within ▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, SBB&M,
perial County, California:
Rainbow
Panorama
Copenhagen
1
Copenhagen
2
SEA
342
8. (Patent
No. ▇▇-▇▇▇▇-▇▇▇▇ dated November 1, 2001, Survey No. 6938) The
following patented mining
claims located within Section ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, SBB&M,
Imperial County, California:
MESQ
29
MESQ
30
▇▇▇▇
1
▇▇▇▇
2
▇▇▇▇
3
▇▇▇▇
4
9. (Patent
No. 04-91-0026 dated March 28, 1991, Survey No. 6932) The
following patented millsite claims
located within Sections 5, 8 and ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East,
SBB&M, Imperial County,
California:
MILS
125
MILS
126
Page
93
MILS
127
MILS
128
MILS
129
MILS
130
MILS
131 MILS
132
10. (Patent
No. 04-90-0022 dated February 2, 1990, Survey No. 6900) The
following patented mining
claims located within Sections 5 and 8, Township 13 South, Range 19
East, SBB&M, Imperial County,
California:
Big
Chief 1
Big
Chief 2
Big
Chief 3
Big
Chief 4
Calcite
3
Cholla
Desert
View 1
Desert
View 2
Golden
Annex A
Golden
Annex D
Golden
Annex E
Golden
Annex 4
Golden
Annex 5
Golden
Annex 6
11. (Patent
No. 04-95-0018 dated March 29, 1995, Survey No. 6922) The
following patented mining
claims located within Sections 3, 4, 9 and 10, Township 13 South, Range 19
East,
SBB&M, Imperial
County, California:
Lola1
Lola
2
Lola
3
Lola
5
Lola
6
Lola
10
Lola
Extension
Page
94
Unpatented
Mining and Millsite Claims Owned by County ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇.
▇ ▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and Leased by Western Mesquite Mines,
Inc.
Western
Mesquite Mines, Inc. leases the following-described mining and millsite claims
located within Sections 6-10 and 15, Township 13 South, Range 19 East,
SBB&M, Imperial County, California, from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ pursuant to a Mineral Lease and
Landfill Facilities Lease
Agreement dated June 25, 1993, as amended:
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
SEA
1
|
105150
|
1479
|
1247
|
1506
|
615-16
|
|||||||||||
|
SEA
2
|
105151
|
1479
|
1248
|
1506
|
617-18
|
|||||||||||
|
SEA
3
|
105152
|
1479
|
1249
|
1506
|
619-20
|
|||||||||||
|
SEA
4
|
105153
|
1479
|
1250
|
1506
|
621-22
|
|||||||||||
|
SEA
5
|
105154
|
1479
|
1251
|
1506
|
623-24
|
|||||||||||
|
SEA
6
|
105155
|
1479
|
1252
|
1506
|
625-26
|
|||||||||||
|
SEA
7
|
105156
|
1479
|
1253
|
1506
|
627-28
|
|||||||||||
|
SEA
15
|
105160
|
1479
|
1257
|
1506
|
631-32
|
|||||||||||
|
SEA
16
|
105161
|
1479
|
1258
|
1506
|
633-34
|
|||||||||||
|
SEA
17
|
105162
|
1479
|
1259
|
1506
|
635-36
|
|||||||||||
|
SEA
80
|
105211
|
1479
|
1308
|
1851
|
478-79
|
|||||||||||
|
LOLA
7
|
52407
|
1172
|
143
|
1578
|
6
|
|||||||||||
|
LOLA
8
|
52408
|
1172
|
144
|
1506
|
892-93
|
|||||||||||
|
GOLDEN
ANNEX 8
|
29849
|
1215
|
336
|
1492
|
1330-31
|
|||||||||||
|
MILS
101
|
171111
|
1549
|
960
|
|||||||||||||
|
MILS
102
|
171112
|
1549
|
961
|
|||||||||||||
|
MILS
103
|
171113
|
1549
|
962
|
|||||||||||||
|
MILS
133
|
171139
|
1549
|
988
|
|||||||||||||
|
MILS
134
|
171140
|
1549
|
989
|
|||||||||||||
|
MILS
135
|
171141
|
1549
|
990
|
|||||||||||||
|
MILS
136
|
171142
|
1549
|
991
|
|||||||||||||
|
MILS
160
|
173035
|
1551
|
397
|
|||||||||||||
|
MILS
162
|
173037
|
1551
|
399
|
|||||||||||||
|
MILS
164
|
173039
|
1551
|
401
|
|||||||||||||
|
MILS
166
|
171171
|
1549
|
1020
|
|||||||||||||
|
MILS
167
|
171172
|
1549
|
1021
|
|||||||||||||
|
MILS
168
|
171173
|
1549
|
1022
|
|||||||||||||
|
MILS
169
|
171174
|
1549
|
1023
|
|||||||||||||
|
MILS
170
|
171175
|
1549
|
1024
|
|||||||||||||
|
MILS
173
|
173040
|
1551
|
402
|
|||||||||||||
|
MILS
175
|
171180
|
1549
|
1029
|
|||||||||||||
|
MILS
177
|
171182
|
1549
|
1031
|
|||||||||||||
|
MILS
179
|
171184
|
1549
|
1033
|
|||||||||||||
|
MILS
181
|
171186
|
1549
|
1035
|
|||||||||||||
|
MILS
193
|
171198
|
1549
|
1047
|
|||||||||||||
|
MILS
194
|
171199
|
1549
|
1048
|
|||||||||||||
|
MILS
195
|
171200
|
1549
|
1049
|
|||||||||||||
Page
95
|
|
|
Notice
of Location and Last Amended Notice of Location Recorded in Official
Records of Imperial County, California
|
||||||||||||||
|
Original
|
Amended
|
|||||||||||||||
|
Name
of Claim
|
BLM
Serial No. (CAMC)
|
Book
|
Pages
|
Book
|
Pages
|
|||||||||||
|
MILS
200
|
171205
|
1549
|
1054
|
|||||||||||||
|
MILS
202
|
171206
|
1549
|
1055
|
|||||||||||||
|
MILS
203
|
171207
|
1549
|
1056
|
|||||||||||||
Page
96
Patented
(Fee) Tracts Owned by County ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇,
and Leased by Western Mesquite Mines, Inc.
