Second Supplemental Agreement
to Amended & Restated Facility Agreement
dated 28 February 1997
Date: 29th December ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Ltd
ACN 050 494 454
("Bank")
and
Nord Australex Nominees Pty Ltd
ACN 001 657 272 in its capacity as trustee of the Trust
("Borrower")
and
Nord Gold Company Limited
Nord Pacific Limited
Nord Highlands Mineral Venture - 1
("Trust Beneficiaries")
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ref: BEW:PJW:966911
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TABLE OF CONTENTS
Clause Page
1. INTERPRETATION 3
2. CONDITIONS PRECEDENT 3
3. RE-BORROWING 4
4. AMENDMENTS TO PRINCIPAL AGREEMENT 4
5. MISCELLANEOUS 10
6. CONFIRMATION AND RATIFICATION 11
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THIS SECOND SUPPLEMENTAL AGREEMENT is made 29th day of December, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LTD ACN 050 494 454 of ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ("Bank")
AND NORD AUSTRALEX NOMINEES PTY LTD ACN 001 657 272 in its
capacity as trustee of the Trust of ▇▇▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ("Borrower")
AND NORD GOLD COMPANY LIMITED ("Nord Gold") incorporated in
Bermuda and NORD PACIFIC LIMITED ("Nord Pacific") registered
under the laws of Canada, both of ▇▇▇▇▇ ▇▇, ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ and NORD HIGHLANDS
MINERAL VENTURE - 1 ("Nord Highlands") a general partnership
formed under the laws of California, United States of
America (collectively the "Trust Beneficiaries" and each a
"Trust Beneficiary").
RECITAL
The parties have agreed to vary the Amended and Restated Facility
Agreement dated 28 February 1997 made between the Bank, the Borrower
and the Trust Beneficiaries as supplemented by the supplemental
agreement between those parties dated 13 May 1997 ("Principal
Agreement") in the manner set out in this Supplemental Agreement.
IT IS AGREED
1. INTERPRETATION
Terms and expressions defined in the Principal Agreement and used
in this Supplemental Agreement are, where the context requires or
admits, to be construed as bearing the same meaning as set out in
the Principal Agreement. Principles of interpretation set out in
the Principal Agreement shall also apply to this Supplemental
Agreement.
2. CONDITIONS PRECEDENT
This Supplemental Agreement is conditional upon the following:
(a) each of the Conditions Precedent set out in clause 3 of the
Principal Agreement having been satisfied;
(b) receipt by the Bank, in a form and substance satisfactory to the
Bank of:
(i) legal opinions of counsel to the Bank, covering such matters
as the Bank deems necessary or appropriate;
(ii) legal opinions in respect of each Security Provider from
counsel to the Borrower and/or other counsel acceptable to
the Bank;
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(c) receipt by the Bank, in form and substance satisfactory to
the Bank of a report prepared by the Borrower's auditors
forecasting all Taxation liabilities, payments and provisions
(in relation to all Project Taxes and all other Taxes) to be
incurred or made by the Borrower throughout the period from the
date of this Supplemental Agreement to the Final Reserve Date in
relation to the Projects; and
(d) receipt by the Bank, in form and substance satisfactory to the
Bank of the Financial Model in relation to the Projects, both
adjusted and updated to take account of the forecast Taxation
liabilities, payments and provisions set out in the report
provided in accordance with clause 2(c) above, which adjusted and
updated Financial Model must in the absence of anything else,
demonstrate that throughout the period from the date of this
Supplemental Agreement until the Termination Date the Borrower
will comply with its covenants in clause 19.7(a) of the Principal
Agreement.
3. RE-BORROWING
At the request of the Borrower and the Trust Beneficiaries, the
Bank has agreed to increase the Cash Facility Limit to a maximum
of US$3,000,000 for the period up to and including 31 December
1998 and thereafter to a maximum of US$3,600,000 and to amend the
Principal Agreement to permit the Borrower to repay and
subsequently redraw amounts under the Cash Advance Facility in
accordance with this Supplemental Agreement, subject to the
following conditions:
(a) each of the conditions precedent set out in clause 2 has
been satisfied;
(b) subject to satisfaction of the other conditions of the
Principal Agreement the initial Drawdown after the date of
this Supplemental Agreement of up to US$1,500,000 (available
under the increased Cash Facility Limit), which drawdown is
to be made prior to 31 December 1998, shall:
(i) be Drawndown as one Drawdown under the Principal
Agreement for an amount of up to the difference between
the increased Cash Facility Limit and the Cash Amount
Outstanding; and
(ii) be on-lent to Nord Pacific Limited for general working
capital purposes; and
(c) the Borrower pays to the Bank an establishment fee of US$10,500.
