[Execution Copy]
================================================================================
FINANCE AGREEMENT
between
OMOLON GOLD MINING COMPANY
and
OVERSEAS PRIVATE INVESTMENT CORPORATION
Dated as of 30 June 1995
OPIC-118-94-130-IG
================================================================================
TABLE OF CONTENTS
ARTICLE I DEFINITIONS, FINANCIAL CALCULATIONS, GOVERNING LAW..........................1
Section 1.01. General Definitions .............................................1
Section 1.02. Interpretation ..................................................4
Section 1.03. Financial Calculations ..........................................5
Section 1.04. English Language ................................................6
Section 1.05. Governing Law ...................................................6
ARTICLE H REPRESENTATIONS AND WARRANTIES .............................................6
Section 2.01. Project, Project Costs and Financing Plan .......................6
Section 2.02. Representations as to the Company ...............................7
Section 2.03. Representations as to the Financing and Project Agreements.......9
Section 2.04. Acknowledgement and Warranty ....................................1
ARTICLE HI CREDIT FACILITY ...........................................................1
Section 3.01. Commitment ......................................................1
Section 3.02. Disbursement Limitations ........................................2
Section 3.03. Disbursement Procedure ..........................................3
Section 3.04. Interest ........................................................3
Section 3.05. Principal Repayment .............................................5
Section 3.06. Mandatory Prepayment ............................................6
Section 3.07. Voluntary Prepayment ............................................8
Section 3.08. Default Interest ................................................9
Section 3.09. Taxes ...........................................................1
Section 3.10. Cancellation of Commitment by Company ...........................1
Section 3.11. Fees ..........................................................2
Section 3.12. Costs and Expenses ..............................................3
Section 3.13. Payments ........................................................4
Section 3.14. Insufficient Payments ...........................................5
Section 3.15. OPIC's Books and Records ........................................6
ARTICLE IV CONDITIONS OF DISBURSEMENT ................................................6
Section 4.01. Conditions of First Disbursement .......................................6
Section 4.02. Conditions for Any Disbursement ........................................1
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ARTICLE V AFFIRMATIVE COVENANTS ......................................................53
Section 5.01. Project Implementation ..........................................53
Section 5.02. Maintenance and Conduct of Business .............................53
Section 5.03. Insurance .......................................................53
Section 5.04. Accounting ......................................................53
Section 5.05. continuing Governmental and Other Approvals .....................54
Section 5.06. Security ........................................................54
Section 5.07. Compliance with Other Obligations ...............................54
Section 5.08. Taxes; Stamp Duties .............................................54
Section 5.09. Project Agreements ..............................................55
Section 5 10. Offshore Bank Account ...........................................55
Section 5 11. Disbursement Subaccount .........................................55
Section 5 12. Sales and Revenue Subaccounts ...................................55
Section 5 13. Cash Collateral Subaccount ......................................58
Section 5 14. Russian Bank Accounts ...........................................58
Section 5 15. Debt Service Coverage Ratios ....................................59
Section 5.16. Further Documents ...............................................59
Section 5.17. [Reserved] ......................................................59
Section 5.18. Annual Budgets ..................................................59
Section 5.19. Furnishing of Information .......................................60
Section 5.20. Development Plan ................................................63
ARTICLE VI NEGATIVE COVENANTS ........................................................63
Section 6.01. Dividends .......................................................63
Section 6.02. Capital Expenditures ............................................64
Section 6.03. Leases ..........................................................64
Section 6.04. Indebtedness ....................................................64
Section 6.05. Liens ...........................................................65
Section 6.06. Hedging .........................................................66
Section 6.07. Arm's Length Transactions .......................................66
Section 6.08. Profit-Sharing and Management Arrangements ......................66
Section 6.09. Investments .....................................................66
Section 6.10. Changes in Business, Capital and Charter .......................67
Section 6.11. Prepayment of Long-term Debt ....................................67
Section 6.12. Sale of Assets; Merger ..........................................68
Section 6.13. Workers' Rights .................................................68
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ARTICLE VII EVENTS OF DEFAULT, JURISDICTION, ARBITRATION .............................68
Section 7.01. Events of Default ..............................................68
Section 7.02. Acceleration in Events of Default ..............................71
Section 7.03. Automatic Acceleration .........................................72
Section 7.04. Jurisdiction, Service of Process; Waiver of Jury ...............72
Section 7.05. Arbitration ....................................................74
Section 7.06. Waiver of Sovereign Immunity ...................................79
ARTICLE VIII MISCELLANEOUS ...........................................................79
Section 8.01. Term of Agreement; Survival ....................................79
Section 8.02. Entire Agreement; Amendment and Waiver .........................80
Section 8.03. Notices ........................................................80
Section 8.04. Certificate of Incumbency and Authority ........................81
Section 8.05. [Reserved] .....................................................81
Section 8.06. [Reserved] .....................................................81
Section 8.07. Rights, Remedies and Waivers ...................................81
Section 8.08. Indemnification ................................................82
Section 8.09. Severability ...................................................82
Section 8.10. [Reserved] .....................................................83
Section 8.11. [Reserved] .....................................................83
Section 8.13. Successors and Assigns .........................................83
Section 8.14. Counterparts ...................................................83
Exhibits
Exhibit A Form of Disbursement Request
Exhibit B Form of Self Monitoring Questionnaire
FINANCE AGREEMENT
FINANCE AGREEMENT, dated as of 30 June 1995 between:
THE CLOSED JOINT STOCK COMPANY "OMOLON GOLD MINING COMPANY", a closed
joint stock company organized and existing under the laws of the
Russian Federation (the "Company"), and
OVERSEAS PRIVATE INVESTMENT CORPORATION, an agency of the United States
of America ("OPIC").
RECITALS
The Company intends to construct and operate the Project (as hereinafter
defined). To secure a portion of the financing for the Project, the Company has
requested that OPIC provide a credit facility to the Company in any amount up to
U.S. $52,500,000, pursuant to Section 234(b) of the Foreign Assistance Act of
1961, as amended, which OPIC is willing to to do on the terms and conditions set
forth herein.
Now, therefore, in consideration of the premises and the agreements
contained herein, it is hereby agreed as follows:
ARTICLE I
DEFINITIONS, FINANCIAL CALCULATIONS, GOVERNING LAW
SECTION 1.01. GENERAL DEFINITIONS
Wherever used in this Agreement, including the Exhibits hereto, unless
the context otherwise requires, the following terms have the following meanings:
"Affiliate" means, with respect to any entity, any other
entity or Person, directly or indirectly,
controlling, controlled by, or under common
control with, such entity. For the purposes of
this definition, "control" (including, with
correlative meanings, the terms "controlled by"
and "under common control with"), as used with
respect to any entity, shall mean the
possession, directly or indirectly, of the power
to direct or cause the direction of the
management and policies of such entity, whether
through the ownership of voting shares or by
contract or otherwise.
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"Agreement" means this Finance Agreement between OPIC and
the Company.
"Amax Gold" means Amax Gold, Inc., a corporation organized
and existing under the laws of the State of
Delaware.
"Application Documents" means the Preliminary Application for Financing
dated August 9, 1993, the Commitment Letter, and
the Sponsor Disclosure Report dated November 12,
1993.
"Association of
Native Peoples" means the Association of Northern Native Peoples
of the Severo-Evensk District.
"Auditors" means such firm of independent public
accountants as the Company may from time to time
appoint as auditors of the Company in accordance
with Section 5.04.
"Authorized Officer" means any officer of the Company designated in
writing by the Company pursuant to Section 8.04
as having been authorized to execute and deliver
this Agreement, the Financing Agreements,
Project Agreements, Disbursement Requests, and
any other notice, instrument, certificate, or
other document contemplated by this Agreement
and any other Financing Agreement.
"Banking Day" means a day that is both a British Banking Day
and a Business Day.
"Base Rate" means, with respect to the Tranche 2 Loan, the
rate set forth as the "Base Rate" in the Tranche
2 Note, and shall equal the interest rate on the
Tranche 2 Certificates of Participation (as
defined in the Funding Agreement).
"Blocked Account
Agreement" means a blocked account agreement to be entered
into among the Company, Roskomdragmet, Citibank,
NA, London Branch and such other parties as may
be agreed by OPIC , regarding the Roskomdragmet
Sales Subaccount, which agreement shall be as
contemplated by the Roskomdragrnet Agreement and
in form and substance satisfactory to OPIC.
"British Banking Day" means any day (other than a Saturday or Sunday)
on which commercial banks are not authorized or
required to close in London, England.
Omolon - 3 - OPIC Finance Agreement
"Business Day" means any day (other than a Saturday or Sunday) on
which commercial banks are not authorized or
required to close in New York, New York.
"Cancellation Fee" has the meaning set forth in Section 3. I l(b).
"Cash Collateral means the subaccount of the Offshore Bank Account
Subaccount designated as such in accordance with Section 5.10.
Certficates of
Participation" has the meaning set forth in the Funding Agreement.
"Charter" means, in respect of any company, corporation,
partnership, governmental agency or other
enterprise, its founding act, articles of
incorporation and bylaws, memorandum and articles
of association, statute or similar instrument.
"Commitment" means, as of any day during the Commitment Period,
the amount of 1;52,500,000, less any Disbursements,
and less the portion thereof which has expired or
been canceled pursuant to this Agreement.
"Commitment Date" means June 27, 1994.
"Commitment Fee" has the meaning set forth in Section 3.11 (a).
"Commitment Letter" means the letter among the Company, Cyprus, and
OPIC dated as of June 27, 1994, as amended.
"Commitment Period" means the period commencing on the date of this
Agreement and terminating on the Commitment
Termination Date.
"Commitment Termination
Date" means the date of the first to occur of the
following:
(1) the first date on which the amount of all
Disbursements equals the Commitment;
(2) the cancellation or termination of the
Commitment by the Company or OPIC pursuant to this
Agreement;
(3) the fifth Disbursement Date with respect to
the Tranche 1 Commitment;
(4) the cancellation or termination of the EBRD
Commitment;
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(5) the first Tranche I Repayment Date; or
(6) June 30, 2000.
"Construction Contract" means, collectively, such construction
management and engineering services contract to
be entered into between the Company and/or
Cyprus Magadan and the Contractor in connection
with the Project, which shall be in form and
substance satisfactory to OPIC.
"Contractor" means Davy International Canada Limited, a
corporation organized under the laws of the
Province of Ontario, Canada and a subsidiary of
Davy International, a division of Trafalgar
House, Inc., or such other Subsidiary of
Trafalgar House, Inc., as may be approved by
OPIC.
"Contract Pledge" means the instrument pursuant to which the
Company grants to the Project Lenders a security
interest in all of its rights, interests and
benefits under the Management Agreement, the
Construction Contract, the Supply Contracts, the
Marketing Agreements and the Reclamation
Agreement, and all performance bonds,
warranties, guaranties and undertakings issued
thereunder (including subcontractor's warranties
issued directly to the Company under the
Construction Contract), together with the
notices and acknowledgements and consents in the
forms attached thereto, which instrument shall
be substantially in the form of Schedule A to
the EBRD Loan Agreement.
"Covered Taxes" means all present and future Taxes now or at any
time hereafter levied or imposed by the
government of the Russian Federation or by any
department, agency, political subdivision or
taxing or other authority thereof or therein, or
by any organization of which the Russian
Federation is a member (or any successor of any
of them), or any other jurisdiction on or in
connection with the payment or repayment of any
or all principal, interest, or other amounts due
under this Agreement.
"Cyprus Amax" means Cyprus Amax Minerals Company, a
corporation organized and existing under the
laws of the State of Delaware.
"Cyprus Amax Guaranty" means the irrevocable guaranty to be entered
into by Cyprus Amax in favor of the Project
Lenders, which guaranty shall be substantially
in the form of Schedule B to the EBRD Loan
Agreement.
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"Cyprus Gold" means Cyprus Gold Company, a corporation
organized and existing under the laws of the
State of Delaware.
"Cyprus Magadan" means Cyprus Magadan Gold Corporation, a
corporation organized and existing under the
laws of the State of Delaware.
"Cyprus Magadan
Guaranty" means the irrevocable guaranty to be entered
into by Cyprus Magadan in favor of the Project
Lenders, which guaranty shall be substantially
in the form of Schedule C to the EBRD Loan
Agreement.
"Cyprus Magadan
Share Pledge" means the agreement to be entered into pursuant
to which Cyprus Gold pledges in favor of the
Project Lenders all of the issued and
outstanding shares of Cyprus Magadan, which
agreement shall be substantially in the form of
Schedule D to the EBRD Loan Agreement.
"Cyprus Support
Agreement" means the Project support agreement to be
entered into among the Company, Cyprus Amax,
Cyprus Magadan and the Project Lenders, which
agreement shall be substantially in the form of
Schedule E to the EBRD Loan Agreement.
"Debt" means the aggregate (as of the date of
calculation) of all obligations of the Company
then outstanding for the payment or repayment of
money including, without limitation:
(a) any amounts payable by the Company under
leases or similar arrangements over their
respective periods;
(b) any credit to the Company from a supplier of
goods or under any instalment purchase or other
similar arrangement; and
(c) the aggregate amount then outstanding of
liabilities and obligations of third parties
to the extent that they are guaranteed by
the Company.
"Default Interest Rate" means the interest rate applicable to amounts
overdue under this Agreement, as determined in
accordance with Section 3.08.
"Development Plan" means the development plan for the Project
approved by the Project Lenders in accordance
with Section 5.20, as such development plan may
be amended from time to time in accordance with
the requirements of Section 6.10(a).
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"Disbursement" means any amount of the Loan which is disbursed
from time to time.
"Disbursement Date" means any date on which a Disbursement is made.
"Disbursement Request" means a document in the form of Exhibit A and
otherwise in form and content satisfactory to
OPIC.
"Disbursement Subaccount" means the subaccount of the Offshore Bank
Account designated as such in accordance with
Section 5.10.
"Discount Rate" means, for each calendar year, the weighted
average (expressed as a rate per annum) of all
interest charges which are projected (on the
basis of the Financial Model) to be applicable
to all amounts of the Tranche I Loan and the
EBRD Tranche I Loan outstanding from time to
time during such calendar year.
"Dollars" or "$" means the lawful currency of the United States
of America.
"Dukat" means Dukatsky Mining and Beneficiation Complex.
"EBRD" means European Bank for Reconstruction and
Development.
"EBRD Commitment" means the obligation of EBRD to make
disbursements of the EBRD Loan during the EBRD
Commitment Period in accordance with the EBRD
Loan Agreement.
"EBRD Commitment
Period" means "Commitment Period" as defined in the EBRD
Loan Agreement.
"EBRD Loan" means, collectively, the EBRD Tranche I Loan and
the EBRD Tranche 2 Loan or, as the context may
require, the aggregate of the principal mounts
thereof from time to time outstanding.
"EBRD Loan Agreement" means the Loan Agreement dated as of the date
hereof between the Company and EBRD.
"EBRD's Proportionate
Share" means, with respect to any amount as of any date
of calculation, a percentage of such amount
(calculated to the nearest 100th of a percent)
calculated as follows:
EPS = B/(A+B)
Omolon - 7 - OPIC Finance Agreement
where
EPS = EBRD's Proportionate Share,
A = the outstanding principal balance of the
Loan, and
B = the outstanding principal balance of the
EBRD Loan.
"EBRD Tranche 1 Loan" means the loan specified in Section 3.01(a) of
the EBRD Loan Agreement or, as the context may
require, the principal amount thereof from time
to time outstanding.
"EBRD Tranche 2 Loan" means the loan specified in Section 3.01(b) of
the EBRD Loan Agreement or, as the context may
require, the principal amount thereof from time
to time outstanding.
"Elektrum" means Elektrum Limited Liability Company.
"Enterprise Mortgage" means a mortgage in favor of the Project Lenders
over all of the equipment, assets and property
of the Company, which mortgage shall be
substantially in the form of Schedule F to the
EBRD Loan Agreement.
"Environmental Standards" means the environmental performance criteria,
standards, practices and procedures for the
Project set forth in Schedule G to the EBRD Loan
Agreement, as amended by the Company from time
to time with the prior written approval of OPIC
(such approval not to be unreasonably withheld).
"Equipment Pledge" means the instrument pursuant to which the
Company grants to the Project Lenders a security
interest in all of the Company's equipment and
other tangible movable assets, which instrument
shall be substantially in the form of Schedule H
to the EBRD Loan Agreement.
"Evenskoye Field" means the Evenskoye gold and silver field
located in the Magadan Region of the Russian
Federation as described in Section 2.1 of the
License Agreement.
"Event of Default" means any one of the events specified in Section
7.01.
"Excess Cash Flow" means, for any period, the Gross Revenues during
such period less the sum of (a) all amounts paid
out of the Revenue Subaccount during such period
in accordance with Sections 5.12(d)(1) through
Omolon - 8 - OPIC Finance Agreement
5.12(d)(6), and (b) reasonable and prudent reserves
established during such period in respect of
contingent liabilities.
"Export Sales Subaccount" means the subaccount of the Offshore Bank Account
designated as such in accordance with Section 5.10.
"Facility Fee" has the meaning set forth in Section 3. I l(c).
"Fees" means the Commitment Fee, Cancellation Fee, and the
Facility Fee.
"Financial Model" means the financial model agreed by the Company and
used by OPIC to prepare the financial projections
for the Project, as amended from time to time
pursuant to the provisions of Schedule I to the
EBRD Loan Agreement.
"Financial Statements" means the unconsolidated financial statements of
the Company prepared in a manner consistent with
its books of account and in accordance with
Generally Accepted Accounting Principles in the
United States.
"Financial Year" means the accounting year of the Company commencing
each year on 1 January and ending on the following
31 December, or such other accounting period of the
Company as the Company may, with OPIC's consent,
from time to time designate as the accounting year
of the Company.
"Financing Agreements" means this Agreement, the EBRD Loan Agreement, the
Notes, the Application Documents, the Disbursement
Requests, the EBRD Loan disbursement applications,
the promissory notes issued under the EBRD Loan
Agreement, the Cyprus Magadan Guaranty, the Cyprus
Amax Guaranty, the Security Documents, the Security
Sharing Agreement, the Cyprus Support Agreement,
the Russian Shareholders Support Agreement, the
Funding Documents, the Letter of Credit, and any
other agreements entered into by the parties hereto
in connection with this Agreement or the
transactions contemplated hereby, and, in the
singular, means any one of such agreements.