Western
Mesquite Mines, Inc. leases the following-described patented (fee) properties
from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇ pursuant to a Mineral
Lease
and Landfill Facilities Lease Agreement dated June 25, 1993, as
amended:
1.
(Patent No. 04-90-0066 dated August 17, 1990, Survey Nos. 6923 and 6924)
The
following patented millsite claims located within Sections 7-9 and 17, Township
13 South, Range 19 East, SBB&M,
Imperial County, California:
MILS1
MILS
15
MILS
16
MILS
17
MILS
18
MILS
19
MILS
20
MILS
21
MILS
22
MILS
23
MILS
24
MILS
25
MILS
26
MILS
27
MILS
28
MILS
29
MILS
53
MILS
55
MILS
62
MILS
64
MILS
65
MILS
66
MILS
67
MILS
68
MILS
69
MILS
70
MILS
71
MILS
72
MILS
73
MILS
74
MILS
75
MILS
76
MILS
77
MILS
78
MILS
79
MILS
80
MILS
138
MILS
139
MILS
140
MILS
141
Page
97
MILS 142
MILS
143
MILS
144
MILS
145
MILS
146
MILS
147
MILS
148
MILS
149
MILS
150
MILS
151
MILS
152
MILS
153
MILS
154
MILS
155
MILS
156
MILS
157
MILS
158
MILS
159
MILS
161
MILS
162
MILS
163
MILS
164
MILS
165
MILS
166
MILS
299
2.
(Patent No. 04-90-0012 dated January 9, 1990)
The
following patented millsite claims located within
the E½SW¼SW¼NE¼, SE¼SW¼NE¼, S½SE¼NE¼, NE¼SE¼, E½NW¼SE¼,
E½W½NW¼SE¼,
NE¼SW¼SE¼, E½NW¼SW¼SE¼, NE¼SW¼SW¼SE¼, N½SE¼SW¼SE¼, NW¼NE¼SE¼SE¼
and NW¼SE¼SE¼ of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, SBB&M,
Imperial
County, California:
▇▇▇
▇▇▇
▇▇▇
▇▇▇
▇▇▇
▇▇▇
▇▇▇
AP8
AP9
AP10
AP11
AP12
AP13
AP14
AP15
▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇
Page
▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇
▇▇▇▇
AP29
AP30
AP31
AP32
3. (Patent
No. 04-87-0023 dated January 30,1987) Certain
portions of the following tracts located in
Township 13 South, Range 19 East, SBB&M, Imperial County,
California:
Section
7: N½SE¼
(220 Dump)
Section
8: NW¼SW¼
(220 Extension Dump)
Section
17: W½
(▇▇▇▇▇ pad)
Section
18: S½SE¼
(solution ponds)
Section
19: N½NE¼
(solution ponds)
4. (Patent
No. 04-97-0039 dated January 30, 1997) The
following tracts located in Township 13 South,
Range 19 East, SBB&M, Imperial County, California:
Section
8: Lots
8 and 9
Section
17: ▇▇▇▇
▇, ▇ ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, E½NE¼SE¼SE¼,
SW¼NE¼SE¼SE¼,
S½SE¼SE¼
5.
The following tract located in Township 13 South, Range 19 East, SBB&M,
Imperial County, California:
Section
16: All (but
excluding reserved mineral rights within the N½NE¼NW¼)
Page
99
Unpatented
Mining Claims Owned by ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇., and Leased by Western Mesquite Mines,
Inc.
Western
Mesquite Mines, Inc. leases the following-described mining claims located within
Section ▇, ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, SBB&M, Imperial County, California, from ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇. pursuant to a Mineral Lease and Purchase Option
Agreement dated October 20, 1982, as amended:
|
|
|
|
|
Notice
of Location and Last Amended
Notice
of Location Recorded in Official
Records
of Imperial County, California
|
|
|||||||||||
|
|
|
|
|
Original
|
|
Amended
|
|
|||||||||
|
Name
of Claim
|
|
BLM
Serial No. (CAMC)
|
|
Book
|
|
Pages
|
|
Book
|
|
Pages
|
||||||
|
SINGER
1
|
86399
|
1465
|
1638
|
1492
|
1544-46
|
|||||||||||
|
SINGER
2
|
86400
|
1465
|
1639
|
1492
|
1547-48
|
|||||||||||
|
SINGER
3
|
86401
|
1465
|
1640
|
1492
|
1549-50
|
|||||||||||
|
SINGER
4
|
86402
|
1465
|
1641
|
1492
|
1551-52
|
|||||||||||
|
MESQ
45
|
109001
|
1483
|
1097
|
|||||||||||||
Page
100
Patented
(Fee) Tracts Owned by California State Lands Commission, and
Leased
by
Western Mesquite Mines, Inc.
