EXHIBIT 2.5.1
DATED AS OF OCTOBER 26, 2001
MINERAS BONANZA C.A.
as Borrower
CRYSTALLEX INTERNATIONAL CORPORATION
BOLIVAR GOLDFIELDS A.V.V.
ORINOQUIA MINING A.V.V.
REVEMIN II, C.A.
EL CALLAO MINING CORP.
and
ECM (VENCO) LTD.
as additional Project Parties
STANDARD BANK LONDON LIMITED
as Initial Lender and Lender
STANDARD BANK LONDON LIMITED
as Collateral Agent
and
STANDARD BANK LONDON LIMITED
as Administrative Agent
----------------------------
FIRST AMENDMENT TO
CREDIT AGREEMENT
----------------------------
FIRST AMENDMENT TO CREDIT AGREEMENT
THIS FIRST AMENDMENT TO CREDIT AGREEMENT is dated as of October 26, 2001 (this
"First Amendment"), AMONG:
(1) MINERAS BONANZA C.A., a company organized under the laws of Venezuela
("Bonanza" or the "Borrower");
(2) CRYSTALLEX INTERNATIONAL CORPORATION, a company organized under the federal
laws of Canada ("CRYSTALLEX"), BOLIVAR GOLDFIELDS A.V.V., a company
organized under the laws of Aruba, having its statutory seat in Aruba,
Netherlands Antilles ("BOLIVAR ARUBA"), ORINOQUIA MINING A.V.V., a company
organized under the laws of Aruba, having its statutory seat in Aruba,
Netherlands Antilles ("ORINOQUIA"), REVEMIN II, C.A., a company organized
under the laws of Venezuela ("REVEMIN"), EL CALLAO MINING CORP. a company
organized under the laws of the Province of British Columbia ("EL CALLAO"),
and ECM (VENCO) LTD., as additional Project Parties (El Callao and ECM
sometimes collectively referred to herein as the "New Project Parties");
(3) STANDARD BANK LONDON LIMITED, a bank organized under the laws of England
("STANDARD BANK"), as the sole initial lender and, as of the date hereof,
the lender ("INITIAL LENDER");
(4) STANDARD BANK LONDON LIMITED, in its capacity as the collateral agent (in
such capacity, the "Collateral Agent"); and
(5) STANDARD BANK LONDON LIMITED, in its capacity as the administrative agent
(in such capacity, "the Administrative Agent").
RECITALS
The Borrower, Crystallex, Bolivar Aruba, Orinoquia, Revemin, the Initial Lender,
the Collateral Agent and the Administrative Agent are parties (the "ORIGINAL
PARTIES") to a Credit Agreement, dated as of August 11, 2000 (together with all
Schedules and Exhibits attached thereto, the "Agreement").
Pursuant to the Agreement, the other Loan Documents and the Project Documents,
the Lenders made a loan available to the Borrower in an amount no greater than
the Aggregate Commitment Amount. The Borrower has requested that the terms for
the scheduled repayment of the Aggregate Commitment Amount be revised, and the
Initial Lender and other Original Parties wish to agree to such revision, to add
the New Project Parties as additional Project Parties (the New Project Parties
and the Original Parties, each a "PARTY" and collectively, the "PARTIES"), and
to further amendments to the Agreement, upon the terms and subject to the
conditions provided in this First Amendment.
Standard Bank was and is the sole Initial Lender and on the date hereof is also
the sole Lender, there having been no assignment or delegation by Standard Bank,
as an Assignor Lender, to an Assignee Lender, of all or any fraction of Standard
Bank's total Loan and Commitment pursuant to Section 11.11.1 of the Agreement.
Crystallex owns directly approximately 80% of all of the shares of El Callao and
El Callao owns directly all of the shares of ECM. ECM owns directly 51% of all
of the shares of ▇▇▇▇▇ Holdings Limited, a company organized under the laws of
Bermuda ("▇▇▇▇▇"), and ▇▇▇▇▇ owns directly all of the shares of Auriferous El
Callao C.A., a company organized under the laws of Venezuela ("AURIFEROUS").
Auriferous owns the mining concessions and rights to the La ▇▇▇▇▇▇▇▇ ▇▇▇▇ ore
deposit and other associated properties and facilities located in the State of
Bolivar, Venezuela (the "La Victoria Mine"). Crystallex and the New Project
Parties are presently extracting gold from the La Victoria Mine, which gold is
being processed at the Revemin Mill.
As additional security for the Borrower's obligations under the Agreement: (a)
Crystallex is willing to grant a security interest over its interest in the
share capital of El Callao, (b) El Callao is willing to grant a security
interest over its interest in the share capital of ECM, (c) ECM is willing to
grant a security interest over its interest in the share capital of ▇▇▇▇▇, (d)
Crystallex is willing to assign its right, title and interest in the El Callao
Indebtedness and security related thereto (as hereinafter defined in the revised
defined terms in Schedule I attached hereto, as provided in Section 4, below)
and (e) Crystallex is willing to guaranty the obligations of the Borrower and
any other Affiliates of Crystallex under any Hedging Obligations.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy
whereof is hereby acknowledged by each Party hereto, the Parties hereto hereby
agree as follows:
1. The foregoing RECITALS are true and correct and are incorporated in this
First Amendment; provided, however, that such agreement by the Initial
Lender, the Collateral Agent and the Administrative Agent as to the fourth
and fifth RECITALS is based solely upon the representations of Crystallex,
which, solely for the purpose of this Section, the Initial Lender, the
Collateral Agent and the Administrative Agent assume to be true and
correct.
2. The Agreement, the Loan Documents and the Project Documents, as executed
and/or delivered by the Parties, or as any such Loan Documents are to be
executed and/or delivered by Crystallex and the New Project Parties as
provided herein, are hereby incorporated in this First Amendment by
reference as if fully set forth herein, and shall remain in full force and
effect in accordance with their terms, except as specifically amended or
otherwise provided herein.
3. The New Project Parties are each added as parties to the Agreement and as
additional Project Parties solely for the purposes specifically stated
herein. The New Project Parties each agree to be parties to the Agreement
for such purposes and to be bound by all of the terms, conditions and
provisions of this First Amendment, and to fully comply with their
obligations hereunder.
4. Section 1.1 Defined Terms of the Agreement is amended in its entirety to
read as set forth in Schedule I attached hereto. Terms for which meanings
are provided in the Agreement or in this First Amendment, other than in
Section 1.1, as amended, shall have such meanings when used in the
Agreement of this First Amendment or if the context otherwise requires and
each notice and other communication delivered from time to time in
connection herewith.
5. As of the opening of business by the Administrative Agent on the date
hereof and immediately prior to the First Amendment Effective Date, the
outstanding aggregate amount of the Loan is U.S.$8,500,000.
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6. The Commitment Amount of the Initial Lender on the date hereof and
immediately following the amendment to Section 1.1, as provided herein, is
U.S.$8,500,000.
7. Section 3.1.1 of the Agreement is amended in its entirety to read as
follows:
3.1.1 SCHEDULED REPAYMENTS
The Borrower shall, on each Payment Date hereafter set forth below, make a
mandatory repayment of the Loan as follows:
Payment Date Principal Payment
------------ ------------------
July 15, 2002 U.S.$ 275,882.45
January 15, 2003 U.S.$ 318,797.50
July 15, 2003 U.S.$ 416,889.04
January 15, 2004 U.S.$ 514,980.58
July 15, 2004 U.S.$ 514,980.58
January 15, 2005 U.S.$2,200,000.00
July 15, 2005 U.S.$2,200,000.00
January 15, 2006 U.S.$2,058,469.85
-----------------
Total Principal Payments U.S.$8,500,000.00
Without in any way limiting the Finance Parties' rights hereunder or the
relevant provisions hereof, the parties hereto agree that, should the
Venezuelan Companies discover and/or prove sufficient additional Reserves
as the Project, they will enter into discussions in order to adjust the
repayment schedule described in this Section to reflect such additionally
discovered and/or proven Reserves.
