DEBT FINANCE FACILITY AGREEMENT
OLYMPUS PACIFIC MINERALS INC
EACH PARTY LISTED IN THE FIRST SCHEDULE
and
MACQUARIE BANK LIMITED
ABN 46 000 000 000
[Freehills LOGO]
XXX Xxxxxx Xxxxxx Xxxxx Xxxxxx Xxx Xxxxx Xxxxx 0000 Xxxxxxxxx
Telephone x00 0 0000 0000 Facsimile x00 0 0000 0000
xxx.xxxxxxxxx.xxx DX 000 Xxxxxx
XXXXXX XXXXXXXXX XXXXX XXXXXXXX SINGAPORE
Correspondent Offices HANOI HO CHI MINH CITY JAKARTA KUALA LUMPUR
Reference AS:JP:36F
Debt finance facility agreement
TABLE OF CONTENTS
Clause Page
------ ----
1 DEFINITIONS AND INTERPRETATION 1
1.1 Definitions 1
1.2 Interpretation 11
1.3 Inclusive expressions 13
1.4 Business Day 13
1.5 Accounting Standards 13
2 CONDITIONS PRECEDENT 13
2.1 Conditions precedent to first Advance 13
2.2 Conditions precedent to all Advances 15
2.3 Certified copies 16
2.4 Benefit of conditions precedent 16
3 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY 16
3.1 Provision of Commitment 16
3.2 Purpose 16
3.3 Termination 17
4 DRAWDOWN 17
4.1 Delivery of Drawdown Notice 17
4.2 Requirements for a Drawdown Notice 17
4.3 Irrevocability of Drawdown Notice 17
4.4 Amount of Advances 17
5 FACILITY 17
5.1 Provision of Advances 17
5.2 Repayment 18
5.3 Prepayment 18
6 INTEREST 18
6.1 Interest periods 18
6.2 Calculation of Interest 19
6.3 Payment of Interest 19
6.4 Selection Notice 19
6.5 Determination of Interest Rate 19
7 WARRANTS 20
7.1 Warrant terms 20
7.2 Corporate undertakings 22
7.3 Participation in Additional Rights 22
7.4 Share Ranking 23
7.5 Variation 23
7.6 Warrant Certificates 23
7.7 Compulsory exercise 24
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7.8 Survival 24
8 PAYMENTS 24
8.1 Manner of payment 24
8.2 Payments on a Business Day 24
8.3 Payments in gross 24
8.4 Additional payments 25
8.5 Taxation deduction procedures 25
8.6 Tax Credit 25
8.7 Withholding tax 26
8.8 Canadian Withholding Tax Credit 26
8.9 Tax affairs 26
8.10 Amounts payable on demand 26
8.11 Appropriation of payments 26
8.12 Currency exchanges 27
9 REPRESENTATIONS AND WARRANTIES 27
9.1 Representations and warranties 27
9.2 Survival and repetition of representations and warranties 29
9.3 Reliance by Lender 29
10 UNDERTAKINGS 29
10.1 Term of undertakings 29
10.2 Provision of information and reports 30
10.3 Time periods 30
10.4 Proper accounts 30
10.5 Notices to the Lender 31
10.6 Compliance 31
10.7 Maintenance of capital 31
10.8 Compliance with laws and Authorisations 32
10.9 Payment of Taxes and outgoings 32
10.10 Ownership of BM 32
10.11 Amendments to constitution 32
10.12 Negative pledge and disposal of assets 33
10.13 Financial Indebtedness 34
10.14 No change to business 34
10.15 Financial accommodation 34
10.16 Restrictions on dealings 34
10.17 Undertakings regarding Secured Property 34
10.18 Insurance 35
10.19 Authorised officer 37
10.20 Distributions 38
10.21 Certain corporate action 38
10.22 Additional security 38
10.23 Re-registration of BM Holdings 38
11 EVENTS OF DEFAULT 38
11.1 Events of Default 38
11.2 Effect of Event of Default 41
11.3 Transaction Parties to continue to perform 41
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11.4 Enforcement 41
12 INCREASED COSTS AND ILLEGALITY 42
12.1 Increased costs 42
12.2 Illegality 43
13 GUARANTEE AND INDEMNITY 43
13.1 Guarantee 43
13.2 Payment 43
13.3 Securities for other money 43
13.4 Amount of Secured Moneys 43
13.5 Proof by Lender 44
13.6 Avoidance of payments 44
13.7 Indemnity for avoidance of Secured Moneys 44
13.8 No obligation to marshal 45
13.9 Non-exercise of Guarantors' rights 45
13.10 Principal and independent obligation 45
13.11 Suspense account 46
13.12 Unconditional nature of obligations 46
13.13 No competition 48
13.14 Continuing guarantee 49
13.15 Variation 49
13.16 Judgments 49
14 INDEMNITIES AND BREAK COSTS 49
14.1 General indemnity 49
14.2 Break Costs 50
14.3 Foreign currency indemnity 50
14.4 Conversion of currencies 51
14.5 Continuing indemnities and evidence of loss 51
15 FEES, TAX, COSTS AND EXPENSES 51
15.1 Facility Fee 51
15.2 Tax 52
15.3 Costs and expenses 52
15.4 GST 52
16 INTEREST ON OVERDUE AMOUNTS 53
16.1 Payment of interest 53
16.2 Accrual of interest 53
16.3 Rate of interest 53
17 ASSIGNMENT AND SUBSTITUTION 53
17.1 Assignment by Transaction Party 53
17.2 Assignment by Lender 53
17.3 Assist 54
17.4 Securitisation permitted 54
17.5 Participation permitted 54
17.6 Lending Office 54
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Debt finance facility agreement
17.7 No increase in costs 54
18 SAVING PROVISIONS 55
18.1 No merger of security 55
18.2 Exclusion of moratorium 55
18.3 Conflict 55
18.4 Consents 55
18.5 Principal obligations 55
18.6 Non-avoidance 56
18.7 Set-off authorised 56
18.8 Lender's certificates and approvals 56
18.9 No reliance or other obligations and risk assumption 56
18.10 Power of attorney 57
19 GENERAL 57
19.1 Confidential information 57
19.2 Transaction Party to bear cost 58
19.3 Notices 58
19.4 Governing law and jurisdiction 58
19.5 Prohibition and enforceability 59
19.6 Waivers 59
19.7 Variation 59
19.8 Cumulative rights 59
19.9 Counterparts 60
19.10 Attorneys 60
SCHEDULE 1 - INITIAL GUARANTORS 61
SCHEDULE 2 - NOTICE DETAILS 62
SCHEDULE 3 - OFFICER'S CERTIFICATE 63
SCHEDULE 4 - DRAWDOWN NOTICE 65
SCHEDULE 5 - SELECTION NOTICE 66
SCHEDULE 6 - COMPLIANCE CERTIFICATE 67
SCHEDULE 7 - GROUP STRUCTURE DIAGRAM 68
ANNEXURE A - WARRANT CERTIFICATE
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THIS DEBT FINANCE FACILITY AGREEMENT
is made on 2006 between the following parties:
1 OLYMPUS PACIFIC MINERALS INC
of suite 500, 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx X0X 0X0,
Xxxxxx
(BORROWER)
2 EACH PARTY LISTED IN SCHEDULE 1
(Each an INITIAL GUARANTOR)
3 MACQUARIE BANK LIMITED
ABN 46 000 000 000
of Xxxxx 0, 0 Xxxxxx Xxxxx, Xxxxxx XXX 0000
(LENDER)
RECITAL
A. The Lender has agreed to provide the Facility to the Borrower on
the terms of this agreement.
B. In consideration of, among other things, the Lender agreeing to
provide the Facility to the Borrower, each Guarantor has agreed
to give a guarantee of the Borrower's obligations and to grant
security to secure the Borrower's payment obligations under the
Facility.
THE PARTIES AGREE
in consideration of, among other things, the mutual promises contained
in this agreements:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement:
ACCOUNTING STANDARDS means, in relation to any Transaction Party at
any time, accounting principles generally accepted in Canada as
recommended in the Handbook of the Canadian Institute of Chartered
Accountants or its successor in effect at such time, applied on a
basis consistent with the most recent audited financial statements of
such person (except for changes approved by the auditors of such
person) and, if applicable, its consolidated subsidiaries;
ADDITIONAL RIGHTS means any Marketable Securities issued or to be
issued by the Borrower;
ADVANCE means each portion of the Commitment drawn down under this
agreement;
ATTORNEY means an attorney appointed under a Transaction Document;
AUTHORISATION means:
(a) any consent, registration, filing, agreement, notice of
non-objection, notarisation, certificate, licence, approval,
permit, authority or exemption; or
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Debt finance facility agreement
(b) in relation to anything which a Government Agency may prohibit or
restrict within a specific period, the expiry of that period
without intervention or action or notice of intended intervention
or action;
AVAILABILITY PERIOD means the period commencing on the date each of
the conditions precedent set out in clause 2.1 and the conditions
precedent to the first Advance set out in clause 2.2 has been
satisfied or waived by the Lender and ending on 30 June 2006, or such
later date as the Lender agrees in writing;
XXXX means a xxxx of exchange as defined in the Bills of Exchange Act
1909 (Cth);
BM means Bong Mieu Gold Mining Company Limited (a Vietnamese company);
BM HOLDINGS means Bong Mieu Holdings Limited;
BM PLEDGE means the pledge over certain assets and undertakings of BM
given by BM in favour of the Borrower;
BM PROJECT means the project to construct, develop and conduct gold
mining and exploration operations within the Vietnamese Tenements;
BOOKS CLOSING DATE means the date determined by the Borrower to be the
last day on which a person may accept any offer of Additional Rights;
BORROWER GROUP means the Borrower and its Subsidiaries;
BREAK COSTS means any cost, loss or liability the Lender suffers or
incurs in connection with any Advance being repaid, discharged or
otherwise made payable other than on an Interest Payment Date or the
Repayment Date;
BUSINESS DAY means:
(a) for the purposes of clause 19.3, a day on which banks are open
for business in the city where the notice or other communication
is received excluding a Saturday, Sunday or public holiday; and
(b) for all other purposes, a day on which banks are open for
business in Sydney and Toronto excluding a Saturday, Sunday or
public holiday;
C$ means the lawful currency of Canada;
CHANGE IN LAW means any present or future law, regulation, treaty,
order or official directive or request (which, if not having the force
of law, would be complied with by a responsible financial institution)
which:
(a) commences, is introduced, or changes, after the date of this
agreement; and
(b) does not relate to a change in the effective rate at which Tax is
imposed on the overall net income of the Lender;
COLLATERAL SECURITY means any present or future Encumbrance, Guarantee
or other document or agreement created or entered into by a
Transaction Party or any other person as security for, or to credit
enhance, the payment of any of the Secured Moneys;
COMMITMENT means US$2,000,000 as adjusted under this agreement;
COMPLIANCE CERTIFICATE means a certificate in the form of schedule 6;
CONTROLLER means:
(a) a receiver, or receiver and manager, of property of a
corporation; or
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(b) anyone else who (whether or not as agent for the corporation) is
in possession, or has control, of property of a corporation for
the purpose of enforcing a Security or a Security Interest;
DEFAULT means:
(a) an Event of Default; or
(b) a Potential Event of Default;
DISTRIBUTION means any dividend, distribution or other amount declared
or paid by a Transaction Party on any Marketable Security issued by it
or any principal, interest, fee or other payment by a Transaction
Party on any financial accommodation provided by a person who holds a
direct or indirect interest in the Transaction Party;
DOLLARS, US$ and $ means the lawful currency of the United States of
America;
DRAWDOWN DATE means the date on which an Advance is made or, where the
context requires, is proposed to be made, which must be a date falling
within the Availability Period;
DRAWDOWN NOTICE means a notice given pursuant to clause 4 in the form
set out in schedule 4;
ENCUMBRANCE means an interest or power:
(a) reserved in or over an interest in any asset, including any
retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a xxxx of sale, mortgage, charge, lien, pledge, trust or
power,
by way of, or having similar commercial effect to, security for the
payment of a debt, any other monetary obligation or the performance of
any other obligation, and includes any agreement to grant or create
any of the above;
ENVIRONMENTAL LAW means any legislation, World Bank principle of best
practice or requirement of a Government Authority in connection with
the protection of the environment or health and safety;
ENVIRONMENTAL LIABILITIES means any liabilities arising in connection
with any breach or failure to meet any Environmental Law;
EVENT OF DEFAULT means any event specified in clause 11.1;
EXCLUDED TAX means a Tax imposed by any jurisdiction on the net income
of the Lender but not a Tax:
(a) calculated on or by reference to the gross amount of any payment
(without allowance for any deduction) derived by the Lender under
a Transaction Document or any other document referred to in a
Transaction Document; or
(b) imposed as a result of the Lender being considered a resident of
or organised or doing business in that jurisdiction solely as a
result of it being a party to a Transaction Document or any
transaction contemplated by a Transaction Document;
EXERCISE NOTICE means a notice in the form attached as Appendix A to
the Warrant Certificate;
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Debt finance facility agreement
EXERCISE DATE means the date an Exercise Notice is given under a
Warrant;
EXERCISE PRICE means:
(a) if the Exercise Date falls on or before 30 June 2007, C$0.4347;
and
(b) if the Exercise Date falls after 30 June 2007, C$0.4514;
EXERCISE SHARES means the Shares issued pursuant to an exercise of the
Warrants referred to in an Exercise Notice given by the Lender;
EXISTING PLEDGE means the pledge agreement between BM, Dragon Capital
Management Limited and Vietnam Growth Fund dated 7 June 2005 (as
supplemented by a supplemental pledge dated 5 August 2005);
FACILITY means the debt finance facility made available by the Lender
to the Borrower under this agreement;
FINANCIAL INDEBTEDNESS means any debt or other monetary liability in
respect of moneys borrowed or raised or any financial accommodation
including under or in respect of any:
(a) Xxxx, bond, debenture, note or similar instrument;
(b) acceptance, endorsement or discounting arrangement;
(c) Guarantee;
(d) finance or capital Lease;
(e) agreement for the deferral of a purchase price or other payment
in relation to the acquisition of any asset or service where such
deferral is for a period of greater than 60 days;
(f) obligation to deliver goods or provide services paid for in
advance by any financier;
(g) agreement for the payment of capital or premium on the redemption
of any preference shares; or
(h) net liability in respect of any commodity swaps, interest rate
swaps, foreign currency xxxxxx, forward exchange rate agreement
and futures contract;
and irrespective of whether the debt or liability:
(a) is present or future;
(b) is actual, prospective, contingent or otherwise;
(c) is at any time ascertained or unascertained;
(d) is owed or incurred alone or severally or jointly or both with
any other person; or
(e) comprises any combination of the above;
FINANCIAL REPORT means the consolidated balance sheet of the Borrower
and its Subsidiaries at the close of such fiscal year and the related
consolidated statements of operations, shareholders' equity and cash
flow of the Borrower and its Subsidiaries;
FORMWELL means Formwell Holdings Limited (a British Virgin Islands
company);
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GOVERNMENT AGENCY means any government or any governmental,
semi-governmental, administrative, fiscal or judicial body,
department, commission, authority, tribunal, agency or entity;
GROUP STRUCTURE DIAGRAM means the group structure diagram in schedule
7;
GST means the goods and services tax levied under the GST Act or goods
and services tax, value added tax or any similar or like tax in any
jurisdiction;
GST ACT means a New Tax System (Goods and Services Tax) Xxx 0000
(Australia);
GUARANTEE means any guarantee, suretyship, letter of credit, letter of
comfort or any other obligation:
(a) to provide funds (whether by the advance or payment of money, the
purchase of or subscription for shares or other securities, the
purchase of assets or services, or otherwise) for the payment or
discharge of;
(b) to indemnify any person against the consequences of default in
the payment of; or
(c) to be responsible for,
any debt or monetary liability of another person or the assumption of
any responsibility or obligation in respect of the insolvency or the
financial condition of any other person;
GUARANTOR means:
(a) each Initial Guarantor; and
(b) any person which becomes a party to this agreement in the
capacity of a guarantor including pursuant to clause 10.22;
HEDGING AGREEMENT means each metal, interest rate, foreign exchange
transaction, currency swap transaction, cross-currency swap rate
transaction or other hedge or derivative agreement entered into by a
Transaction Party with the Lender or a Related Body Corporate of the
Lender;
INSURANCE POLICY means an insurance policy required to be maintained
under clause 10.18;
INSURANCES means the insurances required to be taken out or maintained
by the Borrower and the Guarantor to comply with the provisions of
this agreement;
INSURABLE PROPERTY means property which is of an insurable nature;
INTEREST PAYMENT DATE means the last day of each Interest Period;
INTEREST PERIOD means a period selected or determined under clause
6.1;
INTEREST RATE means, in respect of an Interest Period, the aggregate
of:
(a) the Reference Rate for that Interest Period; and
(b) the Margin;
JOINT VENTURE INTEREST AND RECEIVABLES PLEDGE means any Collateral
Security granted in respect of the shares in BM and the shareholder
loan receivables from BM in favour of the Lender;
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LEASE means a lease, charter, hire purchase, hiring agreement or any
other agreement under which any property is or may be used or operated
by a person other than the owner;
LENDING OFFICE means the office of the Lender set out on page 1 of
this agreement or any other office notified by the Lender under this
agreement;
LOAN means, at any point in time, the aggregate of all Advances made
to the Borrower under the Facility together with any capitalised
interest or, where the context requires, the balance thereof remaining
outstanding;
LOSS means any claim, action, damage, loss, liability, cost, charge,
expense, outgoing or payment;
MARGIN means 2.75% per annum;
MARKETABLE SECURITIES means debentures, stocks, shares or bonds of any
government, of any local governmental authority or of any body
corporate, association or society, and includes any right or option in
respect of shares in any body corporate and any interest in a managed
investment scheme;
MATERIAL ADVERSE EFFECT means a material adverse effect on:
(a) any Transaction Party's ability to perform any of its obligations
under any Transaction Document;
(b) the enforceability of a Transaction Document;
(c) the assets, business, operations or financial or commercial
circumstances of any Transaction Party;
(d) the BM Project; or
(e) the validity or priority of any Security;
OFFICER means:
(a) in relation to a Transaction Party, a director or a secretary, or
a person notified to the Lender to be an authorised officer, of
the Transaction Party; and
(b) in relation to the Lender, any person whose title includes the
word "Director" or "Manager", and any other person appointed by
the Lender to act as its authorised officer for the purposes of
this agreement;
OVERDUE MARGIN means 2% per annum;
OVERDUE RATE means the aggregate of:
(a) the Overdue Margin;
(b) the Margin; and
(c) the Reference Rate on the relevant date on which the Overdue Rate
is calculated under clause 16, as determined by the Lender in
accordance with the definition of Reference Rate in this clause
1.1 except that in making the determination all references in
that definition to:
(1) "Interest Period" are references to a period of 30 days; and
(2) "Advance" are to the relevant overdue amount;
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PAYMENT CURRENCY means the currency in which any payment is actually
made;
PERMITTED ENCUMBRANCE means:
(a) every lien created by operation of law securing an obligation
that is not yet due and payable;
(b) every lien for the unpaid balance of purchase money under an
instalment contract entered into in the ordinary course of
business;
(c) every lien for the unpaid balance of money owing for repairs; and
(d) any Security;
which affects or relates to any of the assets of any Transaction
Party;
PERMITTED FINANCIAL ACCOMMODATION means:
(a) any Financial Indebtedness provided by a Transaction Party:
(1) under the Transaction Documents; or
(2) Qualifying Subordinated Debt owed by a Transaction Party to
another Transaction Party; or
(b) any Financial Indebtedness provided by a Transaction Party with
the Lender's prior written consent;
PERMITTED FINANCIAL INDEBTEDNESS means:
(a) any liability under any agreement entered into in the ordinary
course of business for the acquisition of any asset or service
where payment for the asset or service is deferred for a period
of not more than 90 days and not exceeding, in aggregate for each
Transaction Party, an amount of US$100,000;
(b) any Financial Indebtedness incurred under any Transaction
Document;
(c) any other Financial Indebtedness approved by the Lender in
writing; or
(d) Qualifying Subordinated Debt owed by a Transaction Party to
another Transaction Party;
POLLUTANT means a pollutant, contaminant, dangerous, toxic or
hazardous substance, petroleum or petroleum product, chemical, solid,
special liquid, industrial or other waste;
POTENTIAL EVENT OF DEFAULT means any thing which would become an Event
of Default on the giving of notice (whether or not notice is actually
given), the expiry of time, the satisfaction or non-satisfaction of
any condition, or any combination of the above;
POWER means any right, power, authority, discretion or remedy
conferred on the Lender, a Receiver or an Attorney by any Transaction
Document or any applicable law;
QUALIFYING SUBORDINATED DEBT means Financial Indebtedness of a
Transaction Party:
(a) which is not repayable before the Repayment Date except in
circumstances where such repayment is made with the prior written
consent of the Lender;
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Debt finance facility agreement
(b) on which interest may be payable but not in excess of what could
have been paid by the Transaction Party in any year as a dividend
had interest not been paid on such Financial Indebtedness and on
the basis that all terms and conditions of this agreement were at
that time complied with;
(c) which is otherwise fully subordinated to the Secured Moneys; or
(d) is otherwise on terms and conditions of a Subordination Agreement
or otherwise as is acceptable to the Lender;
RECEIVER means a receiver or receiver and manager appointed under a
Security;
RECORD DATE means the date on which the entitlement of each existing
shareholder of the Borrower is determined for the purposes of any
pro-rata issue of Additional Rights;
REFERENCE RATE means, in respect of any Interest Period for an
Advance:
(a) the London Interbank Offered Rate for Dollars as quoted on
Reuters page LIBOR 01 at 11:00am on the first day of that
Interest Period; or
(b) if:
(1) for any reason that rate is not displayed; or
(2) the basis on which that rate is displayed is changed and in
the opinion of the Lender it ceases to reflect the Lender's
cost of funding to the same extent as at the date of this
agreement,
the rate reasonably determined by the Lender to be the
appropriate equivalent rate having regard to prevailing market
conditions;
All calculations of rates for the purposes of this definition will be
expressed as a yield percent per annum to maturity;
RELATED BODY CORPORATE means in relation to an entity (the SUBJECT
ENTITY);
(a) a Subsidiary of the Subject Entity;
(b) an entity of which the Subject Entity is a Subsidiary; or
(c) a Subsidiary of another entity of which the Subject Entity is
also a Subsidiary;
RELEVANT CURRENCY means the currency in which a payment is required to
be made under the Transaction Documents and, if not expressly stated
to be another currency, is Dollars;
RELEVANT EXCHANGE means at any time, any exchange on which Shares are
listed at that time;
RELEVANT EXCHANGE RULES means the policies of a Relevant Exchange;
RELEVANT NUMBER has the meaning given to it in clause 7.1(g);
REPAYMENT DATE means 30 June 2007 or, at the election of the Lender,
30 June 2008;
SAME DAY FUNDS means immediately available and freely transferable
funds;
SECURED MONEYS means all debts and monetary liabilities of each
Transaction Party to the Lender under or in relation to any
Transaction Document and in any capacity, irrespective of whether the
debts or liabilities:
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Debt finance facility agreement
(a) are present or future;
(b) are actual, prospective, contingent or otherwise;
(c) are at any time ascertained or unascertained;
(d) are owed or incurred by or on account of any Transaction Party
alone, or severally or jointly with any other person;
(e) are owed to or incurred for the account of the Lender alone, or
severally or jointly with any other person;
(f) are owed to any other person as agent (whether disclosed or not)
for or on behalf of the Lender;
(g) are owed or incurred as principal, interest, fees, charges,
Taxes, damages (whether for breach of contract or tort or
incurred on any other ground), losses, costs or expenses, or on
any other account;
(h) are owed to or incurred for the account of the Lender directly or
as a result of:
(1) the assignment or transfer to the Lender of any debt or
liability of any Transaction Party (whether by way of
assignment, transfer or otherwise); or
(2) any other dealing with any such debt or liability;
(i) are owed to or incurred for the account of the Lender before the
date of this agreement or before the date of any assignment of
this agreement to the Lender by any other person or otherwise; or
(j) comprise any combination of the above;
SECURED PROPERTY means the property subject to a Security;
SECURITY means each of:
(a) the BM Pledge;
(b) the Joint Venture Interest and Receivables Pledge; and
(c) any Collateral Security;
SECURITY INTEREST means an interest or power:
(a) reserved in or over an interest in any asset, including any
retention of title; or
(b) created or otherwise arising in or over any interest in any asset
under a xxxx of sale, mortgage, charge, lien, pledge, trust or
power,
by way of, or having similar commercial effect to, security for the
payment of a debt, any other monetary obligation or the performance of
any other obligation (including a right of set-off or right to
withhold payment of a deposit or other money), and includes any
agreement to grant or create any of the above;
SELECTION DATE means the last day of an Interest Period;
SELECTION NOTICE means a notice given under clause 6.4;
SETTLEMENT PRICE has the meaning given to it in clause 7.1(h);
SHARES means the fully paid common shares in the capital of the
Borrower;
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SUBORDINATION AGREEMENT means a subordination agreement in form and
substance acceptable to the Lender;
SUBSIDIARY means a company:
(a) the composition of whose board is controlled by another body
corporate
(b) more than one half of the maximum number of whose votes that
might be cast at a general meeting may be cast or casting of is
able to be controlled by another body corporate;
(c) more than one half of whose issued share capital (excluding any
part of that issued share capital that carries no right to
participate beyond a specified amount in a distribution of either
profits or capital) is held by another body corporate;
(d) which is a subsidiary of a Subsidiary;
TAX means:
(a) any tax including the GST, levy, charge, impost, duty, fee,
deduction, compulsory loan or withholding; or
(b) any income, stamp or transaction duty, tax or charge,
which is assessed, levied, imposed or collected by any Government
Agency and includes any interest, fine, penalty, charge, fee or other
amount imposed on or in respect of any of the above;
TAX INVOICE includes any document or record treated by the
Commissioner of Taxation as a tax invoice or as a document entitling a
recipient to an input tax credit;
TITLE DOCUMENT means any original, duplicate or counterpart
certificate or document of title;
TRANCHE 1 WARRANTS means the 2,688,046 American style warrants issued
or to be issued in relation to the provision of the Facility, the
initial issue of which is or will be evidenced in a certificate
substantially in the form set out in Annexure A;
TRANCHE 2 WARRANTS means the 2,688,046 American style warrants to be
issued in relation to the first Advance made under the Facility, the
initial issue of which will be evidenced in a certificate
substantially in the form set out in Annexure A;
TRANSACTION DOCUMENT means:
(a) this agreement;
(b) each Security;
(c) each Subordination Agreement;
(d) each Hedging Agreement; and
(e) each Warrant Certificate; or
(f) any other document agreed between the Borrower and Lender to be a
Transaction Document,
or any document or agreement entered into or given under any of the
above;
TRANSACTION PARTY means:
(a) the Borrower; and
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(b) each Guarantor;
TSX means the Toronto Stock Exchange;
TSXV means the TSX Venture Exchange;
UNDRAWN COMMITMENT means at any time, the Commitment at that time less
the Loan provided at that time;
VIETNAMESE TENEMENTS means:
(a) Investment Licence No. 140/GP1 and 140/GP2 dated 5 March 1991
issued by the State Committee for Cooperation and Investment
(SCCI) (now the Ministry of Planning and Investment (MPI)) to
Mineral Development Company Limited (MIDECO) representing Mideco
and Bong Mieu Gold Mining Enterprise belonging to the Xxxxx
Xxx-Da Xxxx Xxxxxxx Committee (together the VIETNAMESE PARTIES)
and Covictory Investment Limited (Covictory) representing
Covictory and Garimpeiros N.L., together with English and
Vietnamese versions of Investment Licence Amendment Document No.