"Financing Plan" means the financing plan set out in Section
2.01(c).
"Force Majeure Event' means an event which is not within the reasonable
control of the Company and that has a material
adverse effect on the ability of the Company to
construct the Project or to mine, produce, process,
transport or market ore or dore as contemplated by
the Development Plan, including;
Omolon - 9 - OPIC Finance Agreement
(a) fire, landslide, earthquake, adverse weather
conditions or other acts of God;
(b) explosion, breakage or accident to Project
equipment and facilities;
(c) strikes (excluding, for the avoidance of
doubt, any strike or series of related strikes,
to the extent that the duration of such strike
or series of related strikes is in excess of 30
days, by employees of the Company, the
Contractor or any subcontractor relating solely
to disputes with management of the Company, the
Contractor or such subcontractor and not to the
mining sector generally or other matters); or
(d) political events, shortages of material or
labor resulting directly from control or
diversion by the Russian government, embargo or
terrorism.
"Foundation Agreement" means the foundation agreement on establishment
of the Company dated 26 February 1993, as
amended by a first amendment and supplemental
agreement with respect to the foundation
agreement on establishment of the Company dated
4 September 1993, a second amendment to the
foundation agreement on the establishment of the
Company and the charter of the Company dated I 0
January 1994, and a third amendment to the
foundation agreement on the establishment of the
Company and the charter of the Company dated 24
March 1995 and a fourth amendment agreement to
the foundation agreement on the establishment of
the Company and the charter of the Company to be
entered into in form and substance satisfactory
to OPIC.
"Funding Agreement" means the Funding and OPIC Guaranty Agreement to
be entered into among the Company, OPIC, and the
Paying Agent, which shall be in form and
substance satisfactory to OPIC.
"Funding Documents" means:
(1) the Funding Agreement;
(2) the Purchase Contract (as defined in the
Funding Agreement);
(3) the Placement and Remarketing Agreement (as
defined in the Funding Agreement);
Omolon - 10 - OPIC Finance Agreement
(4) the Liquidity Facility (as defined in the
Funding Agreement); and
(5) all other agreements, documents, and
instruments required in connection with the
funding of the Loan.
"Future Net Income" means, for any period, the projected Gross
Revenues expected to be realized by the Company
during such period less the sum of the Operating
Costs payable in currencies other than Roubles
which are projected for such period, all in
accordance with the Financial Model.
"Generally Accepted
Accounting Principles" means accounting principles generally accepted
in the United States consistently applied.
"Geometal" means Geometal Joint Stock Gold-Mining Company.
"Goods Pledge" means the instrument pursuant to which the
Company grants to the Project Lenders a security
interest in all of the Company's gold, silver
and dore, and all receivables, receipts and
proceeds from the sale or transfer thereof,
which instrument shall be substantially in the
form of Schedule J to the EBRD Loan Agreement.
"Gross Revenues" means, for any period, the Company's gross
revenues in freely convertible currencies other
than Roubles from all sources during such period
(including, without limitation, all revenues
from the sale of dore, the proceeds of any
insurance or other claim with respect to delay
in completion, business interruption or loss or
destruction of gold or dore and all refunds of
taxes, but excluding interest earned on the
Offshore Bank Account or the Russian Bank
Accounts) which are received in the Revenue
Subaccount and are not subject to mandatory
conversion into Roubles or, at such time,
transfer to the Russian Federation.
"Guaranteed Portion" means, at any time with respect to any amount
payable under this Agreement:
(a) prior to the Project Completion Date, 100%
of such amount; and
(b) thereafter, in the case of any amount other
than the principal amount of the Tranche 2 Loan
and interest accruing thereon after the Project
Completion Date, the portion of such
Omolon - 11 - OPIC Finance Agreement
amount which is, at such time, guaranteed by
Cyprus Magadan pursuant to the Cyprus Magadan
Guaranty.
"Immovables Mortgage" means a mortgage in favor of the Project
Lenders over all of the Company's immovable
property, which mortgage shall be substantially
in the form of Schedule K to the EBRD Loan
Agreement.
"Indebtedness" means, in regard to any person:
(a) all indebtedness of such Person for
borrowed money or arising out of any credit
facility or financial accommodation or for the
deferred purchase price of property or
services;
(b) all guarantees of such Person (or other
obligations of such Person which are the
economic equivalent of a guarantee, including
without limitation any obligation of such
Person to purchase, to provide funds for
payment, to supply funds to or otherwise to
invest in any other Person) in respect of the
indebtedness of any other Person for borrowed
money or arising out of any credit facility or
financial accommodation or for the deferred
purchase price of property or services;
(c) all indebtedness or other obligations of
any other Person for borrowed money or arising
out of any credit facility or financial
accommodation or for the deferred purchase
price of property or services secured by (or
for which the holder of such indebtedness has
an existing fight, contingent or otherwise, to
be secured by) any Lien upon property
(including without limitation accounts
receivable and contract rights) owned by such
Person, whether or not such Person has assumed
or become liable for the payment of such
indebtedness or obligations; and
(d) obligations of such Person in respect of
any lease of goods (or property which, if not
affixed to realty, would be personalty) by such
Person which under Generally Accepted
Accounting Principles would be required to be
capitalized on the balance sheet of such
Person.
"Independent Engineer" means Pincock Allen & Holt Inc. or such other
firm of engineers as may be selected from time
to time by the Project Lenders after
consultation with the Company, and any
subcontractors of such engineer.
"Insurance Assignment" means the assignment pursuant to which the
Company assigns to the Project Lenders all of
its rights, interests and benefits under all
Omolon - 12 - OPIC Finance Agreement
insurance maintained by the Company and all other
insurance relating to the design, construction,
operation and maintenance of the Project, together
with the notices and acknowledgements and consents
in the forms attached thereto (or in such other
forms as may be approved by OPIC), which assignment
shall be substantially in the form of Schedule L to
the EBRD Loan Agreement.
"Interest Payment Date" means any day which is 15 June or 15 December in
any year; provided, however, that, if any Interest
Payment Date would fall on a day which is not a
Business Day, such Interest Payment Date shall be
changed to the next succeeding Business Day.
"Interest Period" means each period commencing on an Interest Payment
Date to but excluding the next following Interest
Payment Date, except in the case of the first
Interest Period applicable to the first
Disbursement when it shall have the following
meaning:
(1) if such disbursement is made at least 15
Business Days prior to the next Interest Payment
Date, the period commencing on the date on which
such Disbursement is made to but excluding the next
Interest Payment Date, and
(2) if such disbursement is made less than 15
Business Days prior to the next Interest Payment
Date, the period commencing on the date on which
such Disbursement is made to but excluding the
Interest Payment Date succeeding the next Interest
Payment Date.
"Interest Rate" means, in respect of the Tranche 1 Loan, the
Tranche 1 Interest Rate, and in respect of the
Tranche 2 Loan, the Tranche 2 Interest Rate.
"Issuing Instructions" has the meaning set forth in the Funding Agreement.
"Kubaka Field" means the Kubaka gold and silver field located in
the Magadan Region of the Russian Federation
approximately 600 miles north-northeast of the City
of Magadan, as described in Section 2.1 of the
License Agreement.
"Letter of Credit" means an irrevocable "evergreen" standby letter of
credit, substantially in the form of Schedule M,
issued in accordance with paragraph l(b)(1) of
Schedule Q to the EBRD Loan Agreement in favor of
OPIC and EBRD by a financial institution acceptable
to OPIC in a face amount not to exceed $2,500,000
securing principal and interest payable by the
Company under this Agreement and the EBRD Loan
Agreement.
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"License" means the license for the right to use the
subsurface, series MAG, number 10141, license
type AC, issued to the Company by the Committee
of the Russian Federation for Geology and Use of
the Subsurface and the Magadan Regional Soviet
of People's Deputies, including all annexes
thereto, as amended by an amendment dated 24
March 1995 among the Magadan Oblast Duma, the
Committee of the Russian Federation for Geology
and Use of the Subsurface and the Company.
"License Agreement" means the license agreement between the Magadan
Oblast Duma (as successor to the Magadan
Regional Soviet of People's Deputies) and the
Committee of the Russian Federation for Geology
and Use of the Subsurface and the Company, which
is attached as Annex 1 to the License.
"Lien" means any mortgage, pledge, charge, privilege,
priority, hypothecation, encumbrance,
assignment, lien, attachment, set-off or other
security interest of any kind upon or with
respect to, or any segregation of or other
preferential arrangement with respect to, any
present or future assets, revenues or rights,
including, without limitation, any designation
of loss payees or beneficiaries or any similar
arrangement under any insurance policy.
"Loan" means, collectively, the Tranche 1 Loan and the
Tranche 2 Loan or, as the context may require,
the aggregate of the principal amounts thereof
from time to time outstanding.
"Loan Life Debt Service
Coverage Ratio" means, on any date, (a) the net present value,
discounted at the Discount Rate, of all Future
Net Income for the period from such date to 15
June 2001, divided by (b) the aggregate
principal amount of the Tranche 1 Loan and the
EBRD Tranche 1 Loan outstanding on such date
less the sum of the amount on deposit in the
Cash Collateral Subaccount and the face amount
of the Letter of Credit (if any) on such date.
"Long-term Debt" means the aggregate (as of the date of
calculation) of all those component parts of the
Debt which fall due or whose final payment is
due more than one year after such date of
calculation.
"Make-Whole Premium" has the meaning set forth therefor in the
Tranche 2 Note.
"Management Agreement" means the amended and restated management,
technical and other services agreement dated as
of April 13, 1995 between Cyprus Magadan and the
Company.
Omolon - 14 - OPIC Finance Agreement
"Marketing Agreements" means, collectively, the Roskomdragmet
Agreement, the Rosvneshtorgbank Agreement and
any other marketing, sales or dore
transportation agreements entered into by the
Company in accordance with the terms of this
Agreement, and, in the singular, means any one
of such agreements.
"Material Adverse Effect" means a material adverse effect on:
(1) the Project, including without limitation
the projected costs of construction of the
Project in accordance with the Development Plan
(to the extent that funding of such costs has
not been committed) or the projected costs of
operation or maintenance of the Project in
accordance with the Development Plan;
(2) the business, operations or condition of the
Company, Cyprus Amax or Cyprus Magadan;
(3) the ability of any party to any Financing
Agreement or Project Agreement to timely perform
its obligations thereunder in full in accordance
with the terms thereof;
(4) the validity or enforceability of any
Financing Agreement or Project Agreement or the
rights or remedies of either Project Lender
thereunder; or
(5) the Security;
provided that a reduction in the market price
of gold shall not, by itself, be considered to
have a Material Adverse Effect unless the
average market price of gold over the preceding
30 days falls below $275 per ounce.
"Memorandum of
Understanding" means the protocol of the meeting on the Kubaka
project development held in Anchorage, Alaska on
20 and 21 November 1994.
"Note(s)" Tranche 1 Notes (in the case of the Tranche 1
Loan) and Tranche 2 Notes (in the case of the
Tranche 2 Loan), evidencing the indebtedness of
the Company to OPIC resulting from a
Disbursement, or any promissory note issued by
the Company at the request of OPIC in extension,
renewal or substitution therefor.
"Offshore Account Pledge" means, collectively, the instruments pursuant to
which the Company grants to the Project Lenders
a security interest in the
Omolon - 15 - OPIC Finance Agreement
Company's right, title and interest in and to the
Offshore Bank Account, including the account
agreement among the Company, Citibank, N.A., London
Branch and Moscow Narodny Bank Limited relating
thereto, together with the notices and
acknowledgements and consents in the forms attached
thereto, which instruments shall be substantially
in the form of Schedule O to the EBRD Loan
Agreement.
"Offshore Bank Account" has the meaning given to it in Section 5.10.
"Offshore Bank Account
Agreement" means the accounts agreement to be entered into
among the Company, Citibank, N.A., London Branch
and Moscow Narodny Bank Limited relating to the
Offshore Bank Account, which agreement shall be in
form and substance satisfactory to OPIC.
"Omolon Share Pledge" means, collectively, the instruments pursuant to
which the Shareholders pledge in favor of the
Project Lenders all of the issued and outstanding
shares of the Company, which instrument shall be
substantially in the form of Schedule P to the EBRD
Loan Agreement.
"Operating Costs" means:
(a) all costs and expenses (including capital
expenditures) incurred by the Company in operating
and maintaining the Project, including
transportation costs, reimbursement at cost for
goods and services procured by Cyprus Amax or its
Affiliates on behalf of the Company from
unaffiliated entities on an arm's length basis and
an amount not to exceed (unless otherwise approved
by OPIC, such approval not to be unreasonably
withheld) $500,000 (or the equivalent thereof in
other currencies at then current rates of exchange)
per year in properly documented travel and other
reimbursable expenses payable to Cyprus Magadan
under the Management Agreement;
(b) all license fees paid by the Company under the
License;
(c) insurance premiums paid by the Company in
maintaining any of the insurance required by this
Agreement;
(d) administrative overhead expenses incurred by
the Company from time to time, including
engineering, data processing, accounting, legal and
purchasing costs and charges, which are
attributable to the Project, but excluding any such
amount in respect of which the Company is entitled
to be
Omolon - 16 - OPIC Finance Agreement
reimbursed by any Person (until such mount is
converted on the accounts of the Company to a loss
following non-payment);
(e) any fees payable by the Company to the banks at
which the Offshore Bank Account and the Russian
Bank Accounts are located and to any security
trustee with respect to such accounts;
(f) any fees, commissions, charges, costs and
expenses due and payable pursuant to this
Agreement, the EBRD Loan Agreement and the other
Financing Agreements to either Project Lender,
including the fees and expenses of the Independent
Engineer and OPIC's insurance and environmental
consultants; and
(g) all taxes, rates, charges, assessment, duties
and tariffs which at any time are imposed or
assessed on the Company or its income, profits,
revenues, imports of goods and services,
production, sales or exports;
but excluding, for the avoidance of doubt,
depreciation, amortization and other non-cash
items, costs met from insurance proceeds not
required to be reflected in the Company's financial
accounts under Generally Accepted Accounting
Principles in the United States, management fees,
reimbursable expenses in excess of the amount
referred to in (a) above and other amounts payable
to Cyprus Magadan or any Affiliate of Cyprus
Magadan under the Management Agreement or otherwise
except to the extent referred to in (a) above,
principal and interest due and payable under this
Agreement or the EBRD Loan Agreement and any
insurance premiums payable to OPIC.
"OPIC Prepayment
Premium" has the meaning set forth in Section 3.07(b).
"OPIC's Proportionate
Share" means, with respect to any amount as of any date of
calculation, a percentage of such amount
(calculated to the nearest 100th of a percent)
calculated as follows:
OPS = A/(A+B)
where
Omolon - 17 - OPIC Finance Agreement
OPS = OPIC's Proportionate Share,
A = the outstanding principal balance of the
Loan, and
B = the outstanding principal balance of the
EBRD Loan.
"Paying Agent" means Chemical Bank, a New York banking
corporation, or any successor or successors
thereto as "Paying Agent" under the Funding
Agreement.
"Permitted Liens" means the Liens set forth in Sections 6.05(1),
6.05(2), 6.05(3) and 6.05(4).
"Person" means any individual, partnership, company,
corporation, joint venture, governmental body,
trust, unincorporated organization, or any other
entity.
"Placement and
Remarketing Agent" has the meaning set forth in the Funding
Documents.
"Potential Event of Default" means any event which, with lapse of time or
notice and lapse of time as specified in Section
7.01, may become an Event of Default.
"Pre-Completion
Spread" means 3.25% per annum.
"Prepayment Premium" means any OPIC Prepayment Prepayment plus any
Make-Whole Premium.
"Process Agent(s)" has the meaning set forth in Section 7.04(b).
"Project" means the commercial development of the Kubaka
Field, containing proven and probable
recoverable reserves of approximately 2,200,000
ounces of gold and 1,700,000 ounces of silver to
be produced during a mine life of approximately
7 years, providing for open pit mining of the
ore and processing, at a rate of 1,750 tons per
day, of the ore into "dore" (an alloy of gold
and silver produced from initial melting) which
will be sold by the Company for further refining
into gold and silver, as further described in
the Development Plan.
"Project Agreements" means the License (including the License
Agreement), the Construction Contract, the
Management Agreement, the
Omolon - 18 - OPIC Finance Agreement
Memorandum of Understanding, the Marketing
Agreements, the Offshore Bank Account Agreement,
the Blocked Account Agreement, the Russian
Blocked Account Agreement, the Reclamation
Agreement, the Foundation Agreement and the
Company's Charter, and, in the singular, means
any one of such agreements.
"Project Completion" has the meaning given to it in Schedule Q to the
EBRD Loan Agreement
"Project Completion Date" means the date on which OPIC and EBRD have
jointly delivered to the Company a written
notice stating that they are satisfied that
Project Completion has occurred.
"Project Costs" means costs incurred by the Company in
connection with the design and construction of
the Project, including interest, commitment
charge and other financing costs payable by the
Company under this Agreement and the EBRD Loan
Agreement during design and construction of the
Project, Operating Costs incurred by the Company
during construction of the Project and insurance
premiums payable to OPIC during construction of
the Project, as such costs are estimated in
Section 2.01(b).
"Project Lenders" means, collectively, OPIC and EBRD.
"Qualified Political Event" has the meaning given to it in the Cyprus
Magadan Guaranty.
"Rate Period" means, with respect to the Tranche I Loan, the
period during which the Treasury Rate and
Tranche I Funding Spread components of the
Tranche I Interest Rate will remain in effect as
set forth in Section 3.04(e)(1).
"Reclamation Agreement" means an agreement between the Company and
Cyprus Amax, Cyprus Magadan and the Russian
Shareholders, substantially in the form of
Schedule R to the EBRD Loan Agreement.
"Repayment Date(s)" means each of the Tranche 1 Repayment Dates and
the Tranche 2 Repayment Date.
"Retrospective Debt
Service Coverage Ratio" means, for any Interest Period, the result
obtained by dividing:
(x) the Gross Revenues for such Interest Period
less the sum of the Operating Costs payable in
currencies other than Roubles during such
Interest Period
Omolon - 19 - OPIC Finance Agreement
by
(y) the sum of all principal and interest due
and payable in respect of the Tranche 1 Loan and
the EBRD Tranche 1 Loan at the end of such
Interest Period.