8. Section 8.1.6 of the Agreement is amended in its entirety to read as
follows:
8.1.6 RECALCULATION OF BASE CASE
(a) The Borrower shall, with the approval of the Administrative Agent, such
approval not to be unreasonably withheld, update the Base Case from
time to time at least on an annual basis, no later than each October 1,
commencing October 1, 2001; provided, however, that the updated base
case for October 1, 2001, shall be updated within sixty (60) days
following the First Amendment Effective Date ("2001 DATE"). Any such
updated Base Case shall be the Base Case for all purposes of this
Agreement and each other Loan Document. If no agreement between the
Borrower and the Administrative Agent can be reached on an updated Base
Case by October 1 of the relevant calendar year thereafter (other than
October 1, 2001), then the Borrower and the Administrative Agent shall
negotiate further in updating the Base case so as to be acceptable to
all parties (and may utilize the services of an independent expert);
provided, however, that if such negotiations have not produced a Base
Case acceptable to the Administrative Agent by November 30 next
following, then the Base Case then in effect shall remain the Base Case
for all purposes of this Agreement and each other Loan Document.
Notwithstanding the foregoing, in the event that an updated Base Case
is not agreed on or before the 2001 Date: (i) the draft "Corporate
Business Plan" attached hereto as Exhibit A is hereby adopted as the
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Base Case, effective on the 2001 Date, and the proviso in the
immediately preceding sentence shall not be given effect, and (ii) if
the proviso in the third sentence of Section 8.1.6(a) becomes
effective, such "Corporate Business Plan" shall be "the Base Case then
in effect" for the purpose of such proviso. The Parties each
acknowledge receipt of the electronic document described in Exhibit A
and agree that a printed copy thereof need not be attached hereto.
(b) Notwithstanding the provisions of clause (a), by an amendment to this
Agreement by the parties hereto, or by separate written agreement of
the Borrower and the Administrative Agent, a Base Case then in effect
may be revised at any time prior to the adoption of an updated base
case pursuant to clause (a) (a "REVISED BASE CASE"), to be effective
until replaced by an updated Base Case or another Revised Base Case.
9. The first sentence of Section 8.2.7(b) of the Agreement is amended in its
entirety to read as follows:
The counterparty to all Metal Trading Agreements shall be Standard Bank,
unless the Administrative Agent shall, at the request of the Borrower but
in the Administrative Agent's sole discretion, approve counterparties that
are banks, other financial institutions or trading institutions having
Indebtedness (with a maturity of one year or less) of Approved Credit
Quality.
10. The obligations of the Lenders to agree to the above amendments to
Section 3.1.1 of the Agreement shall be subject to the prior or concurrent
satisfaction of each of the conditions precedent set forth in this Section,
unless the Administrative Agent shall, in its sole discretion, defer such
satisfaction to a specified later date. Unless specifically stated to the
contrary, each document, certificate and other Instrument delivered
pursuant to this Section shall be dated on, or prior to, and shall be in
full force and effect on, a Borrowing Date concurrent with or following the
First Amendment Effective Date with respect to the Loan.
The Administrative Agent shall have received:
(a) Such evidence as the Administrative Agent shall reasonably require to
the effect that Crystallex is the registered owner of the share capital
of El Callao to be pledged hereunder, that El Callao is the registered
owner of the share capital of ECM to be pledged hereunder, that ECM is
the registered owner of the share capital of ▇▇▇▇▇ to be pledged
hereunder, that ▇▇▇▇▇ is the registered owner of the share capital of
Auriferous and that Auriferous is the owner of the Mining Rights as to
the La Victoria Mine.
(b) A certificate of an Authorized Representative of each Project Party and
(without duplication) Subordinated Creditor to the effect that (i) the
representations of such Person set forth in each Loan Document to which
it is a party shall be true and correct as at the First Amendment
Effective Date and (ii) no Default shall have then occurred and be
continuing.
(c) From Crystallex, each Project Party and (without duplication)
Subordinated Creditor, a certificate of its Secretary or similar
officer as to:
4
(i) corporate resolutions of its Board of Directors or
similar body (and if required, shareholders' resolutions)
then in force and effect authorizing the execution, delivery
and performance of this First Amendment and each Loan
Document ("NEW LOAN DOCUMENT") other than Loan Documents
authorized, executed and delivered prior to the date of this
First Amendment, and any other document to be executed by it
in connection with the transactions contemplated by such New
Loan Documents;
(ii) the incumbency and signatures of those of its managing
directors or officers authorized to act with respect to each
New Loan Document and any other document executed or to be
executed by it; and
(iii) its Organic Documents as then in effect, upon which
certificate the Administrative Agent may conclusively
rely until it shall have received a further certificate of
the Secretary or similar officer of the relevant Person
cancelling or amending such prior certificate.
(d) Counterparts of the El Callao Pledge Agreement, duly executed by the
Collateral Agent and an Authorized Representative of Crystallex and
acknowledged by an Authorized Representative of El Callao;
(i) evidence of the delivery of the shares of El Callao
pledged thereunder to the Collateral Agent; and
(ii) evidence that all filings and registrations required under
the laws of Canada (including any required notations to be
made in the shareholders' register of El Callao or on the
relevant share certificates) shall have been duly made.
(e) Counterparts of the ECM Pledge Agreement, duly executed by the
Collateral Agent and an Authorized Representative of El Callao and
acknowledged by an Authorized Representative of ECM;
(i) evidence of the delivery of the shares of ECM pledged
thereunder to the Collateral Agent; and
(ii) evidence that all filings and registrations required under
the laws of Bermuda (including any required notations to
be made in the shareholders' register of ECM or on the
relevant share certificates) shall have been duly made.
(f) Counterparts of the ▇▇▇▇▇ Pledge Agreement, duly executed by the
Collateral Agent and an Authorized Representative of ECM and
acknowledged by an Authorized Representative of ▇▇▇▇▇;
(i) except for shares presently held in escrow, evidence of
the delivery of the shares of ▇▇▇▇▇ pledged thereunder to
the Collateral Agent; and
(ii) evidence that all filings and registrations required
under the laws of Bermuda (including any required notations
to be made in the shareholders' register of ▇▇▇▇▇ or on the
relevant share certificates) shall have been duly made.
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(g) Counterparts of the Crystallex Assignment Agreement, duly executed by
the Collateral Agent and an Authorized Representative of each of
Crystallex, El Callao and ECM;
(i) evidence that all filings required under applicable law
shall have been duly made.
(h) Counterparts of the Crystallex Hedge Guaranty, duly executed by the
Collateral Agent and an Authorized Representative of Crystallex.
(i) Opinions addressed to the Finance Parties from:
(i) ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Canadian counsel to the Project
Parties, as to such matters relating to the transactions
contemplated by this First Amendment and in substantially
such form as the Finance Parties may reasonably request; and
(ii) Bermudan and Venezuelan counsel to the Project Parties,
as to such matters relating to the transactions contemplated
by this First Amendment and in substantially such form as
the Finance Parties may reasonably request.
(j) If the Administrative Agent shall have so requested, an English
translation of any of the foregoing documents not originally executed
in English, certified by an Authorized Representative of each Project
Party thereto.
(k) The representations and warranties of the Project Parties set forth in
Article 7 and in all other Loan Documents, including this First
Amendment, shall (subject to the exceptions specifically set forth
herein) be true and correct as of the date initially made, and both
immediately before and after the making of the requested Loan:
(i) such representations and warranties shall be true and
correct with the same effect as if then made (unless stated
to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as
of such earlier date); and
(ii) no Default shall have then occurred and be continuing.
11. All references to "Sections," "Schedules" and "Exhibits" in the
Agreement and this First Amendment and the Schedules and Exhibits attached
hereto, shall be references to Sections, Schedules and Exhibits in the
Agreement, unless specific reference is made to their being Sections,
Schedules or Exhibits "to the First Amendment."
12. Whenever used in the Agreement, the term "either of the Venezuelan
Parties" shall be amended to read "any of the Venezuelan Parties," and the
term "neither Venezuelan Party" shall be amended to read "no Venezuelan
Party."