140/DCGP1 dated 29 November 1993 issued by the SCCI (collectively
the BONG MIEU INVESTMENT LICENCE) relating to the establishment
of BM, together with English and Vietnamese versions of
Investment Licence Amendment Document No. 140/DCGP2 dated 9 June
2005 issued by the MPI (collectively the BONG MIEU INVESTMENT
LICENCE) relating to the establishment of BM;
(b) Decision No. 582/CNNg/KTM dated 22 July 1992 issued to BM
permitting it to mine gold at the Bong Mieu mine for 25 years
from 5 March 1991 (BONG MIEU MINING LICENCE);
(c) Decision No. 1569/QD-UB dated 9 October 1993 issued by the Xxxxx
Xxx-Da Nang People's Committee relating to the issue of a land
use right certificate to BM for the Bong Mieu gold mine for a
period of 25 years from September 1992 to September 2017
(PEOPLE'S COMMITTEE DECISION);
(d) Official Letter No. 1156/CV-QLNH dated 8 August 2005 issued by
the State Bank of Vietnam relating to BM's ability to export
gold; and
(e) Official Letter No. 504/CV-QLNH dated 25 January 2006 issued by
the State Bank of Vietnam relating to BM's ability to export
gold;
WARRANT means:
(a) any Tranche 1 Warrant; or
(b) any Tranche 2 Warrant;
WARRANT CERTIFICATE means each document of title evidencing the issue
of the Warrants substantially in the form of Annexure A; and
WARRANT ISSUE DATE means each date a Warrant is issued by the Borrower
to the Lender.
1.2 INTERPRETATION
In this agreement headings and bold type are for convenience only and
do not affect the interpretation of this agreement and, unless the
context requires otherwise:
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Debt finance facility agreement
(a) words importing the singular include the plural and vice versa;
(b) words importing a gender include any gender;
(c) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(d) an expression suggesting or referring to a natural person or an
entity includes any company, partnership, joint venture,
association, corporation or other body corporate and any
Government Agency;
(e) a reference to any thing (including any right) includes a part of
that thing but nothing in this clause 1.2(e) implies that
performance of part of an obligation constitutes performance of
the obligation;
(f) a reference to a clause, party, annexure, exhibit or schedule is
a reference to a clause of, and a party, annexure, exhibit and
schedule to, this agreement and a reference to this agreement
includes any annexure, exhibit and schedule;
(g) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations,
ordinances or by-laws amending, consolidating or replacing it,
whether passed by the same or another Government Agency with
legal power to do so, and a reference to a statute includes all
regulations, proclamations, ordinances and by-laws issued under
that statute;
(h) a reference to a document includes all amendments or supplements
to, or replacements or novations of, that document;
(i) a reference to liquidation includes official management,
appointment of an administrator, compromise, arrangement, merger,
amalgamation, reconstruction, winding up, dissolution,
deregistration, assignment for the benefit of creditors, scheme,
composition or arrangement with creditors, insolvency,
bankruptcy, or a similar procedure or, where applicable, changes
in the constitution of any partnership or person, or death;
(j) a reference to a party to any document includes that party's
successors and permitted assigns;
(k) a reference to an agreement other than this agreement includes an
undertaking, deed, agreement or legally enforceable arrangement
or understanding whether or not in writing;
(l) a reference to an asset includes all property of any nature,
including a business, and all rights, revenues and benefits;
(m) a reference to a document includes any agreement in writing, or
any certificate, notice, deed, instrument or other document of
any kind;
(n) no provision of this agreement may be construed adversely to a
party solely on the ground that the party was responsible for the
preparation of this agreement or that provision;
(o) a reference to drawing, accepting, endorsing or other dealing
with a Xxxx refers to drawing, accepting, endorsing or dealing
within the meaning of the Bills of Exchange Xxx 0000 (Cth);
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Debt finance facility agreement
(p) a reference to a body, other than a party to this agreement
(including an institute, association or authority), whether
statutory or not:
(1) which ceases to exist; or
(2) whose powers or functions are transferred to another body,
is a reference to the body which replaces it or which
substantially succeeds to its powers or functions;
(q) references to time are to Sydney time;
(r) a covenant or agreement on the part of any two or more
Transaction Parties binds each of them jointly and severally; and
(s) an Event of Default or Potential Event of Default subsists until
it is waived by the Lender or remedied to the Lender's
satisfaction.
1.3 INCLUSIVE EXPRESSIONS
Specifying anything in this agreement after the words "include" or
"for example" or similar expressions does not limit what else is
included unless there is express wording to the contrary.
1.4 BUSINESS DAY
Except where clause 8.2 applies, where the day on or by which any
thing is to be done is not a Business Day, that thing must be done on
or by the preceding Business Day.
1.5 ACCOUNTING STANDARDS
Any accounting practice or concept relevant to this agreement is to be
construed or determined in accordance with the Accounting Standards.
2 CONDITIONS PRECEDENT
2.1 CONDITIONS PRECEDENT TO FIRST ADVANCE
The Lender is not obliged to provide the first Advance until it has
received all of the following in form and of substance satisfactory to
it:
(a) TRANSACTION DOCUMENTS: originals of each Transaction Document
duly executed by each Transaction Party and, where applicable:
(1) if required to be stamped, duly stamped or, if not duly
stamped, evidence satisfactory to the Lender that they will
be duly stamped; and
(2) in registrable form together with all executed documents
necessary to register them;
(b) OFFICER'S CERTIFICATE: an officer's certificate in the form of
schedule 3 (together with the attachments referred to in the
certificate) given in respect of each Transaction Party and dated
no more than 5 Business Days before the first Drawdown Date;
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Debt finance facility agreement
(c) CORPORATE AUTHORISATION: a certified extract of a resolution of
the directors of each Transaction Party approving the Facility
and the transactions contemplated by the Transaction Documents,
authorising execution by the Transaction Party of the Transaction
Documents to which it is a party, and authorising a person or
persons (being Officers) to sign notices, certificates or other
documents in connection with the Facility on behalf of the
Transaction Party;
(d) AUTHORISATIONS: evidence that each Transaction Party has
obtained, been granted and complied with all Authorisations
required in connection with the entry into and performance of the
Transaction Documents and for the BM Project and that no breach
or revocation has occurred in relation to any such
Authorisations;
(e) ENQUIRIES: results of searches, enquiries and requisitions in
respect of each Transaction Party and the Secured Property
satisfactory to the Lender;
(f) NO ENCUMBRANCES:
(1) evidence that the Existing Pledge has been released; and
(2) confirmation that no Transaction Party has created or
allowed to exist any Encumbrance over any of its assets
other than a Permitted Encumbrance;
(g) TENEMENTS: evidence that:
(1) BM is the sole legal and beneficial owner of the Vietnamese
Tenements and is registered as the holder of each of the
Vietnamese Tenements;
(2) each of the Vietnamese Tenements is in good standing; and no
breach of any conditions attaching to the Vietnamese
Tenements is subsisting;
(3) the Borrower has, directly or indirectly through the other
Transaction Parties, 80% of the equity in each of the
Vietnamese Tenements;
(h) WARRANT CERTIFICATE: Warrant Certificates for all the Warrants
which will be issued under this agreement following shareholder
and Relevant Exchange approval of the Warrants (if such approvals
are required);
(i) APPROVALS CONCERNING WARRANTS: evidence that all Authorisations
(including shareholder, regulatory approvals and Relevant
Exchange approvals) for the issue and exercise of the Warrants
have been obtained and are in full force and effect;
(j) OPINIONS: an opinion from:
(1) legal counsel to the Lender in Australia in relation to this
agreement;
(2) legal counsel to the Borrower in Vietnam in relation to BM
and the Transaction Documents and legal counsel to the
Lender in Vietnam in relation to BM and the Transaction
Documents; and
(3) legal counsel to:
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Debt finance facility agreement
(A) the Lender in Canada in relation to the Borrower and
the Transaction Documents; and
(B) the Borrower in Canada in relation to the Borrower and
the Transaction Documents and confirming that the terms
of the Warrants issued or to be issued and each Warrant
Certificate will not breach the Relevant Exchange Rules
(subject to obtaining Relevant Exchange approval) or
any other applicable laws or regulations and that the
Warrants are not void or voidable;
(k) FEES: evidence that the Borrower has paid all fees and expenses
(including legal fees) then due, including payment of the
facility fee referred to in clause 15.1;
(l) ENVIRONMENTAL COMPLIANCE: evidence that the BM Project is in
compliance in all material respects with all applicable
Environmental Laws;
(m) INSURANCE: evidence that each Transaction Party has complied with
clause 10.18 and its insurance obligations under the Transaction
Documents;
(n) TITLE DOCUMENTS: each Title Document required to be lodged with
the Lender under any Transaction Document;
(o) FINANCIAL REPORTS: a copy of the most recent audited Financial
Report of the Borrower Group;
(p) NO NEW SUBSIDIARIES: confirmation that no Transaction Party has
incorporated or acquired any Subsidiaries other than the
Subsidiaries disclosed in the most recent Financial Report of the
relevant entity or disclosed to the Lender in writing prior to
the date of this agreement;
(q) NO LITIGATION: confirmation that no litigation, arbitration,
mediation, conciliation, dispute or criminal or administrative
proceeding has been commenced, is pending or to the knowledge of
any Transaction Party is threatened;
(r) NO MATERIAL ADVERSE CHANGE: evidence that no event or change has
occurred that has had or is reasonably likely to have a Material
Adverse Effect since the most recent Financial Report of the
Borrower Group delivered to the Lender;
(s) FURTHER INFORMATION: the Lender receives such further
information, certificates, Authorisations and documents as the
Lender reasonably requests including satisfactory replies to, and
the results of searches requested by, the Lender's advisors; and
(t) PROCESS AGENT: evidence that the process agent appointed pursuant
to 19.4(e) has accepted its appointment.
2.2 CONDITIONS PRECEDENT TO ALL ADVANCES
The Lender is not obliged to provide the first or any subsequent
Advance until the following conditions are fulfilled to the Lender's
satisfaction:
(a) DRAWDOWN NOTICE: the Borrower has delivered a Drawdown Notice to
the Lender requesting the Advance;
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Debt finance facility agreement
(b) DRAWDOWN DATE: the Drawdown Date for the Advance is a Business
Day within the Availability Period;
(c) REPRESENTATIONS AND WARRANTIES TRUE: confirmation that the
representations and warranties set out in clause 9 are true and
correct as at the date this agreement is executed and that all
financial covenants are in compliance;
(d) NO DEFAULT: no Default is subsisting or would be subsisting at
the date of the Drawdown Notice or at the Drawdown Date or would
result from the provision or continuation of the Advance;
(e) COMMITMENT MUST NOT BE EXCEEDED: the aggregate of the Advances
requested plus the amount of the Loan then outstanding, must not
exceed the Commitment; and
(f) COVENANTS, LICENCE AND DOCUMENTS: confirmation that all
documentation, securities, licences and approvals required:
(1) to ensure the enforceability of each Transaction Document,
or to enable each Transaction party to perform its
obligations under each Transaction Document to which it is a
party; and
(2) for the relevant Transaction Party to own its assets and
conduct the BM Project,
are in place.
2.3 CERTIFIED COPIES
An Officer of the relevant Transaction Party must certify a copy of a
document given to the Lender under clause 2.1 or 2.2 to be a true copy
of the original document. The certification must be made no more than
5 Business Days before the date on which it is provided.
2.4 BENEFIT OF CONDITIONS PRECEDENT
A condition in this clause 2 is for the benefit only of the Lender and
only the Lender may waive it.
3 COMMITMENT, PURPOSE AND AVAILABILITY OF FACILITY
3.1 PROVISION OF COMMITMENT
The Lender must make the Facility available to the Borrower on the
terms of this agreement.
3.2 PURPOSE
The Borrower must use the proceeds of an Advance only for:
(a) the funding of the Transaction Parties' general corporate
purposes and working capital and capital expenditure requirements
in relation to the BM Project;
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Debt finance facility agreement
(b) the funding of fees, costs and expenses payable by a Transaction
Party under the Transaction Documents; or
(c) any other purpose that the Lender approves in writing.
3.3 TERMINATION
The Facility will terminate on the Repayment Date, whereupon the
Commitment will automatically be cancelled in full and the Loan and
all other money and sums payable under this agreement are immediately
due and payable.
4 DRAWDOWN
4.1 DELIVERY OF DRAWDOWN NOTICE
If the Borrower requires the provision of an Advance it must deliver
to the Lender a Drawdown Notice.
4.2 REQUIREMENTS FOR A DRAWDOWN NOTICE
A Drawdown Notice to be effective must:
(a) be in writing in the form of, and specifying the matters required
in, schedule 4;
(b) be signed by a person duly authorised by the Borrower to do so;
(c) not be given until the applicable conditions precedent to the
Advances requested in that Drawdown Notice set out in clause 2
have been satisfied; and
(d) be received by the Lender before 11.00am on a Business Day at
least 2 Business Days before the proposed Drawdown Date (or any
shorter period that the Lender agrees in writing).
4.3 IRREVOCABILITY OF DRAWDOWN NOTICE
The Borrower is irrevocably committed to draw down from the Lender in
accordance with each Drawdown Notice given to the Lender.
4.4 AMOUNT OF ADVANCES
The Borrower must ensure that the amount of each Advance is either:
(a) not less than US$100,000 and is an integral multiple of
US$100,000; or
(b) equal to the Undrawn Commitment.
5 FACILITY
5.1 PROVISION OF ADVANCES
Subject to clause 2, if the Borrower gives a Drawdown Notice, the
Lender must pay each specified Advance on the specified Drawdown Date
in Same Day Funds
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Debt finance facility agreement
in Dollars to the Borrower, or as directed by the Borrower, in the
relevant Drawdown Notice.
5.2 REPAYMENT
(a) The Loan and all other Secured Moneys will be repaid in full on
the Repayment Date.
(b) If notwithstanding clause 5.2(a) there are any moneys or
liabilities outstanding under the Facility on the Repayment Date,
the Borrower will on that date repay to the Lender the Loan
together with all other moneys due under this agreement.
5.3 PREPAYMENT
(a) On giving not less than 2 Business Days' prior written notice to
the Lender, the Borrower may prepay the Loan or part thereof (if
part, in a minimum of US$100,000 and thereafter multiples of
US$100,000) on any Business Day.
(b) Any notice of prepayment given by the Borrower will be
irrevocable and the Borrower will be bound to prepay in
accordance with the notice.
(c) The Borrower may not prepay the Loan save in accordance with this
clause 5.3.
(d) Interest accrued on any amount prepaid under the Loan and any
Break Costs will be paid at the time of repayment or prepayment.
(e) Any repayment or prepayment in respect of the Facility will not
be available to be redrawn.
6 INTEREST
6.1 INTEREST PERIODS
(a) Not later than 2 Business Days before the commencement of each
Interest Period in respect of an Advance, the Borrower will
notify Lender, by delivery of a Selection Notice to the Lender,
whether that Interest Period is to be of 30, 60 or 90 days'
duration or some other Interest Period agreed between the
Borrower and the Lender.
(b) Each Interest Period in relation to an Advance will be the period
commencing on the first Drawdown Date for the Advance (in the
case of the initial Interest Period) or on the last day of the
immediately preceding Interest Period for the Advance (in the
case of any subsequent Interest Period) and ending on the day
which is 30, 60 or 90 days thereafter as the Borrower notifies
the Lender.
(c) If an Advance is drawn during an Interest Period relating to an
already outstanding Advance, then unless the Lender and the
Borrower agree otherwise, the first Interest Period relating to
that Advance will end on the last day of the current Interest
Period relating to the already outstanding Advance.