"Revenue Subaccount" means the subaccount of the Offshore Bank
Account designated as such in accordance with
Section 5.10.
"Roskomdragrnet" means the Committee of the Russian Federation
for Precious Metals and Precious Stones.
"Roskomdragmet
Agreement" means the purchase-sales contract dated 29 May
1995 between the Company and Roskomdragmet.
"Roskomdragmet Sales
Subaccount" means the subaccount of the Offshore Bank
Account designated as such in accordance with
Section 5.10.
"Rosvneshtorgbank" means the Bank for Foreign Trade of Russia, an
authorized Russian bank.
"Rosvneshtorghank
Agreement" means the agency agreement dated 9 June 1995
between the Company and Rosvneshtorgbank.
"Roubles" or "Rb." means the lawful currency of the Russian
Federation.
"Russian Account Pledge" means the instrument pursuant to which the
Company grants to the Project Lenders a security
interest in the Company's right, title and
interest in and to the Russian Bank Accounts,
together with the notices and acknowledgements
and consents in the forms attached thereto,
which instrument shall be substantially in the
form of Schedule S to the EBRD Loan Agreement.
"Russian Bank Accounts" has the meaning given to it in Section 5.14.
"Russian Blocked
Account Agreement" means the Russian blocked account agreement to
he entered into among the Company, Roskomdragmet
and Citibank T/O regarding the Russian Bank
Account into which sales proceeds in Roubles
under the Roskomdragmet Agreement are to be
paid, which agreement shall be as contemplated
by the Roskomdragmet Agreement and in form and
substance satisfactory to OPIC.
Omolon - 20 - OPIC Finance Agreement
"Russian Shareholders" means, collectively, the Association of Native
Peoples, Geometal, Dukat, Magadan Gold, Elektrum
and Rossiisky Kredit Commercial Bank.
"Russian Shareholders
Support Agreement" means the Project support agreement to be entered
into among the Company, the Russian Shareholders
and the Project Lenders, which agreement shall be
substantially in the form of Schedule T to the EBRD
Loan Agreement.
"Security" means the security created in favor of the Project
Lenders by the Company over all of its assets, by
the Shareholders over all of their shares in the
Company and by Cyprus Gold over all of its shares
in Cyprus Magadan to secure all amounts owing by
the Company to the Project Lenders under this
Agreement, the EBRD Loan Agreement and the other
Financing Agreements.
"Security Documents" means the Contract Pledge, the Cyprus Magadan Share
Pledge, the Enterprise Mortgage, the Equipment
Pledge, the Goods Pledge, the Immovables Mortgage,
the Insurance Assignment, the Offshore Account
Pledge, the Omolon Share Pledge and the Russian
Account Pledge, and, in the singular, means any one
of such documents.
"Security Sharing
Agreement" means the security sharing agreement to be entered
into between the Project Lenders providing for,
inter alia, the sharing of the Security between the
Project Lenders, which agreement shall be
substantially in the form of Schedule U to the EBRD
Loan Agreement.
"Self-Monitoring
Questionnaire" means the Annual Self-Monitoring Questionnaire
attached hereto as Exhibit B, as the same may be
revised and supplemented by OPIC from time to time.
"Shareholder Distribution" means any payment or transfer from the Offshore
Bank Account or the Russian Bank Accounts for any
purpose other than (a) a payment to OPIC or EBRD
pursuant to this Agreement, the EBRD Loan Agreement
or any other Financing Agreement, and (b) a payment
of Project Costs or Operating Costs in accordance
with the Development Plan or as otherwise approved
by OPIC.
"Shareholders" means, collectively, the Russian Shareholders and
Cyprus Magadan (and "Shareholder" means any one of
them).
Omolon - 21 - OPIC Finance Agreement
"Short-term Debt" means all Debt (as of the date of calculation)
other than the Long-term Debt.
"Subordinated
Shareholder Loans" means Debt of the Company owing to any
Shareholder and which is subordinated to the
payment of all mounts payable under this
Agreement and the EBRD Loan Agreement pursuant
to the Cyprus Support Agreement or ',he Russian
Shareholders Support Agreement.
"Subsidiary" means, with respect to any entity, any other
entity over 50% of whose capital is owned,
directly or indirectly, by the entity or which
is otherwise effectively controlled by the
entity.
"Taxes" means all taxes, levies, imposts, stamps,
duties, fees, assessments, deductions,
withholdings, and other governmental charges,
and all liabilities with respect thereto.
"Tranche 1 Commitment" has the meaning set forth in Section 3.01(a).
"Tranche 1 Day Count
Fraction" means 365 or 366-day year, as the case may be,
and the actual number of days elapsed.
"Tranche 1 Funding
Spread" means the number of basis points from time to
time in excess of or less than the Treasury
Rate, as established by the Placement and
Remarketing Agent in accordance with the Funding
Documents, that is required to effect the
placement or remarketing of the Certificates of
Participation with respect to the Tranche 1
Loan.
"Tranche 1 Interest Rate" means, with respect to the Tranche 1 Loan, the
Tranche 1 Pre-Completion Interest Rate and the
Tranche 1 Post-Completion Interest Rate.
"Tranche 1 Loan" means the principal amount from time to time
outstanding with respect to the Tranche 1
Commitment.
"Tranche 1 Note" means a promissory note in the form of Exhibit A
to the Funding Agreement, duly executed by two
Authorized Officers of the Company.
"Tranche 1 Post-Completion
Interest Rate" has the meaning set forth in Section 3.04(b).
"Tranche 1 Post-Completion
Omolon - 22 - OPIC Finance Agreement
Spread" means:
(a) with respect to the Guaranteed Portion of
the Tranche 1 Loan, 3.25% per annum; and
(b) with respect to the Unguaranteed Portion
of the Tranche 1 Loan, 4.25%per annum.
"Tranche 1 Pre-Completion
Interest Rate" has the meaning set forth in Section 3.04(b).
"Tranche 1 Principal
Installment(s)" has the meaning set forth in Section 3.05(a).
"Tranche 1 Repayment
Date" has the meaning set forth in Section 3.05(a).
"Tranche 2 Commitment" has the meaning set forth in Section 3.01(b).
"Tranche 2 Day Count
Fraction" 365-day or 366-day years, as the case may be,
based on the actual number of days elapsed.
"Tranche 2 Interest Rate" means, with respect to the Tranche 2 Loan, the
Tranche 2 Pre-Completion Interest Rate and the
Tranche 2 Post-Completion Interest Rate.
"Tranche 2 Loan" means the principal amount from time to time
outstanding with respect to the Tranche 2
Commitment.
"Tranche 2 Note" means a promissory note in the form of Exhibit B
to the Funding Agreement, duly executed by two
Authorized Officers of the Company.
"Tranche 2 Post-Completion
Spread" means 4.25% per annum.
"Tranche 2 Pre-Completion
Interest Rate" has the meaning set forth in Section 3.04(3).
"Tranche 2 Repayment
Date" has the meaning set forth in Section 3.05(b).
Omolon - 23 - OPIC Finance Agreement
"Tranche 2 Supplemental
Spread" means a percent per annum equal to the
difference between:
(x) 14.00%, and
(y) the sum (expressed as a percentage, rounded
to the nearest 100th of a percent) of the Base
Rate plus the Tranche 2 Post-Completion Spread.
"Treasury Cost" means, with respect to any amount, the fixed
borrowing cost that would be charged to OPIC for
such amount by the United States Department of
Treasury (which will approximate the interest
rate on U.S. Treasury notes with a similar
maturity).
"Treasury Rate" means, with respect to any Rate Period, a rate
per annum equal to the sum of the weighted
average per annum discount rate (expressed as a
bond equivalent yield on the basis of a year of
365 or 366 days, as the case may be, and applied
on a daily basis) for direct obligations of the
United States of America with a maturity of
three months ("91-day Treasury Bill") set at the
most recent 91-day Treasury Bill auction, as
published by the Board of Governors of the
Federal Reserve System (in Statistical Release
H. 15 or any successor publication, or in the
absence of such publication, by a press
release). If the results of any auction of 91-
day Treasury Bills are not published as provided
in the preceding sentence, the results of the
most recently reported auction of 91-day
Treasury Bills will continue to apply until such
time, if any, as the results of any subsequent
auction of 9 l-day Treasury B ills shall again
be so published.
"Unguaranteed Portion" means, at any time after the Project Completion
Date:
(a) with respect to the principal amount of the
Tranche 2 Loan and interest accruing thereon
after the Project Completion Date, 100% of such
amount; and
(b) with respect to the Tranche 1 Loan,
principal thereof and interest accruing thereon,
and any other amount payable by the Company
under this Agreement, the portion of such amount
which is not, at such time, guaranteed by Cyprus
Magadan pursuant to the Cyprus Magadan Guaranty.
"Voluntary Prepayment
Amount" has the meaning set forth in Section 3.07(a)(4).
Omolon - 24 - OPIC Finance Agreement
"Washington, D.C." means the District of Columbia, United States of
America.
"Weekly Interest Rate" means, with respect to the Tranche 1 Interest
Period, the Treasury Rate established for each
Rate Period during each Interest Period in
accordance with the Funding Documents.
SECTION 1.02. INTERPRETATION
In this Agreement:
(a) Unless the context otherwise requires, words denoting the
singular include the plural and vice versa;
(b) Words denoting Persons shall include their successors and
permitted assigns.
(c) Unless otherwise expressly stated, references to a specified
Article, Section, Subsection, Exhibit, or Schedule shall be
construed as a reference to that specified Article, Section,
Subsection, Exhibit or Schedule of this Agreement;
(d) The headings and the Table of Contents are inserted for
convenience of reference only and shall not affect the
interpretation of this Agreement.
(e) Reference to and the definition of any document (including this
Agreement) shall be deemed a reference to such document as it
may be amended, extended, restated, or modified from time to
time, unless otherwise expressly stated;
(f) Accounting terms used herein but not defined in Section 1.01
shall have the respective meanings given to them under
Generally Accepted Accounting Principles;
(g) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of
this Agreement;
(h) The use of the word "including" means "including without
limitation," and the use of the word "or" is not exclusive;
(i) Any reference herein to a time of day means New York City-time
unless other wise expressly stated;
(j) Any time an action requires OPIC's consent, agreement, or
waiver, such consent, agreement, or waiver shall be at OPIC's
sole discretion (unless otherwise expressly stated) without any
express or implied agreement or understanding that OPIC will
provide such consent, agreement, or waiver;
Omolon - 25 - OPIC Finance Agreement
(k) In this Agreement, references to statutes, laws, rules,
regulations and decrees of the Russian Federation, or any
political subdivision thereof, including environmental, health
and safety standards and requirements promulgated thereunder,
shall refer only to such statutes, laws, rules, regulations and
decrees which are published or publicly available or of which
the Company otherwise has knowledge or which the Company could
have ascertained upon reasonable investigation; and
(l) The Company shall be deemed to know or be able to know a
Russian statute, law, rule, regulation and decree of the
Russian Federation, or any political subdivision thereof,
including environmental, health and safety standards and
requirements promulgated thereunder, or a fact, event, or other
circumstance whenever such law, rule, regulation and decree,
fact, event, or other circumstance is known by any chief
executive officer, chief financial officer, chief operating
officer, chief accounting officer, or chief legal officer of
the Company (or any Person acting in such capacity on a regular
basis), or any other employee of the Company who in the
ordinary course of his or her duties is responsible for
monitoring the Company's compliance with its material
obligations hereunder or any of the other Financing Agreements
to which the Company is a party or its legal affairs.
(m) References to Schedules to the EBRD Loan Agreement refer to
such Schedules attached to the EBRD Loan Agreement as of the
date hereof, except to the extent OPIC has agreed in writing to
any changes thereto.
(n) To the extent provisions of this Agreement setting forth
details with respect to the operation of the Offshore Bank
Account differ from the operating provisions of the Offshore
Bank Account Agreement, the Offshore Bank Account Agreement
shall control.
SECTION 1.03. FINANCIAL CALCULATIONS.
(a) General. All financial calculations to be made under, or for
the purposes of, this Agreement shall be determined in accordance with Generally
Accepted Accounting Principles in the United States and, except as otherwise
required to conform to the definitions contained in Section 1.01 or any other
provisions of this Agreement, shall be calculated from the then most recently
issued quarterly Financial Statements which the Company is obligated to furnish
to OPIC from time to time, as provided in Section 5.19(a); provided, however,
that:
(1) if the relevant quarterly Financial Statements should be in
respect of the last quarter of a Financial Year then, at OPIC's
option, such calculations may instead be made from the audited
Financial Statements for the relevant Financial Year, and
Omolon - 26 - OPIC Finance Agreement
(2) if there should occur any material adverse change in the financial
condition of the Company after the end of the period covered by the
relevant Financial Statements, then such material adverse change
shall also be taken into account in calculating the relevant
figures.
(b) Banking Case. The Company shall, in consultation with OPIC and
EBRD and using the Financial Model, prepare a banking case once every six months
in accordance with the procedures set forth in Schedule I to the EBRD Loan
Agreement. The first such banking case shall be prepared prior to the first
Tranche 1 Repayment Date or, if earlier, the first Interest Payment Date
following the Project Completion Date. All calculations of Loan Life Debt
Service Coverage Ratios shall be made on the basis of such banking cases.
SECTION 1.04. ENGLISH LANGUAGE.
All documents to be furnished or communications to be given or made under
this Agreement shall be in the English language or, if in another language,
shall be accompanied by a translation into English certified by an Authorized
Officer of the Company (except as otherwise specifically provided or otherwise
requested by OPIC), which translation shall be the governing version between the
Company and OPIC.
SECTION 1.05. GOVERNING LAW.
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, UNITED STATES OF AMERICA, AND FOR ALL PURPOSES SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO ITS
CHOICE OF LAW PRINCIPLES.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.01. PROJECT, PROJECT COSTS AND FINANCING PLAN.
The Company represents and warrants as follows:
(a) The total estimated cost of the Project is approximately
$180,000,000.
(b) Under the Financing Plan, the proposed sources of financing the
approximate Project costs referred to in Section 2.01(a) are as follows:
Source Dollars
Omolon - 27 - OPIC Finance Agreement
Equity
Association of Native Peoples 5,280,000
Geometal 14,345,000
Magadan Gold 5,280,000
Elektrum 7,840,000
Rossiisky Kredit Commercial Bank 4,800,000
Dukat 2,455,000
Cyprus Magadan 40,000,000
Total Equity 80,000,000
Long-term Debt
Tranche 1 Loan 47,500,000
Tranche 2 Loan 5,000,000
EBRD Tranche 1 Loan 42,500,000
EBRD Tranche 2 Loan 5,000,000
Total Long-term Debt 100,000,000
Total Financing 180,000,000
SECTION 2.02. REPRESENTATIONS AS TO THE COMPANY
The Company represents and warrants as follows:
(a) The Company is a closed joint stock company duly organized and
validly existing under the laws of the Russian Federation and registered with
all relevant registration bodies in the Russian Federation and has full power to
own the properties which it owns and proposes to own for the purposes of the
Project and to carry out the business which it carries out and proposes to carry
out for the purposes of the Project. The Company has no Subsidiaries.
(b) The Company has an authorized capital of Rb. 388,480,000,000 (the
equivalent of $80,000,000) consisting of 80,000 shares with a nominal value of
Rb. 4,856,000 each. The following is a list of the shareholders in the Company
as of the date of this Agreement, together with the number of shams and the
percentage of all shares in the Company that will be held by each of such
shareholders upon execution and registration of the fourth amendment agreement
to the foundation agreement on the establishment of the Company and the charter
of the Company:
Omolon - 28 - OPIC Finance Agreement
Shareholder Number of Shares Percentage
Association of Native Peoples 5,280 6.60000
Geometal 14,345 17.93125
Magadan Gold 5,280 6.60000
Elektrum 7,840 9.80000
Rossiisky Kredit Commercial Bank 4,800 6.00000
Dukat 2,455 3.06875
Cyprus Magadan 40,000 50.00000
Total 80,000 100.00000
The only issued shares of the Company are registered shares. There are no
options, warrants or instruments convertible into shares or other agreements
relating to the existing shares of the Company or for the issuance of additional
shares of any class or description of the Company, except for the Foundation
Agreement. No Person has any right (other than as a shareholder, OPIC in respect
of the Tranche 2 Loan, and EBRD in respect of the EBRD Tranche 2 Loan) to share
in the profits of the Company.
(e) [Reserved.]
(d) The balance sheet of the Company as at I January 1995 and the
related statement of profit and loss of the Company for the Financial Year
ending on that date, certified by the Chairman of the Board of Directors of the
Company, fairly and accurately present the financial condition of the Company as
of the date of such balance sheet and were prepared in conformity with generally
accepted accounting principles in Russia. The Company had, as of the date of
such balance sheet, no material contingent obligations, liabilities for taxes or
unusual forward or long term commitments not disclosed by, or reserved against
in, such balance sheet or the notes thereto. Since the date of such balance
sheet, the Company has not suffered any change in its business prospects or
financial condition which has a Material Adverse Effect, incurred any
substantial or unusual loss or liability, or undertaken or agreed to undertake
any substantial or unusual obligation (except under the Financing Agreements and
the Project Agreements), in any such case, of a type which would appear on the
Financial Statements in accordance with Generally Accepted Accounting
Principles.
(e) The Company owns, free of all Liens other than Permitted Liens, all
of its assets (including real property, personal property, intellectual property
and any other assets the ownership of which is reflected on its most recent
balance sheet referred to in Section 2.02(c) or which are referred to in the
Security Documents, but excluding the Kubaka Field and the Evenskoye Field which
the Company has the exclusive right to use pursuant to the License for the
purposes of commercial development of the Kubaka Field and exploration and
subsequent development of the Evenskoye Field) that have a book value in excess
of $10,000 equivalent each. The Company's assets are not subject to any Lien,
and the Company is not subject to any contract, arrangement or statute, whether
conditional or unconditional, pursuant to which any such Lien may be created,
except for Permitted Liens. The Company's assets are insured against such risks
and in such amounts as are customary internationally for businesses of a like
nature.