13. This First Amendment may be executed by the Parties in several
counterparts, each of which shall be deemed to be an original and all of
which shall constitute together but one and the same agreement. This First
Amendment shall become effective on the date when counterparts hereof
executed on behalf of all Parties other than the Administrative Agent (or
notice thereof satisfactory to the Agent) shall have been received by the
Agent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers thereunto duly authorized as of the day and year
first above written.
MINERAS BONANZA C.A.
as the borrower
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
REVEMIN II, C.A.
as an additional Project Party
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
BOLIVAR GOLDFIELDS A.V.V.
as an additional Project Party
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
ORINOQUIA MINING A.V.V.
as an additional Project Party
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President
7
CHRYSTALLEX INTERNATIONAL
CORPORATION
as an additional Project Party
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President & CEO
EL CALLAO MINING CORP.
as an additional Project Party
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President & CEO
ECM (VENCO) LTD.
as an additional Project Party
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: President & CEO
STANDARD BANK LONDON LIMITED
as initial Lender and Lender
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Head of Mining Finance
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Title: Senior Manager
--------------------
8
STANDARD BANK LONDON LIMITED
as Administrative Agent
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Head of Mining Finance
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Title: Senior Manager
--------------------
STANDARD BANK LONDON LIMITED
as Collateral Agent
By: /s/ ▇. ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇. ▇. ▇▇▇▇▇▇▇
Title: Head of Mining Finance
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------
Title: Senior Manager
--------------------
9
SCHEDULE I
DEFINED TERMS
1.1 DEFINED TERMS
The following terms, when used in this Agreement, including its preamble
and recitals, shall have the following meanings:
"ACCOUNT BANK (CANADA)" means Bank of Montreal acting from its office in
Vancouver, or, subject to this Agreement, such other bank located in
Vancouver with which the Proceeds Account (Canada) shall be maintained.
"ACCOUNT BANK (VENEZUELA)" means Banco Orinoco, acting from its office in
Caracas or any similar bank nominated by the relevant Venezuelan Company
which bank is reasonably satisfactory to the Administrative Agent.
"ACCOUNT BANKS" means, collectively, the Account Bank (Canada), the Account
Bank (Venezuela) and the Local Banks.
"ACQUISITION AGREEMENT" is defined in the first recital.
"ACQUISITION EFFECTIVE DATE" means such date as of which the Acquisition
Transaction shall have been completed in accordance with its terms.
"ACQUISITION TRANSACTION" means the purchase by Crystallex from the Vendor
of the share capital of Bolivar Aruba (and indirectly Bolivar Aruba's
interest in the entire share capital of Orinoquia and Bonanza and 93% of
the share capital of Revemin), as contemplated by the Acquisition
Agreement.
"ADDITIONAL COSTS RATE" means for any Interest Period, the applicable rate
determined by Administrative Agent and the relevant Lenders in accordance
with Schedule II.
"ADMINISTRATIVE AGENT" is defined in the preamble.
"AFFILIATE" of any Person means any other Person which, directly or
indirectly, controls or is controlled by or under common control with such
Person (excluding any trustee under, or any committee with responsibility
for administering, any compensation, welfare or similar plan). A Person
shall be deemed to be "controlled by" any other Person if such other
Person possesses, directly or indirectly, power:
(a) to vote twenty percent (20%) or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of
directors or managing general partners of such Person; or
(b) to direct or cause the direction of the management and policies of such
Person, whether by contract or otherwise.
"AGENTS" means, collectively, the Administrative Agent and the Collateral
Agent.
"AGGREGATE COMMITMENT AMOUNT" means U.S.$8,500,000, as may be reduced
pursuant to Section 2.1(d).
"AGGREGATE DISCOUNTED PROJECTED CASHFLOW" means for any Forecast Period,
the aggregate of Projected Available Cashflow for each Measurement Period
comprising such Forecast Period, discounted back to the relevant
Calculation Date at the Discount Rate.
"AGREEMENT" is defined in the preamble, and shall include all amendments
thereto unless otherwise specified or the context otherwise requires.
"AMENDED DISCLOSURE SCHEDULE" means any amended Disclosure Schedule, or any
amendments to the Disclosure Schedule, as provided by the Borrower and/or
Crystallex and accepted by the Administrative Agent, and containing matters
required to be disclosed pursuant to any provision of the Agreement,
including the Amended Disclosure Schedule attached as Schedule II to the
First Amendment to provide for matters as to the New Project Parties.
"APPLICABLE LAW" means, with respect to any Person or matter, any
supranational, national, provincial, federal, state, regional, or local
statute, law, rule, treaty, convention, regulation, order, decree or other
requirement relating to such Person or matter and, where applicable, any
interpretation thereof by any Governmental Agency having jurisdiction with
respect thereto or charged with the administration or interpretation
thereof (in each case, whether or not having the force of law, but if not
having the force of law, such statute, law, etc. being of the type with
which such Person would comply in the ordinary course of business).
"APPLICABLE MARGIN" means two and one-half percent, (2.50%) per annum.
"APPROVAL" means each and every approval, authorization, license, permit,
consent, filing and registration by or with any Governmental Agency or
other Person necessary for the execution, delivery or performance of this
Agreement or any other Operative Document (including any such approval
relating to, or necessary for, the production and export of Project Output
and the consent of any lessor or owner of any property or assets forming
part of the Project) or for the validity or enforceability hereof or
thereof, whether or not referred to in Item 1 ("APPROVALS") of the
Disclosure Schedule.
"APPROVED CREDIT QUALITY" means at least A-1 (or any successor rating) by
Standard & Poor's Rating Group, a division of McGraw Hill, Inc. and/or P-1
(or any successor rating) by ▇▇▇▇▇'▇ Investors Services, Inc.
"APPROVED SUBORDINATED INDEBTEDNESS" means any intercompany Indebtedness
advanced by (a) any Subordinated Creditor for the benefit of Bonanza and
subject to the terms and conditions of the Subordination Agreement or (b)
any other Affiliate of Crystallex for the benefit of Bonanza and subject to
subordination and other terms and conditions the same in all material
respects as those contained in the Intercompany Subordination Agreement.
"ARUBAN SECURITY AGREEMENT" means the pledge over Orinoquia's rights, title
and interest to the Revemin Receivable, between Orinoquia, as pledgor, and
the Collateral Agent, substantially in the form of Exhibit I attached
hereto.
ii
"ASSIGNEE LENDER" is defined in Section 11.11.1.
"ASSIGNMENT OF CONTRACT RIGHTS" means any Assignment executed in Spanish
between the relevant Venezuelan Company, as assignor, the Initial Lenders
and the Collateral Agent relating to such Venezuelan Company's rights under
any designated Project Document, the English translation of which shall be
in the agreed terms.
"ASSIGNOR LENDER" is defined in Section 11.11.1.
"AURIFEROUS" is defined in the Recitals to the First Amendment.
"AUTHORIZED REPRESENTATIVE" means, relative to any Project Party or
(without duplication) Subordinated Creditor, those of its managing
directors or officers whose signatures and incumbency shall have been
certified pursuant to Section 6.3.
"BASE CASE" means the financial model prepared by the Borrower (approved
in writing by the Administrative Agent), containing inter alta operational,
economic, technical and risk management data concerning the Project and
relating to the Facility together with calculations of: (a) the Loan Life
Cover Ratio, the Project Life Cover Ratio, the Debt Service Cover Flow
Ratio and the Reserve Tail Cover Ratio as subject to agreed standard
assumptions and sensitivity analyses, (b) Aggregate Discounted Projected
Cashflow and Projected Available Cashflow until the Maturity Date or, as
the case may be, the Project End Date and (c) the scheduled payment
obligations with respect to the Facility, as such model is modified and
updated pursuant to Section 8.1.6. A print-out of the initial Base Case is
attached as Schedule II. All references to the "Base Case" shall include
and mean instead any Revised Base Case then in effect.
"BOLIVAR" means lawful money of Venezuela.
"BOLIVAR ARUBA" is defined in the preamble.
"BOLIVAR ARUBA PLEDGE AGREEMENT" means the pledge agreement between
Crystallex, as pledgor, and the Collateral Agent relating to the share
capital of Bolivar Aruba, substantially in the form of Exhibit G attached
hereto.
"BOLIVAR GOLDFIELDS" is defined in the first recital.