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Debt finance facility agreement
(d) If the Borrower fails to select an Interest Period for an Advance
in accordance with clause 6.1(a), the Interest Period will be the
same length as the previous Interest Period for that Advance.
(e) The term of each Interest Period will be subject to such marginal
adjustment as Lender in its discretion determines so that the
first and last days of it are Business Days and so that the final
Interest Period terminates on the Repayment Date.
(f) No Interest Period may end after the Repayment Date.
6.2 CALCULATION OF INTEREST
(a) Interest on each Advance will accrue from day to day and be
computed on a daily basis on a year of 360 days.
(b) The rate of interest for each Advance for each Interest Period
will be the Interest Rate in relation to that Interest Period.
(c) The Borrower's certificate as to the rate of interest at any time
will be conclusive and binding on the Borrower in the absence of
manifest error on the face of the certificate.
6.3 PAYMENT OF INTEREST
(a) The Borrower will pay to the Lender the accrued interest in
relation to each Advance in arrears on each Interest Payment
Date, calculated up to that date on the last day of each such
period.
(b) Any outstanding interest may be capitalised and, upon
capitalisation, will form part of the relevant Advance, provided
that following such capitalisation, the Loan does not exceed the
Commitment.
6.4 SELECTION NOTICE
A Selection Notice to be effective must be:
(a) in writing in the form of schedule 5; and
(b) received by the Lender before 11.00am on a Business Day at least
2 Business Days before the Selection Date for the relevant
Advance (or any shorter period that the Lender agrees in
writing).
6.5 DETERMINATION OF INTEREST RATE
(a) The Lender must notify the Borrower of the Interest Rate for an
Interest Period as soon as reasonably practicable, and in any
event within 2 Business Days, after it has made its determination
of the applicable Reference Rate.
(b) In the absence of manifest error, each determination of the
Reference Rate by the Lender is conclusive evidence of that rate.
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Debt finance facility agreement
7 WARRANTS
7.1 WARRANT TERMS
(a) Subject to the approval of the Relevant Exchange (if required),
the Borrower agrees to grant to the Lender:
(1) the Tranche 1 Warrants on the later of:
(A) the date of this agreement; and
(B) the date of receipt of approval to do so from the
Relevant Exchange,
in consideration of the provision of the Facility; and
(2) the Tranche 2 Warrants on or before the initial Drawdown
Date in consideration of the first Advance,
by issuing to the Lender an executed Warrant Certificate for the
relevant Warrants. No premium is payable by the Lender in respect
of the Warrants.
(b) The Borrower will diligently pursue, and will use its best
endeavours to obtain, the approval of the Relevant Exchange to
the issue of the Warrants.
(c) If the rules of the Relevant Exchange at any time would permit
the Warrants to be transferrable and the Warrants are not on
their terms transferable at that time, Olympus must apply to the
Relevant Exchange to amend the terms of the Warrants such that
the Warrants are transferrable (TRANSFER AMENDMENT). Upon
approval of the Transfer Amendment by the Relevant Exchange, the
Borrower must issue replacement Warrant Certificates to the
Lender or holder for all Warrants then outstanding which reflect
the Transfer Amendment (but the terms of which are otherwise
unchanged) against delivery to the Borrower of the Warrant
Certificates to be replaced.
(d) Each Warrant may be exercised at any time before 5pm Sydney time
on the Repayment Date for the Exercise Price in accordance with
this clause 7.1.
(e) Subject to clause 7.1(l) and receipt of Relevant Exchange
approval, the Warrants must be freely transferable provided that
any transfer must be made in a manner which is not prohibited by
the Relevant Exchange Rules. Any reference in this clause 7 to a
holder other than the Lender is to be disregarded while the
Warrants remain non-transferrable.
(f) Warrants may be exercised by delivering to the Borrower an
Exercise Notice duly executed by the holder (together with the
Warrant Certificate) specifying the number of Shares for which
the Warrants are being exercised (which must be at least 100,000
Shares or otherwise the number of outstanding Shares available to
be exercised pursuant to the Warrants) and the Settlement Price.
(g) The Borrower must within 5 Business Days of the Exercise Date
cause the transfer agent for the Shares to issue to the Lender
(or other holder) the number of Shares for which the Warrants
have been exercised (RELEVANT
PAGE 20
Debt finance facility agreement
NUMBER), register the Lender (or other holder) as holder of the
Shares in its register of shareholders and, if applicable, issue
a replacement Warrant Certificate to the Lender (or other holder)
for the balance of any unexercised Warrants.
(h) The Lender (or other holder) will pay the Borrower an amount
equal to the Exercise Price multiplied by the Relevant Number
(SETTLEMENT PRICE) on receipt of the documents referred to in
clause 7.1(g).
(i) The Borrower irrevocably directs the Lender to apply amounts
referred to in clause 7.1(h):
(1) first, toward payment or prepayment of any Secured Moneys
then outstanding until the Secured Moneys are paid in full;
and
(2) second, if no Secured Moneys are then outstanding, in
payment to the Borrower.
(j) The Shares issued pursuant to the exercise of the Warrants must
be issued as fully paid shares.
(k) The Warrants and any Shares issued pursuant to an exercise of the
Warrants are subject to the terms and conditions set out in the
Warrant Certificate. To the extent of any inconsistency between
the terms and conditions of the Warrants as set out in this
clause 7 and as set out in the Warrant Certificate, the terms and
conditions set out in this clause 7 shall prevail.
(l) The Lender acknowledges that the certificates representing the
Warrants, and if issued prior to the date which is four months
and one day after the issuance of the Warrants, the certificates
representing the Shares, will bear the following legend:
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF
THIS SECURITY MUST NOT TRADE THE SECURITY BEFORE __, 2006 [the
date which is four months and one day after the issuance of the
Warrants will be inserted]."
as well as the legend required by the Relevant Exchange, provided
that subsequent to the date which is four months and one day
after the date of issuance of the Warrants, the certificates
representing the Warrants or, if applicable, the certificates
representing the Shares, may be exchanged for certificates
bearing no such legends. The Lender acknowledges that it has been
advised to consult its own independent legal advisor with respect
to the applicable resale restrictions and the Lender is solely
responsible for complying with such restrictions and the Borrower
is not responsible for ensuring compliance by the Lender of the
applicable resale restrictions.
(m) The Lender represents and warrants to the Borrower that the
Lender will acquire the Warrants as principal for its own account
and not for the benefit of any other person and for investment
only, and that the Lender is an entity organized under the laws
of Australia and is analogous to a Canadian financial institution
or Schedule III bank in form and function. For the purposes of
this clause 7.1(m), a "Canadian financial institution" means (a)
an association governed by the Cooperative Credit Associations
Act (Canada) or central cooperative credit society for which an
order has been made under section 473(1) of that Act or (b) a
bank, loan corporation,
PAGE 21
Debt finance facility agreement
trust company, trust corporation, insurance company, treasury
branch, credit union, caisse populaire, financial services
cooperative, or league that, in each case, is authorized by an
enactment of Canada or a jurisdiction of Canada to carry on
business in Canada or a jurisdiction of Canada; and (ii) a
"Schedule III bank" means an authorized foreign bank named in
Schedule II of the Bank Act (Canada).
7.2 CORPORATE UNDERTAKINGS
(a) The Borrower must comply with the Relevant Exchange Rules, any
other applicable laws and regulations and its constitution in
relation to each issue of the Warrants on or before the relevant
Warrants Issue Date. Without limiting the foregoing, the Borrower
must ensure that it:
(1) has obtained all necessary shareholder and Relevant Exchange
approvals; and
(2) has at all times sufficient unallocated share capital which
is available,
to enable it to issue the Warrants, and any Shares which would be
issued as a result of the exercise of the Warrants, on the
relevant Warrant Issue Date or Exercise Date (as the case may
be).
(b) Until the Repayment Date, the Borrower must:
(1) ensure that the Lender (or any other holder of Warrants) is
given notice of all general meetings of the Borrower and of
all resolutions to be considered at those meetings at the
same time the shareholders of the Borrower are issued with
notices;
(2) not do anything by way of altering its constitution or
otherwise which has the effect of changing or converting any
Shares into shares of another class, or restricts the
Borrower's ability to issue the Warrants or to issue Shares
on the exercise of Warrants without the prior written
consent of the Lender; and
(3) ensure that the Lender (and any other holder of Warrants) is
given:
(A) at least 15 Business Days written notice prior to the
Record Date in relation to any pro-rata issue of
Additional Rights; and
(B) at least 15 Business Days written notice prior to the
Books Closing Date in relation to any other issue of
Additional Rights which the Lender (or any holder of
Warrants) would be entitled to participate in if the
Lender (or other holder of Warrants) was a holder of
Shares.
7.3 PARTICIPATION IN ADDITIONAL RIGHTS
(a) A Warrant does not confer on the holder any rights to dividends
prior to the exercise of the Warrant.
(b) A Warrant does not confer any right on the holder to participate
in a new issue without exercising the Warrant.
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Debt finance facility agreement
(c) The Lender (or any other holder of Warrants) will be entitled to
participate in any rights to take up Additional Rights on the
same terms and conditions as applicable to the other offerees or
shareholders of the Borrower provided that the Lender (or other
holder, as the case may be) has exercised any Warrant:
(1) in relation to any pro-rata issue of Additional Rights,
prior to the Record Date; and
(2) in relation to any other issue of Additional Rights, prior
to the Books Closing Date.
7.4 SHARE RANKING
Any Shares issued to the Lender (or other holder of a Warrant) by the
Borrower as a result of the exercise of a Warrant will rank pari passu
in all respects with all other Shares. Shares issued upon the exercise
of Warrants will only carry an entitlement to receive a dividend if
they were issued before the record date for that dividend.
7.5 VARIATION
(a) The Borrower may vary the terms of Warrants, and change their
holders' rights, to the extent necessary to comply with the
Relevant Exchange Rules applying to reorganisations of capital at
the time of the reorganisation.
(b) The Borrower must notify the Lender (and any other holder of
Warrants) of any variation to the terms of Warrants under clause
7.5(a) immediately after the date of the variation.
(c) Subject to the Relevant Exchange Rules, the terms of Warrants
applicable to a particular holder may be varied at any time by
written agreement between the Borrower and the holder.
7.6 WARRANT CERTIFICATES
(a) If any Warrant Certificate is lost, stolen, mutilated, defaced or
destroyed, the holder of the relevant Warrants may apply for a
replacement certificate. The application must be accompanied by:
(1) a written statement that the certificate has been lost or
destroyed and not otherwise pledged, sold or otherwise
disposed of;
(2) if the certificate has been lost, a written statement that
proper searches have been made;
(3) an undertaking that, if the certificate is found or received
by the holder of the relevant Warrants, it will be returned
to the Borrower; and
(4) in the discretion of the Borrower, an indemnity in form and
substance reasonably satisfactory to the Borrower relating
to losses suffered by the Borrower as a direct consequence
of the issue of a replacement certificate.
PAGE 23
Debt finance facility agreement
(b) The Borrower must issue a replacement certificate within 10
Business Days after receipt of the documents referred to in
clause 7.6(a).
(c) The holder of the relevant Warrants shall pay the reasonable
costs of the Borrower in connection with the replacement of the
lost, stolen, mutilated, defaced or destroyed Warrant
Certificate.
7.7 COMPULSORY EXERCISE
(a) For the purposes of this clause 7.7, CLOSING PRICE means, on a
day, the last price at which Shares traded (whether on that day
or, if the Shares did not trade on that day, the most recent
preceding day on which Shares traded).
(b) In the event that the Shares trade at a Closing Price on the
Relevant Exchange of greater than double the Exercise Price then
in effect during any 30 consecutive trading days (30 DAY PERIOD),
the Borrower may, within 10 Business Days commencing on the first
Business Day after the end of that 30 Day Period, by written
notice to the Lender, require the Lender (or holder) to exercise
all of the outstanding Warrants held by it.
(c) Within 20 Business Days of receipt by the Lender (or holder) of a
notice properly given in accordance with clause 7.7(a), the
Lender must exercise each Warrant held by it at that time in
accordance with this clause 7.
7.8 SURVIVAL
This clause 7 survives the termination or expiry of this agreement.
8 PAYMENTS
8.1 MANNER OF PAYMENT
All payments by a Transaction Party under the Transaction Documents
must be made:
(a) in Same Day Funds;
(b) in Dollars;
(c) by the close of business on the due date,
to the Lender's account as specified by the Lender to the Borrower or
in any other manner the Lender directs from time to time.
8.2 PAYMENTS ON A BUSINESS DAY
If a payment is due on a day which is not a Business Day, the due date
for that payment is the next Business Day in the same calendar month
or, if none, the preceding Business Day, and interest must be adjusted
accordingly.
8.3 PAYMENTS IN GROSS
All payments which a Transaction Party is required to make under any
Transaction Document must be without:
(a) any set-off, counterclaim or condition; or
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(b) any deduction or withholding for any Tax or any other reason
unless the Transaction Party is required to make a deduction or
withholding by applicable law.
8.4 ADDITIONAL PAYMENTS
Subject to clause 8.7, if:
(a) any Transaction Party is required to make a deduction or
withholding in respect of Tax (other than Excluded Tax) from any
payment to be made to the Lender under any Transaction Document;
or
(b) the Lender is required to pay any Tax (other than Excluded Tax)
in respect of any payment it receives from a Transaction Party or
the Lender under any Transaction Document,
the Transaction Party:
(c) indemnifies the Lender against that Tax; and
(d) must pay to the Lender an additional amount which the Lender
determines to be necessary to ensure that the Lender receives
when due a net amount (after payment of any Tax in respect of
each additional amount) that is equal to the full amount it would
have received if a deduction or withholding or payment of Tax had
not been made.
8.5 TAXATION DEDUCTION PROCEDURES
If clause 8.4(a) applies:
(a) the Transaction Party must pay the amount deducted or withheld to
the appropriate Government Agency as required by law; and
(b) the Transaction Party must:
(1) use reasonable endeavours to obtain a payment receipt from
the Government Agency (and any other documentation
ordinarily provided by the Government Agency in connection
with the payment); and
(2) within 2 Business Days after receipt of the documents
referred to in clause 8.5(b)(1), deliver copies of them to
the Lender.
8.6 TAX CREDIT
Subject to clause 8.8, if a Transaction Party makes an additional
payment under clause 8.4 for the benefit of the Lender, and the Lender
determines that:
(a) a credit against, relief or remission for, or repayment of any
Tax (TAX CREDIT) is attributable to that additional payment; and
(b) the Lender has obtained, utilised and retained that Tax Credit,
then the Lender must pay to the Transaction Party, within 10 Business
Days of obtaining, utilising and retaining that Tax Credit, an amount
which the Lender determines will leave it (after that payment) in the
same after Tax position as it would have been in had the additional
payment not been made by the Transaction Party.
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8.7 WITHHOLDING TAX
Clause 8.4 does not apply in respect of deductions or withholdings in
respect of Tax in Canada on payments of interest, including payments
deemed to be interest pursuant to Canadian income tax law, under the
Transaction Documents provided that relevant Transaction Party:
(a) pays the amount deducted or withheld to the appropriate
Government Agency as required by law; and
(b) obtains an NR4 Statement from the Government Agency and any other
documentation ordinarily provided by the Government Agency in
connection with the payment; and
(c) within 2 Business Days after receipt of the documents referred to
in clause 8.7(b), delivers copies of them to the Lender.
8.8 CANADIAN WITHHOLDING TAX CREDIT
The Lender may utilise and retain for its own account any Tax Credit
in respect of any payment or deduction under clause 8.7.
8.9 TAX AFFAIRS
Nothing in clause 8.6 or 8.8:
(a) interferes with the right of the Lender to arrange its tax
affairs in any manner it thinks fit;
(b) obliges the Lender to investigate the availability of, or claim,
any Tax Credit; or
(c) obliges the Lender to disclose any information relating to its
tax affairs or any tax computations.
8.10 AMOUNTS PAYABLE ON DEMAND
If any amount payable by a Transaction Party under any Transaction
Document is not expressed to be payable on a specified date, that
amount is payable by the Transaction Party on demand by the Lender.
8.11 APPROPRIATION OF PAYMENTS
(a) Except where clause 8.11(b) applies, all payments made by a
Transaction Party under a Transaction Document may be
appropriated as between principal, interest and other amounts as
the Lender determines or, failing any determination, in the
following order:
(1) first, towards reimbursement of all fees, costs, expenses,
charges, damages and indemnity payments due and payable by
the Transaction Parties under the Transaction Documents;
(2) second, towards payment of interest due and payable under
the Transaction Documents; and
(3) third, towards repayment or prepayment of the Loan.
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(b) Any money recovered by the Lender as a result of the exercise of
a Power under a Security must be appropriated in the manner
provided in that Security.
(c) Any appropriation under clauses 8.11(a) or (b) overrides any
appropriation made by a Transaction Party.
8.12 CURRENCY EXCHANGES
If the Lender receives an amount under a Transaction Document in a
currency which is not in the Relevant Currency, the Lender:
(a) may convert the amount received into the Relevant Currency in
accordance with its normal procedures; and
(b) is only regarded as having received the amount that it has
converted into the Relevant Currency.
9 REPRESENTATIONS AND WARRANTIES
9.1 REPRESENTATIONS AND WARRANTIES
Each Transaction Party represents and warrants to and for the benefit
of the Lender that:
(a) REGISTRATION: it is a corporation registered and validly existing
under the laws of the place of its incorporation;
(b) CORPORATE POWER: it has the corporate power to own its assets and
to carry on its business as it is now being conducted;
(c) AUTHORITY: it has power and authority to enter into and perform
its obligations under the Transaction Documents to which it is
expressed to be a party;
(d) AUTHORISATIONS: it has taken all necessary action to authorise
the execution, delivery and performance of the Transaction
Documents to which it is expressed to be a party;
(e) BINDING OBLIGATIONS: the Transaction Documents to which it is
expressed to be a party constitute its legal, valid and binding
obligations and, subject to any necessary stamping and
registration, are enforceable in accordance with their terms
subject to laws generally affecting creditors' rights and to
principles of equity;
(f) TRANSACTION PERMITTED: the execution, delivery and performance by
it of the Transaction Documents to which it is expressed to be a
party will not breach, or result in a contravention of:
(1) any law, regulation or Authorisation (including any law or
regulation prohibiting the Transaction Party from
financially assisting a person to acquire shares in it);
(2) its constitution or other constituent documents; or
(3) any Encumbrance or agreement which is binding it,
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and will not result in:
(4) the creation or imposition of any Encumbrance on any of its
assets other than as permitted under a Transaction Document;
or
(5) the acceleration of the date for payment of any obligation
under any agreement which is binding on it;
(g) FINANCIAL INFORMATION: in the case of the Borrower, its most
recent Financial Report which it has provided to the Lender under
clause 10.2:
(1) give a true and fair view of the financial condition and
state of affairs of the Borrower and its Subsidiaries (on a
consolidated basis) as at the date they were prepared; and
(2) were prepared in accordance with the Accounting Standards;
(h) NO CHANGE IN AFFAIRS: there has been no change in its or any of
its Subsidiaries' state of affairs since the end of the
accounting period for the Borrower's most recent Financial Report
or accounts, referred to in clause 9.1(g) which has had or is
likely to have a Material Adverse Effect;
(i) REPRESENTATIONS TRUE: each of its representations and warranties
contained in the Transaction Documents is correct and not
misleading when made or repeated;
(j) DISCLOSURE: all information provided to the Lender by or on its
behalf in relation to it, its assets, business or affairs or the
Transaction Documents was correct and not misleading (by omission
or otherwise) as at the time it was provided;
(k) NO FAILURE TO DISCLOSE: it has not withheld from the Lender any
information which could reasonably be expected to be material to
the decision of the Lender to enter into the Transaction
Documents to which the Lender is a party;
(l) LEGAL AND BENEFICIAL OWNER: it is the legal and beneficial owner
of:
(1) its assets (which, in the case of BM, include the Vietnamese
Tenements); and
(2) the property expressed to be subject to any Security given
by it;
(m) NO ENCUMBRANCES OR OTHER INTERESTS:
(1) there is no Encumbrance over any of its assets or
undertakings other than a Permitted Encumbrance; and
(2) no person holds an interest in its assets or undertakings
other than under a Permitted Encumbrance;
(n) NOT A TRUSTEE: it does not enter into any Transaction Document as
trustee of any trust or settlement;
(o) COMMERCIAL BENEFIT: the entering into and performance by it of
its obligations under the Transaction Documents to which it is
expressed to be a party is for its commercial benefit and is in
its commercial interests;
(p) WARRANTS: in the case of the Borrower, it has complied with the
Relevant Exchange Rules, its constituent documents and any other
applicable laws or regulations in relation to each issue of the
Warrants (including by
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obtaining shareholder approval for the issue of the Warrants if
such approval is required);
(q) EXERCISE SHARES: the Exercise Shares, if and when issued and
delivered on exercise of a Warrant will:
(1) be duly and validly issued, full-paid;
(2) rank pari passu with and, carry the same rights in all
aspects as, the other Shares then outstanding; and
(3) other than the resale restrictions imposed under Canadian
securities law and subject to approval of the Relevant
Exchange (if required), be freely transferable, free and
clear of all liens, encumbrances, security interests or
claims of third parties and will not be subject to calls for
further payment;
(r) ENVIRONMENTAL LIABILITIES: there are no Environmental Liabilities
affecting its assets or undertakings which have had or are likely
to have a Material Adverse Effect;
(s) GROUP STRUCTURE:
(1) its only Subsidiaries are listed in the Group Structure
Diagram; and
(2) the Group Structure Diagram is true and correct in all
respects and does not omit any material information or
details; and
(t) VIETNAMESE TENEMENTS: the definition of Vietnamese Tenements set
out in clause 1.1 is an up to date, accurate and complete
description of all of the mining tenements in which BM has an
interest on the date of this agreement and is not misleading in
any way (including by omission).