Omolon - 29 - OPIC Finance Agreement
(f) As of the date hereof, the Company is not a party to, or committed
to enter into, any agreement, other than the Financing Agreements and the
Project that would or might affect the judgment of a prospective lender.
(g) The Company is not in violation of any material statute, law,
regulation, judgment, rule, order or decree presently in effect which is
applicable to the Company or its assets. To the best of the Company's knowledge
after due inquiry, no statute, law, rule, regulation or decree has been proposed
and no judgment or order is expected which may have a Material Adverse Effect.
All tax returns and reports of the Company required by law to be filed have been
duly filed and all tax assessments, fees and other governmental charges upon the
Company, its properties and its income, which are due and payable, have been
paid, other than those currently payable without penalty or interest. The
Company is not in default under any agreement, obligation or duty to which it is
a party or by which it or any of its properties or assets is bound and there
exists no Event of Default and no Potential Event of Default.
(h) To the best of the Company's knowledge after due inquiry, the
Company and its businesses, operations, assets, equipment, property, leaseholds
and other facilities are in compliance with the Environmental Standards. As of
the date of this Agreement, the Company has been issued all permits, licenses,
certificates and approvals then required under applicable law relating to, and,
except as disclosed to OPIC in writing, has received no material complaint,
order, directive, claim, citation or notice from any governmental authority or
any other material public complaint with respect to, (l) air emissions, (2)
discharges to surface water or ground water, (3) noise emissions, (4) solid or
liquid waste disposal, (5) the use, generation, storage, transportation or
disposal of toxic or hazardous substances or wastes, or (6) other environmental,
health or safety matters.
(i) The Company is not engaged in nor, to the best of its knowledge,
threatened by, any litigation, arbitration or administrative proceeding, the
outcome of which may reasonably be expected to have a Material Adverse Effect.
(j) All documents, reports or other written information pertaining to
the Project (including, without limitation, the Application Documents, this
Agreement, and the other Financing Documents) that have been furnished to OPIC
by or on behalf of the Company are true and correct and do not contain any
material misstatement of fact or omit to state a material fact or any fact
necessary to make the statements contained herein or therein not materially
misleading. There is no fact known to the Company, that has not been disclosed
to OPIC in writing, the existence of which could have a Material Adverse Effect.
No condition has arisen since the date of the Application Documents that has or
could have a Material Adverse Effect.
SECTION 2.03. REPRESENTATIONS AS TO THE FINANCING AND PROJECT AGREEMENTS
The Company represents and warrants as follows:
(a) The Company has the corporate power to enter into and perform this
Agreement and the other Financing Agreements and Project Agreements to which it
is a party.
Omolon - 30 - OPIC Finance Agreement
(b) This Agreement has been and the other Financing Agreements and
Project Agreements to which the Company is a party when executed and delivered
will have been duly authorized by the Company. This Agreement has been duly
executed by the Company and this Agreement constitutes, and the other Financing
Agreements and Project Agreements to which the Company is a party when executed
and delivered (in the case of the Notes and the promissory notes issued under
the EBRD Loan Agreement, for value) will constitute, valid and legally binding
obligations of the Company, enforceable in accordance with their respective
terms. The making of this Agreement and the other Financing Agreements and
Project Agreements and the compliance with the terms thereof(l) will not result
in violation of the Company's Charter or any provision contained in any statute,
law, rule, regulation, judgement, decree or order applicable to the Company, (2)
will not conflict with or result in the breach of any provision of, or require
any consent under, or result in the imposition of any Lien under, any agreement
or instrument to which the Company is a party or by which the Company or any of
its assets is bound, and (3) will not constitute a default or an event that,
with the giving of notice or the passing of time or both, would constitute a
default under any such agreement or instrument.
(c) As of the date of this Agreement, no governmental licenses,
approvals, consents, filings or registrations are required for the due
execution, delivery or performance by the Company of this Agreement, any other
Financing Agreement or any Project Agreement, or the validity or enforceability
thereof, except for (1) the authorization of the Central Bank of Russia for the
incurrence and repayment of the Indebtedness incurred under this Agreement and
the EBRD Loan Agreement and the establishment and operation of the Offshore Bank
Account as contemplated herein, (2) registration of the Enterprise Mortgage with
the Local Registration Chamber and the State Registration Chamber attached to
the Ministry of the Economy of the Russian Federation, (3) registration of the
Immovables Mortgage with the local land registry and the municipal department
which registers buildings, (4) those listed in Schedule X to the EBRD Loan
Agreement, (5) the major construction, environmental and operating permits and
approvals listed in Schedule V to the EBRD Loan Agreement, and (6) other
construction, environmental and operating permits and approvals not listed in
Schedule V to the EBRD Loan Agreement which are routinely issued in the course
of designing, constructing and operating the Project and which there is no
reason to believe the Company will not be able to obtain at the time such
permits and approvals are needed for the Project.
(d) This Agreement constitutes a direct, unconditional and secured
general obligation of the Company and ranks in priority of payment at least pari
passu with all other present and future indebtedness of the Company.
(e) Each Security Document (other than the Immovables Mortgage and the
Enterprise Mortgage) will, when executed and delivered and when the documents,
recordings, filings, notifications and registrations listed in Schedule X to the
EBRD Loan Agreement have been executed or made, constitute a valid and completed
security interest in, and a Lien of first priority on, the collateral covered by
such Security Document, securing payment of all principal, interest and other
amounts payable by the Company under this Agreement, the EBRD Loan Agreement and
the other Financing Agreements, which security interest and Lien will rank
senior to all other security interests and Liens on such collateral other than
Permitted Liens. The Company is not a
Omolon - 31 - OPIC Finance Agreement
party to any other security agreement or instrument creating or purporting to
create a security interest in and Lien on such collateral.
(f) Each of the Licence, the Management Agreement, and the Marketing
Agreements is in full force and effect without material modification from the
form referred to in Section 1.01. There has occurred no breach, and no event
which with the giving of notice or the passing of time or both would constitute
a breach, by the Company of any such Project Agreement. The Company has no
knowledge of any breach, or event which with the giving of notice or the passing
of time or both would constitute a breach, by any other party of any such
Project Agreement.
(g) All permits, licenses, trademarks, patents and agreements with
respect to the usage of technology and other intellectual property necessary for
the Project have been obtained and are in full force and effect. All utility
services necessary for the Project, including, to the extent necessary, water
supply, storm and sanitary sewer, gas, electric and telephone services and
facilities, are available or will be made available to the Project and
arrangements in respect thereof have been made on commercially reasonable terms.
SECTION 2.04. ACKNOWLEDGEMENT AND WARRANTY
The Company acknowledges that it has made the representations referred
to in Sections 2.01, 2.02 and 2.03 with the intention of persuading OPIC to
enter into this Agreement and that OPIC has entered into this Agreement on the
basis of, and in full reliance on, each of such representations. The Company has
no knowledge of any additional facts or matters which would or might reasonably
affect the judgment of a prospective lender regarding lending to the Company.
The Company warrants to OPIC that each of such representations is true and
correct in all material respects as of the date of this Agreement and that none
of them omits any matter the omission of which makes any of such representations
misleading.
ARTICLE III
CREDIT FACILITY
SECTION 3.01. COMMITMENT.
Subject to the terms and conditions of this Agreement, OPIC agrees to
lend up to $52,500,000 to the Company from time to time during the Commitment
Period. The Loan shall not be of a revolving nature. Any portion of the Loan
that is repaid (whether prepaid or otherwise) shall not be re-advanced to the
Company. The Loan shall consist of two tranches:
(a) the Tranche 1 Loan in an amount not to exceed $47,500,000 (the
"TRANCHE 1 COMMITMENT"); and
Omolon - 32 - OPIC Finance Agreement
(b) the Tranche 2 Loan in the amount of $5,000,000 (the "TRANCHE 2
COMMITMENT").
SECTION 3.02. DISBURSEMENT LIMITATIONS.
(a) COMMITMENT PERIOD. The Company may only submit Disbursement Requests
(as provided in Section 3.03) during the period beginning as of the date hereof
and ending 30 Business Days before the Commitment Termination Date.
(b) NUMBER AND MINIMUM AMOUNT. The Company may request:
(1) no more than 5 Disbursements with respect to the Tranche 1
Commitment, each in the minimum amount of $5,000,000 and in integral
multiples of $500,000; and
(2) one Disbursement with respect to the Tranche 2 Commitment in the
full amount of $5,000,000.
The Tranche 2 Commitment shall be fully disbursed prior to or concurrently with
any Disbursement with respect to the Tranche 1 Commitment.
(c) DEDUCTIONS. The Company irrevocably authorizes OPIC (in OPIC's sole
discretion) to deduct (or authorize the deduction of) from any Disbursement an
amount equal to any amounts due from the Company to OPIC or to any party to a
Funding Document as of such Disbursement Date.
(d) ACCOUNT. Disbursements shall only be made to the Disbursement
Subaccount, unless otherwise agreed by OPIC.
(e) DATES. The Company shall only request that a Disbursement be made,
and Disbursements shall only be made, on a dam that is both a Business Day and a
British Banking Day.
(f) PARI PASSU WITH EBRD. OPIC shall have no obligation to make a
requested Disbursement in any amount:
(1) if EBRD has suspended or canceled its obligation to make
disbursements under the EBRD Loan Agreement;
(2) if, after any Disbursement of the Tranche 1 Loan, the Tranche 1 Loan
will exceed the EBRD Tranche 1 Loan by more than $5,000,000; or
(3) in the case of a Disbursement with respect to the Tranche 2
Commitment, unless EBRD will simultaneously disburse or previously
disbursed an equal amount of its Tranche 2 Loan pursuant to the EBRD
Loan Agreement.
Omolon - 33 - OPIC Finance Agreement
(g) CONDITIONS PRECEDENT. OPIC shall have determined that each of the
conditions precedent set forth in Article 4 have been satisfied.
SECTION 3.03. DISBURSEMENT PROCEDURE.
(a) DOCUMENTS. The Company shall deliver each of the following in
connection with each proposed Disbursement, each in form and substance
satisfactory to OPIC, at least 30 Business Days prior to the proposed date of
Disbursement:
(1) DISBURSEMENT REQUEST. A Disbursement Request dated at least 30 days
prior to the requested Disbursement Date, executed by an Authorized
Officer of the Company;
(2) EBRD LOAN DISBURSEMENT APPLICATION. A copy of any concurrent
disbursement application submitted to EBRD in accordance with the
EBRD Loan Agreement; and
(3) NOTE. A duly executed but undated Tranche 1 Note or Tranche 2 Note
(or both) (as appropriate).
(b) EFFECT. A Disbursement Request shall be effective upon receipt by
OPIC and irrevocable by the Company as of the date OPIC sends Issuing
Instructions (by facsimile) with respect to the requested Disbursement to the
Paying Agent.
(c) SPECIAL AUTHORIZATION. Upon the making of the relevant Disbursement,
the Company irrevocably authorizes OPIC to date the applicable Note (or Notes)
the date of the applicable Disbursement Date and, with respect to the Tranche 2
Note, insert the Base Rate.
SECTION 3.04. INTEREST.
(a) TRANCHE 1 INTEREST RATE UNTIL PROJECT COMPLETION DATE. On each
Interest Payment Date occuring on or before the Project Completion Date, the
Company shall pay interest in arrears to the order of OPIC on the daily
outstanding principal balance of the Tranche 1 Loan at an adjustable rate per
annum equal to sum of the following (the "TRANCHE 1 PRE-COMPLETION INTEREST
RATE"):
(1) the Weekly Interest Rate, plus
(2) the Tranche 1 Funding Spread, plus
(3) the Pre-Completion Spread.
Omolon - 34 - OPIC Finance Agreement
(b) TRANCHE 1 LOAN INTEREST RATE AFTER PROJECT COMPLETION DATE. On each
Interest Payment Date occuring after the Project Completion Date, the Company
shall pay interest in arrears to the order of OPIC on the daily outstanding
principal balance of the Tranche 1 Loan at an adjustable rate per annum equal to
sum of the following (the "TRANCHE 1 POST-COMPLETION INTEREST RATE"):
(1) the Weekly Interest Rate, plus
(2) the Tranche 1 Funding Spread, plus
(3) the Tranche 1 Post-Completion Spread.
(c) TRANCHE 2 LOAN INTEREST RATE BEFORE PROJECT COMPLETION DATE. On each
Interest Payment Date occuring before the Project Completion Date, the Company
shall pay interest in arrears to the order of OPIC on the daily outstanding
principal balance of the Loan at an adjustable rate per annum equal to sum of
the following (the "TRANCHE 2 PRE-COMPLETION INTEREST RATE"):
(1) Base Rate, plus
(2) the Pre-Completion Spread.
(d) TRANCHE 2 LOAN INTEREST RATE AFTER PROJECT COMPLETION DATE. On each
Interest Payment Date occuring after the Project Completion Date, the Company
shall pay interest in arrears to the order of OPIC on the daily outstanding
principal balance of the Tranche 2 Loan at an adjustable rate per annum equal to
sum of the following (the "TRANCHE 2 POST-COMPLETION INTEREST RATE"):
(1) the Base Rate, plus
(2) the Tranche 2 Post-Completion Spread, plus
(3) the Tranche 2 Supplemental Spread,
provided that, if, as of four Banking Days preceding any Interest Payment Date
occurring after the Project Completion Date, the Company is not permitted,
pursuant to Section 6.08(c)(3) or 6.08(c)(4), to make payments of management
fees to Cyprus Magadan under the Management Agreement, the Tranche 2
Supplemental Spread shall accrue and be due and payable by the Company only in
respect of such period and at such time as the Company is no longer prohibited,
pursuant to Section 6.08(c)(3) or 6.08(c)(4), from making such payments of
management fees.
(E) DETERMINATION, ACCRUAL, AND CALCULATION.
(1) TRANCHE 1 LOAN.
Omolon - 35 - OPIC Finance Agreement
(A) WEEKLY INTEREST RATE. The Weekly Interest Rate component
of the Tranche 1 Interest Rate shall be reset weekly.
The initial Weekly Interest Rate shall be determined on
or before the date of the first Disbursement of the
Tranche 1 Loan and shall remain in effect through the
next succeeding Tuesday. Thereafter, the Weekly Interest
Rate shall be redetermined as of each succeeding
Wednesday and such rate shall remain in effect during
the period commencing on such Wednesday and ending on
the next succeeding Tuesday.
(B) TRANCHE 1 FUNDING SPREAD. The Tranche 1 Funding Spread
component of the Tranche 1 Interest Rate shall be reset
as of each Interest Payment Date. The initial Weekly
Interest Rate shall be determined on or before the date
of the first Disbursement of the Tranche 1 Loan.
(C) DETERMINATION. The Weekly Interest Rate and the Tranche
1 Funding Spread shall be determined by the Placement
and Remarketing Agent as provided in the Funding
Documents for so long as the Funding Documents are in
effect. The initial determination and each
redetermination of the Weekly Interest Rate and Tranche
1 Funding Spread by the Placement and Remarketing Agent
shall be conclusive and binding upon OPIC and the
Company. The Tranche 1 Interest Rate shall accrue from
day to day, begin to accrue with respect to each
Disbursement from and including the Disbursement Date,
and be pro-rated on the basis of the Tranche 1 Day Count
Fraction for each Interest Period.
(2) TRANCHE 2 LOAN. The Base Rate component of the Tranche 2
Interest Rate shall be established on or before the Disbursement
of the Tranche 2 Loan. The Base Rate shall thereafter remain
fixed. The Tranche 2 Interest Rate shall accrue from day to day,
begin to accrue with respect from and including the Tranche 2
Disbursement Date. The Base Rate shall be pro-rated on the basis
of the Tranche 2 Day Count Fraction for each Interest Period,
and the Tranche 2 Post Completion Spread and the Tranche 2
Supplemental Spread shall be pro-rated on the basis of the
Tranche 1 Day Count Fraction for each Interest Period. The
Tranche 2 Supplemental Spread shall be determined by the Company
as of the fourth Banking Day preceding each Interest Payment
Date occuring after the Project Completion Date, subject to
confirmation by OPIC thereafter. The Company shall promptly send
notice to OPIC of its calculation of the Tranche 2 Supplemental
Spread.
SECTION 3.05. PRINCIPAL REPAYMENT
(a) TRANCHE 1 LOAN. The Tranche 1 Loan shall be repaid in eight equal
(or as nearly equal as possible) semi-annual installments (each such payment
being a "TRANCHE 1 PRINCIPAL INSTALLMENT") on the following dates:
Omolon - 36 - OPIC Finance Agreement
TRANCHE 1
PRINCIPAL
INSTALLMENT # DATE
1 15 December 1997
2 15 June 1998
3 15 December 1998
4 15 June 1999
5 l5 December 1999
6 15 June 2000
7 15 December 2000
8 15 June 2001
provided that if any such 15 June or 15 December falls on a day which is not a
Business Day, such payment date shall be changed to the next succeeding Business
Day (each such date a "TRANCHE 1 REPAYMENT DATE").
(b) TRANCHE 2 LOAN. The Tranche 2 Loan shall be repaid in full in a
single installment in the amount of $5,000,000 on 15 December 2001, provided
that if 15 December 2001 is day that is not a Business Day, such payment date
shall be changed to the next succeeding Business Day (the "TRANCHE 2 REPAYMENT
DATE").
SECTION 3.06. MANDATORY PREPAYMENT.
(a) PREPAYMENT OF TRANCHE 1 LOAN WITH EXCESS CASH FLOW.
(1) GENERAL. On each Tranche 1 Repayment Date, the Company shall prepay
the Tranche 1 Loan in an aggregate principal amount equal to OPIC's
Proportionate Share of:
(A) 50% of the Company's Excess Cash Flow for the Interest Period
preceding the Interest Period then ending, if, on the date 60
days prior to such Repayment Date, the Loan Life Debt Service
Coverage Ratio is less than 2.0; or
(B) 30% of the Company's Excess Cash Flow for the Interest Period
preceding the Interest Period then ending, otherwise;
(2) LIMITATION. The Company shall concurrently prepay the EBRD Tranche 1
Loan in accordance with the EBRD Loan Agreement in an amount equal
to EBRD's Proportionate Share, provided that the Company shall not
be required to prepay the Tranche 1 Loan ((pursuant to this
Subsection 3.06(a)) and the EBRD Tranche 1 Loan ((pursuant to
Section 3.07C0) of the EBRD Loan Agreement)) in an aggregate amount
exceeding $9,000,000 during any 12-month period.