"BONANZA" is defined in the preamble.
"BONANZA PLEDGE AGREEMENT" means the share pledge executed in Spanish
between Orinoquia, as pledgor, the Initial Lenders and the Collateral Agent
relating to the share capital of Bonanza, the English translation of which
shall be in the agreed terms.
"BONANZA PROCEEDS ACCOUNT" means the account designated as such and
maintained by Bonanza with the Account Bank (Venezuela).
"BORROWER" is defined in the preamble.
"BORROWING DATE" means the Business Day on which the Loan is made pursuant
to Section 2.1.
iii
"BORROWING NOTICE" means a loan request and certificate duly executed by an
Authorized Representative of the Borrower, substantially in the form of
Exhibit A hereto.
"BUSINESS DAY" means:
(a) any day which is not Saturday, Sunday, a legal holiday or any other day
on which banks are closed in London, England or New York, New York, to
the extent involving any Venezuelan Company, Caracas, Venezuela or, to
the extent involving the Proceeds Account (Canada), Vancouver, British
Columbia, Canada;
(b) in relation to any determination involving Gold, a day on which the
LBMA is open for business and on which dealings in Dollar deposits are
carried out in the London interbank market; and
(c) in relation to any payment, drawdown or continuing of an Advance, or
the determination of the LIBO Rate, a day on which dealings in Dollar
deposits are carried out in the London interbank market.
"CALCULATION DATE" means each June 30 and December 31, and, without
duplication, the Borrowing Date.
"CAPITAL CONTRIBUTION" means a cash contribution made (directly or
indirectly) by one Person to the ordinary share capital or equity of
another Person.
"CAPITAL EXPENDITURES" means, for any period and with respect to any
Person, the sum of:
(a) the aggregate amount of all expenditures of such Person for fixed or
capital assets (including expenditure incurred in connection with
deferred development costs) made during such period which, in
accordance with GAAP, would be classified as capital expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities incurred
during such period.
"CAPITALIZED LEASE LIABILITIES" means all monetary obligations of any
Person under any leasing or similar arrangement which, in accordance with
GAAP, would be classified as capitalized leases, and, for the purposes of
this Agreement, the amount of such obligations shall be the capitalized
amount thereof, determined in accordance with GAAP, and the stated maturity
thereof shall be the date of the last payment of rent or any other amount
due under such lease prior to the first date upon which such lease may be
terminated by the lessee without payment of a penalty.
"CASH EQUIVALENT INVESTMENT" means, at any time:
(a) any security, maturing not more than one year after the purchase
thereof, issued by the United States Treasury that is maintained in
book-entry form on the records of a Federal Reserve Bank in the United
States;
(b) commercial paper, maturing not more than nine months from the date of
issue, which (i) has a rating of at least Approved Credit Quality and
(ii) is issued or guaranteed by a
iv
company (other than any project Party or Affiliate thereof) or a bank
or commercial financial institution; or
(c) any negotiable certificate of deposit or banker's acceptance
denominated in Dollars, maturing not more than one year after the
purchase thereof, or any money market funds in any case issued (or, in
the case of a banker's acceptance, accepted) by a commercial banking
institution organized under the laws of an OECD member country that has
a combined capital and surplus and undivided profits of not less than
U.S.$1,000,000,000 (or the equivalent thereof in any other currency).
"CHANGE IN CONTROL" means:
(a) the failure of Crystallex to own (and to have sole power to vote and
dispose of), directly or indirectly and free and clear of all Liens
(other than any Lien pursuant to the Bolivar Aruba Pledge Agreement or
the El Callao Pledge Agreement), 100% of the issued and outstanding
share capital (however designated) of Bolivar Aruba and approximately
80% of the issued and outstanding share capital (however designated)
of El Callao;
(b) the failure of Bolivar Aruba to own (and to have sole power to vote and
dispose of), directly or indirectly and free and clear of all Liens
(other than any Lien pursuant to the Orinoquia Pledge Agreement), 100%
of the issued and outstanding share capital (however designated) of
Orinoquia;
(c) the failure of Orinoquia to own (and to have sole power to vote and
dispose of), directly or indirectly and free and clear of all Liens
(other than any Lien pursuant to the Bonanza Pledge Agreement), 100% of
the issued and outstanding share capital (howsoever designated) of
Bonanza;
(d) the failure of Orinoquia to own (and to have sole power to vote and
dispose of), directly or indirectly and free and clear of all Liens
(other than any Lien pursuant to the Revemin Pledge Agreement), at
least 93% of the issued and outstanding share capital (howsoever)
designated) of Revemin;
(e) the failure of El Callao to own (and to have sole power to vote and
dispose of), directly or indirectly and free and clear of all Liens
(other than any Lien pursuant to the ECM Pledge Agreement), 100% of the
issued and outstanding share capital (howsoever designated) of ECM;
(f) the failure of ECM to own (and to have sole power to vote and dispose
of), directly or indirectly and free and clear of all Liens (other than
any Lien pursuant to the ▇▇▇▇▇ Pledge Agreement), 51% of the issued and
outstanding share capital (howsoever designated) of ▇▇▇▇▇; or
(g) the failure of ▇▇▇▇▇ to own (and to have sole power to vote and dispose
of), directly or indirectly and free and clear of all Liens, 100% of
the issued and outstanding share capital (howsoever designated of
Auriferous.
"CHATTEL MORTGAGE" means any Chattel Mortgage (over the personal property
and other chattels in and relating to the Tomi Mine or the Revemin Mill)
executed in Spanish between the relevant Venezuelan Company, as mortgagor,
the Initial Lenders and the Collateral Agent, the English translation of
which shall be in the agreed terms.
v
"COLLATERAL AGENT" is defined in the preamble.
"COLLATERAL AGREEMENTS" means, collectively, the Pledge Agreements and the
Security Agreements.
"COMMITMENT" means each Lender's obligation to make, maintain and continue
its Loan in an amount equal to its Commitment Amount in each case pursuant
to the terms and subject to the conditions of this Agreement.
"COMMITMENT AMOUNT" means (a) relative to any Initial Lender, the amount
set forth opposite its name on the signature pages hereto under the heading
"COMMITMENT AMOUNT" and (b) relative to any Assignee Lender, the amount
under the heading "COMMITMENT AMOUNT" assumed from the Assignor Lender
pursuant to the Lender Assignment Agreement by which such Assignee Lender
became a party to this Agreement, in each case as such amount may be
adjusted pursuant to any Lender Assignment Agreement pursuant to which such
Assignor Lender or Assignee Lender, as the case may be, is a party.
"COMMITMENT TERMINATION DATE" means the earliest to occur of the following:
(a) August 31, 2000;
(b) the occurrence of any Enforcement Event;
(c) the Borrowing Date on which the Loan shall have been made pursuant to
Section 2.1; and
(d) the termination of the Commitments pursuant to Section 2.1(d).
"COMMITTED HEDGING AGREEMENTS" means all net forward sale, put/call
options, spot deferred sale or other similar arrangements providing for a
binding commitment to sell or deliver Gold entered into by the Borrower
pursuant to Section 8.2.7.
"COMPENSATION" means:
(a) all cash or other consideration received by any Venezuelan Company (net
of all reasonable out-of-pocket costs paid by such Venezuelan Company
to Persons not affiliated with any Project Party in obtaining such cash
or other consideration) in respect of the partial or total
nationalization, expropriation, compulsory purchase, requisition or
other taking (whether for title or otherwise) of the Project or the
Project Assets, or any interest therein,
(b) any sum received by any Venezuelan Company in respect of the release,
inhibition, modification, suspension or extinguishment of any rights,
easements or covenants enjoyed by or benefiting the Project or the
Project Assets, or the imposition of any restriction affecting the
Project or the Project Assets, or the grant of any easement of rights
over or affecting the Project or the Project Assets or any part
thereof, and
(c) any cash or other payment received by any Venezuelan Company in respect
of the refusal, revocation, suspension or modification of any Approval
required for the construction or operation of the Project or the
Project Assets,
vi
other than any proceeds received in respect of any Project Insurance.