Western
Mesquite Mines, Inc. leases the following-described tracts located within
Township 13 South, Range
19
East, SBB&M, Imperial County, California, from the California State Lands
Commission pursuant to a Mineral Extraction Lease (No. PRC 8039.2) issued
October 1, 2002:
|
Section
5:
|
Lots
1-10
|
|
|
Section
6:
|
Lots
1-10
|
Page
101
Easements
and Rights-of-Way Held by Western Mesquite Mines, Inc.
Western
Mesquite Mines, Inc. holds the following easements and
rights-of-way:
1.
Right-of-Way No. CACA-019129 issued
by
the United States of America on September 12, 1986 for a water pipeline and
related power line and access road to access, transport and use water from
three
water ▇▇▇▇▇. The right-of-way crosses over the following-described federal
land
in Township 13 South, Range 19 East, SBB&M, Imperial County,
California:
|
Section
17:
|
S½SE1/4
|
|
|
Section
20:
|
NE¼
|
|
|
Section
21:
|
Lots
5 and 7,E1/2SW¼
|
|
|
Section
28:
|
W1/2
|
|
|
Section
33:
|
Lots
2 and 6,E1/2NW¼
|
Page
102
Water
Rights Held by Western Mesquite Mines, Inc.
Western
Mesquite Mines, Inc. holds the following water rights:
1.
Groundwater Rights. Under
California law, ordinary groundwater usage is not regulated by the State
Water Resources Control Board the way surface water rights are. Rather,
percolating groundwater
is unregulated by the state and is available to any overlying land user who
can
recover it. Landowners
overlying percolating groundwater may use it on an equal and correlative basis.
All property
owners above a common aquifer possess a shared right to reasonable use of the
groundwater
aquifer. Western Mesquite Mines, Inc. (WMMI) has constructed three groundwater
▇▇▇▇▇ (two of which are currently in operation) located on the following
millsite claims which are owned by WMMI:
Patented
Millsite Claims
(Patent
No. 04-88-0044 dated July 18, 1988, Survey No. 6921) The
following patented millsite claims
located within Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, and ▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
▇▇▇▇▇ 19 East, SBB&M, Imperial County, California:
MILS
261
MILS
262
MILS
265
MILS
267
MILS
269
Unpatented
Millsite Claims
The
following unpatented millsite claims located within Section ▇▇, ▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇, ▇▇▇▇▇ 19 East,
and
▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ 19 East, SBB&M, Imperial County,
California:
|
|
|
|
|
Notice
of Location and Last Amended
Notice
of Location Recorded in Official
Records
of Imperial County, California
|
|
||||||||
|
|
|
|
|
Original
|
|
Amended
|
|
||||||
|
Name
of Claim
|
|
BLM
Serial No. (CAMC) Pages
|
|
Book
|
|
Pages
|
|
Book
|
|||||
|
MILS
260
|
171264
|
1549
|
1113
|
||||||||||
|
MILS
263
|
171267
|
1549
|
1116
|
||||||||||
|
MILS
264
|
171268
|
1549
|
1117
|
||||||||||
|
MILS
266
|
171270
|
1549
|
1119
|
||||||||||
|
MILS
268
|
171272
|
1549
|
1121
|
||||||||||
|
MILS
270
|
171274
|
1549
|
1123
|
||||||||||
These
▇▇▇▇▇ (known as the Vista Wellfield) provide the water used for WMMI's mining
and mineral processing
operations. Drinking water for mine personnel is brought to the site by a
commercial vendor.
A
water transmission pipeline and a related power line and access road which
cross
over federal
land from the Vista Wellfield approximately 3 miles north to the mine property
are authorized under the federal right-of-way (CACA-019129) listed above. WMMI
has obtained authorization from Imperial
County to operate the subject water ▇▇▇▇▇ pursuant to a Conditional Use Permit
(No. 98-0022(B))
dated December 5, 2003 (CUP). The CUP is recorded in Imperial County as Entry
No. 2003-039727.
The CUP authorizes the use of one or more water ▇▇▇▇▇ for a period of 20 years
to provide
water for operation of the mine property and for operation of the adjacent
sanitary landfill.
Condition
S-81 of the CUP limits the total aggregate extraction and consumption of water
from the ▇▇▇▇▇
for
operation of the mine and landfill to 4,033 acre-feet per year. WMMI must file
with Imperial County
an
annual report to identify the amount of water used from the ▇▇▇▇▇. The most
recent such annual
report shows the total amount of water use as 490 acre-feet, well below the
allowable limit.
Page
103
Schedule
3 - Drawdown Notice
To:
Investec Bank (UK) Limited
From:
Western Mesquite Mines, Inc.