Omolon - 37 - OPIC Finance Agreement
(3) APPLICATION. Mandatory prepayments of the Tranche 1 Loan pursuant to
this Subsection 3.06(a) shall be applied to each Tranche 1 Principal
Installment in the inverse order of maturity.
(4) RELATED NOTICES. Not less than 60 days prior to each Tranche 1
Repayment Date, the Company shall furnish to OPIC and EBRD a
certificate setting forth the amount of the mandatory prepayment of
the Tranche 1 Loan required to be made by the Company pursuant to
this Subsection 3.06(a). The Company shall also provide OPIC and
EBRD with sufficient detail and information as may be required by
OPIC or EBRD as to the Company's calculation of Excess Cash Flow for
the Interest Period preceding the Interest Period ending on such
Tranche 1 Repayment Date. Such certificates shall be accompanied by
such other supporting documentation as OPIC or EBRD may request.
(b) PREPAYMENT OF ENTIRE LOAN UPON A TOTAL LOSS. In the event that the
assets comprising the Project become an actual, constructive, compromised or
arranged total loss, at the request of OPIC, the Company shall, on any date as
OPIC may select, prepay the Loan in full, together with all accrued interest
thereon to such date and all other amounts payable hereunder and the other
Financing Agreements. The Company shall concurrently prepay the EBRD Loan in
full in accordance with the EBRD Loan Agreement.
(c) PREPAYMENT OF LOAN WITH UNUTILIZED LOSS PROCEEDS. In the event that
all or any portion of the tangible assets comprising the Project shall have been
lost, damaged, or destroyed and, in accordance with the provisions of the
Insurance Assignment, if the Project Lenders shall have retained the proceeds of
troy related claim under any insurance policy as additional security for amounts
payable to the Project Lenders under the Financing Agreements, the Company
shall, at the request of OPIC, forthwith prepay on any date as OPIC may select,
the Loan (together with all accrued interest thereon to such date and all other
amounts payable hereunder as of such date) in an aggregate principal amount
equal to OPIC's Proportionate Share of the amount of such proceeds, together
with all accrued interest on the principal amount of the Loan. Such proceeds
shall first be applied to each Tranche 1 Principal Installment in the inverse
order of maturity, and only after the Tranche 1 Loan has been repaid in full
shall such proceeds be applied to the Tranche 2 Loan. The Company shall
concurrently prepay the EBRD Loan in an amount equal to EBRD's Proportionate
Share.
(d) EBRD LOAN PREPAYMENTS. The Company shall prepay:
(1) the Tranche 1 Loan in a pro rata amount (based on the outstanding
principal balance of the Tranche 1 Loan and the EBRD Tranche 1 Loan)
of any voluntary prepayment of the EBRD Tranche 1 Loan made
pursuant to Section 3.11 (c) of the EBRD Loan Agreement (together
with all accrued interest thereon to such date) (to be applied to
each Tranche 1 Installment in the inverse order of maturity); and
Omolon - 38 - OPIC Finance Agreement
(2) the Tranche 2 Loan in an amount equal to 100% of any voluntary
prepayment of the EBRD Tranche 2 Loan made pursuant to Section
3.11(c) of the EBRD Loan Agreement (together with all accrued
interest thereon to such date).
(e) PREPAYMENT PREMIUM.
(l) TRANCHE 1 LOAN. No Prepayment Premium shall be payable in respect of
any mandatory prepayment of the Tranche 1 Loan pursuant to this
Section 3.06.
(2) TRANCHE 2 LOAN. In the case of any mandatory prepayment of the
Tranche 2 Loan pursuant to Subsection 3.06(b), (c), or (d), the
Company shall concurrently pay OPIC any Make-Whole Premium payable
at such time. In the case of acceleration of the Loan upon the
occurrence of an Event of Default, the Company shall concurrently
pay OPIC any Make-Whole Premium due at such time.
(f) ADVANCE DEPOSIT. The Company shall deposit the amount of each
mandatory prepayment required by this Section 3.06 with the Paying Agent by the
dates set forth in and in accordance with Section 3.13, and shall concurrently
send (by facsimile with a hard copy to follow) confirmation of such deposit. The
prepayment shall be irrevocable upon receipt thereof by the Paying Agent in
accordance with the Funding Agreement and Section 3.13.
SECTION 3.07. VOLUNTARY PREPAYMENT
(a) GENERAL. The Company may at its option prepay the Tranche 1 Loan in
part or in full, and all, but not part only, of the Tranche 2 Loan, on any
Tranche 1 Repayment Date, subject to all of the following:
(1) in the case of any prepayment of the Tranche 2 Loan, the Tranche 1
Loan shall either concurrently be prepaid or shall have been
previously been prepaid in full;
(2) each partial prepayment with respect to the Tranche 1 Loan shall be
in an amount of not less than $1,000,000 and integral multiples of
$1,000,000 in excess thereof;
(3) the Company shall provide OPIC, EBRD, and the Paying Agent not less
than 45 days' prior irrevocable written notice thereof;
(4) the Company shall concurrently pay all accrued interest on the
principal amount be prepaid to the prepayment date, any Prepayment
Premium with respect to the Tranche 2 Loan to be prepaid, and all
other amounts then due and owing from the Company to OPIC under any
of the Financing Agreements (together with the principal amount
being prepaid, the "VOLUNTARY PREPAYMENT AMOUNT");
Omolon - 39 - OPIC Finance Agreement
(5) the Company shall deposit the Voluntary Prepayment Amount with the
Paying Agent at least fifteen Business Days prior to such prepayment
date (in accordance with Section 3.13 and the Funding Agreement);
(6) partial prepayments of the Tranche 1 Loan shall be applied against
the Tranche 1 Principal Installments in the inverse order of
maturity; and
(7) in the case of a voluntary prepayment of the Tranche 1 Loan, the
Company shall simultaneously prepay a pro rata amount of the EBRD
Tranche 1 Loan; and
(8) in the case of a voluntary prepayment of the Tranche 2 Loan, the
Company shall simultaneously prepay the EBRD Tranche 2 Loan in an
equal amount.
(b) OPIC PREPAYMENT PREMIUM AND MAKE-WHOLE PREMIUM. In the case of
prepayment of the Tranche 2 Loan (whether under Section 3.06 or 3.07), the
Company shall pay OPIC, on the date of prepayment, a prepayment premium equal to
the Make-Whole Premium plus the following percentage of the principal amount of
the Tranche 2 Loan ( the following being the "OPIC Prepayment Premium"):
DATE OF PREPAYMENT PERCENTAGE
If on or before:
15 December 1997 44
15 June 1998 40
15 December 1998 35
15 June 1999 30
15 December 1999 25
15 June 2000 20
15 December 2000 13
15 June 2001 7
thereafter 0
SECTION 3.08. DEFAULT
(a) PRINCIPAL AND INTEREST. If the Company fails to pay in full any
amount of principal or interest when due (whether at the stated due date or by
acceleration after the occurrence of an Event of Default), the Company shall on
demand pay OPIC default interest on such unpaid amount (in lieu of the
applicable Interest Rate) from its due date until paid at either of the
following rates per annum (as determined by OPIC in its sole discretion):
(1) in the case of the Tranche 1 Loan,
Omolon - 40 - OPIC Finance Agreement
(A) at a rate per annum equal to the sum of (i) the Treasury Cost,
(ii) the Tranche 1 Funding Spread, and (iii) 2.0% from the date
of such payment default until the date on which such defaulted
amount is paid in full; or
(B) at a rate per annum equal to 2% per annum in excess of the
applicable Interest Rate; and
(2) in the case of the Tranche 2 Loan,
(A) at a rate per annum equal to the sum of (i) the Treasury Cost,
(ii) the amount (as of the Disbursement Date with respect
thereto) by which the Base Rate exceeded the interest rate of
Treasury notes of similar maturity (based on the notice of such
amount requited to be provided by the Company and OPIC by the
Placement and Remarketing Agent in accordance with the Funding
Documents), and (iii) 2.0% from the date of such payment default
until the date on which such defaulted amount is paid in full;
or
(B) at a rate per annum equal to 2% per annum in excess of the
applicable Tranche 2 Interest Rate;
in either event to the extent permitted by applicable law.
(b) OTHER AMOUNTS. If the Company fails to make full payment when due of
any form or type of payment to OPIC required by this Agreement (whether at the
stated due date or by acceleration after the occurrence of an Event of Default)
other than principal or interest, the Company shall pay default interest to OPIC
on such payment default on demand from its due date until paid at a rate equal
to 2%per annum in excess of the Tranche 1 Interest Rate (to the extent permitted
by applicable law). If any such payment is due at a time when no portion of the
Loan is outstanding, then such default interest rate shall be calculated as if a
Disbursement had been made on the day when such payment became due and payable.
Omolon - 41 - OPIC Finance Agreement
SECTION 3.09. TAXES
(a) GENERAL. The Company shall pay directly to all appropriate taxing
authorities any and all present and future Taxes, and all liabilities with
respect thereto imposed by law or by any taxing authority on or with regard to
any aspect of the transactions contemplated by this Agreement, the execution,
delivery, registration, or notarization of this Agreement, any other Financing
Agreement, any Project Agreement, and any other documents related to this
Agreement. The Company hereby indemnifies OPIC and holds OPIC harmless from and
against any and all liabilities, fees or additional expense with respect to or
resulting from any delay in paying, or omission to pay, such Taxes. Within 30
days after the payment by the Company of any such Taxes, the Company shall
furnish OPIC with the original or a certified copy of the receipt evidencing
payment thereof, together with any other information OPIC may reasonably require
to establish to its satisfaction that full and timely payment of such Taxes has
been made.
(b) REIMBURSEMENT. OPIC shall notify the Company of any payment of
such Taxes required or requested of OPIC and shall give due consideration to any
advice or recommendation given in response thereto by the Company, and upon
notice from OPIC that such Taxes or any liability relating thereto (including
penalties and interest) have been paid by or on behalf of OPIC, the Company
shall pay or reimburse OPIC therefor within 30 days of such notice.
(c) SURVIVAL. Without prejudice to the survival of any other agreement
of the Company hereunder, the agreements and obligations of the Company
contained in this Section 3.09 shall survive the payment in full of principal
and interest hereunder and under the Notes.
SECTION 3.10. CANCELLATION OF COMMITMENT BY COMPANY.
(a) GENERAL. The Company may at its option cancel all or part of the
Commitment provided that:
(1) NOTICE. The Company shall give not less than 30 days' prior
irrevocable written notice to OPIC of such cancellation;
(2) TRANCHE 2 COMMITMENT. The Tranche 2 Commitment may only be cancelled
in whole (and the Company shall concurrently cancel EBRD's
obligation to make a disbursement of the EBRD Tranche 2 Loan in full
and provide OPIC with a copy of the notice of cancellation the
Company has provided EBRD in connection therewith);
(3) PRO RATA WITH EBRD. In the case of a cancellation of the Tranche 1
Commitment, the Company shall simultaneously cancel its right to
further disbursements of a pro rata amount (based on the available
Tranche 1 Commitment hereunder and the unutilized right to request
disbursements from EBRD of the EBRD Tranche 1 Loan) of EBRD's
obligation to make disbursements of the EBRD Tranche 1 Loan pursuant
to the EBRD Loan
Omolon - 42 - OPIC Finance Agreement
Agreement and provided OPIC with a copy of the notice of
cancellation the Company has delivered to EBRD in connection
therewith;
(4) TRANCHE 1 COMMITMENT. A notice from the Company of cancellation of
the Tranche 2 Commitment shall be deemed also to constitute notice
of cancellation in full of the Tranche 1 Commitment;
(5) AMOUNT. In the case of partial cancellation of the Tranche 1
Commitment, such cancellation shall be in an amount of not less than
$1,000,000 and in integral multiples thereof;
(6) FEES. The Company shall pay, on or before the effective date of the
proposed cancellation:
(A) the Cancellation Fee as set forth in Section 3.11(b);
(B) the accrued and unpaid Commitment Fee with respect to the
cancelled portion of the Commitment to the date on which such
cancellation becomes effective; and
(C) any fees owed to EBRD pursuant to the EBRD Loan Agreement in
connection the Company's simultaneous cancellation of the fight
of the Company with respect to further disbursements of the EBRD
Loan.
(b) UNUTILIZED COMMITMENT. Any part of the Commitment not disbursed at
the end of the Commitment Period shall be deemed cancelled and the Company shall
pay the Cancellation Fee and Commitment Fee in respect of such unutilized and
deemed cancelled Commitment.
(e) NO REINSTATEMENT. Any amount of the Commitment that is cancelled
shall not be reinstated.
SECTION 3.11. FEES
(a) COMMITMENT FEE. Beginning as of the Commitment Date, and continuing
to the Commitment Termination Date, the Company shall pay a commitment fee to
OPIC of(the "Commitment Fee") equal to 0.50% per annum of the aggregate amount
of the unutilized portion of the Commitment. The Commitment Fee shall accrue on
a daily basis (including the Commitment Date, but excluding the Commitment
Termination Date), shall be calculated for each day during such period, and
shall be computed on the basis of the Tranche 1 Day Count Fraction. The Company
shall pay accrued Commitment Fees in accordance with the Commitment Letter to
the date hereof on or before the date this Agreement is executed and delivered
by the Company. Thereafter the Company shall pay the Commitment Fee in arrears
to
Omolon - 43 - OPIC Finance Agreement
OPIC on each Interest Payment Date (whether or not interest is payable) and the
Commitment Termination Date.
(b) CANCELLATION FEE. If the Company elects to cancel all or a portion
of the 1 Commitment in accordance with Section 3.10, the Company shall pay OPIC
a cancellation fee equal to 0.125% of any amount of the Commitment that is
cancelled. ,any part of the Commitment that is not disbursed (or been previously
cancelled) as of the Commitment Termination Date shall be deemed to have been
cancelled and the Company shall pay the applicable Cancellation Fee in respect
thereof.
(c) FACILITY FEE. The Company shall pay to OPIC a non-refundable
facility fee in the amount of 1.00% of the Commitment (the "Facility Fee"), of
which OPIC hereby acknowledges receipt of $300,000. The remaining balance shall
be paid to OPIC within five Business Days after the Company executes this
Agreement.
SECTION 3.12. COSTS AND EXPENSES
(a) GENERAL. The Company shall, whether or not any Disbursement is made,
pay to OPIC, or as OPIC may direct, within 30 days of OPIC furnishing to the
Company the invoice therefor, and shall indemnify and hold OPIC harmless from
each and all of the following:
(1) all documented outside mining, engineering, environmental and other
consulting fees and expenses incurred by OPIC in connection with
this Agreement and the other Financing Agreements, including without
limitation the fees and expenses of the Independent Engineer and
OPIC's insurance and environmental consultants;
(2) the documented fees and expenses of outside legal counsel to OPIC
and all other documented out-of-pocket costs and expenses incurred
by OPIC in connection with:
(A) the assessment and arrangement of the Loan by OPIC;
(B) the preparation, review, negotiation, execution and, where
appropriate, registration and notarization of this Agreement,
the other Financing Agreements, the Project Agreements and any
other documents related to this Agreement;
(C) the obtaining of any legal opinions required by OPIC hereunder;
and
(D) the implementation and administration of this Agreement and the
other Financing Agreements;
(3) any insurance premiums paid by OPIC on behalf of the Company in
connection with insurance that is not obtained by the Company as
required hereunder;
Omolon - 44 - OPIC Finance Agreement
(4) all documented costs of preparing, in a manner satisfactory to OPIC,
Russian translations of any Financing Agreements as requested by
OPIC from time to time;
(5) all documented costs incurred in connection with the discharge and
satisfaction of any Liens or other claims existing in violation of
any of the Financing Agreements;
(6) all documented costs incurred by OPIC in connection with creating,
perfecting, maintaining and enforcing the Security;
(7) all fees, costs, expenses, liabilities, and other charges pursuant
to any of the: Funding Documents;
(8) the documented costs of providing OPIC with four bound copies and
one unbound copy of all Financing Agreements, all Project Agreements
and all other documents delivered by the Company or any other party
hereunder; and
(9) all other documented costs and expenses incurred by OPIC in
connection with this Agreement, any other Financing Agreement and
any Project Agreement or any action contemplated thereby.
(b) ATTORNEYS' FEES AND OTHER COSTS AND EXPENSES. The Company shall pay
to OPIC, or as OPIC may direct, on demand all lawyers' and other fees, costs and
expenses incurred by OPIC:
(1) in the determination of whether there has occurred an Event of
Default or Potential Event of Default;
(2) in respect of the preservation or enforcement of any of its rights
under this Agreement or any other Financing Agreement and the
collection of any amount owing to OPIC, including in any action or
proceeding to protect OPIC's rights in any proceeding relating to
any bankruptcy or insolvency proceeding involving the Company; and
(3) the assessment, preparation, review, execution and, when:
appropriate, registration of any amendment of or waiver to this
Agreement, any other Financing Agreement, any Project Agreement or
any other document related to this Agreement.
SECTION 3.13. PAYMENTS.
(a) PAYING AGENT. To assure prompt payment of all amounts due
hereunder, the Company shall make all payments required by this Agreement to be
made to the Paying Agent on behalf of OPIC (to be held by the Paying Agent in
trust as provided in the Funding Agreement) at the times specified in and in
accordance with the Funding Agreement, unless, until, and to the
Omolon - 45 - OPIC Finance Agreement
extent OPIC gives the Company written notice otherwise. Interest on amounts
delivered to the Paying Agent shall accrue interest as provided in the Funding
Agreement.
(b) OPIC. If OPiC shall from time to time direct that any payments due
under this Agreement be made directly to OPIC, such payments shall be made when
due in accordance with the following wire instructions (via a United States
domestic bank):
U.S. Treasury Department
ABA No. 0210-3000-4 TREASNYC/CTR/BNF=AC71000001
OBI=OPIC Loan No. 118-94-130-IG
(c) DOLLARS. The Company shall make each payment due under this
Agreement in Dollars in immediately available funds on the date when due. This
is an international loan transaction in which the specification of Dollars is of
the essence, and such currency shall be the currency of payment in all events.