9.2 SURVIVAL AND REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties given under this agreement:
(a) survive the execution of each Transaction Document; and
(b) (except for the representations and warranties in clauses 9.1(j)
and 9.1(k)) are repeated on each Drawdown Date, Selection Date
and Interest Payment Date with respect to the facts and
circumstances then subsisting.
9.3 RELIANCE BY LENDER
Each Transaction Party acknowledges that the Lender has entered into
each Transaction Document to which it is a party in reliance on the
representations and warranties given under this agreement.
10 UNDERTAKINGS
10.1 TERM OF UNDERTAKINGS
Unless the Lender otherwise agrees in writing, until:
(a) the Commitment is cancelled;
(b) the Secured Moneys are unconditionally repaid in full; and
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(c) each Security is discharged,
each Transaction Party must, at its own cost, comply with, and the
Borrower must ensure that each other Transaction Party complies with,
its undertakings in this clause 10.
10.2 PROVISION OF INFORMATION AND REPORTS
The Borrower must provide to the Lender, and in the case of clauses
10.2(e) to 10.2(i) (inclusive), each Transaction Party must provide to
the Lender, where applicable in accordance with clause 10.3, the
following:
(a) ANNUAL FINANCIAL REPORTS: no later than 120 days after the end of
each financial year, copies of the consolidated annual audited
Financial Report of the Borrower and its Subsidiaries for that
financial year;
(b) INTERIM FINANCIAL REPORTS: no later than 60 days after the end of
each quarterly interim period for the Borrower's financial year,
copies of the unaudited semi-annual Financial Report of the
Borrower and its Subsidiaries for the applicable interim period;
(c) COMPLIANCE CERTIFICATE: a Compliance Certificate, signed by at
least two directors, or a director and a senior officer, of the
Borrower no later than 60 days after the end of each calendar
quarter;
(d) DIRECTORS' CERTIFICATE: at the Lender's request, a certificate
signed by at least 2 directors, or a director and a senior
officer, of the Borrower stating:
(1) if a Default has occurred; and
(2) if so, full details of the relevant Default and the remedial
action being taken or proposed;
(e) MAE EVENTS: any information that it becomes aware of which would
have a Material Adverse Effect;
(f) DOCUMENTS ISSUED: copies of all documents issued by it to holders
of its Marketable Securities or any stock exchange at the same
time as their issue;
(g) OTHER INFORMATION: any other information which the Lender
reasonably requests in relation to it, its financial condition or
any of its assets;
(h) LITIGATION: full details of any current or pending litigation
against it; and
(i) RELEVANT EXCHANGE: all information provided by it to the Relevant
Exchange or any other stock exchange or Governmental Authority.
10.3 TIME PERIODS
Where clause 10.2 does not specify a time within which a thing
required to be done by that clause must be done, the thing must be
done in a prompt and timely manner.
10.4 PROPER ACCOUNTS
Each Transaction Party must:
(a) keep accounting records which give a true and fair view of its
financial condition and state of affairs; and
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(b) ensure that the accounts it provides under clause 10.2 are
prepared in accordance with the Accounting Standards.
10.5 NOTICES TO THE LENDER
Each Transaction Party provide the Lender with written notice as soon
as it becomes aware of:
(a) any Default occurring;
(b) any litigation, arbitration, administration or other proceeding
in respect of it or any of its assets being commenced or
threatened;
(c) any material adverse change in the financial or commercial
circumstances of a Transaction Party or in the condition and
operation of the BM Project or any other event or circumstance
which has, or is reasonably likely to have, a Material Adverse
Effect;
(d) any Encumbrance that exists over any of its assets other than a
Permitted Encumbrance;
(e) any proposal of any Government Agency to compulsorily acquire any
of its assets;
(f) the acquisition by it of a Subsidiary; and
(g) the acquisition by it or any of its Subsidiaries of any interest
in real property for consideration greater than US$100,000.
10.6 COMPLIANCE
Each Transaction Party must:
(a) comply with all its obligations under each Transaction Document
to which it is a party; and
(b) ensure that no Event of Default occurs.
10.7 MAINTENANCE OF CAPITAL
A Transaction Party must not:
(a) pass a resolution resolving to:
(1) provide that the whole or part of its unpaid share capital
may be called up only if the company becomes externally
administered; or
(2) financially assist a person to acquire shares in it,
other than with the Lender's prior written consent;
(b) pass a resolution to reduce its capital other than:
(1) by redeeming preference shares which constitute Permitted
Financial Indebtedness; or
(2) with the Lender's prior written consent (which consent it
may in its absolute discretion withhold);
(c) buy-back or pass a resolution to buy-back, any of its shares
other than:
(1) by redeeming preference shares which constitute Permitted
Financial Indebtedness; or
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(2) with the Lender's prior written consent; or
(d) attempt or take any steps to do anything which it is not
permitted to do under clauses 10.7(a), (b)or (c).
10.8 COMPLIANCE WITH LAWS AND AUTHORISATIONS
Each Transaction Party must:
(a) comply with all material laws and legal requirements, including
each judgement, award, decision, finding or any other
determination of a Government Agency, which applies to it or any
of its assets;
(b) obtain, maintain and comply with all Authorisations required:
(1) for the enforceability against it of each Transaction
Document to which it is a party, or to enable it to perform
its obligations under each Transaction Document to which it
is a party;
(2) by it to own its assets and conduct the BM Project;
(c) not do anything which would prevent the renewal of any
Authorisation referred to in clause 10.8(b) or cause it to be
renewed on less favourable terms; and
(d) ensure that the operation of the BM Project complies with all
Environmental Laws.
10.9 PAYMENT OF TAXES AND OUTGOINGS
Each Transaction Party must pay all Taxes when due other than Taxes
being disputed in good faith by appropriate proceedings to the
Lender's reasonable satisfaction where payment is not required until
the dispute is resolved.
10.10 OWNERSHIP OF BM
The Borrower:
(a) must ensure that each Initial Guarantor other than BM remains a
wholly owned (direct or indirect) subsidiary of the Borrower;
(b) must ensure that it will (directly or indirectly) maintain legal
and beneficial ownership of at least 80% of all the issued
Marketable Securities in BM; and
(c) must not dispose, and must procure that each of its Subsidiaries
and the Transaction Parties do not dispose, of any part of the
interest it has (directly or indirectly) in the BM Project at the
date of this agreement, whether on its own account or in
association with another person,
unless the Lender otherwise consents in writing.
10.11 AMENDMENTS TO CONSTITUTION
A Transaction Party must not amend its constitution or any other
constituent document of it without the Lender's prior written consent
which consent must not be unreasonably withheld unless the amendment
relates to an alteration of the constitution which has the effect of
changing or converting any Shares into shares
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of another class, in which case, the Lender may withhold its consent
in its absolute discretion.
10.12 NEGATIVE PLEDGE AND DISPOSAL OF ASSETS
(a) A Transaction Party must not create or allow to exist or agree to
any Encumbrance over any of its assets other than a Permitted
Encumbrance.
(b) A Transaction Party must not acquire an asset which is, or upon
its acquisition will be, subject to an Encumbrance which is not a
Permitted Encumbrance.
(c) A Transaction Party must not sell, assign, transfer or otherwise
dispose of or part with possession of any of its assets except:
(1) an asset which does not form part of the Secured Property or
which is subject to a floating charge under a Security and
in, and only in, the ordinary course of ordinary business
with a value not greater than US$50,000;
(2) an asset (other than real property or an interest in real
property or any other asset the subject of a fixed charge
under a Security) which is replaced by one or more assets
having similar function and of comparable or superior type,
value and quality; or
(3) expenditure of cash for a purpose permitted by clause 3.2.
(d) A Transaction Party must not allow any other person to have a
right or power to receive or claim any rents, profits,
receivables, money or moneys worth (whether capital or income) in
respect of its assets other than under a Security.
(e) A Transaction Party must not enter into any arrangement under
which money or the benefit of a bank or other account may be
applied, set-off or made subject to a combination of accounts in
circumstances where the arrangement is in connection with:
(1) the raising of Financial Indebtedness; or
(2) the acquisition of an asset,
except for a netting or set-off arrangement in the ordinary
course of its ordinary banking arrangements for the purpose of
netting debit and credit balances.
(f) A Transaction Party must not enter into any arrangement which, if
complied with, would prevent any Transaction Party from complying
with its obligations under the Transaction Documents.
(g) A Transaction Party (FIRST TRANSACTION PARTY) must not allow any
Financial Indebtedness owed to it by another Transaction Party to
be repaid to it, and each Transaction Party must not repay any
Financial Indebtedness to the First Transaction Party, unless the
First Transaction Party uses the proceeds of repayment to repay
the Secured Moneys.
(h) If, by mandatory operation of law, this clause 10.12 may not
prevent a Transaction Party creating an Encumbrance other than a
Permitted Encumbrance:
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(1) this clause 10.12 does not prevent a Transaction Party
creating that Encumbrance;
(2) before that Encumbrance is created the Transaction Party
must ensure that the Lender receives the benefit of a deed
of priority granting first ranking priority to each Security
in a form and of substance required by the Lender; and
(3) until that deed of priority is executed and delivered to the
Lender, the Lender is not required to provide any further
Advances.
10.13 FINANCIAL INDEBTEDNESS
A Transaction Party must not incur any Financial Indebtedness other
than Permitted Financial Indebtedness.
10.14 NO CHANGE TO BUSINESS
A Transaction Party must not engage in any business other than, or do
anything which would result in substantial changes to, its existing
core businesses and operations.
10.15 FINANCIAL ACCOMMODATION
A Transaction Party must not provide any financial accommodation, or
give any Guarantee in respect of any financial accommodation, to or
for the benefit of any person, other than Permitted Financial
Accommodation.
10.16 RESTRICTIONS ON DEALINGS
A Transaction Party must not:
(a) enter into an agreement;
(b) acquire or dispose of an asset;
(c) obtain or provide a service;
(d) obtain a right or incur an obligation; or
(e) implement any other transaction,
with any person unless it does so on terms which are no less
favourable to it than arm's length terms.
10.17 UNDERTAKINGS REGARDING SECURED PROPERTY
Each Transaction Party must:
(a) MAINTENANCE OF THE SECURED PROPERTY:
(1) maintain and protect its Secured Property, including a
programme of care and maintenance to industry best practice;
(2) keep its Secured Property in the state of repair that a
prudent owner of the same or similar Secured Property acting
in accordance with best industry practice would keep its
Secured Property in;
(3) remedy every defect in its title to any part of its Secured
Property;
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(4) take or defend all legal proceedings necessary to protect or
recover any of its Secured Property; and
(5) keep its Secured Property valid and subsisting and free from
liability to forfeiture, cancellation, avoidance or loss;
(b) FURTHER SECURITY:
(1) do anything which the Lender reasonably requests which:
(A) more satisfactorily charges or secures the priority of
its Security, or secures to the Lender its Secured
Property in a manner consistent with any provision of
any Transaction Document; or
(B) aids in the exercise of any Power of the Lender,
including, the execution of any document, the delivery of
Title Documents or the execution and delivery of blank
transfers;
(2) when the Lender reasonably requests, execute a legal or
statutory mortgage in favour of the Lender over any real
property in form and substance required by the Lender, but
the Lender cannot require an obligation which is more
onerous than any obligation contained in any Transaction
Document; and
(3) use its best endeavours to register any mortgage executed
under clause 10.17(b)(2);
(c) TITLE DOCUMENTS: deposit with Lender, all the Title Documents
which the Lender requests in respect of any of its Secured
Property which is subject to the fixed charge created under its
Security immediately on:
(1) its execution of its Security;
(2) acquisition of any asset which forms part of its Secured
Property and is subject to the fixed charge created by its
Security; and
(3) the floating charge which is created by its Security
crystallising and fixing;
(d) REGISTRATION AND PROTECTION OF SECURITY: ensure that its Security
is registered and filed in all registers in all jurisdictions in
which it must be registered and filed to ensure the
enforceability, validity and priority of the Security against all
persons and to be effective as a security;
(e) NO PARTNERSHIP OR JOINT VENTURE: not enter into any profit
sharing arrangement in relation to its Secured Property or any
partnership or joint venture with any other person without the
Lender's written consent;
(f) NO CAVEATS: cause any caveat which is lodged in respect of its
Secured Property, other than a caveat lodged by the Lender, to be
removed as soon as reasonably practicable but in any event within
30 Business Days after the date that it becomes aware of its
existence.
10.18 INSURANCE
(a) GENERAL REQUIREMENTS: Each Transaction Party must:
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(1) insure and keep insured its Secured Property against damage,
destruction and any other risk to their full replacement
value or on a reinstatement basis; and
(2) maintain reasonable insurance against workers' compensation
and public liability.
(b) PAYMENT OF PREMIUMS: Each Transaction Party must punctually pay
all premiums and other amounts necessary to effect and maintain
in force each Insurance.
(c) CONTENTS OF INSURANCE POLICY: Each Transaction Party must ensure
that every insurance policy (other than worker's compensation and
public liability):
(1) is taken out in the name of the Transaction Party, notes the
Lender as an insured and insures each of their insurable
interests;
(2) in the case of the Guarantor, names the Lender as the loss
payee;
(3) cannot be terminated or varied by the insurer for any reason
including the non-payment of the premium or any other amount
in respect of the insurance policy, unless the Lender is
given 30 days prior written notice; and
(4) provides that notice of any occurrence given by one insured
party will be regarded as notice given by all insured
parties and that failure by one insured party to observe and
fulfil the conditions of the policy will not prejudice the
rights of any other insured party; and
(5) includes any other terms and conditions which the Lender may
reasonably require.
(d) REPUTABLE INSURER: Each Transaction Party must take out each
insurance policy with a reputable and substantial insurer
approved by the Lender (whose approval is not to be unreasonably
withheld).
(e) NO PREJUDICE: Each Transaction Party must not do or omit to do,
or allow or permit to be done or not done, anything which may
materially prejudice any insurance policy.
(f) DELIVER DOCUMENTS: Each Transaction Party must promptly deliver
to the Lender:
(1) adequate evidence as to the existence and currency of the
insurances required under this clause 10.18; and
(2) any other detail which the Lender may reasonably require and
notify to the Transaction Party from time to time.
(g) NO CHANGE TO POLICY: A Transaction Party must not vary, rescind,
terminate, cancel or make a material change to any insurance
policy without the Lender's written consent.
(h) FULL DISCLOSURE: Before entering into each insurance policy, each
Transaction Party must disclose to the insurer all facts which
are material to the insurer's risk.
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(i) ASSISTANCE IN RECOVERY OF MONEY: Each Transaction Party must do
all things reasonably required by the Lender to enable the Lender
to recover any money due in respect of an insurance policy.
(j) NOTIFICATION BY TRANSACTION PARTY: Each Transaction Party must
notify the Lender as soon as reasonably practicable after it
becomes aware of:
(1) an event which in relation to a Secured Property gives rise
to a claim of US$250,000 or more under an insurance policy;
and
(2) the cancellation or variation for any reason of any
insurance policy in relation to its Secured Property.
(k) DEALING WITH INSURANCE POLICY PROCEEDS:
(1) Unless clause 10.18(k)(3) applies, if no Event of Default is
subsisting, the proceeds of any insurance policy may be used
for any purpose determined by the relevant Transaction
Party.
(2) Unless clause 10.18(k)(3) applies, if an Event of Default is
subsisting, the proceeds in respect of any insurance policy
must be used to pay the Secured Moneys outstanding at that
time or for any other purpose which the Lender approves.
(3) Clauses 10.18(k)(1) and (2) do not apply to proceeds
received from any workers' compensation or public liability
policy or reinstatement policy to the extent that the
proceeds are paid to a natural person:
(A) entitled to be compensated under the workers'
compensation or public liability policy; or
(B) under a contract for the reinstatement of its Secured
Property.
(l) APPLICATION OF REINSTATEMENT PROCEEDS: If required under the
terms of a reinstatement policy, the Transaction Party must apply
all proceeds payable under the reinstatement policy to the
reinstatement of its Secured Property.
(m) POWER TO TAKE PROCEEDINGS: If an Event of Default has occurred
and a Receiver has not been appointed, the Lender alone has full
power to make, enforce, settle, compromise, xxx on and discharge
all claims and recover and receive all moneys payable in respect
of:
(1) any claim under any insurance policy; and
(2) any compensation claim in respect of any injury to an
employee of the Lender, Receiver or Attorney suffered while
exercising or attempting to exercise any Power.
10.19 AUTHORISED OFFICER
Each Transaction Party must appoint an Officer to have delegated
authority to approve all dealings, notices and transactions under the
Facility and the Transaction Documents.
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10.20 DISTRIBUTIONS
A Transaction Party must not make a Distribution without the prior
written consent of the Lender.
10.21 CERTAIN CORPORATE ACTION
A Transaction Party must not:
(a) incur any Financial Indebtedness to any Related Body Corporate
unless it is Qualifying Subordinated Debt;
(b) fail to comply with the terms and conditions of any Qualifying
Subordinated Debt;
reduce its capital, buy back or redeem any of its shares or other
Marketable Securities issued by it or provide any financial assistance
(even if authorised under pursuant to any applicable law).
10.22 ADDITIONAL SECURITY
The Borrower must, as soon as is reasonably practical, procure that
any entity in which the Borrower holds a direct or indirect debt or
equity interest in BM (HOLDING ENTITY) executes and delivers to the
Borrower:
(a) a document pursuant to which the Holding Entity accedes to this
agreement and becomes a Guarantor under this agreement;
(b) a Collateral Security in favour of the Lender over its interest
in BM including any shareholder loan receivables owed to it by
BM; and
(c) a legal opinion from counsel acceptable to the Lender in the
jurisdiction in which the Holding Entity is located and in the
governing law jurisdiction of the Collateral Security in relation
to the Holding Entity and the documents referred to in clauses
10.22(a) and 10.22(b),
in each case in a form and of substance acceptable to the Lender.
10.23 RE-REGISTRATION OF BM HOLDINGS
(a) The Transaction Parties must diligently pursue the
re-registration of BM Holdings.
(b) As soon as practical following BM Holdings becoming
re-registered, the Transaction Parties must procure the transfer
to BM Holdings of all the shares in BM that were held by BM
Holdings prior to its deregistration.
11 EVENTS OF DEFAULT
11.1 EVENTS OF DEFAULT
It is an Event of Default, whether or not it is within the control of
a Transaction Party, if:
(a) FAILURE TO PAY: a Transaction Party fails to pay or repay any
part of the Secured Moneys when due and payable by it (unless the
failure to pay is outside the Borrower's control due to a failure
of the banking or other
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Debt finance facility agreement
systems used for the transfer of funds and the failure is
remedied within 3 Business Days);
(b) BREACH: a Transaction Party fails to comply with any of clause
10.11, 10.12, 10.13, 10.21, 10.22 or 10.23;
(c) NON-REMEDIABLE FAILURE: a Transaction Party fails to perform any
other undertaking or obligation of it under any Transaction
Document and that failure is not in the reasonable opinion of the
Lender remediable;
(d) REMEDIABLE FAILURE: the failure described in clause 11.1(c) is in
the reasonable opinion of the Lender remediable, and the
Transaction Party does not remedy the failure within 7 days of
the relevant default occurring (or such longer period as the
Lender may agree);
(e) MISREPRESENTATION: any representation or warranty or statement of
a Transaction Party under a Transaction Document is materially
incorrect or misleading when made or repeated;
(f) CROSS DEFAULT: any Financial Indebtedness of a Transaction Party
in an aggregate amount of US$100,000 or more:
(1) becomes due and payable, or becomes capable of being
declared due and payable, before the scheduled date for
payment; or
(2) is not paid within 7 days of when it was due (or such longer
time as the Lender may provide),
except where the relevant Financial Indebtedness is being
disputed in good faith and in appropriate proceedings to the
satisfaction of the Lender and the Financial Indebtedness is paid
when the terms of any final determination or settlement requires
payment;
(g) ENCUMBRANCE: any Encumbrance is enforced, or becomes capable of
being enforced, against an asset or assets of a Transaction Party
with an aggregate value of US$100,000;
(h) JUDGMENT: a judgment in an amount exceeding US$100,000 is
obtained against a Transaction Party and is not set aside or
satisfied within 15 Business Days;
(i) EXECUTION: a distress, attachment, execution or other process of
a Government Agency is issued against, levied or entered upon an
asset of a Transaction Party in an amount exceeding US$100,000
and is not set aside or satisfied within 15 Business Days;
(j) CONTROLLER: any of the following occur:
(1) a Controller is appointed, or any steps are taken to appoint
a Controller; or
(2) a resolution to appoint a Controller is passed, or any steps
are taken to pass a resolution to appoint a Controller,
to a Transaction Party or over an asset of a Transaction Party;
(k) WINDING UP: any of the following occur:
(1) an application is made (and is not dismissed within 10
Business Days);
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Debt finance facility agreement
(2) an order is made; or
(3) a resolution is passed or any steps are taken to pass a
resolution,
for the winding up of any Transaction Party;
(l) ADMINISTRATION: any of the following occur:
(1) an administrator is appointed, or any steps are taken to
appoint an administrator; or
(2) a resolution to appoint an administrator is passed, or any
steps are taken to pass a resolution to appoint an
administrator,
to a Transaction Party;
(m) DEREGISTRATION: a Transaction Party is deregistered, or any steps
are taken to deregister a Transaction Party under the applicable
law of the place where the Transaction Party is registered;
(n) CESSATION OR SUSPENSION OF OFFICIAL QUOTATION: any Transaction
Party listed on a stock exchange ceases to be so listed, or
trading in its shares is suspended for a period of more than 14
days;
(o) SUSPENDS PAYMENT: a Transaction Party suspends payment of its
debts generally;
(p) INSOLVENCY: a Transaction Party is:
(1) unable to pay its debts when they are due; or
(2) presumed to be insolvent under any applicable law;
(q) ARRANGEMENTS: a Transaction Party enters into or resolves to
enter into any arrangement, composition or compromise with, or
assignment for the benefit of, any of its creditors;
(r) REORGANISATION: a Transaction Party implements a merger,
demerger, reconstruction or scheme of arrangement with any
person;
(s) CEASING BUSINESS: a Transaction Party ceases to carry on
business;
(t) UNENFORCEABILITY:
(1) a material provision of a Transaction Document is illegal,
void, voidable or unenforceable;
(2) any person becomes entitled to terminate, rescind or avoid
any material provision of any Transaction Document; or
(3) the execution, delivery or performance of a Transaction
Document by a Transaction Party breaches or results in a
contravention of any law;
(u) PROJECT: a Transaction Party ceases, or threatens to cease, to
carry on all or a substantial part of the BM Project;
(v) CHANGE OF CONTROL: a change occurs in the ownership or board
membership of a Transaction Party which, in the reasonable
opinion of the Lender, would have a Material Adverse Effect;
(w) CONSOLIDATED POSITION: at any time the aggregate of the
Borrower's unencumbered cash on a consolidated basis plus the
Undrawn
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Debt finance facility agreement
Commitment is not sufficient to meet its next month's budgeted
total expenses on a consolidated basis including, without
limitation, all corporate and project development costs plus any
trade creditors;
(x) OTHER ACTIVITY: a Transaction Party commences any substantive
business activity unrelated to mineral exploration, mining and
recovery;
(y) MATERIAL ADVERSE EFFECT: any change (including a change to the
ownership, senior management or board membership of a Transaction
Party), event or series of events (including a change to the
business, assets or liabilities of any Transaction Party) occurs
which, in the reasonable opinion of the Lender, has or is likely
to have a Material Adverse Effect;
(z) UNAPPROVED HEDGING: any Transaction Party enters into any metal,
interest rate, foreign exchange transaction, currency swap
transaction, cross-currency swap rate transaction or any other
hedge or derivative agreement other than pursuant to a Hedging
Agreement without the prior written consent of the Lender; and
(aa) CANCELLATION: any Authorisation which is necessary for the BM
Project (including the Vietnamese Tenements) is cancelled,
revoked or made subject to any conditions which in the reasonable
opinion of the Lender is or is likely to be, adverse to the
Lender's interests in a way which has, or is likely to have, a
Material Adverse Effect.