"COMPLIANCE CERTIFICATE" means a certificate duly executed by an Authorized
Representative of the Borrower, substantially in the form of Exhibit D
hereto.
"COMPLIANCE DATE" means each June 30 and December 31 of each calendar year
and, without duplication, the Borrowing Date.
"CONTINGENT LIABILITY" means any agreement, undertaking or arrangement by
which any Person guarantees, endorses or otherwise becomes or is
contingently liable upon (by direct or indirect agreement, contingent or
otherwise, to provide funds for payment, to supply funds to, or otherwise
to invest in, a debtor, or otherwise to assure a creditor against loss) the
indebtedness, obligation or any other liability of any other Person (other
than by endorsements of instruments in the course of collection), or
guarantees the payment of dividends or other distributions upon the shares
of any other Person. The amount of any Person's obligation under any
Contingent Liability shall (subject to any limitation set forth therein) be
deemed to be the outstanding principal amount (or maximum principal amount,
if larger of the debt, obligation or other liability guaranteed thereby.
"CONTINUATION NOTICE" means a notice of continuation and certificate duly
executed by an Authorized Representative of the Borrower, substantially in
the form of Exhibit B hereto.
"CONTRACTUAL OBLIGATION" means, relative to any Person, any provision of
any security issued by such Person or of any Instrument or undertaking to
which such Person is a party or by which it or any of its property is
bound.
"CRYSTALLEX" is defined in the preamble.
"CRYSTALLEX ASSIGNMENT AGREEMENT" means the assignment agreement between
Crystallex, as assignor, and the Collateral Agent, as assignee, and joined
in by El Callao and ECM, relating to Crystallex's right, title and interest
in the El Callao Indebtedness, substantially in the form of Exhibit B
attached to the First Amendment.
"CHRYSTALLEX GUARANTY" means the guaranty between Crystallex, as guarantor,
and the Collateral Agent, substantially in the form of Exhibit F attached
hereto.
"CRYSTALLEX HEDGE GUARANTY" means the guaranty between Crystallex, as
guarantor, and the Collateral Agent, as to the obligations of the Borrower
and any other Affiliates of Crystallex under any Hedging Obligations,
substantially in the form of Exhibit C attached to the First Amendment.
"CVG" means Corporation Venezuela de Guayana, a Venezuelan corporation.
"DEBT SERVICE COVER RATIO" means, at any Compliance Date, the ratio of:
(a) Projected Available Cashflow for the Measurement Period following such
Compliance Date and for each subsequent Measurement Period prior to
(and including) the Maturity Date, to
vii
(b) Principal Amounts required to be paid with respect to the Loan for each
such Measurement Period, together with all interest projected to be
paid with respect to the Loan.
"DEFAULT" means any Event of Default or any condition or event which, after
notice, lapse of time, the making of any required determination or any
combination of the foregoing, would constitute an Event of Default.
"DISCLOSURE SCHEDULE" means the Disclosure Schedule attached hereto as
Schedule I.
"DISCOUNT RATE" means, with respect to any Calculation Date, the sum of (a)
the LIBO Rate for an actual Interest Period of six months commencing on
such Calculation Date plus (b) the Applicable Margin.
"DOLLAR" and the sign "U.S.$" mean lawful money of the United States.
"ECM" is defined in the preamble to the First Amendment.
"ECM PLEDGE AGREEMENT" means the share pledge between El Callao, as
pledgor, the Initial Lender and the Collateral Agent relating to El
Callao's interest in 100% of the share capital of ECM, substantially in the
form of Exhibit D attached to the First Amendment.
"EFFECTIVE DATE" is defined in Section 11.8.
"EL CALLAO" is defined in the preamble to the First Amendment.
"EL CALLAO INDEBTEDNESS" means all indebtedness of El Callao to Bema Gold
Corporation ("Bema") pursuant to a Loan Agreement, dated June 30, 2000
between Bema, as lender, and El Callao, as borrower, and assigned by Bema
to Crystallex pursuant to an Assignment and Assumption Agreement, dated
February 26, 2001, by Bema, as assignor, and Crystallex, as assignee (the
"BEMA ASSIGNMENT"), which indebtedness consisted of U.S.$13,307,028.54 and
Canadian$2,346,684.43 as of the date of the Bema Assignment, and (a) the
proceeds of which indebtedness was used in part to fund indebtedness of ECM
to El Callao, indebtedness of ▇▇▇▇▇ to ECM, indebtedness of Auriferous to
▇▇▇▇▇ and indebtedness of Tamanaco Holdings Limited ("TAMANACO") to ECM and
(b) which indebtedness is secured by (i) pledges to Bema (and assigned to
Crystallex) of ECM shares of stock by El Callao, of ▇▇▇▇▇ shares of stock
by ECM and of Tamanaco shares of stock by ECM and (ii) a guarantee of ECM
to Bema (and assigned to Crystallex), all as more fully described in the El
Callao Assignment Agreement.
"EL CALLAO OBLIGORS" means El Callao and ECM.
"EL CALLAO PLEDGE AGREEMENT" means the share pledge between Crystallex, as
pledgor, the Initial Lender and the Collateral Agent relating to
Crystallex's interest in approximately 80% of the share capital of El
Callao, substantially in the form of Exhibit E attached to the First
Amendment.
"ENFORCEMENT EVENT" means either:
(a) an Insolvency Event; or
viii
(b) the occurrence of any other Event of Default and the acceleration of
the Obligations pursuant to Section 9.3.
"ENVIRONMENTAL LAW" means, with respect to any Person, any Applicable Law
relating to or imposing liability or standards of conduct concerning public
health and safety and the protection of the environment that is applicable
to such Person.
"ESCROW AGREEMENT" means the Agreement, dated as of July 27, 2000, between
Crystallex, the Vendor, Messrs. Stikman ▇▇▇▇▇▇▇ and Messrs. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇.
"EVENT OF DEFAULT" is defined in Section 9.1.
"EXISTING LENDERS" is defined in the sixth recital.
"EXISTING LOAN AGREEMENT" is defined in the sixth recital.
"EXISTING SENIOR LOAN AGREEMENT" is defined in the sixth recital.
"EXISTING SUBORDINATED LOAN AGREEMENT" is defined in the sixth recital.
"FACILITY" means the Loan and the financial accommodations made to the
Borrower in connection therewith.
"FINANCIAL PARTIES" means, collectively, the Lenders and the Agents.
"FIRST AMENDMENT" means the First Amendment to this Agreement among the
Borrower, Crystallex, ▇▇▇▇▇▇▇ Aruba, Orinoquia, Revemin, El Callao, ECM the
Initial Lender, the Collateral Agent and the Administrative Agent, dated as
of October 26, 2001.
"FIRST AMENDMENT EFFECTIVE DATE" means the date on which the actions
described in Section 11.8 are taken with respect to the matters provided in
the First Amendment and all conditions precedent that are provided in the
First Amendment are satisfied.
"FISCAL QUARTER" means any quarter of a Fiscal Year.
"FISCAL YEAR" means any period of twelve consecutive calendar months ending
on December 31.
"FORECAST PERIOD" means, with respect to any Calculation Date, the period
consisting of any Measurement Periods following such Calculation Date to
(and including) the Maturity Date or, as the case may be, the Project End
Date.
"F.R.S. BOARD" means the Board of Governors of the Federal Reserve System.
"GAAP" is defined in Section 1.3.
"GOLD" means gold bullion measured in fine ounces ▇▇▇▇ weight.
"GOVERNMENTAL AGENCY" means any supranational, national, federal, state,
regional or local government or governmental department or other entity
charged with the administration, interpretation or enforcement of any
Applicable Law.
ix
"HAZARDOUS MATERIAL" means:
(a) any pollutant or contaminant or hazardous, dangerous or toxic chemical,
material, substance or waste within the meaning of any Environmental
Law; or
(b) any petroleum product.
"HEDGING OBLIGATIONS" means, with respect to any Person, all liabilities of
such Person under commodity swap agreements, interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and all
other agreements, options or arrangements designed to protect such Person
against fluctuations in interest rates, currency exchange rates or precious
metals prices (including any Metal Trading Agreements).