The payment obligations of the Company hereunder shall not be novated,
discharged, or satisfied by an amount paid in another currency, whether pursuant
to a judgment or otherwise, to the extent that the amount so paid on prompt
conversion to Dollars or transfer to the Paying Agent (at its Corporate Trust
Office, as defined in the Funding Agreement) or OPIC ((as provided in Subsection
3.13(b)) under normal banking procedures does not yield the amount of Dollars
then due. If any payment by the Company, whether pursuant to a judgment or
otherwise, upon conversion and transfer, does not result in the payment of such
amount of Dollars at the place such amount is due, OPIC shall be entitled to
demand immediate payment of, and shall have a separate cause of action against
the Company for, the additional amount necessary to yield the amount then due.
If OPIC, upon the conversion of such judgment into Dollars, receives (as a
result of currency exchange rate fluctuations) an amount greater than that to
which it was entitled, OPIC shall reasonably promptly reimburse any excess
amount.
(d) WITHOUT DEDUCTION OR WITHHOLDING. The Company shall make each
payment of principal, interest, and every other amount due pursuant to this
Agreement:
(1) without any offset, defense, or counterclaim for any reason
whatsoever; and
(2) free of any withholding or other deduction for Covered Taxes.
(e) GROSS-UP FOR COVERED TAXES. If the Company is prevented by law or
otherwise from making any payment due hereunder free of any Covered Taxes, then
the Company shall pay such additional principal, interest, or other amount (as
the case may be) as may be necessary so that the actual amount received after
such deduction or withholding of Covered Taxes (and after deduction of an amount
equal to any additional taxes or other charges payable as a consequence of the
payment of such additional amounts) shall equal the amount that would have been
received if such deduction or withholding of Covered Taxes were not required.
SECTION 3.14. INSUFFICIENT PAYMENTS.
Omolon - 46 - OPIC Finance Agreement
If OPIC shall at any time receive less than the full amount then due and
payable to it under this Agreement, 0PIC shall have the right to allocate and
apply such payment in any way or manner and for such purpose or purposes under
this Agreement as OPIC in its sole discretion shall determine, notwithstanding
(a) any instruction that the Company or any other Person may give to the
contrary, or (b) any allocation of payments set forth in the Funding Agreement.
SECTION 3.15. OPIC's BOOKS AND RECORDS.
The books and records of OPIC showing:
(1) Disbursements, prepayments, and repayments;
(2) the computation and payment of interest, Default Interest,
Commitment Fees, Cancellation Fees, Facility Fees; and
(3) any other amounts due from the Company hereunder or the receipt
thereof
shall be conclusive and binding on the Company, absent manifest error.
ARTICLE IV
CONDITIONS OF DISBURSEMENT
SECTION 4.01. CONDITIONS OF FIRST DISBURSEMENT
Unless OPIC otherwise agrees in writing, the obligation of OPIC to
deliver Issuing Instructions to the Paying Agent and to authorize the making of
the first Disbursement of the Loan shall be subject to the performance by the
Company of all its obligations theretofore to be performed under this Agreement
and to the fulfillment, in form and substance satisfactory to OPIC in its sole
discretion, prior to or concurrently with the making of such first Disbursement,
of the following conditions and their continued fulfillment on the date of the
first Disbursement:
(a) Financing Agreements. The following agreements, each in form and
substance satisfactory to OPIC, shall have been duly executed by the respective
parties thereto (if they have not already been entered into) and shall have
become (or, as the case may be, shall remain) unconditional and fully effective
as to every party thereto in accordance with their respective terms without
default (except for this Agreement having become unconditional and fully
effective, if that is a condition of any of such agreements):
(1) the EBRD Loan Agreement;
(2) the Funding Documents;
Omolon - 47 - OPIC Finance Agreement
(3) the Cyprus Magada Guaranty;
(4) the Cyprus Amax Guaranty;
(5) the Security Sharing Agreement;
(6) the Cyprus Support Agreement; and
(7) the Russian Shareholders Support Agreement;
and OPIC shall have received a duly executed original (or, in the case of the
EBRD Loan Agreement, a certified copy) of each such agreement.
(b) PROJECT AGREEMENTS. The following agreements, each in form and
substance satisfactory to OPIC, shall have been duly executed by the respective
panics thereto (if they have not already been entered into) and shall have
become (or, as the case m ay be, shall remain) unconditional and fully effective
as to each party thereto in accordance with their respective terms (except for
this Agreement having become unconditional and fully effective, if that is a
condition of any of such agreements):
(1) the License (including the License Agreement);
(2) the Construction Contract;
(3) the Management Agreement;
(4) the Roskomdragmet Agreement;
(5) the Rosvneshtorgbank Agreement;
(6) the Offshore Bank Account Agreement;
(7) the Blocked Account Agreement;
(8) the Russian Blocked Account Agreement;
(9) the Reclamation Agreement;
(10) the Foundation Agreement; and
(11) the Memorandum of Understanding.
and OPIC shall have received a certified copy of each such agreement.
Omolon - 48 - OPIC Finance Agreement
(c) SECURITY. The Security shall have been validly created and perfected
in a manner satisfactory to OPIC pursuant to the following Security Documents:
(1) the Contract Pledge;
(2) the Cyprus Magadan Share Pledge;
(3) the Enterprise Mortgage;
(4) the Equipment Pledge;
(5) the Goods Pledge;
(6) the Immovables Mortgage;
(7) the Insurance Assignment;
(8) the Offshore Account Pledge;
(9) the Omolon Share Pledge; and
(10) the Russian Account Pledge;
and OPIC shall have received a duly executed original of each such Security
Document, together with any other documents, recordings, filings, notifications
and registrations which are required for the creation, validity, perfection or
priority of the Security and the Liens of the Project Lenders in or under the
Security Documents as listed in Schedule X to the EBRD Loan Agreement.
(d) CHARTERS. The Charter of the Company shall be in form and substance
satisfactory to OPIC, and OPIC shall have received certified copies of (1) the
Charter of the Company, (2) the certificates of registration of the Company with
the Russian Agency for International Cooperation and Development and the
Administration of the Magadan Region, and (3) the Charters (and, if relevant,
the certificates of registration and certificates of good standing) of Cyprus
Amax, Cyprus Gold, the Shareholders, the Contractor and, at the request of OPIC,
any other parties to the Financing Agreements and Project Agreements, each as
amended to date.
(e) APPROVALS. There shall have been obtained or made all governmental,
corporate, creditors', shareholders' and other necessary licenses, approvals,
consents, filings and registrations for:
(1) the financing and funding by OPIC under this Agreement and the
Funding Documents,and by EBRD under the EBRD Loan Agreement, and by
any Shareholder under any Subordinated Loans;
(2) the carrying on of the business of the Company as it is presently
carried on and is contemplated to be carried on in accordance with
the Development Plan;
Omolon - 49 - OPIC Finance Agreement
(3) the construction and operation of the Project and the carrying out
of the Financing Plan;
(4) the due execution and delivery of, and performance under, this
Agreement, the Financing Agreements, the Project Agreements and the
Security, and any other documents in implementation thereof, by the
Company, the Shareholders, the Contractor and the other parties
thereto, and the validity and enforceability thereof;
(5) the establishment and maintenance of the Offshore Bank Account, the
Disbursement Subaccount, the Roskomdragmet Sales Subaccount, the
Export Sales Subaccount, the Revenue Subaccount and the Cash
Collateral Subaccount;
(6) the sale and export of dore and gold as contemplated by the
Development Plan and the Marketing Agreements; and
(7) the remittance to OPIC or its assigns as provided for in this
Agreement of all monies payable in respect of this Agreement and the
Security;
including, without limitation, (A) the authorizations of the Persons signing the
Financing Agreements and Project Agreements on behalf of the Company, Cyprus
Amax, Cyprus Gold, the Shareholders, the Contractor and the other parties
thereto to sign such documents and to bind the respective parties thereby, (B)
the authorization of the Central Bank of Russia for the incurrence and repayment
of the Indebtedness incurred under this Agreement and the EBRD Loan Agreement
and the establishment and operation of the Offshore Bank Account as contemplated
herein, and (C) the major construction, environmental and operating permits and
approvals listed in Schedule V to the EBRD Loan Agreement (other than any such
construction, environmental or operating permit or approval which (i) is not
then needed for the Project, (ii) because it is premature, cannot then be
obtained, and (iii) there is no reason to believe the Company will not be able
to obtain at the time such permit or approval is needed for the Project); and
OPIC shall have received certified copies of all such licenses, approvals,
consents, filings and registrations.
(f) SPECIMEN SIGNATURES. OPIC shall have received (1) the certificate of
incumbency and authority referred to in Section 8.04, substantially in the form
of Schedule Y to the EBRD Loan Agreement and (2) a certificate of an appropriate
officer of Cyprus Amax, Cyprus Gold, each Shareholder, the Contractor and, at
the request of OPIC, any other party to the Financing Agreements and Project
Agreements certifying the name and specimen signature of each Person authorized
to sign on behalf of such party the Financing Agreements and Project Agreements
to be entered into and performed by such party.
(g) EQUITY. OPIC shall have received satisfactory evidence that (1) the
Shareholders have contributed in a manner satisfactory to the OPIC at least
$80,000,000 (or the equivalent thereof in other currencies at then current rates
of exchange) in paid-in capital to the Company, and (2) the Company has
expended, or allocated for expenditure on imports of goods and services,
substantially all of such paid4n capital on Project Costs, including a list of
Project Costs paid by the Company to Shareholders, which list shall be
satisfactory to OPIC.
Omolon - 50 - OPIC Finance Agreement
(h) INSURANCE. OPIC shall have received the insurance certificate
referred to in Section 5.19(d) showing that all insurance referred to in such
report and all other insurance policies, certificates and endorsements required
pursuant to Section 5.03 are in full force and effect.
(i) DEVELOPMENT PLAN. OPIC shall have received the Development Plan, in
form and substance satisfactory to OPIC and the Independent Engineer.
(j) BANK ACCOUNTS. OPIC shall have received evidence satisfactory to
OPIC that the Offshore Bank Account, the Disbursement Subaccount, the Revenue
Subaccount, the Cash Collateral Subaccount and the Russian Bank Accounts have
been duly established.
(k) SURFACE RIGHTS. OPIC shall have received evidence satisfactory to
OPIC that the Company has been granted all appurtenant surface rights required
for the Project.
(I) AUDITORS LETTER. OPIC shall have received a certified copy of a
letter to the Auditors from the Company substantially in the form of Schedule Z
to the EBRD Loan Agreement.
(m) PROCESS AGENT APPOINTMENTS. OPIC shall have received written
confirmations from the agents for service of process appointed by the Company
pursuant to Section 7.04.B, by Cyprus Magadan pursuant to Cyprus Magadan
Guaranty, the Cyprus Support Agreement and the Omolon Share Pledge, by Cyprus
Amax pursuant to the Cyprus Amax Guaranty and the Cyprus Support Agreement, by
Cyprus Gold pursuant to the Cyprus Magadan Share Pledge and by the Russian
Shareholders pursuant to the Russian Shareholders Support Agreement and the
Omolon Share Pledge of their acceptances of such appointments, each
substantially in the form of Schedule AA to the EBRD Loan Agreement.
(n) LEGAL OPINIONS. OPIC shall have received:
(1) the favorable opinion of special Russian counsel to the Company
acceptable to OPIC regarding such matters incident to the
transactions contemplated by this Agreement as OPIC shall reasonably
request, which opinion shall be in form and substance satisfactory
to OPIC, together with a reliance opinion thereon of Coudert
Brothers, special New York counsel to the Borrower, substantially in
the form of Schedule BB to the EBRD Loan Agreement;
(2) the favorable opinion of Coudert Brothers, special English counsel
to the Company, substantially in the form of Schedule CC to the EBRD
Loan Agreement;
(3) the favorable opinion of Coudert Brothers, special New York counsel
to the Company, substantially in the form of Schedule DD to the EBRD
Loan Agreement;
Omolon - 51 - OPIC Finance Agreement
(4) the favorable opinion of Freshfields, special Russian counsel to the
Project Lenders, regarding such matters incident to the transactions
contemplated by this Agreement as OPIC shall reasonably request,
which opinion shall be in form and substance satisfactory to OPIC;
and
(5) the favorable opinion of Freshfields, special English counsel to the
Project Lenders, substantially in the form of Schedule EE to the
EBRD Loan Agreement.
SECTION 4.02. CONDITIONS FOR ANY DISBURSEMENT
The obligation of OPIC to deliver Issuing Instructions to the Paying
Agent and to authorize the making of a Disbursement shall also be subject to the
fulfillment, in form and substance satisfactory to OPIC, of the conditions that,
on the date of the applicable Disbursement Request and on the date of such
Disbursement:
(a) CONTINUING VALIDITY OF DOCUMENTS. All documents and instruments
delivered to OPIC pursuant to Section 4.01 shall be in full force and effect.
(b) REPRESENTATIONS AND WARRANTIES. The representations and warranties
confirmed or made by the Company in Article II and all other representations and
warranties made by the Company, Cyprus Amax, Cyprus Gold, the Shareholders and
the Contractor in the Financing Agreements and the Project Agreements shall be
true on and as of such dates with the same effect as though such representations
and warranties had been made on and as of such dates.
(c) NO DEFAULT. No Event of Default and no Potential Event of Default
shall have occurred and be continuing and the Company shall not, as a result of
such Disbursement, be in violation of its Charter, any provision contained in
any agreement or instrument to which the Company is a party (including this
Agreement) or by which the Company is bound or any law, statute, rule,
regulation, judgment, decree or order applicable to the Company.
(d) NO MATERIAL ADVERSE CHANGE. Nothing shall have occurred which might
have a Material Adverse Effect.
(e) NO POLITICAL EVENT. No Qualified Political Event and no event that,
with the passage of time or otherwise, might become a Qualified Political Event
shall have occurred and be continuing and no political violence claim in respect
of a material or substantial part of the Company's assets or expropriation claim
shall have been made under any contract of insurance issued by OPIC in support
of the Project.
(f) USE OF PROCEEDS. The proceeds of such Disbursement shall, at the
time of request therefor, be needed by the Company solely for the purpose of
financing Project Costs and OPIC shall have received such evidence as to the
proposed utilization of the proceeds of such Disbursement and the utilization of
the proceeds of any prior Disbursement as OPIC shall reasonably require,
including, in the case of any Disbursement which is being used in whole or in
Omolon - 52 - OPIC Finance Agreement
part to finance amounts owing under the Construction Contract or any supply or
other contract entered into thereunder, the invoice of the Contractor or the
relevant supplier.
(g) DISBURSEMENT REQUIREMENTS AND LIMITATIONS. The requested
Disbursement satisfies all of the requirements set forth in Section 3.02, and
the Company has timely complied with the Disbursement procedures set forth in
Section 3.03.
(h) FUNDING ARRANGEMENTS. Suitable arrangements shall have been made for
funding the Disbursement, in accordance with the Funding Documents, which
funding arrangements shall be satisfactory to OPIC in form and substance,
including without limitation, satisfaction by the Company of all conditions
precedent to the obligations of any other party to the Funding Documents and
performance by the Company of all other obligations on its pan to be performed
prior to the making of the first Disbursement pursuant to any Financing
Agreement, and OPIC shall have received immediately available funds in the
amount of the proposed Disbursement pursuant to the Funding Documents (or such
funds are available at the direction of OPIC pursuant to the Funding Documents).
(i) COST OVERRUNS. OPIC shall be satisfied, on the basis of the opinion
of the Independent Engineer, that the Project Costs (including, without
limitation, financing costs) necessary to achieve physical completion of the
Project will not exceed by more than $10,000,000 (or the equivalent thereof in
other currencies at then current rates of exchange) the total amount thereof set
forth in Section 2.01(b) or, if OPIC is not so satisfied as a result of delay in
completion or otherwise, OPIC shall have received satisfactory evidence that the
Shareholders have contributed not less than 50% of the full amount of such
excess in paid-in capital or Subordinated Shareholder Loans to the Company and
that the Company has expended 100% of such paid-in capital and Subordinated
Shareholder Loans on the Project.
(j) TRANCHE 2 LOAN. In the case of any Disbursement of the Tranche 1
Loan, the Tranche 2 Loan shall have previously been disbursed in full in the
amount of $5,000,000.
(k) EBRD. EBRD shall have confirmed to OPIC its intention to make a
disbursement pursuant to the EBRD Loan Agreement on or before the Disbursement
Date, and have advised OPIC that all of the conditions precedent to EBRD making
such disbursement as required by the EBRD Loan Agreement have been (or are
reasonably expected to be) satisfied or waived by the proposed Disbursement
Date.
(i) OTHER. OPIC shall have received such other documents and opinions as
OPIC may reasonably request.
(m) DEVELOPMENT PLAN. The Project as developed to date shall conform in
all material respects with the detailed description thereof included in the
Development Plan for such stage of development, except as otherwise agreed with
the Project Lenders.
Omolon - 53 - OPIC Finance Agreement
ARTICLE V
AFFIRMATIVE COVENANTS
Unless OPIC shall otherwise agree in writing:
SECTION 5.01. PROJECT IMPLEMENTATION
The Company shall carry out the Project substantially in accordance with
the Development Plan and cause the financing specified in the Financing Plan to
be applied exclusively to the Project.
SECTION 5.02. MAINTENANCE AND CONDUCT OF BUSINESS
(a) The Company shall (1) maintain its corporate existence in compliance
with all applicable laws and regulations, (2) conduct its business efficiently,
in accordance with sound engineering, financial and business practices, in a
good workmanlike manner, with due regard for the environment and in compliance
with all applicable statutes, laws, regulations, rules, orders and decrees of
the Russian Federation and any other applicable jurisdiction, (3) keep and
maintain all of its assets required for the Project in good repair, working
order and condition, and (4) ensure that the Project is constructed, maintained
and operated in accordance with good international practices in the gold mining
industry. Without limiting the foregoing, the Company shall comply with the
Environmental Standards and its obligations under the Reclamation Agreement.
(b) [Reserved.]
SECTION 5.03. INSURANCE
The Company shall keep its properties and business insured with
financially sound and reputable insurers against loss or damage in accordance
with the requirements of Schedule FF to the EBRD Loan Agreement.