11.2 EFFECT OF EVENT OF DEFAULT
(a) If an Event of Default occurs the Lender may at any time while it
subsists by notice to the Borrower declare that:
(1) the Secured Moneys are immediately due and payable; or
(2) the Commitment is cancelled,
or make each of the declarations under clauses 11.2(a)(1) and
(2).
(b) The Borrower must immediately repay the Secured Moneys on receipt
of a notice under clause 11.2(a)(1).
11.3 TRANSACTION PARTIES TO CONTINUE TO PERFORM
(a) If the Lender makes a declaration under clause 11.2:
(1) the declaration does not affect the obligations of a
Transaction Party under the Transaction Documents; and
(2) each Transaction Party must continue to perform its
obligations under the Transaction Documents as if the
declaration had not been made, subject to any directions
given by the Lender under any Transaction Document.
(b) Clause 11.3(a) does not affect the Borrower's obligations under
clause 11.2.
11.4 ENFORCEMENT
(a) The Transaction Documents may be enforced without notice, other
than a notice required by the terms of the Transaction Documents
or a mandatory
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provision of law which cannot be excluded, to a Transaction Party
or any other person even if:
(1) the Lender accepts any part of the Secured Moneys after an
Event of Default; or
(2) there has been any other Event of Default.
(b) The Lender is not liable to any Transaction Party for any Loss a
Transaction Party may suffer, incur or be liable for arising out
of or in connection with the Lender exercising any Power, except
to the extent specifically set out in a Transaction Document.
12 INCREASED COSTS AND ILLEGALITY
12.1 INCREASED COSTS
(a) If the Lender determines that any Change in Law affecting it or
any of its holding companies (each a HOLDING COMPANY) directly or
indirectly:
(1) increases the effective cost to the Lender of performing its
obligations under the Transaction Documents or funding or
maintaining the Commitment or the Loan;
(2) reduces any amount received or receivable by the Lender
under the Transaction Documents; or
(3) in any other way reduces the effective return to the Lender
or any Holding Company under the Transaction Documents or
the overall return on capital of the Lender or any Holding
Company,
(each an INCREASED COST), the Borrower must pay to the Lender on
demand compensation for the Increased Cost to the extent
attributed by the Lender or Holding Company (using the methods it
considers appropriate) to the Lender's obligations under the
Transaction Documents or the funding or maintenance of the
Commitment or the Loan.
(b) A claim under clause 12.1(a):
(1) must contain reasonable details of the event giving rise to
the claim, the amount of the claim and the basis of
computation of the claim; and
(2) in the absence of manifest error, is sufficient evidence of
the amount to which the Lender is entitled under clause
12.1(a) unless the contrary is proved.
(c) If the Borrower receives a demand from the Lender under clause
12.1(a), the Borrower may, by written notice to the Lender on or
before the date which is 20 Business Days after the date of that
demand, cancel the Commitment and prepay the Secured Moneys in
full.
(d) A notice under clause 12.1(c) is irrevocable and the Borrower
must, on the date which is 40 Business Days after the date that
the notice is given, pay to the Lender the Secured Moneys in
full.
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Debt finance facility agreement
12.2 ILLEGALITY
(a) If any Change in Law or other event makes it illegal for the
Lender to perform its obligations under the Transaction Documents
or fund or maintain the Commitment, the Lender may by notice to
the Borrower:
(1) suspend its obligations under the Transaction Documents for
the duration of the illegality; or
(2) by notice to the Borrower, cancel the Commitment and require
the Borrower to repay the Secured Moneys in full on the date
which is 40 Business Days after the date on which the Lender
gives the notice or any earlier date required by, or to
comply with, the applicable law.
(b) A notice under clause 12.2(a)(2) is irrevocable and the Borrower
must, on the repayment date determined under clause 12.2(a)(2),
pay to the Lender the Secured Moneys in full.
13 GUARANTEE AND INDEMNITY
13.1 GUARANTEE
The Guarantors jointly and severally, unconditionally and irrevocably
guarantee to the Lender the payment of the Secured Moneys.
13.2 PAYMENT
(a) If the Secured Moneys are not paid when due, each Guarantor must
immediately on demand from the Lender pay to the Lender the
Secured Moneys in the same manner and currency as the Secured
Moneys are required to be paid.
(b) A demand under clause 13.2(a) may be made at any time and from
time to time.
13.3 SECURITIES FOR OTHER MONEY
The Lender may apply any amounts received by it or recovered under
any:
(a) Collateral Security; or
(b) other document or agreement,
which is a security for any of the Secured Moneys and any other money
in the manner it determines in its absolute discretion.
13.4 AMOUNT OF SECURED MONEYS
(a) This clause 13 applies to any amount which forms part of the
Secured Moneys from time to time.
(b) The obligations of each Guarantor under this clause 13 extend to
any increase in the Secured Moneys as a result of:
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Debt finance facility agreement
(1) any amendment, supplement, renewal or replacement of any
Transaction Document to which a Transaction Party and the
Lender is a party; or
(2) the occurrence of any other thing.
(c) Clause 13.4(b):
(1) applies regardless of whether the Guarantor is aware of or
consented to or is given notice of any amendment,
supplement, renewal or replacement of any agreement to which
a Transaction Party and the Lender is a party or the
occurrence of any other thing; and
(2) does not limit the obligations of the Guarantor under this
clause 13.
13.5 PROOF BY LENDER
In the event of the liquidation of a Transaction Party, each Guarantor
authorises the Lender to prove for all money which the Guarantor has
paid or is or may be obliged to pay under any Transaction Document,
any other document or agreement or otherwise in respect of the Secured
Moneys.
13.6 AVOIDANCE OF PAYMENTS
(a) If any payment, conveyance, transfer or other transaction
relating to or affecting the Secured Moneys is:
(1) void, voidable or unenforceable in whole or in part; or
(2) claimed to be void, voidable or unenforceable and that claim
is upheld, conceded or compromised in whole or in part,
the liability of each Guarantor under this clause 13 and any
Power is the same as if:
(3) that payment, conveyance, transfer or transaction (or the
void, voidable or unenforceable part of it); and
(4) any release, settlement or discharge made in reliance on any
thing referred to in clause 13.6(a)(3),
had not been made and each Guarantor must immediately take all
action and sign all documents necessary or required by the Lender
to restore to the Lender the benefit of this clause 13 and any
Encumbrance held by the Lender immediately before the payment,
conveyance, transfer or transaction.
(b) Clause 13.6(a) applies whether or not the Lender knew, or ought
to have known, of anything referred to in clause 13.6(a).
13.7 INDEMNITY FOR AVOIDANCE OF SECURED MONEYS
(a) If any of the Secured Moneys (or money which would have been
Secured Moneys if it had not been irrecoverable) are
irrecoverable by the Lender from:
(1) any Transaction Party; or
(2) a Guarantor on the footing of a guarantee,
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each Guarantor jointly and severally, unconditionally and
irrevocably, and as a separate and principal obligation:
(3) indemnifies the Lender against any Loss suffered, paid or
incurred by the Lender in relation to the non payment of
that money; and
(4) must pay the Lender an amount equal to that money.
(b) Clause 13.7(a) applies to the Secured Moneys (or money which
would have been Secured Moneys if it had not been irrecoverable)
which are or may be irrecoverable irrespective of whether:
(1) they are or may be irrecoverable because of any event
described in clause 13.12;
(2) they are or may be irrecoverable because of any other fact
or circumstance;
(3) the transactions or any of them relating to that money are
void or illegal or avoided or otherwise unenforceable; and
(4) any matters relating to the Secured Moneys are or should
have been within the knowledge of the Lender.
13.8 NO OBLIGATION TO MARSHAL
(a) The Lender is not required to marshal or to enforce or apply
under or appropriate, recover or exercise:
(1) any Encumbrance, Guarantee or Collateral Security or other
document or agreement held, at any time, by or on behalf of
that or the Lender; or
(2) any money or asset which the Lender, at any time, holds or
is entitled to receive.
(b) Should the Lender elect to realise on any Security it may hold,
either before, concurrently with or after demand for payment
under this guarantee, the Guarantor shall have no right of
discussion or division.
13.9 NON-EXERCISE OF GUARANTORS' RIGHTS
A Guarantor must not exercise any rights it may have inconsistent with
this clause 13.
13.10 PRINCIPAL AND INDEPENDENT OBLIGATION
(a) This clause 13 is:
(1) a principal obligation and is not to be treated as ancillary
or collateral to any other right or obligation; and
(2) independent of and not in substitution for or affected by
any other Collateral Security which the Lender may hold in
respect of the Secured Moneys or any obligations of any
Transaction Party or any other person.
(b) This clause 13 is enforceable against a Guarantor:
(1) without first having recourse to any Collateral Security;
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Debt finance facility agreement
(2) whether or not the Lender has:
(A) made demand on any Transaction Party (other than any
demand specifically required to be given, or notice
required to be issued, to the Guarantor under clause
13.2 or any other provision of a Transaction Document);
(B) given notice to any Transaction Party or any other
person in respect of any thing; or
(C) taken any other steps against any Transaction Party or
any other person;
(3) whether or not any Secured Moneys is then due and payable;
and
(4) despite the occurrence of any event described in clause
13.12.
13.11 SUSPENSE ACCOUNT
(a) The Lender may apply to the credit of a suspense account any:
(1) amounts received under this clause 13;
(2) dividends, distributions or other amounts received in
respect of the Secured Moneys in any liquidation; and
(3) other amounts received from a Guarantor, a Transaction Party
or any other person in respect of the Secured Moneys.
(b) The Lender may retain the amounts in the suspense account for as
long as it determines and is not obliged to apply them in or
towards satisfaction of the Secured Moneys.
13.12 UNCONDITIONAL NATURE OF OBLIGATIONS
(a) This clause 13 and the obligations of each Guarantor under the
Transaction Documents are absolute, binding and unconditional in
all circumstances, and are not released or discharged or
otherwise affected by anything which but for this provision might
have that effect, including:
(1) the grant to any Transaction Party or any other person at
any time, of a waiver, covenant not to xxx or other
indulgence;
(2) the release (including a release as part of any novation) or
discharge of any Transaction Party or any other person;
(3) the cessation of the obligations, in whole or in part, of
any Transaction Party or any other person under any
Transaction Document or any other document or agreement;
(4) the liquidation of any Transaction Party or any other
person;
(5) any arrangement, composition or compromise entered into by
the Lender, any Transaction Party or any other person;
(6) any Transaction Document or any other document or agreement
being in whole or in part illegal, void, voidable, avoided,
unenforceable or otherwise of limited force or effect;
(7) any extinguishment, failure, loss, release, discharge,
abandonment, impairment, compounding, composition or
compromise, in whole
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Debt finance facility agreement
or in part of any Transaction Document or any other document
or agreement;
(8) any Collateral Security being given to the Lender by any
Transaction Party or any other person;
(9) any alteration, amendment, variation, supplement, renewal or
replacement of any Transaction Document or any other
document or agreement;
(10) any moratorium or other suspension of any Power;
(11) the Lender, a Receiver or Attorney exercising or enforcing,
delaying or refraining from exercising or enforcing, or
being not entitled or unable to exercise or enforce any
Power;
(12) the Lender obtaining a judgment against any Transaction
Party or any other person for the payment of any of the
Secured Moneys;
(13) any transaction, agreement or arrangement that may take
place with the Lender, any Transaction Party or any other
person;
(14) any payment to the Lender, a Receiver or Attorney, including
any payment which at the payment date or at any time after
the payment date is in whole or in part illegal, void,
voidable, avoided or unenforceable;
(15) any failure to give effective notice to any Transaction
Party or any other person of any default under any
Transaction Document or any other document or agreement;
(16) any legal limitation, disability or incapacity of any
Transaction Party or of any other person;
(17) any breach of any Transaction Document or any other document
or agreement;
(18) the acceptance of the repudiation of, or termination of, any
Transaction Document or any other document or agreement;
(19) any Secured Moneys being irrecoverable for any reason;
(20) any disclaimer by any Transaction Party or any other person
of any Transaction Document or any other document or
agreement;
(21) any assignment, novation, assumption or transfer of, or
other dealing with, any Powers or any other rights or
obligations under any Transaction Document or any other
document or agreement;
(22) the opening of a new account of any Transaction Party with
the Lender or any transaction on or relating to the new
account;
(23) any prejudice (including material prejudice) to any person
as a result of:
(A) any thing done or omitted by the Lender, any
Transaction Party or any other person;
(B) the Lender, a Receiver, Attorney or any other person
selling or realising any property the subject of a
Collateral Security at less than the best price;
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Debt finance facility agreement
(C) any failure or neglect by the Lender, a Receiver,
Attorney or any other person to recover the Secured
Moneys from any Transaction Party or by the realisation
of any property the subject of a Collateral Security;
or
(D) any other thing;
(24) the receipt by the Lender of any dividend, distribution or
other payment in respect of any liquidation;
(25) the failure of the Guarantor or any other person who is
intended to become a co-surety or co-indemnifier of that
Guarantor to execute this agreement or any other document;
or
(26) any other act, omission, matter or thing whether negligent
or not.
(b) Clause 13.12(a) applies irrespective of:
(1) the consent or knowledge or lack of consent or knowledge, of
the Lender, any Transaction Party or any other person of any
event described in clause 13.12(a); or
(2) any rule of law or equity to the contrary.
13.13 NO COMPETITION
(a) Until the Secured Moneys have been fully paid and this clause 13
has been finally discharged, a Guarantor is not entitled to:
(1) be subrogated to the Lender;
(2) claim or receive the benefit of:
(A) any Encumbrance, Guarantee or other document or
agreement of which the Lender has the benefit;
(B) any moneys held by the Lender; or
(C) any Power;
(3) either directly or indirectly to prove in, claim or receive
the benefit of any distribution, dividend or payment arising
out of or relating to the liquidation of any Transaction
Party liable to pay the Secured Moneys, except in accordance
with clause 13.13(b);
(4) make a claim or exercise or enforce any right, power or
remedy (including under an Encumbrance or Guarantee or by
way of contribution) against any Transaction Party liable to
pay the Secured Moneys;
(5) accept, procure the grant of or allow to exist any
Encumbrance in favour of the Guarantor from any Transaction
Party liable to pay the Secured Moneys;
(6) exercise or attempt to exercise any right of set-off
against, or realise any Encumbrance taken from, any
Transaction Party liable to pay the Secured Moneys; or
(7) raise any defence or counterclaim in reduction or discharge
of its obligations under this clause 13.
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Debt finance facility agreement
(b) If required by the Lender, a Guarantor must prove in any
liquidation of any Transaction Party liable to pay the Secured
Moneys for all money owed to the Guarantor.
(c) All money recovered by a Guarantor from any liquidation or under
any Encumbrance or Guarantee from any Transaction Party liable to
pay the Secured Moneys must be received and held in trust by the
Guarantor for the Lender to the extent of the unsatisfied
liability of the Guarantor under this clause 13.
(d) A Guarantor must not do or seek, attempt or purport to do
anything referred to in clause 13.13(a).
13.14 CONTINUING GUARANTEE
(a) This clause 13 is a continuing obligation of each Guarantor,
despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) all the Secured Moneys have been paid in full; and
(4) this clause 13 has been finally discharged by all the
Lender.
(b) The obligations of a Guarantor under this clause 13 shall not be
deemed to have been discharged or released or otherwise impaired
by reason only that any Secured Moneys are repaid or the account
of the Borrower with the Lender ceases to be in debit.
13.15 VARIATION
This clause 13 extends to cover the Transaction Documents as amended,
varied or replaced, whether with or without the consent of a
Guarantor, including any increase in the limit or maximum principal
amount available under a Transaction Document.
13.16 JUDGMENTS
A final judgment obtained against a relevant Transaction Party is
conclusive as against a Guarantor.
14 INDEMNITIES AND BREAK COSTS
14.1 GENERAL INDEMNITY
(a) The Borrower indemnifies the Lender against any Loss which the
Lender, a Receiver (whether acting as agent of the Borrower or of
the Lender) or an Attorney pays, suffers, incurs or is liable
for, in respect of any of the following:
(1) an Advance required by a Drawdown Notice not being made for
any reason including any failure by a Transaction Party to
fulfil any
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condition precedent contained in clause 2, but excluding any
default by the Lender;
(2) the occurrence of any Default;
(3) the Lender exercising its Powers consequent upon or arising
out of the occurrence of any Default;
(4) the non-exercise, attempted exercise, exercise or delay in
the exercise of any Power;
(5) any act or omission of a Transaction Party or any of its
employees or agents;
(6) the occupation, use or ownership of any Secured Property by
a Transaction Party or any of its employees or agents;
(7) any workers' compensation claim by any employee of a
Transaction Party;
(8) any insurance policy in respect of any Secured Property;
(9) any compulsory acquisition or statutory or judicial
divestiture of any Secured Property;
(10) any other thing in respect of a Security or any Secured
Property; and
(11) any failure to issue (or defect in the issue of) any
Warrants when required under this agreement, or any failure
to issue (or defect in the issue of) Exercise Shares on the
exercise of any Warrants.
(b) The indemnity in clause 14.1(a), includes:
(1) the amount determined by the Lender as being incurred by
reason of the liquidation or re-employment of deposits or
other funds acquired or contracted for by the Lender to fund
or maintain the Commitment; and
(2) loss of margin.
14.2 BREAK COSTS
The Borrower must, within 10 Business Days of demand by the Lender,
pay to the Lender its Break Costs, as determined by the Lender in good
faith, attributable to all or any part of an Advance being prepaid or
repaid by the Borrower on a day other than the last day of the
Interest Period for that Advance.
14.3 FOREIGN CURRENCY INDEMNITY
If, at any time:
(a) the Lender, a Receiver or an Attorney receives or recovers any
amount payable by a Transaction Party including:
(1) under any judgment or order of any Government Agency;
(2) for any breach of any Transaction Document;
(3) on the liquidation or bankruptcy of the Transaction Party or
any proof or claim in that liquidation or bankruptcy; or
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Debt finance facility agreement
(4) any other thing into which the obligations of the
Transaction Party may have become merged; and
(b) the Payment Currency is not the Relevant Currency,
the Borrower indemnifies the Lender, Receiver or Attorney against any
shortfall between the amount payable in the Relevant Currency and the
amount actually or notionally received or recovered by the Lender,
Receiver or Attorney after the Payment Currency is converted or
translated into the Relevant Currency under clause 14.4.
14.4 CONVERSION OF CURRENCIES
In making any currency conversion under clause 14.3, the Lender,
Receiver or Attorney may itself or through its bankers purchase one
currency with another, whether or not through an intermediate
currency, whether spot or forward, in the manner and amounts and at
the times it thinks fit.
14.5 CONTINUING INDEMNITIES AND EVIDENCE OF LOSS
(a) Each indemnity of a Transaction Party in a Transaction Document
is a continuing obligation of the Transaction Party, despite:
(1) any settlement of account; or
(2) the occurrence of any other thing,
and remains in full force and effect until:
(3) the Secured Moneys are fully and finally repaid; and
(4) each Security has been finally discharged.
(b) Each indemnity of a Transaction Party in a Transaction Document
is an additional, separate and independent obligation of a
Transaction Party and no one indemnity limits the general nature
of any other indemnity.