*
[date]
Dear
Sirs,
Credit
Agreement dated 30 March 2007 in relation to the Mesquite Gold Mine Project
(the
"Credit Agreement")
Terms
defined in the Credit Agreement (including by reference) have the same meaning
in this notice. We
request a US$ ** Advance to be drawn down under the Facility as
follows:
| 1. |
Amount
of Advance: [US$/[**]
|
| 2. |
Drawdown
Date:
|
| 3. |
Payment
instructions:
|
|
(if applicable)
|
| 4. |
Interest
Period:
|
We
hereby
represent and warrant that the entire proceeds of the Advance will be utilised
as follows:
**
and
we
attach the relevant Costs Certificate, together with invoices for costs in
excess of US$250,000 as evidence of our liability to pay the same.
We
confirm that today and on the Drawdown Date:
| (a) |
the
representations and warranties in Clause 10 to be repeated are and
will be
correct; and
|
| (b) |
no
Default or Trigger has occurred and is continuing or will occur
on the
making of the Advance;
and
|
| (c) |
each
Advance previously drawn by us has been utilised [solely in accordance
with the relative Drawdown
Notice for the same] or
[description of other
application].
|
Signed
For
and
on behalf of
Western
Mesquite Mines, Inc.
Page
104
Schedule
4 - Costs Certificate
[ON
LETTERHEAD OF WESTERN MESQUITE MINES, INC.]
[Date]
| To: |
Investec
Bank (UK) Limited as Agent
|
| Attention: |
**
|
| [To: |
** as
Account Bank
|
| Attention: |
** ]
|
Mesquite
Gold Mine Project Costs Certificate
Terms
used in this certificate shall have the same meaning given to them in the credit
agreement dated 30
March
2007 between (among others) ourselves and yourselves.
We
certify that in relation to the application for payment and the Drawdown Notice
dated [** ]
the
sums
specified as paid or due to be payable are part of [Permitted Capital
Expenditure][Operating Costs]
that has become payable in the amounts and to the parties set out below and
there are no disputes
of which we are aware in relation to such sums.
US$** to
**
The
value
of the works completed as at the date of this certificate is [**]
.
We
further confirm that no previous Costs Certificate has been issued by or on
behalf of us in relation to the
items
certified for payment in this Costs Certificate.
Yours
sincerely
For
and
on behalf of
Western
Mesquite Mines, Inc.
Page
105
Schedule
5 - Compliance Certificate
| To: |
the
Agent
|
| Date: |
|
| Dear Sirs |
|
Mesquite
Gold Mine Project
We
refer
to a credit agreement (the Credit
Agreement) dated
30
March 2007 between (amongst others) ourselves
as borrower, Investec Bank (UK) Limited as Arranger, Investec Bank (UK) Limited
as Agent, and
the
Banks and the Hedging Banks (each as defined therein).
Terms
used herein and not otherwise defined shall have the meaning given them in
the
Credit Agreement.
We
certify that as at [specify
last date being the last day of the financial year]:
| (a) |
the
representations and warranties required to be repeated pursuant
to the
terms of Clause 10 were
true and correct;
and
|
| (b) |
no
Default had occurred and was continuing as at such date.1
|
Signed
For
and
on behalf of
Western
Mesquite Mines, Inc.
1
If a
certificate in this form can not be given, details must be given of any
representations or warranties which are not
true
or correct or (where a Default or Potential Default has occurred and is
continuing) details of such Default or Potential
Default.
Page
106
Schedule
6 - Repayment Schedule
|
Repayment
Date
|
Repayment
Instalment
|
|||
|
31
December 2008
|
7.00
|
%
|
||
|
30
June
2009
|
7.00
|
%
|
||
|
31
December
2009
|
6.50
|
%
|
||
|
30
June
2010
|
8.00
|
%
|
||
|
31
December
2010
|
10.00
|
%
|
||
|
30
June
2011
|
6.25
|
%
|
||
|
31
December
2011
|
6.50
|
%
|
||
|
30
June
2012
|
6.00
|
%
|
||
|
31
December
2012
|
6.50
|
%
|
||
|
30
June
2013
|
6.50
|
%
|
||
|
31
December
2013
|
6.00
|
%
|
||
|
30
June
2014
|
7.50
|
%
|
||
|
31
December
2014
|
16.25
|
%
|
Page
107
Schedule
7 - Form of Transfer Certificate
Transfer
Certificate
** [date]
To
the
Agent
This
transfer certificate (Transfer
Certificate) relates
to a credit agreement relating to a US$105,000,000
Term Loan Facility dated 30 March 2007 between Western Mesquite Mines, Inc.
as
Borrower, Western Goldfields, Inc. as Guarantor, the Banks and Hedging Banks,
the Arranger, the Security
Trustee and yourselves (the Credit
Agreement, which
term shall include any amendments or supplements
to it).