SECTION 5.04. ACCOUNTING
The Company shall promptly and diligently install, and thereafter
maintain, an accounting and cost control system satisfactory to OPIC and
maintain books of account and other records adequate to reflect truly and fairly
the financial condition of the Company and the results of its operations
(including the progress of the Project) in conformity with Generally Accepted
Accounting Principles. The Company shall maintain Price Waterhouse, or such
other firm of independent public accountants as may be acceptable to OPIC, as
Auditors of the Company and authorize, by letter substantially in the form of
Schedule Z to the EBRD Loan Agreement, the
Omolon - 54 - OPIC Finance Agreement
Auditors to communicate directly with OPIC at any time regarding the Company's
accounts and operations. OPIC shall provide notice to the Company of any
intended communications with the Auditors and, for the purpose of minimizing
expenses, shall, in the case of any requested information, give the Company a
reasonable opportunity to provide such information directly to OPIC, provided
that, if OPIC is not satisfied with the response of the Company to its request
for information, OPIC may communicate directly with the Auditors.
SECTION 5.05. CONTINUING GOVERNMENTAL AND OTHER APPROVALS
The Company shall obtain or make, and shall maintain in force (or, where
appropriate, renew), all governmental, corporate, creditors', shareholders' and
other necessary licenses, approvals, consents, filings and registrations
required for the purposes described in Section 4.01(e) (other than any
construction, environmental or operating permit or approval which (i) is not
then needed for the Project, (ii) because it is premature, cannot then be
obtained, and (iii) there is no reason to believe the Company will not be able
to obtain at the time such permit or approval is needed for the Project), and
comply in all material respects with all conditions and obligations to which
such licenses, approvals, consents, filings and registrations may be subject.
SECTION 5.06. SECURITY
The Company shall, at its own cost, create, perfect and maintain (or,
where appropriate, renew) the Security in a manner satisfactory to OPIC and take
all actions requested by OPIC which are necessary to ensure that the Liens
created by the Security Documents constitute valid and perfected Liens of first
priority over the collateral purported to be covered thereby, securing payment
of all obligations of the Company under this Agreement and the other Financing
Agreements and ranking senior to the claims of all third parties other than
claims secured by Permitted Liens.
SECTION 5.07. COMPLIANCE WITH OTHER OBLIGATIONS
The Company shall comply with all agreements to which it is a party or
by which it or any of its properties or assets is bound.
SECTION 5.O8. TAXES; STAMP DUTIES
(a) The Company shall pay when due all of its Taxes including without
limitation any Taxes against any of its properties, other than Taxes which are
being contested in good faith and by proper proceedings and as to which adequate
reserves have been set aside for the payment thereof. The Company shall make
timely filings of all Tax returns and governmental reports required to be filed
or submitted under any applicable law or regulation.
(b) [Reserved].
Omolon - 55 - OPIC Finance Agreement
SECTION 5.09. PROJECT AGREEMENTS
(a) The Company shall maintain all Project Agreements and Financing
Agreements to which the Company is a party in full force and effect without
material modification and perform its obligations under, and not commit any
material breach of or default under, any such Project Agreement.
(b) The Company shall not terminate, amend in any material respect or
grant any material waiver in respect of any provision of any oft he Project
Agreements or Financing Agreements to which it is a party, or consent to any
assignment of any Project Agreement by any other party thereto; provided that
OPIC shall not unreasonably withheld its consent to a termination of a Project
Agreement if the Company enters into a substitute agreement in form and
substance satisfactory to OPIC with a third party acceptable to 0PIC and grants
to the Project Lenders a security interest in all of its rights, interests and
benefits under such substitute agreement pursuant to an amendment to the
Contract Pledge in form and substance satisfactory to 0PIC, in which case such
substitute agreement shall become a Project Agreement hereunder.
SECTION 5.10. OFFSHORE BANK ACCOUNT
The Company shall establish and maintain a bank account denominated in
Dollars at the principal London branch of Citibank, N.A. (the "Offshore Bank
Account"), which account shall be pledged to Moscow Narodny Bank Limited, as
security trustee for the Project Lenders, as security for all amounts payable by
the Company under this Agreement, the EBRD Loan Agreement and the other
Financing Agreements. The Company shall maintain five subaccounts of the
Offshore Bank Account designated as the Disbursement Subaccount, the
Roskomdragrnet Sales Subaccount, the Export Sales Subaccount, the Revenue
Subaccount and the Cash Collateral Subaccount.
SECTION 5.11. DISBURSEMENT SUBACCOUNT
All Disbursements under this Agreement and all disbursements under the
EBRD Loan Agreement shall be deposited into the Disbursement Subaccount. Amounts
in the Disbursement Subaccount may be withdrawn by the Company without the prior
approval or authorization of OPIC only for the purpose of paying Project Costs
in accordance with the Development Plan and the annual capital expenditure and
operating budgets approved by OPIC pursuant to Section 5.18.
SECTION 5.12. SALES AND REVENUE SUBACCOUNTS
(a) The Company shall ensure that (1) all amounts paid to the Company by
Roskomdragmet under the Roskomdragmet Agreement in currencies other than Roubles
are deposited into the Roskomdragrnet Sales Subaccount, and (2) upon release of
such amounts in accordance with Article 9 of the Roskomdragmet Agreement and
with the Blocked Account Agreement, such amounts are transferred from the
Roskomdragmet Sales Subaccount to the Revenue Subaccount. Amounts may be
withdrawn from the Roskomdragmet Sales Subaccount
Omolon - 56 - OPIC Finance Agreement
only for the purpose of transferring such amounts to the Revenue Subaccount or
paying such amounts back to Roskomdragmet in accordance with Article 9.2(a) of
the Roskomdragrnet Agreement and with the Blocked Account Agreement. The Company
shall not withdraw funds from the Roskomdragmet Sales Subaccount for any other
purpose with. out the prior written consent of OPIC.
(b) The Company shall ensure that all amounts paid to the Company in
respect of the sale of dore outside of the Russian Federation, whether through
Rosvneshtorgbank pursuant to the Rosvneshtorgbank Agreement or otherwise, and
all other export revenues are, except as provided in Section 5.14, deposited
into the Export Sales Subaccount. If any such amounts are received by the
Company in any other account or place, it shall immediately transfer such
amounts to the Export Sales Subaccount. Amounts may be withdrawn from the Export
Sales Subaccount only for the purpose of transferring such amounts to one of the
Russian Bank Accounts to the extent (and only to the extent) that such amounts
are subject, in accordance with then applicable law, to mandatory conversion
into Roubles and transfer to the Russian Federation. The Company shall ensure
that any amounts remaining in the Export Sales Subaccount after any such
mandatory. conversion and transfer to the Russian Federation are transferred to
the Revenue Subaccount. The Company shall not withdraw funds from the Export
Sales Subaccount for any other purpose without the prior written consent of
OPIC.
(c) Except as provided in Sections 5.12(a) and 5.12(b), the Company
shall ensure that all revenues of the Company and any other payments made to the
Company, including without limitation any payment made to the Company under the
Construction Contract, the Supply Contracts, the Marketing Agreements and the
other Project Agreements, other than any such amounts which are received in
Roubles or which the Company is required by applicable law to convert into
Roubles or retain in or remit to the Russian Federation and other than refunds
of Russian value added tax financed by the value added tax facility referred to
in Section 6.04(a)(5), are deposited into the Revenue Subaccount.
(d) As long as no Event of Default or Potential Event of Default has
occurred and is continuing, amounts in the Revenue Subaccount may be withdrawn
by the Company pursuant to payment instructions issued in accordance with the
Offshore Account Pledge without the prior approval or authorization of OPiC only
for the purpose of transferring funds to the Russian Bank Accounts to the extent
(and only to the extent) required by the authorization issued by the Central
Bank of Russia for the establishment and operation of the Offshore Bank Account
or for the purpose of making the following payments in the following order:
(1) Operating Costs denominated in currencies other than Roubles in
accordance with the Development Plan and annual capital expenditure
and operating budgets approved by OPIC in accordance with Section
5.18;
(2) interest due and payable on the Loan and the EBRD Loan (other than
the Tranche 2 Supplemental Spread and interest due and payable on
the Unguaranteed Portion of the EBRD Tranche 2 Loan to the extent
exceeding interest accruing at the rate specified in Section
3.02(c)(3)(A) of the EBRD Loan Agreement);
Omolon - 57 - OPIC Finance Agreement
(3) scheduled repayment installments of principal of the EBRD Loan due
and payable under Section 3.06(a) of the EBRD Loan Agreement and
scheduled repayment installments of principal of the Tranche l Loan
and Tranche 2 Loan due and payable under Section 3.05 hereof;
(4) transfers to the Cash Collateral Subaccount until the balance of the
Cash Collateral Subaccount equals the lesser of the amount specified
in Section 5.13(1 ) and the amount specified in Section 5.13(2);
(5) in equal amounts, (A) Tranche 2 Supplemental Spread and interest due
and payable on the Unguaranteed Portion of the EBRD Tranche 2 Loan
to the extent exceeding interest accruing at the rate specified in
Section 3.02(c)(3)(A) of the EBRD Loan Agreement, and (B) to the
extent permitted by Section 6.09(c), management fees payable under
the Management Agreement in an amount not to exceed 4% of the
Company's gross sales;
(6) management fees due and payable under the Management Agreement to
the extent that such management fees exceed those payable under sub-
category (5)(B) above;
(7) prepayment of principal of the Loan as required by Section 3.06(a)
of this Agreement and prepayment of principal of the EBRD Loan as
required by Section 3.07(b) of the EBRD Loan Agreement; and
(8) to the extent that, after payments are made in respect of categories
(1) through (7) above, the balances of the Revenue Subaccount and
the Russian Bank Accounts exceed in the aggregate the lesser of (A)
the equivalent of $3,000,000 and (B) estimated Operating Costs for
the next following 45 days, prepayment of principal of the Loan in
accordance with Section 3.07, prepayment of principal of the EBRD
Loan in accordance with Section 3.07(a) of the EBRD Loan Agreement
and transfers to the Russian Bank Accounts for the purpose of making
Shareholder Distributions to the extent permitted by Section 6.01.
The amounts of the payments to be made by the Company out of the Revenue
Subaccount under categories (2) through (8) above shall be calculated on the
date two Banking Days prior to each Interest Payment Date and payments shall be
made by the Company out of the Revenue Subaccount under categories (2) through
(8) above only in accordance with the amounts as so calculated. In the event
that the balance of the Revenue Subaccount is insufficient to pay any such
category (or any sub-category) in full as of such date, the Company shall,
except as otherwise specified for category (5) and except in the case of
category (8) (but subject to Section 6.12), apply the amounts available in the
Revenue Subaccount to pay each party entitled to payment in such category (or
sub-category) on a pro rata basis in accordance with the amount due to each such
party in such category (or sub-category).
Omolon - 58 - OPIC Finance Agreement
(e) If an Event of Default or Potential Event of Default has occurred
and is continuing, the Company shall not be permitted to withdraw any amounts
from the Revenue Subaccount for any purpose without the prior written consent of
OPIC.
SECTION 5.13. CASH COLLATERAL SUBACCOUNT
At all times on and after the Project Completion Date, the Company shall
maintain a balance in the Cash Collateral Subaccount equal to not less than the
lesser of:
(1) an amount equal to (A) $13,500,000 less the face amount of the
Letter of Credit, if any, issued in accordance with Schedule Q of
the EBRD Loan Agreement, multiplied by (B) a fraction, the
denominator of which is $100,000,000 and the numerator of which is
the aggregate amount of all Disbursements and all disbursements made
under the EBRD Loan Agreement; and
(2) an amount equal to the sum of(A) the outstanding principal amount of
the Tranche 1 Loan, (B) the outstanding principal amount of the EBRD
Tranche 1 Loan, and (C) $5,000,000, less (D) the face amount of the
Letter of Credit, if any, issued in accordance with paragraph
l(b)(1) of Schedule Q to the EBRD Loan Agreement.
Amounts may be withdrawn by the Company from the Cash Collateral
Subaccount only for the purpose of paying principal and interest under this
Agreement and the EBRD Loan Agreement or to transfer any amount in excess of the
minimum balance set forth above to the Revenue Subaccount to the extent (and
only to the extent) required by the authorization issued by the Central Bank of
Russia for the establishment and operation of the Offshore Bank Account. The
Company shall not withdraw funds from the Cash Collateral Subaccount for any
other purpose without the prior written consent of OPIC.
SECTION 5.14. RUSSIAN BANK ACCOUNTS
The Company shall establish and maintain one or more bank accounts at
such banks located in the Russian Federation as may be proposed by the Company
and approved by OPIC (the "Russian Bank Accounts"), which accounts shall be
pledged to the Project Lenders as security for all amounts payable by the
Company under this Agreement, the EBRD Loan Agreement and the other Financing
Agreements. The Company shall ensure that all revenues of the Company and any
other payments made to the Company which, in either case, are received in
Roubles or which the Company is required by applicable law to convert into
Roubles or remit to or retain in the Russian Federation, including without
limitation any payments made to the Company in Roubles under the Construction
Contract, the Supply Contracts, the Marketing Agreements and the other Project
Agreements are deposited into one of the Russian Bank Accounts. As long as no
Event of Default or Potential Event of Default has occurred and is continuing,
amounts in the Russian Bank Accounts may be withdrawn by the Company to pay
Project Costs and Operating Costs, to pay dividends to the Shareholders to the
extent permitted by Section 6.01 and to convert such amounts into Dollars and
transfer such amounts to the
Omolon - 59 - OPIC Finance Agreement
Revenue Subaccount, in each case without the prior approval of OPIC. The Company
shall not withdraw funds from the Russian Bank Accounts for any other purpose
without the prior written consent of OPIC. If an Event of Default or Potential
Event of Default has occurred and is continuing, the Company shall not be
permitted to withdraw any amounts from the Russian Bank Accounts without the
prior written consent of OPIC.
SECTION 5.15. DEBT SERVICE COVERAGE RATIOS
The Company shall, at all times after the first Repayment Date or, if
earlier, the first Interest Payment Date occurring after the Project Completion
Date, maintain (1) a Retrospective Debt Service Coverage Ratio for the preceding
Interest Period of not less than 1.25, and (2) a Loan Life Debt Service Coverage
Ratio of not less than 1.25.
SECTION 5.16. FURTHER DOCUMENTS
The Company shall execute all such other documents and instruments and
do all such other acts and things as OPIC may determine is necessary or
desirable to give effect to the provisions of this Agreement and the other
Financing Agreements and to cause the Financing Agreements-to be duly
registered, notarized and stamped in any applicable jurisdiction. The Company
hereby irrevocably appoints and constitutes OPIC as the Company's true and
lawful attorney with right of substitution (in the name of the Company or
otherwise) to execute such documents and instruments and to do such acts and
things in the name of and on behalf of the Company in order to carry out the
provisions hereof if, within a reasonable period of time (as specified by OPIC)
after notice from OPIC, the Company shall fail to do so.
SECTION 5.17. [RESERVED]
SECTION 5.18. ANNUAL BUDGETS
As soon as available but, in any event, not less than 90 days prior to
the beginning of each Financial Year, the Company shall furnish to OPIC the
Company's proposed annual budget for such Financial Year in form and level of
detail reasonably satisfactory to OPIC, including without limitation capital
expenditure, operating cost and revenue budgets and, prior to the end of the
Commitment Period, a financing plan showing a schedule of the estimated
Disbursements of the Loan and disbursements of the OPIC Loan during such
Financial Year. Within 30 days of receiving such annual budget, OPIC shall
notify the Company whether it approves such budget, which approval shall be
given if such budget does not materially vary from the Development Plan. In the
event that OPIC does not approve such budget, it shall advise the Company of the
reasons therefor and the Company shall make necessary adjustments and amendments
to such budget and resubmit such budget to OPIC for approval. If OPIC fails to
notify the Company within 30 days after receiving any budget that it approves or
disapproves of such budget, such budget shall, to the extent that such budget
does not materially vary from the Development Plan,
Omolon - 60 - OPIC Finance Agreement
be deemed approved by OPIC. Once approved by OPIC, such budget shall not be
amended in any material respect without the prior written consent of OPIC.
SECTION 5.19. FURNISHING OF INFORMATION
(a) QUARTERLY. As soon as available but, in any event, within 60 days
after the end of each quarter of each Financial Year, the Company shall furnish
to OPIC:
(1) two copies of the Company's complete Financial Statements for such
quarter in form satisfactory to OPIC and certified by an Authorized
Officer of the Company, which Financial Statements shall specify the
balances of the Offshore Bank Account and each subaccount thereof
and the Russian Bank Accounts at the end of such quarter;
(2) a report on any factors materially affecting or which might
materially affect the Company's business and operations or its
financial condition;
(3) during the period prior to the physical completion of the Project, a
report, in a form satisfactory to OPIC and the Independent Engineer,
on the implementation and progress of the Project, including details
of capital expenditures and use of funds withdrawn from the
Disbursement Subaccount during such quarter, changes in Project
Costs and reserves and any other factors materially affecting or
which would reasonably be expected to materially affect the carrying
out of the Project or the implementation of the Financing Plan, with
sufficient detail and information as may be required by OPIC;
(4) during the period after the physical completion of the Project, a
report, in a form satisfactory to OPIC, on Project production,
including data on processing, output and prices achieved for
production, with sufficient detail and information as may be
required by OPIC; and
(5) a statement, in level of detail reasonably satisfactory to OPIC, of
all material financial transactions between the Company and each of
its Affiliates (including Cyprus Amax) and Shareholders, including
without limitation all payments made to Cyprus Magadan and Cyprus
Amax pursuant to the Management Agreement.
(b) ANNUALLY. As soon as available but, in any event, within 120 days
after the end of each Financial Year, the Company shall furnish to OPIC:
(1) two copies of its complete Financial Statements for such Financial
Year, together with an audit report thereon of the Auditors, all in
form satisfactory to OPIC;
(2) a letter from the Auditors commenting on, among other matters, the
adequacy of the Company's financial control procedures and
accounting systems, together with a copy of any other communication
sent by the Auditors to the Company or to its
Omolon - 61 - OPIC Finance Agreement
management in relation to the Company's financial, accounting and other systems,
management and accounts;
(3) a report of the Auditors certifying that the Company was in
compliance with the financial covenants contained in this Article V
(other than Section 5.15) and in Article VI as of the end of such
Financial Year or, as the case may be, detailing any non-compliance;
(4) a management discussion and analysis of results for such Financial
Year, including a report on any factors materially affecting or
which might materially affect the Company's business and operations
or its financial condition, together with a certificate of an
Authorized Officer of the Company certifying that the Company is in
compliance with all of its obligations under this Agreement, the
other Financing Agreements and the Project Agreements and that there
exists no Event of Default or Potential Event of Default;
(5) a statement, in level of detail reasonably satisfactory to OPIC, of
all financial transactions between the Company and each of its
Affiliates (including Cyprus Amax) and Shareholders, including
without limitation details of all payments made to Cyprus Magadan
and Cyprus Amax pursuant to the Management Agreement;
(6) a report prepared in accordance with the Environmental Standards;
and
(7) a Self Monitoring Questionnaire.