4. AMENDMENTS TO PRINCIPAL AGREEMENT
As from the date of this Supplemental Agreement, the Principal
Agreement is amended as follows:
(a) (clause 1.1): the definition of "Availability Period" in
clause 1.1 is deleted and the following definition is
inserted in its place:
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""Availability Period" means any period during
which the Facility Amount Outstanding is less
that the Facility Limit, provided such period
commences after the Availability Date and expires
on the first to occur of:
(a) the Termination Date; and
(b) the date on which the Commitment is cancelled, or
such later date as may be agreed by the Bank.";
(b) (clause 1.1): the definition of "Cash Facility Limit" appearing
in clause 1.1 is deleted and the following definition is inserted
in its place:
""Cash Facility Limit" means for the period to
and including 31 December 1998 US$3,000,000 and
thereafter US$3,600,000 (which amounts include
the principal amount of the Existing Cash
Advances, if any,) or such lesser amount to which
that amount may be reduced or cancelled pursuant
to this Agreement, including, without limitation,
pursuant to clause 10.2.";
(c) (clause 1.1): the definition of "Termination Date"
appearing in clause 1.1 is deleted and the following
definition is inserted in its place:
""Termination Date" means 30 June 2000.";
(d) (clause 1.1): the definition of "Treasury Facility Limit"
appearing in clause 1.1 is deleted and the following
definition is inserted in its place:
""Treasury Facility Limit" means the amount of
US$16,500,000 (which includes any exposure under
any existing Treasury Transactions).";
(e) (clause 4): clause 4(a) is deleted and the following clause
is inserted in its place:
"(a) (Cash Advance Facility): in relation to the
Cash Advance Facility, to pay Girilambone
North Development Costs, Project Operating
Costs in relation to the Projects and any
other purpose approved by the Bank in its
discretion;";
(f) (clause 5.6): clause 5.6 is deleted and the following clause
is inserted in its place:
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"5.6 Re-borrowings
Subject to clause 10.2, the Cash Advance
Facility is revolving in nature and subject
to clauses 3 and 4 and this clause 5, the
Borrower may redraw any amount Prepaid under
this Agreement provided that such redrawing
does not result in the Cash Amount
Outstanding exceeding the Cash Facility
Limit at the date of that redrawing.";
(g) (clause 5.8): the last sentence of clause 5.8 is deleted;
(h) (clause 9): clause 9 is amended by inserting the figures
"9.1" after the heading to that clause and inserting the
following new clause 9.2 after clause 9.1:
"9.2 Margin Requirements
(a) If at any time and from time to time
Contract Exposure exceeds the Margin
Free Limit, the Bank may by written
notice to the Borrower ("Margin Call")
require the Borrower, and the Borrower
agrees upon such Margin Call, to pay to
the Bank in US Dollars the amount by
which the Contract Exposure exceeds the
aggregate of the Margin Free Limit and
the Margin Call Balance, as specified
by the Bank in such Margin Call
("Margin Call Amount"). Margin Calls
shall only be made in respect of Margin
Call Amounts of not less than, and in
integral multiples of US$50,000 and
must be paid to the Bank within 3
Business Days of the Bank making the
Margin Call.
(b) If, at any time following a Margin Call
and the payment by the Borrower to the
Bank of the Margin Call Amount, the
difference between:
(i) the Contract Exposure; and
(ii) Margin Call Balance,
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is less than the Margin Free
Limit, then the Bank shall release
to the Borrower so much
of the Margin Call Balance then
held by it rounded downward (if
necessary) to the nearest integral
multiple of US$50,000, as will
cause the aforesaid difference to
equal the Margin Free Limit.
(c) Upon any default by the Borrower under
any Bank Risk Management Agreement or
this Agreement or upon the termination
of any of them, or upon the occurrence
and during the continuation of any
Event of Default the Bank is hereby
authorized at any time, and from time
to time without notice to the Borrower,
any Security Provider or any other
person, to set off and apply the Margin
Call Balance to meet any unsatisfied
obligations of the Borrower to the Bank
under the relevant Bank Risk Management
Agreement, all Bank Risk Management
Agreements, this Agreement, or any
other Transaction Document and any
balance of such Margin Call Amounts
remaining after satisfaction of all
obligations of the Borrower to the Bank
under all the Risk Management
Agreements this Agreement, and all
other Transaction Documents shall be
released by the Bank to the Borrower.