(c) Each indemnity of a Transaction Party in a Transaction Document
survives the termination of any Transaction Document.
(d) A certificate given by an Officer of the Lender detailing the
amount of any Loss covered by any indemnity in a Transaction
Document is sufficient evidence unless the contrary is proved.
15 FEES, TAX, COSTS AND EXPENSES
15.1 FACILITY FEE
(a) Subject to clause 15.1(b), on:
(1) the date of this agreement the Borrower must pay to the
Lender a facility fee calculated as 1.25% flat on the amount
of the Commitment as at the date of this agreement;
(2) the first Drawdown Date the Borrower must pay to the Lender
a facility fee calculated as 1.25% flat on the amount of the
Commitment as at the date of this agreement.
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Debt finance facility agreement
(b) The amount payable under clause 15.1(a)(1) will be reduced by any
amount paid to the Lender on account of the facility fee prior to
the date of this agreement.
15.2 TAX
(a) Subject to clause 8.7, the Borrower must pay any Tax, other than
an Excluded Tax in respect of the Lender, which is payable in
respect of a Transaction Document (including in respect of the
execution, delivery, performance, release, discharge, amendment
or enforcement of a Transaction Document).
(b) The Borrower must pay any fine, penalty or other cost in respect
of a failure to pay any Tax described in clause 15.2(a) except to
the extent that the fine, penalty or other cost is caused by the
Lender's failure to lodge money received from the Borrower within
5 Business Days before the due date for lodgement.
(c) The Borrower indemnifies the Lender against any amount payable
under clause 15.2(a) or (b).
15.3 COSTS AND EXPENSES
The Borrower must pay all (in the case of clause 15.2(a), reasonable)
costs and expenses of the Lender in relation to:
(a) the negotiation, preparation, execution, delivery, stamping,
registration, completion, variation and discharge of any
Transaction Document;
(b) the enforcement, protection or waiver of any rights under any
Transaction Document;
(c) the consent or approval of the Lender given under any Transaction
Document; and
(d) any enquiry by a Government Agency involving a Transaction Party,
including:
(e) any administration costs of the Lender in relation to the matters
described in clause 15.3(c) or (d); and
(f) any legal costs and expenses and any professional consultant's
fees, on a full indemnity basis.
15.4 GST
(a) If GST is or will be imposed on a supply made under or in
connection with a Transaction Document by the Lender, the Lender
may, to the extent that the consideration otherwise provided for
that supply is not stated to include an amount in respect of GST
on the supply:
(1) increase the consideration otherwise provided for that
supply under the Transaction Document by the amount of that
GST; or
(2) otherwise recover from the recipient of the supply the
amount of that GST.
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Debt finance facility agreement
(b) The Lender must issue a Tax Invoice to the recipient of the
supply no later than 5 Business Days after payment to the Lender
of the GST inclusive consideration for that supply.
16 INTEREST ON OVERDUE AMOUNTS
16.1 PAYMENT OF INTEREST
Each Transaction Party must pay interest on:
(a) any of the Secured Moneys due and payable by it, but unpaid; and
(b) any interest payable but unpaid under this clause 16.
16.2 ACCRUAL OF INTEREST
The interest payable under this clause 16:
(a) accrues from day to day from and including the due date for
payment up to the actual date of payment, before and, as an
additional and independent obligation, after any judgment or
other thing into which the liability to pay the Secured Moneys
becomes merged; and
(b) may be capitalised at monthly intervals.
16.3 RATE OF INTEREST
The rate of interest payable under this clause 16 on any part of the
Secured Moneys is the higher of:
(a) the Overdue Rate determined by the Lender:
(1) on the date that part of the Secured Moneys becomes due and
payable but is unpaid; and
(2) on each date which is 1 month after the immediately
preceding date on which the Overdue Rate was determined
under this clause 16.3(a); and
(b) the rate fixed or payable under a judgment or other thing
referred to in clause 16.2(a).
17 ASSIGNMENT AND SUBSTITUTION
17.1 ASSIGNMENT BY TRANSACTION PARTY
A Transaction Party must not assign or novate any of its rights or
obligations under a Transaction Document without the Lender's prior
written consent.
17.2 ASSIGNMENT BY LENDER
(a) The Lender may assign any of its rights under a Transaction
Document to any other financial institution of comparable size
and reputation of the Lender without the consent of any
Transaction Party.
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Debt finance facility agreement
(b) The Lender may novate any of its rights and obligations under a
Transaction Document with the consent of the relevant Transaction
Party (which consent shall not be unreasonably withheld).
17.3 ASSIST
Each party must do any thing which the Lender reasonably requests
including, executing any documents or amending any Transaction
Document, to effect any transfer, assignment, novation or substitution
under this clause 17.
17.4 SECURITISATION PERMITTED
(a) The Lender may, without having to obtain the consent of or notify
a Transaction Party, assign, transfer, sub-participate or
otherwise deal with any of its rights under this agreement to a
trustee of a trust, a company or any other entity which in each
case is established for the purposes of securitisation
(SECURITISATION DEALING).
(b) Despite any Securitisation Dealing by the Lender:
(1) the Lender must continue to perform all its obligations
under this agreement; and
(2) any amount paid by the Transaction Party to the Lender will
satisfy the Transaction Party's obligation to make that
payment until the Transaction Party is
given notice by the Lender of the Securitisation Dealing.
17.5 PARTICIPATION PERMITTED
The Lender may grant a participation interest (being a right to share
in the financial benefits of this agreement, without any rights
against a Transaction Party) in any of the Lender's rights and
benefits under this agreement to any other person without having to
obtain the consent of or to notify a Transaction Party.
17.6 LENDING OFFICE
(a) The Lender may change its Lending Office at any time.
(b) The Lender must promptly notify the Borrower of the change.
17.7 NO INCREASE IN COSTS
If the Lender assigns or novates any of its rights or obligations
under any Transaction Document or changes its Lending Office, no
Transaction Party is required to pay any net increase in the aggregate
amount of costs, Taxes, fees or charges which:
(a) is a direct consequence of the transfer or assignment or change
of Lending Office; and
(b) the Lender or its transferee or assignee was aware of or ought
reasonably to have been aware of, at the time of the transfer or
assignment or change of Lending Office.
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Debt finance facility agreement
18 SAVING PROVISIONS
18.1 NO MERGER OF SECURITY
(a) Nothing in this agreement merges, extinguishes, postpones,
lessens or otherwise prejudicially affects:
(1) any Encumbrance or indemnity in favour of the Lender; or
(2) any Power.
(b) No other Encumbrance or Transaction Document which the Lender has
the benefit of in any way prejudicially affects any Power.
18.2 EXCLUSION OF MORATORIUM
To the extent not excluded by law, a provision of any legislation
which directly or indirectly:
(a) lessens, varies or affects in favour of a Transaction Party any
obligations under a Transaction Document; or
(b) stays, postpones or otherwise prevents or prejudicially affects
the exercise by the Lender of any Power,
is negatived and excluded from each Transaction Document and all
relief and protection conferred on a Transaction Party by or under
that legislation is also negatived and excluded.
18.3 CONFLICT
Where any right, power, authority, discretion or remedy conferred on
the Lender, a Receiver or an Attorney by any Transaction Document is
inconsistent with the powers conferred by applicable law then, to the
extent not prohibited by that law, those conferred by applicable law
are regarded as negatived or varied to the extent of the
inconsistency.
18.4 CONSENTS
(a) Whenever the doing of any thing by a Transaction Party is
dependent on the consent of the Lender, the Lender may withhold
its consent or give it conditionally or unconditionally in its
absolute discretion, unless expressly stated otherwise in a
Transaction Document.
(b) Any conditions imposed on a Transaction Party by the Lender under
clause 18.4(a) must be complied with by the Transaction Party.
18.5 PRINCIPAL OBLIGATIONS
This agreement and each Collateral Security is:
(a) a principal obligation and is not ancillary or collateral to any
other Encumbrance (other than another Collateral Security) or
other obligation; and
(b) independent of, and unaffected by, any other Encumbrance or other
obligation which the Lender may hold at any time in respect of
the Secured Moneys.
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Debt finance facility agreement
18.6 NON-AVOIDANCE
If any payment by a Transaction Party to the Lender is avoided for any
reason including any legal limitation, disability or incapacity of or
affecting the Transaction Party or any other thing, and whether or
not:
(a) any transaction relating to the Secured Moneys was illegal, void
or substantially avoided; or
(b) any thing was or ought to have been within the knowledge of the
Lender,
the Transaction Party:
(c) as an additional, separate and independent obligation,
indemnifies the Lender against that avoided payment; and
(d) acknowledges that any liability of the Transaction Party under
the Transaction Documents and any right or remedy of the Lender
under the Transaction Documents is the same as if that payment
had not been made.
18.7 SET-OFF AUTHORISED
If a Transaction Party does not pay any amount when due and payable by
it to the Lender under a Transaction Document, the Lender may:
(a) apply any credit balance in any currency in any account of the
Transaction Party with the Lender in or towards satisfaction of
that amount; and
(b) effect any currency conversion which may be required to make an
application under clause 18.7(a).
18.8 LENDER'S CERTIFICATES AND APPROVALS
(a) A certificate signed by any Officer of the Lender in relation to
any amount, calculation or payment under any Transaction Document
is sufficient evidence of that amount, calculation or payment
unless the contrary is proved.
(b) Where any provision of a Transaction Document requires the
Lender's approval, that approval will not be effective unless and
until it is provided in writing.
18.9 NO RELIANCE OR OTHER OBLIGATIONS AND RISK ASSUMPTION
Each Transaction Party acknowledges and confirms that:
(a) it has not entered into any Transaction Document in reliance on
any representation, warranty, promise or statement made by or on
behalf of the Lender;
(b) in respect of the transactions evidenced by the Transaction
Documents, the Lender has no obligations other than those
expressly set out in the Transaction Documents; and
(c) in respect of interest rates or exchange rates, the Lender is not
liable for:
(1) any movement in interest rates or exchange rates; or
(2) any information, advice or opinion provided by the Lender or
any person on behalf of the Lender, even if:
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Debt finance facility agreement
(A) provided at the request of a Transaction Party (it
being acknowledged by each Transaction Party that such
matters are inherently speculative);
(B) relied on by a Transaction Party; or
(C) provided incorrectly or negligently.
18.10 POWER OF ATTORNEY
(a) For consideration received, each Transaction Party irrevocably
appoints the Lender and each Officer of the Lender as the
attorney of the Transaction Party to:
(1) execute and deliver all documents; and
(2) do all things,
which are necessary or desirable to give effect to each
Transaction Document.
(b) An attorney appointed under clause 18.10(a) may appoint a
substitute attorney to perform any of its powers.
19 GENERAL
19.1 CONFIDENTIAL INFORMATION
The Lender must not disclose to any person:
(a) any Transaction Document; or
(b) any information about any Transaction Party,
except:
(c) in connection with a permitted assignment, novation,
participation or securitisation under clause 17, where the
disclosure is made on the basis that the recipient of the
information will comply with this clause 19.1 in the same way
that the Lender is required to do;
(d) to any professional or other adviser consulted by it in relation
to any of its rights or obligations under the Transaction
Documents if such persons are advised that such information is
confidential to the relevant Transaction Party;
(e) to the Reserve Bank of Australia, the Australian Tax Office, any
exchange on which Marketable Securities of the Lender are listed
or any Government Agency requiring disclosure of the information;
(f) in connection with the enforcement of its rights under the
Transaction Documents;
(g) where the information is already in the public domain, or where
the disclosure would not otherwise breach any duty of
confidentiality;
(h) if required by law; or
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Debt finance facility agreement
(i) otherwise with the prior written consent of the relevant
Transaction Party (such consent not to be unreasonably withheld).
19.2 TRANSACTION PARTY TO BEAR COST
Other than pursuant to section 7.6(c), any thing which must be done by
a Transaction Party under any Transaction Document, whether or not at
the request of the Lender, must be done at the cost of the Transaction
Party.
19.3 NOTICES
(a) Any notice or other communication including, any request, demand,
consent or approval, to or by a party to any Transaction
Document:
(1) must be in legible writing and in English addressed to the
party in accordance with its details set out in schedule 2
or as specified to the sender by the party by notice;
(2) must be signed by an Officer of the sender;
(3) is regarded as being given by the sender and received by the
addressee:
(A) if by delivery in person, when delivered to the
addressee;
(B) if by post, on delivery to the addressee; or
(C) if by facsimile, when received by the addressee in
legible form,
but if the delivery or receipt is on a day which is not a
Business Day or is after 4.00pm (addressee's time) it is
regarded as received at 9.00am on the following Business
Day; and
(4) can be relied on by the addressee and the addressee is not
liable to any other person for any consequences of that
reliance if the addressee believes it to be genuine, correct
and authorised by the sender.
(b) A facsimile transmission is regarded as legible unless the
addressee telephones the sender within 2 hours after the
transmission is received or regarded as received under clause
19.3(a)(3) and informs the sender that it is not legible.
19.4 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South Wales.
(b) Each Transaction Party irrevocably submits to the non-exclusive
jurisdiction of the courts of New South Wales.
(c) Each Transaction Party irrevocably waives any objection to the
venue of any legal process on the basis that the process has been
brought in an inconvenient forum.
(d) Each Transaction Party irrevocably waives any immunity in respect
of its obligations under this agreement that it may acquire from
the jurisdiction of any court or any legal process for any reason
including the service of
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Debt finance facility agreement
notice, attachment before judgment, attachment in aid of
execution or execution.
(e) Each Transaction Party appoints Xxxxx Xxxxxxxxx of 0 Xxxxxxx
Xxxxx, Xxxxxxxxx, XXX 0000, Xxxxxxxxx in relation to proceedings
in New South Wales as its agent to receive service of any legal
process on its behalf without excluding any other means of
service permitted by the law of New South Wales.
19.5 PROHIBITION AND ENFORCEABILITY
(a) Any provision of, or the application of any provision of, any
Transaction Document or any Power which is prohibited in any
jurisdiction is, in that jurisdiction, ineffective only to the
extent of that prohibition.
(b) Any provision of, or the application of any provision of, any
Transaction Document which is void, illegal or unenforceable in
any jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or of
the remaining provisions in that or any other jurisdiction.
19.6 WAIVERS
(a) Waiver of any right arising from a breach of this agreement or of
any Power arising on default under this agreement or on the
occurrence of a Default must be in writing and signed by the
party granting the waiver.
(b) A failure or delay in exercise, or partial exercise, of:
(1) a right arising from a breach of this agreement or the
occurrence of a Default; or
(2) a Power created or arising on default under this agreement
or on the occurrence of a Default,
does not result in a waiver of that right or Power.
(c) A party is not entitled to rely on a delay in the exercise or
non-exercise of a right or Power arising from a breach of this
agreement or on a default under this agreement or on the
occurrence of a Default as constituting a waiver of that right or
Power.
(d) A party may not rely on any conduct of another party as a defence
to exercise of a right or Power by that other party.
(e) This clause may not itself be waived except in writing.
19.7 VARIATION
A variation of any term of this agreement must be in writing and
signed by the parties.
19.8 CUMULATIVE RIGHTS
The Powers are cumulative and do not exclude any other right, power,
authority, discretion or remedy of the Lender, any Receiver or
Attorney.
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Debt finance facility agreement
19.9 COUNTERPARTS
(a) This agreement may be executed in any number of counterparts.
(b) All counterparts, taken together, constitute one instrument.
(c) A party may execute this agreement by signing any counterpart.
19.10 ATTORNEYS
Each of the attorneys executing this agreement states that the
attorney has no notice of the revocation of the power of attorney
appointing that attorney.
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Debt finance facility agreement
SCHEDULE 1 - INITIAL GUARANTORS
NAME ABN/ACN/ARBN ADDRESS AND SERVICE DETAILS
-------- ------------ ------------------------------------
BM n/a ADDRESS: 000-0 Xxxxxx Xxx Xxxxx
Xxxxxx, Xxxxxx, Xxxxxxx
ATTENTION: Xxxxxxx Xxxxxxx
FACSIMILE: (00) 000 000 000
FORMWELL n/a ADDRESS: c/o Olympus Pacific
Minerals Inc
500, 00 Xxxx Xxxxxx Xxxx,
Xxxxxxx Xxxxxxx X0X
0X0, Xxxxxx
ATTENTION: Xxxxx Xxxxx/Xxxx Xxxxxx
FACSIMILE: 000 000 0000
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Debt finance facility agreement
SCHEDULE 2 - NOTICE DETAILS
CLAUSE 19.3
(A) BORROWER:
ADDRESS: Xxxxx 000, 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, Xxxxxx X0X 0X0
ATTENTION: Xxxxx Xxxxx/Xxxx Xxxxxx
FACSIMILE: x000 000 0000
(B) INITIAL GUARANTORS:
ADDRESS: REFER TO SCHEDULE 1
ATTENTION: REFER TO SCHEDULE 1
FACSIMILE: REFER TO SCHEDULE 1
(E) LENDER:
ADDRESS: Xxxxx 0, Xx. 0 Xxxxxx Xxxxx, Xxxxxx, XXX 0000, Xxxxxxxxx
ATTENTION: Xxxxxxx Xxxxxxx
FACSIMILE: x000 0000 0000
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Debt finance facility agreement
SCHEDULE 3 - OFFICER'S CERTIFICATE
CLAUSE 2.1(B)
TO: Macquarie Bank Limited (LENDER)
I [INSERT NAME] am a [INSERT CAPACITY - DIRECTOR/SECRETARY] of each of [INSERT
NAMES OF TRANSACTION PARTIES] (each a TRANSACTION PARTY).
I refer to the debt finance facility agreement dated [INSERT DATE] between
Olympus Pacific Minerals Inc (as BORROWER), each party listed in schedule 1 to
that agreement (each a GUARANTOR), and Macquarie Bank Limited (as LENDER)
(FACILITY AGREEMENT).
A term defined in the Facility Agreement has the same meaning when used in this
Certificate.
I have been authorised by each Transaction Party to give this certificate.
I certify in my capacity as an [insert capacity] of each Transaction Party and
not in my personal capacity as follows:
1 TRANSACTION DOCUMENTS
Attached to this certificate are true, complete and up-to-date copies
of each of the following:
(a) CONSTITUTION: the constitution of each Transaction Party;
(b) POWER OF ATTORNEY: a duly executed power of attorney granted by
each Transaction Party authorising execution of the Transaction
Documents to which it is a party; and
(c) BOARD MINUTES: extracts of minutes of a meeting of the directors
of each relevant Transaction Party approving the execution and
performance of its obligations under the Transaction Documents to
which it is expressed to be a party and the granting of the power
of attorney referred to in paragraph (b) above.
2 NO REVOCATION
Each document, power of attorney and resolution referred to in
paragraph 1 is in full force and effect and has not been amended,
modified or revoked.
3 OFFICERS
The following signatures are the true signatures of each of the
Officers of each Transaction Party as at the date of this certificate:
NAME POSITION SIGNATURE
------------- ---------------------------- -----------------------
[INSERT NAME]
[INSERT DETAILS OF POSITION]
-----------------------
[INSERT NAME]
[INSERT DETAILS OF POSITION]
-----------------------
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Debt finance facility agreement
[INSERT NAME]
[INSERT DETAILS OF POSITION]
-----------------------
4 CERTIFICATION
I certify in my capacity as an [insert capacity] of each Transaction
Party and not in my personal capacity that:
(a) each Transaction Party, before entering into any Transaction
Document to which it is a party, has, in connection with the
execution, delivery and performance of each such Transaction
Document, complied with its constitution and all applicable laws;
and
(b) the Borrower has not incorporated or acquired any entity
(including any Subsidiary) other than an entity disclosed in the
most recent Financial Report; and
(c) as at the date of execution of each Transaction Document, each
Transaction Party is solvent and will not become insolvent by
entering into and performing its obligations under each
Transaction Document to which is a party.
SIGNED:
-----------------------------------------------
[INSERT NAME AND CAPACITY - DIRECTOR/SECRETARY]
SIGNED:
-----------------------------------------------
[INSERT NAME AND CAPACITY - DIRECTOR/SECRETARY]
DATE:
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Debt finance facility agreement
SCHEDULE 4 - DRAWDOWN NOTICE
CLAUSE 4.2 (REQUIREMENTS FOR A DRAWDOWN NOTICE)
TO: Macquarie Bank Limited (LENDER)
ATTENTION: [INSERT RELEVANT NAME]
We refer to the debt finance facility agreement dated [_____________]
between Olympus Pacific Minerals Inc (as BORROWER), each party listed in
schedule 1 to that agreement (each a GUARANTOR) and Macquarie Bank Limited
(as LENDER) (FACILITY AGREEMENT).
Under clause 4 of the Facility Agreement:
(a) we give you notice that we wish to draw on [_____________] (Drawdown
Date);
(b) the aggregate amount to be drawn is US$[_____________];
(c) particulars of each Advance are:
PRINCIPAL AMOUNT INTEREST PERIOD
(d) The proceeds of each Advance are to be used in accordance with clause
3.2 of the Facility Agreement.
(e) We request that the proceeds be remitted to account number
[_____________] at [_____________];
(f) We represent and warrant that no Default is subsisting or will result
from the provision of any Advance [,except as follows:
[_____________], and we propose the following remedial action
[_____________]].
Expressions defined in the Facility Agreement have the same meaning when
used in this Drawdown Notice.
DATE: [_____________]
SIGNED for and on behalf of
THE BORROWER
by
_____________________________________
Officer
_____________________________________
Name (please print)
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Debt finance facility agreement
SCHEDULE 5 - SELECTION NOTICE
CLAUSE 6.4 (SELECTION NOTICE)
TO: Macquarie Bank Limited (LENDER)
ATTENTION: [INSERT RELEVANT NAME]
We refer to the debt finance facility agreement dated [_____________] between
Olympus Pacific Minerals Inc (as BORROWER), each party listed in schedule 1 to
that agreement (each a GUARANTOR) and Macquarie Bank Limited (as LENDER)
(FACILITY AGREEMENT).