Terms
defined and references construed in the Credit Agreement shall have the same
meaning and construction in this Transfer Certificate.
| 1 |
** [insert
full name of Existing Bank] (the
Existing
Bank):
|
| (a) |
confirms
that to the extent that details appear in the schedule to this
Transfer
Certificate under
the headings "Existing Bank's Commitment" and "Existing Bank's
Participation in the
Loan", those details accurately summarise its Commitment and
its
Participation in the Loan
all or part of which is to be transferred;
and
|
| (b) |
requests
** [insertfull
name of Bank Transferee] (the
Bank
Transferee) to
accept and procure, in accordance with Clause 22 of the Credit
Agreement,
the substitution
of the Existing Bank by the Bank Transferee in respect of the amount
of
its Commitment
and its Participation in the Loan to be transferred as specified
in the
schedule
to this Transfer Certificate and of a corresponding part of its
rights and
obligations
under the Intercreditor Deed [and **]
by signing this Transfer Certificate.
|
| 2 |
The
Bank Transferee requests each of the other parties to the Credit
Agreement
and to the Intercreditor Deed [and ** ]
to accept this executed Transfer Certificate as being delivered
under and for the purposes of Clause 22 of the Credit Agreement
and clause
[18.3] of the
Intercreditor Deed so as to take effect in accordance with
such Clause 22
on ** [insert
date of
transfer].
|
| 3 |
The
Bank Transferee:
|
| (a) |
confirms
that it has received a copy of each of the Financing Documents
together
with such
other documents and information as it has requested in connection
with
this transaction;
|
| (b) |
confirms
that it has not relied and will not rely on the Existing Bank
or any other
Financing
Party to check or enquire on its behalf into the legality, validity,
effectiveness, adequacy,
accuracy or completeness of any such documents or information;
and
|
| (c) |
agrees
that it has not relied and will not rely on the Existing Bank
or any other
Financing Party
to assess or keep under review on its behalf the financial condition,
creditworthiness,
condition, affairs, status or nature of the Borrower or any other
party to
the
Financing
Documents.
|
| 4 |
The
Bank Transferee undertakes with the Existing Bank and each
of the other
parties to the Credit
Agreement and to the Intercreditor Deed [and ** ]
that it will perform, in accordance
with its terms, all those obligations which, by the terms of
the Credit
Agreement and the
Intercreditor Deed respectively, will be assumed by it upon
delivery of
the executed
copy of this
Transfer Certificate to the
Agent.
|
Page
108
| 5 |
On
execution of this Transfer Certificate by the Agent on their
behalf, the
other parties to the Credit
Agreement and to the Intercreditor Deed [and ** ]
accept the Bank Transferee as
a party to the Credit Agreement and to the Intercreditor Deed
respectively
in substitution for the
Existing Bank with respect to all those rights and/or obligations
which,
by the terms of the Credit
Agreement, will be assumed by the Bank Transferee after delivery
of the
executed copy of this
Transfer Certificate to the
Agent.
|
| 6 |
None
of the Existing Bank or any other party to the Credit Agreement
or the
Intercreditor Deed [and
** ]:
|
| (a) |
makes
any representation or warranty or assumes any responsibility
with respect
to the legality,
validity, effectiveness, adequacy or enforceability of any of
the
Relevant Documents;
or
|
| (b) |
assumes
any responsibility for the financial condition of the Borrower
or any
other party to
any Relevant Document or any other document or for the performance
and
observance
by the Borrower or any other party to any Relevant Document or
any other
document
of its or their obligations and any and all conditions and warranties,
whether express
or implied by Law or otherwise, are
excluded.
|
| 7 |
The
Bank Transferee confirms that its Facility Office and address
for notices
for the purposes of the
Financing Documents are as set out in the schedule to this
Transfer
Certificate.
|
| 8 |
The
Existing Bank gives notice to the Bank Transferee (and the Bank
Transferee
acknowledges and
agrees with the Existing Bank) that the Existing Bank is under
no
obligation to re-purchase (or
in any other manner to assume, undertake or discharge any obligation
or
liability in relation to)
the transferred Commitment and Participation at any time after
this
Transfer Certificate shall have
taken
effect.
|
| 9 |
Following
the date upon which this Transfer Certificate shall have taken
effect,
without limiting the
terms of this Transfer Certificate, each of the Bank Transferee
and
the
Existing Bank acknowledges
and confirms to the other that, in relation to the transferred
Commitment
and Participation,
variations, amendments or alterations to any term of any Financing
Document arising
in connection with any renegotiation or rescheduling of the obligations
under the Credit Agreement
shall apply to and be binding on the Bank Transferee
alone.
|
| 10 |
This
Transfer Certificate is governed by and shall be construed in accordance
with English law.
|
Page
109
The
Schedule
|
Existing
Bank's Commitment
|
Amount
of Commitment Transferred
|
|
Existing
Bank's Participation in the Loan
|
Amount
of Participation
Transferred
|
** [insert
full name of Bank Transferee]
| Facility Office | Address for notices | |
| ** |
** [address]
|
|
| Attention: ** | ||
| Fax: ** |
|
** [Bank
Transferee]
|
|||
| By: | |||
|
(Duly
authorised)
|
|||
|
** [Existing
Bank]
|
|||
| By: | |||
|
(Duly authorised) |
The
Agent
on behalf of itself and all other parties to the Credit Agreement and the
Intercreditor Deed [and
** ]
| By: | |||
|
(Duly
authorised)
|
|||
| Dated: |
Page
110
Schedule
8 - Not Used
Page
111
Schedule
9 - Mandatory Cost formulae
|
1
|
The
Mandatory Cost is an addition to the interest rate to compensate
the Banks
for the cost of compliance
with (a) the requirements of the Bank of England and/or the Financial
Services Authority
(or, in either case, any other authority which replaces all or
any of its
functions) or (b) the
requirements of the European Central
Bank.