(d) Any Margin Call Amount paid to the Bank
in US Dollars shall bear interest at
the rate per annum which the Bank is
then paying on comparable deposits
lodged with it for a period of 30 days
or for such other term as may be agreed
by the Borrower and the Bank, and such
interest shall bear interest on and
from the date of payment to the Bank to
but excluding the date of -
(i) release to the Borrower pursuant
to paragraph (b);
(ii) or application by the Bank
pursuant to paragraph (c).
Such interest shall be calculated on
the basis of a 360 day year on the
actual number of days elapsed and shall
be credited to the relevant account on
the last day of each 30-day period.
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(e) Notwithstanding any provision in clause
9.2 to the contrary, the Borrower, as
an alternative to satisfying a Margin
Call in US Dollars and with the prior
consent of the Bank, may provide or
procure the provision of such other
security as is acceptable to the Bank
provided that any such security shall
not be released or discharged by the
Bank until the discharge in full by the
Borrower of all of its obligations to
the Bank under this Agreement and the
Transaction Documents.
(f) For the purposes of this clause 9.2 the following
expressions shall have the following meanings:
"Bank Risk Management Agreements" means
Risk Management Agreements made between
the Borrower and the Bank.
"Contract Exposure" means on any given
date, the amount, if any, that the Bank
determines would be payable by the
Borrower to the Bank in accordance with
the Bank Risk Management Agreements, if
all Bank Risk Management Agreements
were being terminated on that date.
"Margin Call" has the meaning given in
clause 9.2(a);
"Margin Call Amount" has the meaning
given in clause 9.2(a).
"Margin Call Balance" on any given date
means the aggregate of all Margin Call
Amounts paid to the Bank prior to that
date and still held by the Bank on that
date, after deducting all amounts
repaid to the Borrower under clause
9.2(b).
"Margin Free Limit" means
US$4,000,000.".
(i) (clause 10.2): clause 10.2 is deleted and replaced with the
following new clause:
"10.2 Repayment Installments
The Borrower will Repay the Loan by
Quarterly installments on each Repayment
Date by installments which shall be the
greater of:
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(a) 50% of Available Cash Flow for the
Quarter ending on the relevant
Repayment Date; and
(b) the amount required to reduce the Cash
Amount Outstanding to the Maximum
Outstanding Amount applicable on the
relevant Repayment Date:
MAXIMUM OUTSTANDING SCHEDULE
Repayment Date Maximum Outstanding Amount
31/12/98 US$3.0M
31/03/99 US$3.6M
30/06/99 US$3.6M
30/09/99 US$3.4M
31/12/99 US$2.4M
31/03/2000 US$1.1M
30/06/2000 Nil
Clause 10.2(a) does not apply to the Repayment
Dates of 31 December 1998, 31 March 1999, and
30 June 1999 so that the Borrower will only be
obliged under this clause 10.2 to make a
repayment of the Loan on those Repayment Dates
if required under clause 10.2(b) to reduce the
Cash Amount Outstanding to the Maximum
Outstanding Amount applicable on the Relevant
Repayment Date. Nothing in this clause 10.2
shall in any way limit the Borrowers
obligation to make a payment or repayment
under any other clause of this Agreement. On
each Repayment Date the Cash Facility Limit
shall automatically reduce to the Maximum
Outstanding Amount corresponding to that
Repayment Date.";
(j) (clause 11.1(g)): clause 11.1(g) is deleted;
(k) (clause 13): the following new clause 13(c) is inserted
after clause 13(b):
"(c) (non-utilization fee): a non-utilization fee
at the rate of 0.35 per cent per annum
calculated on a daily basis on the
difference between the Cash Facility Limit
and the Cash Amount Outstanding. This fee
is payable quarterly in arrears on each
Repayment Date.";
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(l) (clause 19.4(u)): the following new clause is inserted
immediately after clause 19.4(u):
"(ua) (FX Transaction): in relation to all
Risk Management Agreements the Borrower must
use proceeds payable to it pursuant to Sales
Contracts to make equal monthly deliveries
in such amount as is necessary from time to
time to ensure that the Borrower's
obligations and the amount outstanding or
due for delivery under the Risk Management
Agreements are fully performed and paid by
the Final Reserve Date subject to such
amount being adjusted by the Bank in its
discretion to take account of changes in the
Approved Budget."; and
(m) (clause 19.4(u)(iii)): the Bank's waiver of the
requirements in clause 19.4(u)(iii) set out in its letter
dated 4 February 1998 is hereby revoked such that the
Borrower must again comply with all of the provisions of
clause 19.4(u)(iii) as amended in accordance with this
Supplemental Agreement. Clause 19.4(u)(iii) is amended by
deleting the letters and figures "US$0.90" appearing on the
third line and inserting in their place the letters and
figures "US$0.75".