"IMPERMISSIBLE QUALIFICATION" means, relative to the opinion or report of
any independent certified public accountant or any independent chartered
accountant as to any financial statement of any Project Party, any
qualification or exception to such opinion or report:
(a) which is of a "going concern" or similar nature;
(b) which relates to any limited scope of examination of matters relevant
to such financial statement which has resulted from any action of such
Project Party the result of which is, directly or indirectly, to
prevent such accountant from making such examination as such accountant
deems appropriate; or
(c) which relates to the treatment or classification of any item in such
financial statement and which, as a condition to its removal, would
require an adjustment to such item the effect of which would be to
cause a default of any of the obligations under Section 8.1.5.
"INDEBTEDNESS" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money or metals (including
Gold) and all obligations evidenced by bonds, debentures, notes, or
other similar Instruments on which interest charges are customarily
paid;
(b) all obligations, contingent or otherwise, relative to the face amount
of all letters of credit, whether or not drawn, and banker's
acceptances and similar instruments, in each such case issued for the
account of such Person;
(c) all obligations of such Person as lessee under leases which have been
or should be, in accordance with GAAP, recorded as Capitalized Lease
Liabilities:
(d) net payment liabilities of such Person under all Hedging Obligations;
(e) whether or not so included as liabilities in accordance with GAAP, all
obligations of such Person to pay the deferred purchase price of
property or services, and indebtedness (excluding prepaid interest
thereon) secured by a Lien on property owned or being purchased by such
Person (including indebtedness arising under conditional sales or other
title retention agreements), whether or not such indebtedness shall
have been assumed by such Person or is limited in recourse; and
x
(f) all Contingent Liabilities of such Person in respect of any of the
foregoing items which are the obligations of any other Person.
"INDEMNIFIED LIABILITIES" is defined in Section 11.4.
"INDEMNIFIED PARTIES" is defined in Section 11.4.
"INITIAL LENDERS" is defined in the preamble.
"INSOLVENCY EVENT" means, with respect to any Project Party, the occurrence
of any Default described in Section 9.1.6.
"INSTRUMENT" means any contract, agreement, indenture, mortgage, document
or writing (whether by formal agreement, letter or otherwise) under which
any obligation is evidenced, assumed, or undertaken, or any Lien (or right
or interest therein) is granted or perfected or purported to be granted or
perfected.
"INSURANCE CONSULTANT" is defined in Section 8.1.4.
"INTEREST PERIOD" means, relative to the Loan:
(a) initially, the period from the date the Loan was made on the Borrowing
Date to the day which numerically corresponds to such date one, three,
six or twelve months thereafter (or such other date as agreed between
all the Lenders and the Borrower but, subject at all times to the
provisions of Section 5.1);
(b) thereafter, each period from the last day of the immediately preceding
Interest Period applicable to the Loan to the day which numerically
corresponds to such date one, three, six or twelve months thereafter
(or such other date as agreed between all the Lenders and the Borrower
and, subject as provided in clause (a)) as the Borrower may irrevocably
select in the relevant Continuation Notice delivered pursuant to
Section 2.2;
provided, however, that:
(c) absent the timely selection of an Interest Period for the then
outstanding Loan, the Borrower shall be deemed to have selected an
Interest Period identical to that then in effect with respect to the
Loan;
(d) if such Interest Period for the Loan would otherwise end on a day which
is not a Business Day, such Interest Period shall end on the next
following Business Day, unless such Business Day occurs in the next
following calendar month, in which case such Interest Period shall end
on the immediately preceding Business Day;
(e) the Borrower shall not be permitted to select, and there shall not be
applicable, any Interest Period that would end later than the Maturity
Date;
(f) at any one time, there shall only be permitted to be in effect a
maximum of three Interest Periods with respect to the Loan; and
xi
(g) the Administrative Agent shall be able to select Interest Periods
satisfactory to it pursuant to the terms and conditions of Section
3.2.2 or after any Enforcement Event.
"INVESTMENT" means, relative to any Person and without duplication:
(a) any loan or advance made by such Person to any other Person (excluding
commission, travel and similar advances to officers and employees made
in the ordinary course of business);
(b) any Contingent Liability entered into by such Person; and
(c) any ownership or similar interest held by such Person in any other
Person.
The amount of any Investment shall be the original principal or capital
amount thereof less all returns of principal or equity thereon (and without
adjustment by reason of the financial condition of such other Person) and
shall, if made by the transfer or exchange of property other than cash,
be deemed to have been made in an original principal or capital amount
equal to the fair market value of such property.
"LA VICTORIA MINE" is defined in the fifth RECITAL to the First Amendment.
"LBMA" means The London Bullion Market Association.
"LENDER ASSIGNMENT AGREEMENT" means an Assignment Agreement, duly executed
by an Assignor Lender and an Assignee Lender, substantially in the form of
Exhibit C hereto.
"LENDERS" means, collectively, the Initial Lenders and the Assignee
Lenders.
"LENDING OFFICE" means (a) with respect to each Initial Lender, the office
of such Initial Lender designated as such below its signature hereto or
such other office of such Initial Lender as may be designated from time to
time by notice from such Initial Lender to the Administrative Agent and the
Borrower, (b) with respect to each Assignee Lender, the office of such
Assignee Lender designated as such in the Lender Assignment Agreement
pursuant to which it became a Lender or as may be designated from time to
time by notice from such Assignee Lender to the Administrative Agent and
the Borrower and (c) with respect to the Administrative Agent, the office
of the Administrative Agent designated as such from time to time by notice
to the Borrower and each Lender.
"LIBO RATE" means:
(a) the rate (rounded upwards, if necessary, to the nearest four decimal
places) which is the offered rate at or about 11:00 a.m. two Business
Days prior to the relevant Interest Period for Dollar deposits for a
period equal to the relevant Interest Period which appears on the
display designated as the British Bankers' Association Interest
Settlement Rate as quoted on the Reuters' Screen page no. LIBOR = (or
such other page or service as may replace page no. LIBOR = of such
service (as the case may be) for the purpose of so displaying the
British Bankers' Association Interest Settlement Rate for London
interbank offered rates and, in the absence of any such replacement
page or service, such other page of such other service as the
Administrative Agent, the relevant Lenders and the Borrower may agree),
or
xii
(b) if no relevant rate appears on Reuters' Screen page no. LIBOR = or if
such Reuters' Screen page is unavailable at the relevant time the
arithmetic mean (rounded upwards, if necessary, to the nearest four
decimal places) of the respective rates, as supplied to the
Administrative Agent at its request, quoted by the Reference Banks to
prime banks in the London Interbank Market at or about 11:00 a.m. two
Business Days prior to the relevant Interest Period in an amount
comparable to the amount of the Loan and for a period equal to the
Interest Period for delivery on the first day of that Interest Period.
"LIEN" means any security interest, mortgage, pledge, hypothecation,
assignment, encumbrance, lien (statutory or otherwise), charge against or
interest in property to secure payment of a debt or performance of an
obligation or other priority or preferential arrangement of any kind or
nature whatsoever.
"LOAN" means the loan under this Agreement (or any Lender's portion
thereof), whether outstanding or to be made.
"LOAN DOCUMENTS" means, collectively, this Agreement, the Collateral
Agreements, the Crystallex Guaranty, the Subordination Agreement, each
Metal Trading Agreement to which any Lender is a party, and each other
Instrument executed by any Project Party or any Affiliate of any thereof
evidencing any obligation (monetary or otherwise) in connection with and
pursuant to this Agreement and the transactions contemplated hereby and
representing obligations incurred to any of the Finance Parties.
"LOAN LIFE COVER RATIO" means, at any Calculation Date, the ratio of:
(a) Aggregate Discounted Projected Cashflow for the Forecast Period
following such Calculation Date to (and including) the Maturity Date to
(b) the Principal Outstanding as at such Calculation Date.
"LOCAL ACCOUNTS" means, collectively, the accounts designated as such and
maintained in the joint names of the Venezuelan Companies (or in the
individual names of each Venezuelan Company) with the Local Banks.