|
|
2
|
On
the first day of each Interest Period (or as soon as possible thereafter)
the Agent shall calculate, as a percentage rate, a rate (the Additional
Cost Rate) for
each Bank, in accordance with
the paragraphs set out below. The Mandatory Cost will be calculated
by the
Agent as a weighted
average of the Banks' Additional Cost Rates (weighted in proportion
to the
percentage participation of each Bank in the relevant Loan) and
will be
expressed as a percentage rate per annum.
|
|
3
|
The
Additional Cost Rate for any Bank lending from a Facility Office
in a
Participating Member State
will be the percentage notified by that Bank to the Agent. This
percentage
will be certified by
that Bank in its notice to the Agent to be its reasonable determination
of
the cost (expressed as
a percentage of that Bank's participation in all Loans made from
that
Facility Office) of complying
with the minimum reserve requirements of the European Central Bank
in
respect of loans
made from that Facility Office.
|
|
4
|
The
Additional Cost Rate for any Bank lending from a Facility Office
in the
United Kingdom will be
calculated by the Agent as follows:
|
Ex
0.01 per
cent per
annum
300
Where:
| A |
is
the percentage of Eligible Liabilities (assuming these to be
in excess of
any stated minimum)
which that Bank is from time to time required to maintain as
an interest
free cash
ratio deposit with the Bank of England to comply with cash ratio
requirements.
|
| B |
is
the percentage rate of interest (excluding the Margin and the
Mandatory
Cost and, if the
Loan is an Unpaid Sum, the additional rate of interest specified
in Clause
5.4) payable
for the relevant Interest Period on the
Loan.
|
| C |
is
the percentage (if any) of Eligible Liabilities which that Bank
is
required from time to time to maintain as interest bearing Special
Deposits with the Bank of England.
|
| D |
is
the percentage rate per annum payable by the Bank of England
to the Agent
on interest
bearing Special Deposits.
|
| E |
is
designed to compensate the banks for amounts payable under the
Fees Rules
and is calculated
by the Agent as being the average of the most recent rates of
charge
supplied by
the Reference Banks to the Agent pursuant to paragraph 7 below
and
expressed in pounds
per £1,000,000.
|
| 5 |
For
the purposes of this Schedule:
|
| (a) |
Eligible
Liabilities and
Special
Deposits have
the meanings given to them from time to time
under or pursuant to the Bank of England Act 1998 or (as may
be
appropriate) by the
Bank of England;
|
| (b) |
Fees
Rules means
the rules on periodic fees contained in the FSA Supervision
Manual or such
other Law or regulation as may be in force from time to time
in respect of
the payment of fees for the acceptance of
deposits;
|
Page
112
| (c) |
Fee
Tariffs means
the fee tariffs specified in the Fees Rules under the activity
group A.1
Deposit
acceptors (ignoring any minimum fee or zero rated fee required
pursuant to
the Fees Rules but taking into account any applicable discount
rate);
and
|
| (d) |
Tariff
Base has
the meaning given to it in, and will be calculated in accordance
with, the
Fees
Rules.
|
|
6
|
In
application of the above formulae, A, B, C and D will be included
in the
formulae as percentages (i.e. 5 per cent will be included in the
formula
as 5 and not as 0.05). A negative result obtained by subtracting
D from B
shall be taken as zero. The resulting figures shall be rounded
to four
decimal places.
|
|
7
|
If
requested by the Agent, each Reference Bank shall, as soon as practicable
after publication by the
Financial Services Authority, supply to the Agent, the rate of
charge
payable by that Reference
Bank to the Financial Services Authority pursuant to the Fees Rules
in
respect of the relevant financial year of the Financial Services
Authority
(calculated for this purpose by that Reference
Bank as being the average of the Fee Tariffs applicable to that
Reference
Bank for that
financial year) and expressed in pounds per £1,000,000 of the Tariff Base
of that Reference Bank.
|
|
8
|
Each
Bank shall supply any information required by the Agent for the
purpose of
calculating its Additional Cost Rate. In particular, each Bank
shall
supply the following information on or before the date on which
it becomes
a Bank:
|
| (a) |
the
jurisdiction of its Facility Office;
and
|
| (b) |
any
other information that the Agent may reasonably require for such
purpose.
|
Each
Bank
shall promptly notify the Agent of any change to the information provided
by it
pursuant
to this paragraph.
|
9
|
The
percentages of each Bank for the purpose of A and C above and the
rates of
charge of each Reference
Bank for the purpose of E above shall be determined by the Agent
based
upon the information
supplied to it pursuant to paragraphs 7 and 8 above and on the
assumption
that, unless a Bank notifies the Agent to the contrary, each Bank's
obligations in relation to cash ratio deposits and Special Deposits
are
the same as those of a typical bank from its jurisdiction of incorporation
with a Facility Office in the same jurisdiction as its Facility
Office.
|
Page
113
Schedule
10 - Permits
Part
A
|
1.
|
Conditional
Use Permit #98-0022. Issued
by: Imperial County Planning and Building Development
Services March 27, 2002.
|
|
2.