5. MISCELLANEOUS
5.1 Costs and Expenses
The Borrower shall on demand by the Bank reimburse the Bank for
all reasonable costs and expenses incurred by the Bank in
connection with the negotiation, preparation, execution, delivery
and completion of this Supplemental Agreement and shall pay all
stamp duty assessed on this Supplemental Agreement.
5.2 Counterparts
This Supplemental Agreement may be signed in one or more
counterparts and any counterpart or set of counterparts signed by
the parties to this Supplemental Agreement shall constitute an
original of this Supplemental Agreement for all purposes.
5.3 Governing Law
This Supplemental Agreement shall be governed by, and construed
in accordance with the laws from time to time in force in the
State of New South Wales and the parties hereby submit to the non-
exclusive jurisdiction of the courts of that State and the courts
which hear appeals therefrom.
5.4 Transaction Document
The parties acknowledge and agree that this Agreement is a
Transaction Document for the purposes of the Principal Agreement.
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6 CONFIRMATION AND RATIFICATION
(a) The Borrower and the Trust Beneficiaries covenant and agree
with the Bank that on and from the date of execution of this
Supplemental Agreement they are each bound by all of the
terms and provisions of the Principal Agreement as amended
by this Supplemental Agreement and acknowledge, covenant and
agree with the Bank that the amendments to the Principal
Agreement effected by this Supplemental Agreement do not
derogate from or in any way relieve them from all or any of
their obligations under the Principal Agreement or the
Securities.
(b) Without limiting paragraph (a) of this clause, the Trust
Beneficiaries confirm the Borrower's power to enter into
this Supplemental Agreement and consent to the terms of this
Supplemental Agreement.
EXECUTED as an agreement.
EXECUTED by ) BANK OF WESTERN AUSTRALIA LTD
BANK OF WESTERN AUSTRALIA LTD ) by it Attorneys
ACN 050 494 454 )
by its Attorney )
)
▇▇▇▇▇ ▇▇▇▇▇▇ ) Head of Structured Finance
Name ) Title
)
its duly constituted Attorney )
under Power of Attorney No. )
491 dated 4/11/96 who at the )
date hereof had no notice of )
revocation of such Power of
Attorney in the presence of:
/s/ ▇▇▇▇▇ ▇▇▇
An Officer of the Bank
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THE COMMON SEAL of )
NORD AUSTRALEX NOMINEES PTY )
LTD was hereunto affixed by )
authority of the board of )
directors in the presence of : )
)
)
)
/s/ ▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
(Signature of Director) (Signature of
Director/Secretary)
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
(Name of Director) (Name of Director/Secretary)
THE COMMON SEAL of )
NORD GOLD COMPANY LIMITED was )
hereunto affixed by authority )
of the board of directors in )
the presence of : )
)
)
)
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
(Signature of Director) (Signature of
Director/Secretary)
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇
(Name of Director) (Name of Director/Secretary)
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THE COMMON SEAL of )
NORD PACIFIC LIMITED was )
hereunto affixed by authority )
of the board of directors in )
the presence of : )
)
)
)
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
(Signature of Director) (Signature of
Director/Secretary)
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇
(Name of Director) (Name of Director/Secretary)
THE COMMON SEAL of )
NORD GOLD COMPANY LIMITED in )
its capacity as a general )
partner of NORD HIGHLANDS )
MINERALS VENTURE - 1 was )
hereunto affixed by authority )
of the board of directors in )
the presence of : )
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
(Signature of Director) (Signature of
Director/Secretary)
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇
(Name of Director) (Name of Director/Secretary)
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THE COMMON SEAL of )
NORD PACIFIC LIMITED in its )
capacity as a general partner )
of NORD HIGHLANDS MINERALS )
VENTURE - 1 was hereunto )
affixed by authority of the )
board of directors in the )
presence of : )
/s/ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
(Signature of Director) (Signature of
Director/Secretary)
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇
(Name of Director) (Name of Director/Secretary)
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