"LOCAL BANKS" means Banco Orinoco, acting from its office in Bonaire., The
Netherlands Antilles and Banco Orinoco, acting from its office in El
Callao, Venezuela or any similar banks nominated by the Venezuelan
Companies which banks are reasonably satisfactory to the Administrative
Agent.
"LONDON GOLD PRICE" means on any day the price per Ounce of Gold as fixed
by members of the LBMA during the afternoon of such day (including an
amount, if any, equal to the premium and any other additional amounts that
would be payable in the London bullion market in connection with a
purchase of Gold). If the London Gold Price is not available by reference
to the price fixed as aforesaid, then the London Gold Price shall be any of
the following alternatives, with each later mentioned alternative to be
used if the previous alternative is not available:
(a) if such day is a Business Day (as described in clause (b) of the
definition of such term) the price per Ounce of Gold as fixed by
members of the LBMA during the morning of such day (including the
premium and additional amounts described above).
xiii
(b) if such day is a Business Day as aforesaid, the publicly quoted price
in Dollars per Ounce of Gold on such other accessible international
bullion market as may be agreed between the Administrative Agent and
the Borrower, or
(c) if such day is not a Business Day as aforesaid, the price per Ounce of
Gold as fixed by members of the LBMA during the afternoon of the
previous Business Day.
"MATERIAL PROJECT DOCUMENTS" means the Milling Agreement and any other
contract or agreement relating to the operation or maintenance of the
Project of the nature that a Materially Adverse Effect would result if such
contract or agreement were not in effect or were terminated and not
replaced with a period of 30 days and includes those Instruments designated
as "MATERIAL PROJECT DOCUMENTS" from time to time pursuant to Section
8.3.12(b).
"MATERIALLY ADVERSE EFFECT" means an effect, resulting from any occurrence
of whatever nature (including any adverse determination in any labor
controversy, litigation arbitration or governmental investigation or
proceeding), which is materially adverse to:
(a) the financial condition, assets, revenues or prospects of (i) any
Venezuelan Company, (ii) Bolivar Aruba and its Subsidiaries, considered
on a consolidated basis or (iii) any of the New Project Parties;
(b) the ability of any Project Party to make any payment or perform any
other material obligation required under any Operative Document to
which it is a party; or
(c) the ability of any Venezuelan Company to operate and maintain the
Project substantially in accordance with this Agreement.
"MATURITY" means, any date on which the Loan is stated to be due and
payable, in whole or in part, whether by required repayment, prepayment,
declaration or otherwise.
"MATURITY DATE" means January 15, 2006.
"MEASUREMENT PERIOD" means the period of three calendar months commencing
on each January 1 and July 1 of each calendar year; provided, however, for
the computation of a financial ratio where a Measurement Period (a)
commences on the Borrowing Date, "MEASUREMENT PERIOD" means the period
commencing on the occurrence (or scheduled occurrence) of the Borrowing
Date and ending on the June 30 or December 31 next following or (b) ends on
the Maturity Date or the Project End Date. "MEASUREMENT PERIOD" means the
period commencing on the relevant January 1 or July 1 and ending on the
scheduled occurrence of either the Maturity Date or the Project End Date,
as the case may be.
"METAL TRADING AGREEMENTS" means, collectively, (a) the Committed Hedging
Agreements and (b) any other agreements entered into by the Borrower and
any of the New Project Parties relating to the sale or purchase of Gold.
"MILLING AGREEMENT" means the Milling Agreement dated June 19, 1998 between
Bonanza and Revemin.
"MINERVEN" means CVG-Minerven C.A., a subsidiary of CVG.
xiv
"MINING RIGHTS" means all interests in the surface of the lands, the
minerals in (or that may be extracted from) the lands, the royalty
agreements, water rights, mining concessions, fee interests, mineral
leases, mining licenses, profits-a-prendre, joint ventures and other
leases, rights-of-way, tenurements, licenses and other rights and interests
in real property used by or necessary to any Venezuelan Company to operate
and maintain the Project.
"NON-MATERIAL APPROVALS" is defined in Section 7.16(a)(ii).
"NOTICE TO ACCOUNT BANK" means the notice from Bonanza to the Account Bank
(Canada), as acknowledged by the Account Bank (Canada) to the Collateral
Agent, substantially in the form of Exhibit J attached hereto.
"OBLIGATIONS" means all obligations of the Borrower (or, in the case of the
Crystallex Guaranty, Crystallex) with respect to the repayment or
performance of all obligations (monetary or otherwise) arising under or in
connection with the Facility.
"OECD" means the Organization for Economic Cooperation and Development.
"OPERATING EXPENDITURES" means, for any applicable period, all production,
mining, crushing, leaching, metallurgical processing, laboratory, utility,
milling, power, transport, refining and similar operating and
administrative costs during such period.
"OPERATIVE DOCUMENTS" means collectively, the Loan Documents and the
Project Documents.
"ORGANIC DOCUMENTS" means with respect to (a) Crystallex or El Callao, its
certificate of continuance and its by-laws, (b) Bolivar Aruba or Orinoquia
its articles of incorporation, (c) ECM or ▇▇▇▇▇, its Memorandum of
Association or By-Laws, (d) any Venezuelan Company, its by-laws
(Estatutos) and (e) any of the foregoing, all shareholder agreements,
voting trusts and similar arrangements applicable to any of its authorized
shares of capital stock or other equity interests.
"ORIGINAL BORROWERS" is defined in the sixth recital.
"ORINOQUIA" is defined in the preamble.
"ORINOQUIA PLEDGE AGREEMENT" means the pledge agreement between Bolivar
Aruba, as pledgor, and the Collateral Agent relating to the share capital
of Orinoquia, substantially in the form of Exhibit H attached hereto.
"▇▇▇▇▇" is defined in the Recitals to the First Amendment.
"▇▇▇▇▇ PLEDGE AGREEMENT" means the share pledge between ECM, as pledgor,
the Initial Lender and the Collateral Agent relating to ECM's interest in
51% of the share capital of ▇▇▇▇▇ and substantially in the form of Exhibit
F attached to the First Amendment.
"OUNCE" means a fine ounce ▇▇▇▇ weight of Gold in a form readily tradeable
with members of the LBMA from time to time.
"PARTICIPANT" is defined in Section 11.11.2.
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"PAYMENT DATE" means, after the First Amendment Effective Date, each July
15 and January 15, commencing with July 15, 2002, and through January 15,
commencing with July 15, 20002, and through January 15, 2006.
"PERCENTAGE" means, relative to any Lender and at any time, the ratio
(expressed as a percentage) of (a) the Principal Amount of such Lender's
Loan at such time to (b) the aggregate Principal Amount of the Loan at such
time.
"PERMITTED LIENS" means the Liens permitted pursuant to Section 8.3.3.
"PERSON" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity,
whether acting in an individual, fiduciary or other capacity.
"PLEDGE AGREEMENTS" means, collectively, the Bolivar Aruba Pledge
Agreement, the Orinoquia Pledge Agreement, the Bonanza Pledge Agreement,
the Revemin Pledge Agreement, the El Callao Pledge Agreement, the ECM
Pledge Agreement and the ▇▇▇▇▇ Pledge Agreement.
"PLEDGE WITHOUT CONVEYANCE" means the pledge executed in Spanish between
Bonanza, as pledgor, the Initial Lenders and the Collateral Agent over
Project Output from the Tomi Mine (including that being processed by the
Revemin Mill), the English translation of which shall be in the agreed
terms.
"POLITICAL RISK INSURANCE" is defined in section 6.11(d).
"PRINCIPAL AMOUNT" means the principal amount of the Loan, whether
outstanding or to be made.
"PRINCIPAL OUTSTANDINGS" means at any time the outstanding Principal
Amount of the Loan at such time.
"PROCEEDS ACCOUNT (CANADA)" means the account maintained by Bonanza with
the Account Bank (Canada) pursuant to Section 4.1(a).
"PROCESS AGENT" is defined in Section II.13
"PROCESS AGENT ACCEPTANCE" means a letter from the Process Agent to the
Administrative Agent, substantially in the form of Exhibit E attached
hereto.
"PROJECT" means collectively, the Tomi Mine and the Revemin Mill, each
located in the Guayana Region, El Callao Municipality, Rasoia District
Bolivar State, Venezuela.