Under clause 4 of the Facility Agreement:
(a) we give you notice that we wish to select the following Interest Period for
the following Advance with effect on the date that the current Interest
Period applicable to the relevant Advance ends: [INSERT DETAILS OF FUNDING
PORTION INCLUDING THE PRINCIPAL AMOUNT, EXISTING INTEREST PERIOD, NEW
INTEREST PERIOD AND SELECTION DATE];
(b) we give you notice that we wish to divide the following Advance into the
following amounts and with the following Interest Periods with effect on
the date that the current Interest Period applicable to the relevant
Advance ends: [INSERT DETAILS OF FUNDING PORTION INCLUDING THE PRINCIPAL
AMOUNT, EXISTING INTEREST PERIOD, NEW DIVIDED FUNDING PORTIONS AND NEW
INTEREST PERIODS FOR THE DIVIDED FUNDING PORTIONS];
(c) we represent and warrant that no Default is subsisting[, EXCEPT AS FOLLOWS:
[_____________], AND WE PROPOSE THE FOLLOWING REMEDIAL ACTION
[_____________]].
Expressions defined in the Facility Agreement have the same meaning when used in
this Selection Notice.
DATE: [INSERT DATE]
SIGNED for and on behalf of
THE BORROWER by:
_____________________________________
Officer
_____________________________________
Name (please print)
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Debt finance facility agreement
SCHEDULE 6 - COMPLIANCE CERTIFICATE
CLAUSE 10.2(C)
To: Macquarie Bank Limited (LENDER)
COMPLIANCE CERTIFICATE as at [Date]
We refer to the debt finance facility agreement (FACILITY AGREEMENT) dated
[_____________] between Olympus Pacific Minerals Inc (as BORROWER), each party
listed in schedule 1 to that agreement (each a GUARANTOR) and Macquarie Bank
Limited (as LENDER).
A term defined in the Facility Agreement has the same meaning when used in this
Compliance Certificate.
We confirm that all representations and warranties set out in clause 9 of the
Facility Agreement are true and correct as at the date of this certificate.
We further represent and warrant that no Default has occurred or is subsisting
except as follows: [_____________], and we [have taken/propose] the following
remedial action [insert action]];
Date:
_____________________________________ ________________________________________
Secretary/Director Director
_____________________________________ ________________________________________
Name (please print) Name (please print)
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Debt finance facility agreement
SCHEDULE 7 - GROUP STRUCTURE DIAGRAM
CORPORATE STRUCTURE CHART
---------------------------------
OLYMPUS PACIFIC MINERALS INC.
(THE COMPANY)
(TSX-V listed, Yukon incorporated
company)
---------------------------------
|
|
--------------------------------------------------------------
| | | |
| | | |
----------------------- --------------- ------------------ ---------------
FORMWELL HOLDINGS LTD. OLYMPUS PACIFIC NEW VIETNAM MINING OLYMPUS PACIFIC
(FORMWELL) VIETNAM LTD. CORP. THAILAND LTD.
(A BVI COMPANY) (BVI) (NVMC) (BVI)
The Company - 100% 100% (a BVI company) 100%
----------------------- --------------- ------------------ ---------------
| |
| |
----------------------- |
BONG MIEU HOLDINGS LTD. |
(BM HOLDINGS) ----------------------
(A THAI CORPORATION) XXXXX SON GOLD PROJECT
Formwell - 100% (2)(3)(4)
----------------------- ----------------------
|
|
-------------------------
BONG MIEU GOLD MINING
COMPANY LIMITED
(BOGOMIN)
(A VIETNAMESE COMPANY)
(currently de-registered)
-------------------------
|
|
-----------------------
BM Holdings - 80%
-----------------------
MINCO
(a Vietnamese company -
Xxxxx Xxx)
10%
-----------------------
Mineral Development
Company
(MIDECO)
(a Vietnamese company -
Hanoi)
10%
-----------------------
|
|
-----------------------
Bong Mieu Property (1)
Bobomin - 100%
-----------------------
Note - "BVI" means British Virgin Islands
(1) Mining Licence granted; Investment Licence granted
(2) Investment Licence lodged
(3) Mining Licence lodged June 30, 2003
(4) Following the grant of an investment licence Xxxxx Son Gold Company Limited
will be formed with Mien Trung Industrial Company holding 15% and NVMC
holdings 85%
PAGE 68
Debt finance facility agreement
EXECUTED AS AN AGREEMENT:
SIGNED for
OLYMPUS PACIFIC MINERALS INC
by its authorised signatory in
the presence of:
/s/ X.X. Xxxxxxxx /s/ X. Xxxxxx
------------------------------------- ---------------------------------------
Witness Authorised signatory
X.X. Xxxxxxxx Xxxx X. Xxxxxx
------------------------------------- ---------------------------------------
Name (please print) Name (please print)
SIGNED for
FORMWELL HOLDINGS LIMITED
by its attorney in
the presence of:
/s/ Xxxx Xxxxxx /s/ X. Xxxxx
------------------------------------- ---------------------------------------
Witness Attorney
Xxxx Xxxxxx D.A. Seton
------------------------------------- ---------------------------------------
Name (please print) Name (please print)
SIGNED for
BONG MIEU GOLD MINING COMPANY LIMITED
by its attorney in
the presence of:
/s/ Xxxx Xxxxxx /s/ X. Xxxxx
------------------------------------- ---------------------------------------
Witness Attorney
Xxxx Xxxxxx D.A. Seton
------------------------------------- ---------------------------------------
Name (please print) Name (please print)
PAGE 69
Debt finance facility agreement
SIGNED for
MACQUARIE BANK LIMITED
by its attorney in
the presence of:
/s/ X. Xxxx /s/ X.X. Xxxxxxx
------------------------------------- ---------------------------------------
Witness Attorney
Xxxxx Xxxx Xxxxxxx Xxxxxxx
------------------------------------- ---------------------------------------
Name (please print) Name (please print)
/s/ X. XxXxxxxx
---------------------------------------
Attorney
Xxxxxx XxXxxxxx
---------------------------------------
Name (please print)
PAGE 70
Debt finance facility agreement
ANNEXURE A - WARRANT CERTIFICATE
CLAUSE 7.1 (WARRANT CERTIFICATE)
PAGE 1
Debt finance facility agreement
WARRANT CERTIFICATE
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST
NOT TRADE THE SECURITY BEFORE __, 2006."
[IF COMMON SHARES ARE LISTED ON TSX VENTURE EXCHANGE AT DATE OF ISSUANCE:]
"WITHOUT PRIOR WRITTEN APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH
ALL APPLICABLE SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND THE SECURITIES ISSUABLE UPON THE EXERCISE HEREOF MAY NOT BE
SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE FACILITIES
OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE BENEFIT OF A
CANADIAN RESIDENT UNTIL __, 2006."
THE WARRANTS REPRESENTED BY THIS CERTIFICATE WILL BE VOID AFTER THE EXPIRY DATE
(AS DEFINED BELOW).
[NON-]TRANSFERABLE WARRANTS
OLYMPUS PACIFIC MINERALS INC.
(Incorporated under the laws of the Yukon Territory)
No. WT06-01-__ Warrants representing the Right to
Purchase up to __ Common Shares
WARRANTS FOR PURCHASE OF COMMON SHARES
(referred to as "Warrants")
THIS IS TO CERTIFY THAT, for value received MACQUARIE BANK LIMITED (the
"holder") of Xx. 0 Xxxxxx Xxxxx, Xxxxxx, XXX, 0000 is entitled to subscribe for
and purchase __ fully paid and nonassessable common shares (the "Common Shares")
in the capital of OLYMPUS PACIFIC MINERALS INC. (the "Company") at any time
prior to 5:00 p.m. (Sydney Time) (the "Expiry Time") on, subject to the
preceding paragraph, the later of: (i) June 30, 2007; or, (ii) if the Repayment
Date is extended at the option of Lender to June 30,2008, June 30, 2008; (such
later date being referred to herein as the "Expiry Date") at a price (the
"Exercise Price") of Cdn $0.4347 per Common Share from __, 2006 until June 30,
2007 and, if applicable, thereafter at a price of Cdn $0.4514 up to and
including June 30, 2008, subject, however, to the provisions and upon the terms
and conditions hereinafter set forth.
In the event that the Common Shares trade at a closing price on the primary
stock exchange on which the Common Shares are then listed (the "Relevant
Exchange") of greater than Cdn$0.8694 per Common Share if the Exercise Price
then in effect is $0.4347 or greater than $0.9028 per Common Share if the
Exercise Price then in effect is Cdn$0.4514 during any thirty consecutive
trading-day period (the "Thirty Day Period") at any time, the Company may
accelerate the Expiry Date by giving written notice to the holder thereof within
10 business days commencing on the first business day after the end of the
Thirty Day Period and in such case the Warrants will expire on the 20th business
day after the date on which such notice is given to the holder by the Company.
Capitalized terms used herein but not otherwise defined shall have the meaning
ascribed to such terms in the debt facility agreement dated February __, 2006
among the Company, the Lender, Bong Mieu Gold Mining Company Limited and
Formwell Holdings Limited (the "Facility Agreement").
The right to acquire Common Shares of the Company granted by this certificate
(the "Warrant Certificate") may be exercised subject to the terms and conditions
hereof, in whole or in part, but in no
PAGE 2
Debt finance facility agreement
less than multiples of 100,000, (but not as to a fractional Common Share), by
surrender of this Warrant Certificate and the duly completed and executed
exercise form attached hereto as Appendix A (the "Exercise Form") at the offices
of the Company at Xxxxx 000, 00 Xxxx Xxxxxx Xxxx, Xxxxxxx, XX, X0X 0X0, Xxxxxx
accompanied by a certified cheque, bank draft, wire transfer or other form of
payment acceptable to the Company in lawful money of Canada in payment of the
Exercise Price of the number of Common Shares for which Warrants are then
exercised such amount payable in accordance with the terms of the Facility
Agreement. See attached Appendix C [B] for instructions on how to exercise
Warrants represented by this Warrant Certificate.
Surrender of this Warrant Certificate and the duly completed Exercise Form with
payment of the Exercise Price as provided above will be deemed to have been
effected only on personal delivery thereof to, or if sent by mail or other means
of transmission, on actual receipt thereof by the Company.
In the event of any exercise of the rights represented by this Warrant
Certificate, certificates representing the Common Shares so subscribed for shall
be delivered to the holder at the address specified in the Exercise Form within
a reasonable time, not exceeding five business days after the rights represented
by this Warrant Certificate have been so exercised. If fewer Common Shares are
purchased than the number that can be purchased pursuant to this Warrant
Certificate (subject to a minimum of 100,000 Common Shares), provided that the
Warrants have not expired, a new Warrant Certificate granting the right to
acquire that number of Common Shares, if any, with respect to which the Warrants
have not then been exercised shall also be issued to the holder within such
time. The Company shall not be required to issue fractional Common Shares upon
the exercise of all or any part of the Warrants.
THIS WARRANT AND THE SECURITIES DELIVERABLE UPON EXERCISE THEREOF HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"), OR THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THIS WARRANT
MAY NOT BE EXERCISED BY OR ON BEHALF OF A U.S. PERSON OR PERSON IN THE UNITED
STATES UNLESS THIS WARRANT AND SHARES ISSUABLE UPON EXERCISE OF THIS WARRANT
HAVE BEEN REGISTERED UNDER THE 1933 ACT AND THE APPLICABLE SECURITIES
LEGISLATION OF ANY SUCH STATE OR AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS IS AVAILABLE. "UNITED STATES" AND "U.S. PERSON" ARE AS DEFINED BY
REGULATION S UNDER THE 1933 ACT.
The Warrants represented by this Warrant Certificate may only be exercised by or
on behalf of a holder who, at the time of exercise, either:
(a) provides written certification that he is not a U.S. Person (as such
term is defined in Regulation S under the United States Securities Act
of 1933, as amended (the "1933 Act")) and is not exercising the
Warrants represented hereby within the United States or, for the
amount or benefit of a U.S. Person or person in the United States, in
the form provided in the attached Exercise Form; or
(b) provides a written opinion of counsel, in a form acceptable to the
Company, that the Common Shares to be delivered upon exercise of the
Warrants have been registered under the 1933 Act and the securities
laws of all applicable states of the United States or are exempt from
such registration requirements.
All Common Shares issued on or before __, 2006 upon the exercise of the rights
represented by this Warrant Certificate will be subject to a hold period under
Canadian securities laws and may not be traded until __, 2006 except as
permitted by applicable securities laws and regulations and the policies of the
Relevant Exchange and the certificates representing such Common Shares shall
bear the following legends:
PAGE 3
Debt finance facility agreement
"UNLESS PERMITTED UNDER SECURITIES LEGISLATION, THE HOLDER OF THIS SECURITY MUST
NOT TRADE THE SECURITY BEFORE __, 2006."
[IF THE COMMON SHARES ARE LISTED ON THE TSX EXCHANGE:] "WITHOUT PRIOR WRITTEN
APPROVAL OF THE TSX VENTURE EXCHANGE AND COMPLIANCE WITH ALL APPLICABLE
SECURITIES LEGISLATION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE SOLD, TRANSFERRED, HYPOTHECATED OR OTHERWISE TRADED ON OR THROUGH THE
FACILITIES OF THE TSX VENTURE EXCHANGE OR OTHERWISE IN CANADA OR TO OR FOR THE
BENEFIT OF A CANADIAN RESIDENT UNTIL __, 2006."
[IF THE SHARES ARE LISTED ON THE TORONTO STOCK EXCHANGE:] THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE LISTED ON THE TORONTO STOCK EXCHANGE
("TSX"); HOWEVER, THE SAID SECURITIES CANNOT BE TRADED THROUGH THE FACILITIES OF
TSX SINCE THEY ARE NOT FREELY TRANSFERABLE, AND CONSEQUENTLY ANY CERTIFICATE
REPRESENTING SUCH SECURITIES IS NOT "GOOD DELIVERY" IN SETTLEMENT OF
TRANSACTIONS ON THE TSX."
All certificates representing Common Shares issued to persons who shall fail to
certify to the Company that they are not a U.S. Person and are not exercising
this Warrant in the United States or for the account Or benefit of a U.S. Person
or person in the United States on the exercise of the rights represented by this
Warrant Certificate will, unless such Common Shares are registered under the
1933 Act and the securities laws of all applicable states of the United States,
bear the following legend:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "1933
ACT"). THESE SECURITIES MAY BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED ONLY (A) TO THE COMPANY, (B) OUTSIDE THE UNITED STATES IN
COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE 1933 ACT, (C) IN
COMPLIANCE WITH THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE
1933 ACT PROVIDED BY RULE 144 THEREUNDER, IF AVAILABLE, AND IN ACCORDANCE
WITH APPLICABLE STATE SECURITIES LAWS, OR (D) IN A TRANSACTION THAT DOES
NOT REQUIRE REGISTRATION UNDER THE 1933 ACT OR ANY APPLICABLE STATE LAWS,
AND THE HOLDER HAS, PRIOR TO SUCH SALE, FURNISHED TO THE COMPANY AN OPINION
OF COUNSEL OR OTHER EVIDENCE OF EXEMPTION, IN EITHER CASE REASONABLY
SATISFACTORY TO THE COMPANY. DELIVERY OF THIS CERTIFICATE MAY NOT
CONSTITUTE "GOOD DELIVERY" IN SETTLEMENT OF TRANSACTIONS ON STOCK EXCHANGES
IN CANADA. IF THESE SECURITIES ARE SOLD AT ANY TIME THE COMPANY IS A
"FOREIGN ISSUER" AS DEFINED IN RULE 902 UNDER THE 1933 ACT, A NEW
CERTIFICATE, BEARING NO LEGEND, THE DELIVERY OF WHICH WILL CONSTITUTE "GOOD
DELIVERY" MAY BE OBTAINED FROM THE COMPANY'S TRANSFER AGENT UPON DELIVERY
OF THIS CERTIFICATE AND A DULY EXECUTED DECLARATION, IN FORM SATISFACTORY
TO THE COMPANY AND THE COMPANY'S TRANSFER AGENT TO THE EFFECT THAT THE SALE
OF THE SECURITIES IS BEING MADE IN COMPLIANCE WITH RULE 904 OF REGULATION S
UNDER THE 1933 ACT."
provided, that if the Common Shares are being sold under clause (B) above, at a
time when the Company is a "foreign issuer" as defined in Rule 902 under the
1933 Act, the legend set forth above may be removed by providing a declaration
to the Company and its transfer agent in the form as the Company may from time
to time prescribe, to the effect that the sale of the securities is being made
in compliance with Rule 904 of Regulation S under the 1933 Act; provided
further, that if any of the Common Shares are being sold pursuant to Rule 144 of
the 1933 Act and in compliance with any applicable state securities laws, the
legend may be removed by delivery to the Company's transfer agent of an opinion
satisfactory
PAGE 4
Debt finance facility agreement
to the Company to the effect that the legend is no longer required under
applicable requirements of the 1933 Act or state securities laws.
The Company covenants and agrees that all Common Shares issued upon the exercise
of the rights represented by this Warrant Certificate shall, upon issuance, be
duly and validly issued and fully paid and non-assessable and free of all liens,
charges and encumbrances. The Company further covenants and agrees that during
the period within which the rights represented by this Warrant Certificate may
be exercised, the Company shall at all times have authorized and reserved a
sufficient number of Common Shares to provide for the exercise of the rights
represented by this Warrant Certificate.
THE FOLLOWING ARE THE TERMS AND CONDITIONS REFERRED TO IN THIS WARRANT
CERTIFICATE:
1. Adjustment of Subscription and Purchase Rights. The original Exercise Price
in effect and the number and type of securities purchasable under the
Warrants at any date shall be subject to adjustment from time to time as
follows:
(a) If and whenever at any time prior to the Expiry Time, the Company
shall (i) subdivide or re-divide the outstanding Common Shares into a
greater number of shares, (ii) reduce, combine or consolidate the
outstanding Common Shares into a smaller number of shares, or (iii)
issue Common Shares or other Participating Shares to the holders of
all or substantially all of the outstanding Common Shares by way of a
stock dividend, the Exercise Price in effect on the effective date of
any such event shall be adjusted immediately after such event or on
the record date for such issue of Common Shares or other Participating
Shares by way of stock dividend, as the case may be, so that it shall
equal the amount determined by multiplying the Exercise Price in
effect immediately prior to such event by a fraction, of which the
numerator shall be the total number of Common Shares and other
Participating Shares outstanding immediately prior to such event and
of which the denominator shall be the total number of Common Shares
and other Participating Shares outstanding immediately after such
event; and the number of Common Shares which the holder is entitled to
purchase upon exercise of each Warrant shall be adjusted at the same
time by multiplying the number by the inverse of the aforesaid
fraction; such adjustments shall be made successively whenever any
event referred to in this subsection (a) shall occur; any such issue
of Common Shares or other Participating Shares by way of a stock
dividend shall be deemed to have been made on the record date for the
stock dividend for the purpose of calculating the number of
outstanding Common Shares or other Participating Shares immediately
after such event under this subsection (a) and subsection (e) of this
Section.
(b) If and whenever at any time prior to the Expiry Time the Company shall
fix a record date for the issuance of rights, options or warrants to
all or substantially all of the holders of the outstanding Common
Shares, entitling them, for a period expiring not more than 45 days
after such record date, to subscribe for or purchase Common Shares or
other Participating Shares (or securities convertible into or
exchangeable for Common Shares or other Participating Shares) at a
price per share (or having a conversion or exchange price per share)
less than 75% of the Current Market Price on such record date, the
Exercise Price shall be adjusted immediately after such record date so
that it shall equal the price determined by multiplying the Exercise
Price in effect on such record date by a fraction, of which the
numerator shall be the total number of Common Shares outstanding on
such record date plus the number arrived at by dividing the aggregate
price of the total number of additional Common Shares or other
Participating Shares offered for
PAGE 5
Debt finance facility agreement
subscription or purchase (or the aggregate conversion or exchange
price of the convertible or exchangeable securities so offered) by
such Current Market Price, and of which the denominator shall be the
total number of Common Shares outstanding on such record date plus the
total number of additional Common Shares or other Participating Shares
offered for subscription or purchase (or into which the convertible or
exchangeable securities so offered are convertible or exchangeable);
any Common Shares owned by or held for the account of the Company or
any subsidiary of the Company shall be deemed not to be outstanding
for the purpose of any such computation; such adjustment shall be made
successively whenever such a record date is fixed; to the extent that
any such rights, options or warrants are not so issued or any such
rights, options or warrants are not exercised prior to the expiration
thereof, the Exercise Price shall then be re-adjusted to the Exercise
Price which would then he in effect based upon the number and
aggregate price of Common Shares or other Participating Shares (or
securities convertible into or exchangeable for Common Shares or other
Participating Shares) actually issued upon the exercise of such
rights, options or warrants, as the case may be.