|
Reclamation
Plans. Issued
by: State of California, Office of Mine Reclamation. The Mesquite
Mine
currently has three approved Reclamation
Plans:
|
- Reclamation
Plan 23-84 for the Mesquite Project (Mine I.D. #91-13-0019);
- Reclamation
Plan 28-88 for the VCR Project (Mine I.D. #91-13-0020);
- Reclamation
Plan 98-0004 for the Mesquite Expansion Project.
|
3.
|
Waste
Discharge Order 95-016 - Cyanide management. Issued
by: California Regional Water Quality Control Board - Colorado
River Basin
Region.
|
| 4. |
Air
Quality Permit No. 1920-C. Issued
by: Imperial County Air Pollution Control
District
|
|
5.
|
Storm
Water General Permit No. CAS00001 - MINE ID #713I018532.
Issued
by: California Regional Water Quality Control Board - Colorado
River Basin
Region.
|
|
6.
|
Streambed
Alteration Agreement 6-097-00 ("1603 Permit"). Issued
by: California Department
of Fish and Game.
|
|
7.
|
Incidental
Take Permit 2081-2003-011-06. Issued
by: California Department of Fish and Game.(with Mitigation, Monitoring
and Reporting Plan (MMRP)).
|
|
8.
|
Spill
Prevention Control and Countermeasure (SPCC) Plan. Issued
by: California Regional Water
Quality Control Board - Colorado River Basin
Region
|
| 9. |
Biological
Opinion 1-6-92-F-22R3 Issued
by: US Fish & Wildlife
Service
|
|
10.
|
Bureau
of Land Management Decision Document dated January 30,1985 approving
Mesquite
Project Issued
by: Bureau of Land Management.
|
|
11.
|
Bureau
of Land Management Decision Document dated November 4,1987 approving
VCR
Project. Issued
by: Bureau of Land Management.
|
|
12.
|
Bureau
of Land Management Decision Document dated July 16, 2002 approving
Mesquite Expansion
Project. Issued
by: Bureau of Land Management.
|
| 13. |
Hazardous
Material Business Plans. Issued
by: Imperial County CUPA Program
|
| 14. |
State
Mineral Extraction Lease. Issued
by: State Lands Commission.
|
|
15.
|
Right-of
Way Issued
by: Bureau of Land Management. For the utility corridor between
the Vista
Well Field and the site.
|
Page
114
Part
B
| 1. |
Bonding/
Reclamation Plans.
|
Updated
bonding will be put in place prior to the commencement of mining.
| 2. |
RE:
Air Quality Permit No.
1920-C.
|
While
this air quality permit approves all current construction and mining activities,
modifications to this permit will be required when an emergency generator
is
installed.
| 3. |
Explosives
License. To
be issued by the Bureau of Alcohol, Tobacco, and
Firearms.
|
|
4.
|
Water
System Permit. To
be issued by the Imperial Co. Dept of Health. Currently, all drinking
water is brought to the site by a
vendor.
|
|
5.
|
Renewal/
Update of Waste Discharge Order 95-016 - Cyanide management
-
for purposes of the Pad 6
expansion.
|
| 6. |
Renewal/Update
of Waste Discharge Order 93-043 - Inert
Landfill.
|
|
7.
|
Right-of
Way. To
be issued by Bureau of Land Management to replace the existing
surface
water
line.
|
Page
115
Schedule
11 - Reclamation Bonds
|
Agency
|
Reference
|
Bond
Number
|
Current
Bond Amount
|
|||||||
|
1.Imperial
County, OMR, BLM
|
Reclamation
Plan ▇▇. ▇▇-▇▇ (▇▇▇▇▇▇▇▇)
|
|
▇▇▇▇▇▇▇▇▇▇
|
$
|
1,317,800
|
|||||
|
2.Imperial
County, OMR, BLM
|
Reclamation
Plan No. 2888 (VCR)
|
|
ESD7315360
|
$
|
1,067,000
|
|||||
|
3.Imperial
County, OMR, BLM
|
Plan
No. 23-84 (Tension Cracks)
|
|
ESD7315362
|
$
|
61,783
|
|||||
|
4.Bureau
of Land Management
|
Surface
Management
|
ESD7315358
|
$
|
5,637,800
|
||||||
|
5.Calif.
State Lands Commission
|
Mineral
Extraction Lease PRC 8039.2
|
ESD7315359
|
$
|
50,000
|
||||||
|
6.Calif.
Regional Water Quality Control Board
|
Closure
Performance Bond
|
ESD7315363
|
$
|
550,000
|
||||||
|
TOTAL
|
$
|
8,684,383
|
||||||||
Page
116
Schedule
12 - Form of Consent to Assignment
FORM
OF CONSENT AND AGREEMENT
The
undersigned hereby (a) acknowledges notice of, and consents in all respects
to,
the pledge and assignment
from Western Mesquite Mines, Inc (the "Grantor")
to
Investec Bank (UK) Limited, as Security Trustee (the "Security
Trustee"), of
all of
the Grantor's right, title and interest in, to and under the
Assigned Agreement (as defined below), (b) acknowledges that the Grantor
has
provided it with notice
of
the right of the Security Trustee in the exercise of its rights and remedies
to
make all demands, give
all
notices, take all actions and exercise all rights of the Grantor under the
Assigned Agreement as provided below, and (c) agrees with the Security Trustee
that:
(1) A
true
copy of the agreement between the undersigned and the Grantor dated [•] (the
"Assigned
Agreement”), including,
without limitation, all amendments, modifications, restatements and supplements
is attached hereto as Schedule 1. The Assigned Agreement is in full force
and
effect, and the undersigned is not aware of any default under the Assigned
Agreement or any event that would give any party the right to terminate or
rescind the Assigned Agreement.