"PROJECT ACCOUNTS" means, collectively, the Proceeds Account (Canada), the
Bonanza Proceeds Account, the Auriferous Proceeds Account and the Local
Accounts.
"PROJECT ASSETS" means all properties, assets or other rights, whether real
or personal, tangible or intangible, now owned or hereafter acquired by or
for the benefit of any Venezuelan Company, which are used or intended for
use in or forming part of the Project.
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"PROJECT DOCUMENTS" means, collectively and without duplication (a) the
Material Project Documents, (b) all other Instruments referred to in Item 2
("CURRENT/PENDING PROJECT DOCUMENTS") of the Disclosure Schedule and any
Amended Disclosure Schedule and (c) all other Instruments designated as
"PROJECT DOCUMENTS" from time to time pursuant to Section 8.3.12.
"PROJECT END DATE" means December 31, 2006.
"PROJECT INSURANCE" means any policy of insurance held in connection with
the Project pursuant to Section 8.2.5.
"PROJECT LIFE COVER RATIO" means, at any Calculation Date, the ratio of:
(a) Aggregate Discounted Projected Cashflow for the Forecast Period
following such Calculation Date to (and including) the Project End
Date, to
(b) the Principal Outstandings as at such Calculation Date.
"PROJECT OUTPUT" means all products from the Project including ore, dore
and Gold.
"PROJECT PARTICIPANT" means (a) any Project Party and (b) any contractor,
operator or processor involved in the technical, physical and operational
aspects of the operation and maintenance of the Project.
"PROJECT PARTIES" means, collectively, Crystallex, Bolivar Aruba,
Orinoquia, El Callao, ECM and the Venezuelan Companies.
"PROJECTED AVAILABLE CASHFLOW" means, for any Measurement Period, the
amount reached by computing:
(a) the actual revenue (expressed in Dollars and calculated by reference
to Ounces of Gold) projected to be realized in respect of the Project
during such period, minus;
(b) all Operating Expenditures projected to be paid in respect of the
Project during such period, minus;
(c) all Taxes projected to be paid in respect of the Project during such
period, minus;
(d) all royalty and similar fees projected to be paid in respect of the
Project during such period, minus;
(e) all Capital Expenditures projected to be paid in respect of the Project
during such period.
For the purposes of item (a) above, as at any relevant Compliance Date:
(i) any Ounces subject of Committed Hedging Agreements then in effect shall
be valued using the actual delivery price specified in such Committed
Hedging Agreements; and
(ii) any other Ounces then projected to be produced shall be valued using
the lower of (i) the average Spot Gold Price (for a period of six
months) ending on (and including) the
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relevant Compliance Date and (ii) the Spot Gold Price as at the
relevant Compliance Date.
"REFERENCE BANKS" means Citibank N.A., The Chase Manhattan Bank and
Deutsche Bank AG acting through their principal offices in London, or such
other banks and financial institutions which the Borrower and the
Administrative Agent may agree.
"REGULATORY CHANGE" means the occurrence after the Effective Date of any
change in or abrogation of, or introduction, adoption, effectiveness,
interpretation, reinterpretation or phase-in of any:
(a) statute, law, rule, or regulation applicable to any Finance Party, or
(b) guideline, interpretation, directive, consent decree, administrative
order, request or determination (whether or not having the force of law
but, if not having the force of law, such guideline, etc. being of the
type with which such Finance Party would comply in the ordinary course
of business) applicable to such Finance Party of any court, central
bank or governmental or regulatory authority charged with the
interpretation or administration of any statute, law, rule or
regulation referred to in clause (a) or of any fiscal, monetary, or
other authority having jurisdiction over such Finance Party.
"REQUIRED LENDERS" means, at any time, Lenders having, in the aggregate, a
Percentage of more than sixty-six and two-thirds (66 2/3%).
"REQUIREMENT OF LAW" means, as to any Person, its Organic Documents and any
Applicable Law or Contractual Obligation binding on or applying to such
person.
"RESERVE TAIL COVER RATIO" means, at any date, the ratio of:
(a) Reserves as at such date, to
(b) Reserves as at the Effective Date.
"RESERVES" means, at any date, reserves of Gold at the Project as
determined and calculated in accordance with the standards set forth in
National Policy No. 2-A (Guide for Engineers, Geologists and Prospectors
Submitting Reports on Mining Properties to Canadian Securities
Administrators promulgated on April 22, 1983, as amended December 9, 1983
issued by the Canadian Securities Administrators.
"REVEMIN" is defined in the second recital.
"REVEMIN MILL" is defined in the fourth recital.
"REVEMIN PLEDGE AGREEMENT" means the share pledge executed in Spanish
between Orinoquia, as pledgor, the Initial Lenders and the Collateral Agent
relating to Orinoquia's interest in 93% of the share capital of Revemin,
the English translation of which shall be in the agree terms.
"REVEMIN REAL PROPERTY MORTGAGE" means the ordinary mortgage executed in
Spanish between Revemin, as mortgagor, the Initial Lenders and the
Collateral Agent over the real
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property assets and interests in and relating to the Revemin Mill
(including all real property assets and interests), the English translation
of which shall be in the agreed terms.
"REVEMIN RECEIVABLE" means the account receivable in the amount of
approximately U.S.$27,000,000 made by Revemin and acquired by Bolivar Aruba
pursuant to Acquisition Transaction.
"REVISED BASE CASE" is defined in Section 8 in the First Amendment.
"SECURITY AGREEMENT (CANADIAN ASSETS)" means that certain Security
Agreement executed by the Borrower and the Collateral Agent substantially
in the form of Exhibit K-1 attached hereto.
"SECURITY AGREEMENT (U.S. ASSETS)" means that certain Security Agreement
executed by the Borrower and the Collateral Agent, substantially in the
form of Exhibit K-2 attached hereto.
"SECURITY AGREEMENTS" means, collectively, the Venezuelan Security
Documents, the Aruban Security Agreement, the Security Agreement (Canadian
Assets) and the Security Agreement (U.S. Assets).
"SPOT GOLD PRICE" means, at any date, the London Gold Price in effect two
Business Days prior to such date.
"STANDARD BANK" is defined in the preamble.
"SUBORDINATED CREDITORS" means, collectively, in their capacities as
lenders under any Instrument evidencing Approved Subordinated Indebtedness,
Crystallex and its Affiliates.
"SUBORDINATION AGREEMENT" means that certain Subordination Agreement,
executed by Bonanza, the Subordinated Creditors and the Collateral Agent,
substantially in the form of Exhibit L hereto.
"SUBSIDIARY" means, with respect to any Person, any corporation at least a
majority or more of the outstanding shares of capital stock of which having
ordinary voting power to elect a majority of the board of directors or
other governing body 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 owned by such Person, by such Person and one or more other
Subsidiaries of such Person, or by one or more other Subsidiaries of such
Person.
"TAX CREDIT" is defined in Section 5.7(b)
"TAX PAYMENT" is defined in Section 5.7(b).
"TAXES" means any present or future income, franchise, excise, stamp or
other taxes, fees, duties, withholdings or other charges of any nature
imposed by any taxing authority of any jurisdiction.
"TOMI MINE" is defined in the third recital.
"TOMI REAL PROPERTY MORTGAGES" means the ordinary mortgages executed in
Spanish between Bonanza, as mortgagor, the Initial Lenders and the
Collateral Agent over the real property assets
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and interests in and relating to the Tomi Mine (including all real property
assets and interests owned or to be acquired by Bonanza), the English
translations of which shall be in the agreed terms.
"VENDOR" is defined in the first recital.
"VENEZUELAN COMPANIES" means, collectively, Bonanza, Revemin and
auriferous.
"VENEZUELAN SECURITY DOCUMENTS" means the Tomi Real Property Mortgages, the
Revemin Real Property Mortgage, the Chattel Mortgages (as to Bonanza and
Revemin), the Pledges Without Conveyance (as to Bonanza and Revemin), any
Assignment of Contract Rights and all other documents expressed to be
governed by the laws of Venezuela creating, evidencing or granting or the
subject of security for the obligations of any Project Party under the Loan
Documents.
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