(c) If and whenever at any time prior to the Expiry Time the Company shall
fix a record date for the making of a distribution to all or
substantially all the holders of its outstanding Common Shares of: (i)
shares of any class, or (ii) subject to paragraph l(b), rights,
options or warrants (excluding rights exercisable for 45 days or less)
or (iii) evidence of its indebtedness, or (iv) assets, including
shares of other corporations, then, in each such case, the Exercise
Price shall be adjusted immediately after such record date so that it
shall equal the price determined by multiplying the Exercise Price in
effect on such record date by a fraction, of which the numerator shall
be the greater of: (i) one; and (ii) the total number of Common Shares
outstanding on such record date multiplied by the Current Market Price
per Common Share on such record date, less the fair market value (as
determined by the board of directors of the Company, which
determination, absent manifest error, shall be conclusive) of such
shares or rights, options or warrants or evidences or indebtedness or
assets so distributed, and of which the denominator shall be the total
number of Common Shares outstanding on such record date multiplied by
such Current Market Price per Common Share; any Common Shares owned by
or held for the account of the Company shall be deemed not to be
outstanding for the purpose of any such computation; such adjustment
shall be made successively whenever such a record date is fixed; to
the extent that such distribution is not so made, the Exercise Price
shall be re-adjusted to the Exercise Price which would then be in
effect if such record date had not been fixed or to the Exercise Price
which would then be in effect based upon such shares or rights,
options or warrants or evidences of indebtedness or assets actually
distributed, as the case may be.
(d) If and whenever at any time prior to the Expiry Time there is a
reclassification of the Common Shares at any time outstanding or a
change of the Common Shares into other shares or a capita]
reorganization of the Company not covered in subsection (a) of this
section or a consolidation, amalgamation or merger of the Company with
or into any other corporation or a sale of the property and assets of
the Company as or substantially as an entirety to any other person, a
holder holding Warrants represented by this Warrant Certificate which
have not been exercised prior to the effective date of such
reclassification, capital reorganization, consolidation, amalgamation,
merger or sale shall thereafter, upon the exercise of such Warrants,
be entitled to receive and shall accept in lieu of the number of
Common Shares, as then constituted, to which the holder was previously
entitled upon exercise of the Warrants, but for the same aggregate
consideration payable therefor, the number of shares or other
securities or property of the
PAGE 6
Debt finance facility agreement
Company or of the corporation resulting from such reclassification,
consolidation, amalgamation or merger or of the person to which such
sale may be made, as the case may be, that such holder would have been
entitled to receive on such reclassification, capital reorganization,
consolidation, amalgamation, merger or sale, on the effective date
thereof, if the holder had been the registered holder of the number of
Common Shares to which the holder was previously entitled upon due
exercise of the Warrants; and in any case, if necessary, appropriate
adjustment shall be made in the application of the provisions set
forth in this Warrant Certificate with respect to the rights and
interests thereafter of the holders of the Warrants to the end that
the provisions set forth in this Warrant Certificate shall thereafter
correspondingly be made applicable, as nearly as may reasonably be, in
relation to any shares or securities or property to which the holder
may be entitled upon the exercise of such Warrants thereafter.
(e) The adjustments required under the terms of this Warrant Certificate
upon the occurrence of any of the events referred to herein shall
become effective immediately after a record date for such event, the
Company may defer, until the occurrence of such event, issuing to the
holder of any Warrant exercised after such record date and before the
occurrence of such event the kind and amount of shares, other
securities or property to which it would be entitled upon such
exercise by reason of the adjustment required by such event; provided,
however, that the Company shall deliver to such holder an appropriate
instrument evidencing such holder's right to receive the kind and
amount of shares, other securities or property to which it would be
entitled upon the occurrence of the event requiring such adjustment
and the right to receive any distributions made or declared in favour
of holders of record of Common Shares as constituted from time to time
on and after such date as the holder would, but for the provisions of
this subsection (e), have received, or become entitled to receive, on.
such exercise.
(f) The adjustments provided for in this Warrant Certificate are
cumulative and shall apply to successive subdivisions, redivisions,
reductions, combinations, consolidations, distributions, issues or
other events resulting in any adjustment under the provisions of this
Warrant Certificate provided that, notwithstanding any other provision
of this Section, no adjustment of the Exercise Price or number of
Common Shares, as then constituted, purchasable shall be required
unless such adjustment would require an increase or decrease, of at
least 1% in the Exercise Price or the number of Common Shares, as then
constituted, purchasable then in effect; provided however, that any
adjustments which, by reason of this subsection (f) are not required
to be made shall be carried forward and taken into account in any
subsequent adjustment.
(g) In the event of any question arising with respect to the adjustments
provided in this Warrant Certificate, such question shall, absent
manifest error, be conclusively determined by a firm of chartered
accountants appointed by the Company and acceptable to the holder,
acting reasonably, (who may be the auditors of the Company) with the
assistance of legal counsel, who may be legal counsel to the Company;
such accountants shall have access to all necessary records of the
Company and such determination shall be binding upon the Company and
the holder.
(h) At least 21 days prior to the effective date or record date, as the
case may be, of any event which requires an adjustment in the
subscription rights pursuant to this Warrant Certificate, including
the Exercise Price and the number and class of Common Shares or other
securities which are to be received upon the exercise hereof, the
Company shall give notice to the holder of the particulars of such
event and the required adjustment.
PAGE 7
Debt finance facility agreement
Notice shall be given to each holder at the holder's address noted on
the face of the holder's Warrant Certificate or such other address as
the holder may otherwise advise the Company in writing. Such notice
need only set forth such particulars as have been determined at the
date such notice is given. If any adjustment for which such notice is
given is not then determinable, promptly after such adjustment is
determinable the Company will give notice to the holders of such
adjustment.
(i) As a condition precedent to the taking of any action which would
result in an adjustment to the Exercise Price, the Company shall take
any corporate action which may be necessary in order that the shares,
other securities or property to which the Warrantholder is entitled on
the full exercise of its exercise right in accordance with the
provisions hereof shall be available for such purpose and that such
shares may be validly and legally issued as fully paid and
non-assessable shares.
(j) If the issuance of any Common Shares of the Company upon the exercise
of this Warrant requires compliance with any requirement under any law
before such shares may be validly issued upon such exercise, the
Company agrees to take such actions as may be necessary to secure such
compliance, provided that, in the event that such compliance is
required only by reason of the particular circumstances of or actions
taken by the holder of this Warrant Certificate, the Company will not
be required to take action.
(k) Notwithstanding anything to the contrary contained in this Section 1,
any adjustments required under this Section 1 shall be subject to the
Company obtaining, to the extent required, the prior approval of the
Relevant Exchange, or other applicable regulatory authority.
2. Definitions.
In this Warrant Certificate:
(a) "business day" means a day on which the banks are open for business in
Sydney, Australia and Toronto, Canada excluding a Saturday, Sunday or
public holiday.
(b) "Current Market Price" per Common Share or Participating Share at any
date shall be the closing price per share for such shares on the day
before such date on the Relevant Exchange (or if the Common Shares are
not then listed on such stock exchange, on such other exchange on
which the Common Shares are listed as may be selected for such purpose
by the directors of the Company, or if the Common Shares are not
listed on any stock exchange, then on the over the counter market).
(c) "Common Shares" means the Company's presently authorized common voting
shares without par value and shall also include any other authorized
classes of shares in the capital of the Company which do not have
special rights and restrictions attaching fixed dividends thereto and
limiting the participation of holders of shares of such classes in the
distribution of assets upon the voluntary or involuntary liquidation,
dissolution or winding up of the Company.
(d) "Participating Share" means a share that carries the right to
participate in earnings or in capital on a liquidation or winding-up
to an unlimited degree, or which ranks, in terms of priority, equally
with the Common Shares with respect to participation in earnings or in
capital on a liquidation or winding-up.
PAGE 8
Debt finance facility agreement
3. No Rights of Shareholders. The Warrants shall not entitle the holder to any
rights as a shareholder of the Company, including without limitation,
voting rights.
4. Transferability. The Warrants may only be transferred in accordance with
applicable laws and upon compliance with the conditions prescribed in this
Warrant Certificate by the holder (or its legal representatives or its
attorney duly appointed) and provided that prior to such transfer the
holder executes the transfer form attached to this Warrant Certificate as
Appendix B and complies with such other reasonable requirements as the
Company prescribes, including those requirements set forth in Appendix C to
this Warrant Certificate. [OR: THE WARRANTS EVIDENCED BY THIS WARRANT
CERTIFICATE AND ALL RIGHTS HEREUNDER ARE NOT TRANSFERABLE.]
5. New Certificate. This Warrant Certificate is exchangeable, upon the
surrender hereof by the holder to the Company, for a new Warrant
Certificate of like tenor representing in the aggregate the right to
subscribe for and purchase the number of Common Shares which may be
subscribed for and purchased hereunder, each of such new Warrant
Certificates to represent the right to subscribe for and purchase such
number of Common Shares as shall be designated by the holder at the time of
such surrender.
6. Loss, Mutilation, Destruction or Theft of Warrants. In case this Warrant
Certificate shall become mutilated or be lost, destroyed or stolen, the
Company, subject to applicable law, shall issue and deliver a new Warrant
Certificate representing the Warrants of like date and tenor as the one
mutilated, lost, destroyed or stolen upon surrender of and in place of and
upon cancellation of the mutilated Warrant Certificate or in lieu of and in
substitution for the lost, destroyed or stolen Warrant Certificate. The
applicant for the issue of a new Warrant Certificate representing the
Warrants pursuant to this Section shall bear the cost of the issue thereof
and in case of loss, destruction or theft shall, as a condition precedent
to the issue thereof, furnish to the Company such evidence of ownership and
of the loss, destruction or theft of the Warrant Certificate so lost,
destroyed or stolen as shall be satisfactory to the Company and in its
discretion and the applicant may also be required to furnish an indemnity
in amount and form satisfactory to the Company in its discretion, and shall
pay the reasonable charges of the Company in connection therewith.
7. Enforcement. All of any of the rights conferred upon any Warrantholder by
any of the terms or conditions of the Warrant Certificates or set out
herein, or of both, may be enforced by the Warrantholder by appropriate
proceedings.
8. Notice. Any notice or communication to be given hereunder may be
effectively given by delivering the same at the address hereinafter set
forth or by sending the same by facsimile or prepaid registered mail to the
parties at such addresses. Any notice so mailed shall be deemed to have
been received on the third business day next following the mailing thereof
provided the postal service is in operation during such time. Any facsimile
notice shall be deemed to have been received on the business day following
the date of transmission. The mailing and facsimile addresses of the
parties for the purposes hereof shall respectively be:
(a) if to the Warrantholder at the address listed on the first page of
this Warrant Certificate, and
(b) if to the Company at Suite 500, 10 King Street East, Toronto, ON, M5C
1C3, Canada, Attention: President.
The Company or the Warrantholder may change its address for service by
notice in writing to the other of them specifying its new address for
service under this Warrant Certificate.
PAGE 9
Debt finance facility agreement
9. Governing Law. The Warrants evidenced hereby shall he governed by and
construed in accordance with the laws of the Province of British Columbia.
PAGE 10
Debt finance facility agreement
10. Time. Time shall be of the essence hereof.
IN WITNESS WHEREOF the Company has caused this Warrant Certificate to be
executed as of this __ day of __, 2006.
OLYMPUS PACIFIC MINERALS INC.
Per:
____________________________
Authorized Signatory
PAGE 11
Debt finance facility agreement
APPENDIX A
EXERCISE FORM
TO: OLYMPUS PACIFIC MINERALS INC.
The undersigned hereby exercises the right to acquire the number of Common
Shares of Olympus Pacific Minerals Inc. (the "Company") indicated below (or such
number of other securities or property to which this Warrant entitles the
undersigned in lieu thereof or in addition thereto under the provisions of the
Warrant Certificate).
By his signature below, the undersigned represents and warrants to the Company
that the undersigned (check one):
__________ 1.(i) is not (and is not exercising the Warrant for the account
or benefit of) a U.S. person or person in the United
States;
(ii) did not execute or deliver this exercise form while within
the United States; and
(iii) has in all other respects complied with the terms of
Regulation S of the United States Securities Act of 1933,
as amended (the "1933 Act"), or any successor rule or
regulation of the United States Securities and Exchange
Commission as presently in effect; or
__________ 2. Is tendering with this exercise form a written opinion of
counsel satisfactory to the Company to the effect that the
securities to be delivered upon exercise of this Warrant
have been registered under the 1933 Act and the securities
laws of all applicable states of the United States or are
exempt from registration thereunder.
"United States" and "U.S. Person" are as defined by Regulation S
under the 1933 Act.
Please issue a certificate for the Common Shares being purchased as follows in
the name of the undersigned:
Full Name Address* Number of Shares Settlement Price
------------------- ------------------ ----------------- -----------------
___________________ __________________ _________________ $________________
___________________ __________________
___________________ __________________
___________________ __________________
___________________ __________________
DATED at _________________________, _________________________, this ______ day
of _________________, 200_.
___________________________________ ________________________________________
Signature Witnessed Signature of Holder (to be the same as
appears on the face of this Warrant
Certificate) or authorized signing
officer if a corporation
Name of holder: ________________________________________
* Securities will not be delivered to a U.S. address unless box (2) above is
checked and the holder complies with the requirements thereof. Any
securities issued pursuant to box (2) will bear legends prohibiting the
transfer of the securities except pursuant to registration or an exemption
from registration under the U.S. Securities Act and applicable state
securities laws.
PAGE 12
Debt finance facility agreement
APPENDIX B
FORM OF TRANSFER
TO: OLYMPUS PACIFIC MINERALS INC.
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and
transfers unto (name) ________________________ (the ________ "Transferee"),
of ________________________ (residential address), ________________________
Warrants of Olympus Pacific Minerals Inc. (the "Company") registered in the name
of the undersigned on the records of the Company represented by the within
certificate, and irrevocably appoints ________________________ as the attorney
of the undersigned to transfer the said securities on the books or register of
transfer, with full power of substitution.
DATED the ______ day of ____________, _____.
____________________________________ ________________________________________
Signature Guaranteed Signature of Warrantholder (to be the
(See instructions to Warrantholders same as appears on the face of this
on Appendix C) Warrant Certificate)
Note to Warrantholder: In order to transfer the Warrants represented by this
Warrant Certificate, this transfer form and certain other materials, must be
delivered to Olympus Pacific Minerals Inc. Please refer to Appendix C
"Instructions to Warrantholders".
[TO BE REMOVED FROM CERTIFICATE IF WARRANTS NON-TRANSFERABLE.]
PAGE 13
Debt finance facility agreement
APPENDIX C [B]
INSTRUCTIONS TO WARRANTHOLDERS
TO EXERCISE:
To exercise Warrants, the Warrantholder must complete, sign and deliver the
Exercise Form, attached as Appendix A and deliver the Warrant Certificate(s) to
Olympus Pacific Minerals Inc. (the "Company") indicating the number of Common
Shares to be acquired. In such case, the signature of such registered holder on
the Exercise Form must be witnessed.
TO TRANSFER [TO BE DELETED IF WARRANTS ARE NON-TRANSFERABLE]:
If the Warrantholder wishes to transfer Warrants, then the Warrantholder must
complete, sign and/or deliver:
(a) the Transfer Form attached as Appendix B;
(b) the Warrant Certificate(s); and
(c) such other certificates or opinions as the Company may reasonably
require to evidence compliance with applicable securities legislation
in Canada or the U.S.
If the Warrant Certificate is transferred, the Warrantholder's signature on the
Transfer Form must be guaranteed by an authorized officer of a Canadian
chartered bank, Canadian trust company, medallion guarantor or an investment
dealer who is a member of a recognized medallion guaranteed program or stock
exchange.
GENERAL:
For the protection of the holder, it would be prudent to use registered mail if
forwarding documents by mail.
If the Exercise Form is signed by an agent, executor, administrator, curator,
guardian, attorney, officer of a corporation or any person acting in a fiduciary
or representative capacity, the Warrant Certificate must also be accompanied by
evidence of authority to sign satisfactory to the Company.
The address of the Company is:
Olympus Pacific Minerals Inc.
Xxxxx 000 - 00 Xxxx Xxxxxx Xxxx
Xxxxxxx, XX X0X 0X0
PAGE 14
MACQUARIE BANK LIMITED
ABN 46 000 000 000
No. 0 Xxxxxx Xxxxx Telephone (000) 0000 0000 Treasury 8232 3600 Facsimile 8232 4227
Xxxxxx XXX 0000 Facsimile (000) 0000 0000 Foreign Exchange 8232 3666 Facsimile 8232 3019
GPO Box 4294 Internet xxxx://xxx.xxxxxxxxx.xxx.xx Metals and Energy Capital 8232 3444 Facsimile 8232 3590
Xxxxxx XXX 0000 DX 10287 SSE Futures 8232 7580 Facsimile 8232 4412
SWIFT XXXXXX0X Debt Markets 8232 8569 Facsimile 8232 8341
Agricultural Commodities 8232 7672 Facsimile 8232 3633
13 October 2006
The Directors The Directors [MACQUARIE BANK LOGO]
Olympus Pacific Minerals Inc. Formwell Holdings Limited
Xxxxx 000, 00 Xxxx Xxxxxx Xxxx, x/x Xxxxxxx Pacific Minerals Inc
Xxxxxxx, Xxxxxxx X0X 0X0 Xxxxx 000, 00 Xxxx Xx Xxxx,
Xxxxxx Xxxxxxx, Xxxxxxx, X0X 0X0
Fax: 000 000 0000 Canada
Attention: Xxxxx Xxxxx/Xxxx Xxxxxx Fax: 000 000 0000
Attention: Xxxxx Xxxxx/Xxxx Xxxxxx
The Directors
Bong Mieu Gold Mining Co Ltd
000-0 Xxxxxx Xxx Xxxxx Xxxxxx
Xxxxxx,
Xxxxxxx
Fax: (00) 000 000 000
Attention: Xxxxxxx Xxxxxxx
Dear Sirs
LETTER AGREEMENT
We refer to the following documents:
1. Warrant Certificate issued by Olympus Pacific Minerals Inc. to
Macquarie Bank Limited representing the Right to Purchase up to
5,376,092 Common Shares dated 17 February 2006 ("WARRANT CERTIFICATE")
2. Convertible Debt Finance Facility Agreement dated 8 February 2006
between Macquarie Bank Limited, Bong Mieu Gold Mining Co Ltd and
Olympus Pacific Minerals Inc, Formwell Holdings Limited as amended
from time to time ("DEBT FINANCE FACILITY AGREEMENT").
MACQUARIE BANK LIMITED 2
At the request of Olympus Pacific Minerals Inc ("OLYMPUS"), we are pleased to
advise that Macquarie Bank Limited ("MBL") has agreed to amend the Debt Finance
Facility Agreement as follows:
1. The definition of "Repayment Date" in clause 1.1 of the Agreement is
amended by replacing the date "30 June 2007" with "31 July 2007".
2. Clause 7.1(d) is amended by replacing the words "Each Warrant may be
exercised at any time before 5pm Sydney time on the Repayment Date for
the Exercise Price in accordance with this Clause 7.1" with "Each
Warrant may be exercised on the later of 30 June 2007 or, if the
Lender elects to amend the Repayment Date to 30 June 2008, 30 June
2008 for the Exercise Price in accordance with this Clause 7.1"
Unless otherwise set out in this letter agreement, terms defined in the Warrant
Certificate and the Debt Finance Facility Agreement will bear the same meaning
when used in this letter agreement.
For the avoidance of doubt, MBL reserves its right to elect to further extend
the repayment date to 30 June 2008 pursuant to the terms of the Debt Finance
Facility Agreement and that the extension of the repayment date from 30 June
2007 to 31 July 2007 under this letter agreement does not constitute an election
by MBL to extend the date of repayment to 30 June 2008. Furthermore, the
extension of the date of repayment does not affect the exercise price of
warrants issued to MBL under the Warrant Certificate.
Please acknowledge your acceptance of the above terms by signing and returning
the attached counterpart letter to MBL at your earliest convenience. The
amendments to the Debt Finance Facility Agreement made in this letter agreement
shall become effective upon each of Olympus Pacific Minerals Inc, Formwell
Holdings Limited and Bong Mieu Gold Mining Co Ltd signing a copy of this letter
agreement. By signing the acknowledgement the parties agree that this letter
agreement is a Transaction Document for the purposes of the Debt Finance
Facility Agreement.
MBL reserves its rights with respect to all other provisions of the Transaction
Documents and this letter is not to be taken as a waiver of any of MBL's rights
under any Transaction Document.
Yours faithfully
/s/ X.X. Xxxxxxx /s/ Xxxxxx XxXxxxxx
------------------------------------- ----------------------------------------
Xxxxxxx Xxxxxxx Xxxxxx XxXxxxxx
Division Director Associate Director
Metals and Energy Capital Division Legal Risk Management
MACQUARIE BANK LIMITED 3
ACCEPTANCE OF TERMS
Olympus Pacific Minerals Inc acknowledge and agree to the terms contained
herein.
Signed by OLYMPUS PACIFIC MINERALS INC.
by its authorised signatories:
/s/ D.A. Seton /s/ X. Xxxxxxxxx
--------------------------------------- --------------------------------------
Title Title:
--------------------------------------- --------------------------------------
Name (please print) D.A. Seton Name (please print) X. Xxxxxxxxx
Date: 10/11/06
Bong Mieu Gold Mining Co Ltd acknowledge and agree to the terms contained
herein.
Signed by BONG MIEU GOLD MINING CO LTD
by its authorised signatories:
/s/ X. Xxxxxxx /s/ X. Xxxxxxxxx
--------------------------------------- --------------------------------------
Title: Title:
--------------------------------------- --------------------------------------
Name (please print) X. Xxxxxxx Name (please print) X. Xxxxxxxxx
Date: 9/11/2006
---------------------------------
Formwell Holdings Limited (a BVI Company) acknowledge and agree to the terms
contained herein.
Signed by FORMWELL HOLDINGS LIMITED
(A BVI COMPANY)
by its authorised signatories:
/s/ D.A. Seton /s/ X. Xxxxxxxxx
--------------------------------------- --------------------------------------
Title: Title:
--------------------------------------- --------------------------------------
Name (please print) D.A. Seton Name (please print) X. Xxxxxxxxx
Date: 10/11/06