No prepayments have been made of any amounts to become due under the
Assigned
Agreement.
(2) The
undersigned agrees that upon receipt from the Security Trustee of notice
that
an
"event of default" has occurred and is continuing, it will make all payments
to
be made by it under or in connection with the Assigned Agreement as directed
by
Security Trustee.
(3) The
undersigned will not, without the prior written consent of the Security
Trustee,
amend, amend and restate, supplement or otherwise modify the Assigned Agreement,
except, in each case, to the extent otherwise permitted under the credit
agreement entered into between
Grantor and the Security Trustee (the relevant portions of which will be
provided to the undersigned
by the Grantor in the event of any proposed amendment, amendment and
restatement,
supplement or other modification to be entered into by the undersigned and
the
Grantor).
(4) In
the
event of a default by the Grantor in the performance of any of its obligations
under the Assigned Agreement, or upon the occurrence or non-occurrence of
any
event
or
condition under the Assigned Agreement which would immediately or with the
passage of any applicable grace period or the giving of notice, or both,
enable
the undersigned to terminate
or suspend its obligations under the Assigned Agreement, the undersigned
shall
not terminate
the Assigned Agreement until it first gives the Security Trustee written
notice
of the default and permits the Security Trustee to cure the default within
a
period of 30 days after the later
of
(i) notice of default having been given to the Security Trustee by the
undersigned and (ii) the
expiration of the applicable cure period provided in the Assigned Agreement
for
the Grantor to cure the default.
(5) Except
as
specifically provided in this Consent and Agreement, the Security Trustee
shall have no liability or obligation under the Assigned Agreement as a result
of this Consent
and Agreement.
This
Consent and Agreement shall be binding upon the undersigned and its successors
and assigns, and shall inure to the benefit of the Security Trustee and it
successors, transferees and assigns. This Consent and Agreement shall be
governed by and construed in accordance with the laws of the State of
[ ].IN
WITNESS WHEREOF, the undersigned has duly executed this Consent and Agreement
as
of
the
date set opposite its name below.
Dated:
[·] [NAME OF OBLIGOR]
| By: | |||
|
Name:
|
|||
|
Title:
|
Page
117
Schedule
13 - Contract Packages
|
Contract
Number
|
Contract
Description
|
|
|
1
|
Mesquite
direct construction
|
|
|
2
|
Fencing
|
|
|
3
|
Instrumentation
|
|
|
4
|
Communications
|
|
|
5
|
Demolition
|
|
|
6
|
Dismantle
and re-erect
|
|
|
7
|
Modular
buildings
|
|
|
8
|
Pad
expansion liner
|
|
|
9
|
Concrete
|
|
|
10
|
Architectural
truckshop
|
|
|
11
|
Carbon
columns circuit
|
|
|
12
|
Lime
silos
|
|
|
13
|
High
Voltage Electrical
|
|
|
14
|
Air
consultant
|
|
|
15
|
Biologist
|
|
|
16
|
Soils
testing
|
|
|
17
|
Vista
rinse testing
|
|
|
18
|
EPCM
pads
|
|
|
19
|
EPCM
plant & infrastructure
|
|
|
20
|
Commissioning
|
|
|
21
|
Freight
|
|
|
22
|
Spares
|
|
|
23
|
Vendor
representatives
|
|
|
24
|
Environmental
|
|
|
25
|
Contingency
|
|
|
26
|
Emergency
power
|
|
|
27
|
Mob
demob Plant & Infrastructure
|
2
Information provided by the Borrower to the Agent on 27 February 2007 in
a
document entitled "Mesquite Contract Packages".
Page
118
The
Borrower
|
Signed
by
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
|
)
|
/s/
▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇
for and on behalf of
|
)
|
|
|
Western
Mesquite Mines, Inc.
|
)
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
The
Guarantor
|
Signed
by
▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇.
|
)
|
/s/
▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇▇▇▇
for and on behalf of
|
)
|
|
|
Western
Goldfields, Inc.
|
)
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
|
The
Agent
|
Signed
by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
as
duly authorised attorney
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
Investec
Bank (UK) Limited
|
)
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
The
Arranger
|
Signed
by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
as
duly authorised attorney
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
Investec
Bank (UK) Limited
|
)
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
The
Security Trustee
|
Signed
by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
as
duly authorised attorney
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
Investec
Bank (UK) Limited
|
)
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
The
Banks
|
Signed
by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
as
duly authorised attorney
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
Investec
Bank (UK) Limited
|
)
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
The
Hedging Banks
|
Signed
by
▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇
|
)
|
/s/
▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
as
duly authorised attorney
|
)
|
|
|
for
and on behalf of
|
)
|
|
|
Investec
Bank (UK) Limited
|
)
|
/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇
|
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119