(c) MONTHLY PROJECT PROGRESS REPORTS. Prior to the physical completion
of the Project, the Company shall furnish to OPIC and the Independent Engineer
as soon as available but, in any event, within 30 days after the end of each
calendar month, a report, in a form satisfactory to OPIC, of the Contractor on
the implementation and progress of, and expenditures on, construction of the
Project through the end of such calendar month, including estimates of remaining
construction-related costs and an explanation of any material deviations from
the budgeted amounts set forth in the Development Plan, with sufficient detail
and information as may be required by OPIC.
(d) INSURANCE. Prior to the first Disbursement and, thereafter, not less
than 30 days prior to the expiration date of any expiring insurance policy, the
Company shall, in accordance with the requirements of Schedule GG to the EBRD
Loan Agreement, submit to OPIC a certificate of insurance for each policy or
renewal policy required by Section 5.03 and such Schedule GG to the EBRD Loan
Agreement to be in effect.
(e) CONSULTANT; ACCOUNTS. The Company shall furnish promptly to OPIC,
the Independent Engineer and OPIC's environmental consultants such information
as OPIC, the Independent Engineer or OPIC's environmental consultants may from
time to time reasonably request. Without limiting the foregoing, the Company
shall, at the request of OPIC, furnish
Omolon - 62 - OPIC Finance Agreement
promptly to OPIC statements of all transactions in relation to the Offshore Bank
Account and the Russian Bank Accounts.
(f) ACCESS. The Company shall permit, and shall procure that the
Contractor permits, representatives of OPIC, the Independent Engineer and OPIC's
environmental consultants, on reasonable notice and during normal business
hours, to visit the Project or any of the other premises where the business of
the Company is conducted or where the Project is being carried out and to have
access to its books of account and records. Without limiting the foregoing, the
Independent Engineer shall, at OPIC's direction and at the Company's expense,
visit the Kubaka Field once in each calendar year for the purpose of confirming
residual ore body reserves,
(g) CHANGES. The Company shall promptly inform OPIC of:
(1) any proposed change in any material respect in the nature or scope
of the Project or of the Development Plan or the business or
operations of the Company;
(2) any event, condition or change of circumstances, including without
limitation any pending or threatened litigation, arbitration, claim
or government investigation, which might have a Material Adverse
Effect;
(3) any proposed change of Russian law of which the Company has
knowledge which might have a Material Adverse Effect; and
(4) any material claims under insurance policies.
(h) ADVERSE EVENTS. Forthwith upon becoming aware of the occurrence of
any Event of Default, any Potential Event of Default, any Qualified Political
Event or any event that, with the passage of time or otherwise, might become a
Qualified Political Event or cause compensation to become payable under any
contract of insurance issued by OPIC in support of the Project, the Company
shall give OPIC notice thereof by facsimile transmission specifying the nature
of such Event of Default, Potential Event of Default, Qualified Political Event
or event and any steps the Company is taking to remedy the same.
(i) ENVIRONMENTAL; WORKER HEALTH AND SAFETY. Forthwith upon the
occurrence of any incident or accident relating to the Project, including but
not limited to any such incident or accident likely to have a material adverse
effect on the environment or worker health or safety, the Company shall give
OPIC notice thereof by facsimile transmission or telex specifying the nature of
such incident or accident and any steps the Company is taking to remedy the
same. Without limiting the generality of the foregoing, an incident or accident
is likely to have a material adverse effect on the environment or worker health
or safety if (1) any relevant Russian law requires notification of such incident
or accident to the authorities, (2) such incident or accident involves worker
fatality or multiple serious injuries requiring hospitalization, or (3) such
incident or accident has become public knowledge whether through media coverage
or otherwise.
Omolon - 63 - OPIC Finance Agreement
(j) SHAREHOLDER AND DIRECTORS. Company shall give to OPIC notice
of the calling of any meeting of its shareholders or board of directors
indicating the agenda thereof no later than at the time that it gives official
notice of any such meeting to its shareholders or directors, as relevant. and
furnish promptly to OPIC two copies of(1) all notices, reports and other
communications of the Company to its shareholders, and (2) the minutes of all
meetings of its shareholders and board of directors. The Company shall permit a
representative of OPIC to attend, at the Company's expense, the annual meeting
of the Company's shareholders, which meeting shall immediately follow the
meeting of the Company's board of directors at which the Company's annual budget
is discussed.
(k) ENVIRONMENTAL AUDITS. The Company shall conduct environmental audits
of the Project in accordance with the Environmental Standards and engage a
reputable environmental consulting firm of international standing acceptable to
OPIC to confirm the results of such audits. Promptly after completion of each
such audit, the Company shall furnish the results thereof to OPIC.
(l) EXPLORATORY WORK RESULTS. The Company shall undertake such
additional development drilling and exploration work in the Kubaka Field which a
prudent operator of a comparable gold mine would undertake under similar
circumstances, including without limitation in-fill and development drilling and
additional check sampling of the unsampled exploration adits (or, if not
possible, other exploratory work) during the summer of 1995 and furnish all
results of such exploratory work to the Independent Engineer and OPIC.
SECTION 5.20. DEVELOPMENT PLAN
Not later than 30 days prior to the date of the first Disbursement, the
Company shall submit to OPIC for approval the proposed Development Plan for the
Project, including, without limitation, detailed technical plans and
specifications, a financing plan, an estimated construction schedule and budget,
operating plans and procedures, descriptions of proposed transportation and
marketing arrangements and a list of major equipment. Upon approval of such plan
by the Project Lenders, such plan shall constitute the Development Plan for
purposes of this Agreement.
ARTICLE VI
NEGATIVE COVENANTS
Unless OPIC shall otherwise agree in writing:
SECTION 6.01. DIVIDENDS
The Company shall not declare or pay any dividend, or make any
distribution on its share capital, or purchase, redeem or otherwise acquire any
shares of capital of the Company or any
Omolon - 64 - OPIC Finance Agreement
option over the same, or make any payment of principal or interest on any
Subordinated Shareholder Loan or any other Shareholder Distribution (other than
payments of management fees pursuant to the Management Agreement as provided in
Section 5.12(d), to the extent permitted by Section 6.09(c)) prior to the later
of(A) the Project Completion Date and (B) 15 December 1997, and then only if:
(1) the Loan Life Debt Service Coverage Ratio is not less than 1.4 and
the Retrospective Debt Service Coverage Ratio for the preceding
Interest Period is not less than 1.25;
(2) no Event of Default, no Potential Event of Default, no Qualified
Political Event and no event that, with the passage of time or
otherwise, might become a Qualified Political Event or cause
compensation to become payable under any contract of insurance
issued by OPIC in support of the Project has occurred and is
continuing or is likely to occur;
(3) the Company gives OPIC and EBRD not less than 45 days' prior written
notice of such payment together with evidence in reasonable detail
that the conditions set forth in clause (1) have been satisfied;
(4) such payment is made only on a Interest Payment Date; and
(5) to the extent that such payment is in a currency other than Roubles,
such payment is made only in accordance with the provisions of
Section 5.12(d).
SECTION 6.02. CAPITAL EXPENDITURES
The Company shall not incur expenditures or commitments for expenditures
for fixed and other non-current assets, other than expenditures required for
carrying out the Project or for maintenance, repairs or replacements essential
to the operation of the Project, in an aggregate amount in excess of $500,000
(or the equivalent thereof in other currencies at then current rates of
exchange) in any Financial Year.
SECTION 6.03. LEASES
The Company shall not enter into any agreement or arrangement to acquire
by lease the use of any property or equipment of any kind, except to the extent
that the aggregate payments by the Company in respect of such leases do not
exceed $250,000 (or the equivalent thereof in other currencies at then current
rates of exchange) in any Financial Year.
SECTION 6.04. INDEBTEDNESS
(a) The Company shall not incur, assume or permit to exist any
Indebtedness except:
Omolon - 65 - OPIC Finance Agreement
(1) that provided in the Financing Plan, including the Loan and the OPIC
Loan;
(2) Subordinated Shareholder Loans to finance Project Cost overruns;
(3) Short-term Debt incurred in the ordinary course of business other
than for money borrowed, including without limitation prepayments by
Roskomdragmet to the Company under the Roskomdragmet Agreement;
(4) Short-term Debt in Roubles in an aggregate amount not to exceed the
equivalent in Roubles of $4,000,000 (or such higher amount as may be
agreed by OPIC), incurred solely to finance the Company's working
capital requirements in Roubles; and
(5) Indebtedness in an aggregate amount not to exceed the equivalent in
Roubles of $5,000,000 (or such proper amount as may be agreed by
OPIC), incurred solely to finance refundable Russian value added tax
paid in connection with construction of the Project.
(b) The Company shall not enter into any agreement or arrangement to
guarantee or, in any way or under any condition, to become obligated for all or
any pan of any financial or other obligation of another Person.
SECTION 6.05. LIENS
The Company shall not create or permit to exist any Lien on any
property, revenues or other assets, present or future, of the Company, except:
(1) the Security;
(2) Liens over refunds of Russian value added tax to secure the
Indebtedness referred to in Section 6.04(a)(5);
(3) the right of Roskomdragmet, in accordance with Article 9.2(a) of the
Roskomdragmet Agreement, to refunds from the Roskomdragmet Sales
Subaccount of prepayments made under the Roskomdragmet Agreement; or
(4) any tax or other non-consensual Lien arising by operation of law or
other statutory Lien arising in the ordinary course of business,
provided that such Lien is for a sum which is not yet delinquent or
the validity or amount of such Lien or the sum secured by such Lien
is being contested in good faith and by proper proceedings and
adequate reserves have been set aside for the payment of such sum.
Omolon - 66 - OPIC Finance Agreement
SECTION 6.06. HEDGING
The Company shall not, without the prior written consent of OPIC (not to
be unreasonably withheld), enter into any interest rate or currency swap,
interest rate cap or collar, forward rate agreement or other interest rate,
currency or commodity (including gold) hedge.
SECTION 6.07. ARM'S LENGTH TRANSACTIONS
The Company shall not enter into any transaction with any Person except
in the ordinary course of business, on ordinary commercial terms and on the
basis of arm's-length arrangements, or enter into any transaction whereby the
Company would pay more than the ordinary commercial price for any purchase or
would receive less than the full ex-works commercial price (subject to normal
trade discounts) for its products.
SECTION 6.08. PROFIT-SHARING AND MANAGEMENT ARRANGEMENTS
(a) The Company shall not enter into any partnership, profit-sharing or
royalty agreement or other similar arrangement whereby the Company's income or
profits are, or might be, shared with any third party other than pursuant to the
Management Agreement, the License, the Tranche 2 Loan and the EBRD Tranche 2
Loan.
(b) The Company shall not enter into any management contract or similar
arrangement whereby its business or operations are managed by any other Person
except as contemplated by the Management Agreement and the Construction
Contract.
(c) The Company shall not pay any management fee to Cyprus Magadan under
the Management Agreement (1) prior to the later of the Project Completion Date
and 15 December 1997, (2) on a day other than an Interest Payment Date, (3) if
an Event of Default or a Potential Event of Default has occurred and is
continuing, or (4) if Cyprus Magadan has notified OPIC, pursuant to the Cyprus
Magadan Guaranty, that a Political Event (as defined in the Cyprus Magadan
Guaranty) has commenced and such notification has not been withdrawn by Cyprus
Magadan pursuant to the Cyprus Magadan Guaranty. Except to the extent permitted
by Section 6.01 and this Section 6.09(c), the Company shall not make any
payments to Cyprus Magadan or Cyprus Amax or any Affiliate thereof other than of
Operating Costs consisting of reimbursable expenses payable pursuant to the
Management Agreement.
SECTION 6.09. INVESTMENTS
The Company shall not form or have any Subsidiary, or make or permit to
exist loans or advances (other than an interest free loan to the new subsurface
user of the Evenskoye Field in an amount not to exceed $8,000,000, if such loan
is required by Section 4.9 of the License Agreement) to, or deposits (other than
deposits in the Offshore Bank Account, the Russian Bank Accounts and the
accounts established in connection with the working capital facility referred to
in Section 6.04(a)(4) and the value added tax facility referred to in Section
6.04(a)(5)) with, other
Omolon - 67 - OPIC Finance Agreement
Persons or equity or other investments in any Person or enterprise; provided,
however, that the funds deposited in the Offshore Bank Account and the Russian
Bank Accounts may be invested by the banks at which such accounts are located in
short-term investment grade marketable securities. Without limiting the
foregoing, the Company shall not open or maintain any bank accounts other than
the Offshore Bank Account, the Russian Bank Accounts and the accounts
established in connection with the working capital facility referred to in
Section 6.04(a)(4) and the value added tax facility referred to in Section
6.04(a)(5) and shall not open or maintain any subaccounts of the Offshore Bank
Account other than the Disbursement Subaccount, the Roskomdragmet Sales
Subaccount, the Export Sales Subaccount, the Revenue Subaccount and the Cash
Collateral Subaccount.
SECTION 6.10. CHANGES IN BUSINESS, CAPITAL AND CHARTER
(a) The Company shall not make changes to the nature of its contemplated
business or operations. The Company shall not make any material change in the
nature or scope of the Project or the Development Plan, including without
limitation any such change which would involve an increase in Project Costs of
more than 15% or a delay in Project Completion of more than 120 days.
(b) The Company shall not carry out any business or activity other than
businesses or activities substantially related to the Project as contemplated by
the Development Plan.
(c) The Company shall not make changes, or permit changes to be made, to
its capital except in accordance with the Financing Plan. The Company shall not
permit any change in the equity interest of, or any transfer of any shares held
in its registered capital by, any Shareholder other than a transfer of shares in
the Company by one Russian Shareholder to another Russian Shareholder provided
that such shares remain subject to the Omolon Share Pledge.
(d) The Company shall not make changes, or permit changes to be made, to
its Charter in any manner which would be inconsistent with the provisions of
this Agreement.
SECTION 6.11. PREPAYMENT OF LONG-TERM DEBT
The Company shall not (whether voluntarily or involuntarily) make any
prepayment, repurchase or early redemption of any Long-term Debt (including,
without limitation, the OPIC Loan, but excluding prepayments under the
Construction Contract in exchange for discounts), or make any repayment of any
Long-term Debt pursuant to any provision of any agreement or note which provides
directly or indirectly for acceleration of repayment in time or amount, unless
in any such case it shall contemporaneously make a proportionate prepayment of
the principal amount then outstanding of the Loan in accordance with the
provisions of Section 3.07(a).
Omolon - 68 - OPIC Finance Agreement
SECTION 6.12. SALE OF ASSETS; MERGER
(a) The Company shall not sell, transfer, lease, grant a license to use
or otherwise dispose of all or a substantial part of its capital assets (whether
in a single transaction or in a series of transactions, related or otherwise).
(b) The Company shall not undertake or permit any merger, consolidation
or reorganization.
SECTION 6.13. WORKERS' RIGHTS.
The Company agrees not to take action to prevent its employees from
lawfully exercising their right of free association and their right to organize
and bargain collectively. The Company further agrees to observe all laws
relating to minimum age for employment of children, acceptable conditions of
work with respect to minimum wages, hours of work, and occupational health and
safety, and not to use forced labor. The Company is not responsible under this
Section 6.13 for actions of the Russian government.
ARTICLE VII
EVENTS OF DEFAULT, JURISDICTION, ARBITRATION
SECTION 7.01. EVENTS OF DEFAULT
Each of the following events and occurrences shall constitute an Event
of Default under this Agreement:
(a) PAYMENT DEFAULT. The Company shall have failed to pay when due any
principal of, or interest on, the Loan as required by this Agreement or the EBRD
Loan as required by the EBRD Loan Agreement.
(b) NEGATIVE COVENANT DEFAULT. The Company shall have failed to perform
any of its obligations under Article VI.
(c) OTHER OBLIGATIONS DEFAULT. The Company or any other party (other
than a Project Lender) shall have failed to perform any of its obligations under
this Agreement, any other Financing Agreement, any Project Agreement or any
other agreement between the Company on the one hand and OPIC or EBRD on the
other hand, the failure to perform which is not an Event of Default referred to
elsewhere in this Section 7.01, and any such failure to perform shall have
continued for a period of 30 days (in the case of a failure to perform by the
Company, any Affiliate of the Company or any Shareholder) or 60 days (in the
case of a failure to perform by any other party) after notice thereof shall have
been given to the Company by OPIC.
Omolon - 69 - OPIC Finance Agreement
(d) REPRESENTATION DEFAULT. Any representation or warranty made or
confirmed by the Company, Cyprus Amax, Cyprus Gold, any Shareholder or the
Contractor in Article II, in any Financing Agreement, in any Project Agreement
or in any request for a Disbursement under this Agreement or for a disbursement
under the EBRD Loan Agreement shall have been false, incorrect or misleading in
respect of a material fact when made or confirmed.
(e) NATIONALIZATION DEFAULT. Any government or governmental authority
shall have condemned, nationalized, seized or otherwise expropriated all or any
substantial part of the property or other assets of the Company or of its share
capital or shall have assumed custody or control of such property or other
assets or of the business or operations of the Company or of its share capital
or shall have taken any action for the dissolution or disestablishment of the
Company or any action that would prevent the Company from carrying on its
business or operations. or a substantial part thereof, or otherwise prevent the
completion or operation of the Project; or the Company or any Shareholder shall
have made a claim under any insurance issued by OPIC (or similar insurance
issued by any other insurer) in connection with the Project.
(f) BANKRUPTCY DEFAULT. There shall have been entered against the
Company, Cyprus Amax, Cyprus Gold, or any Shareholder a decree or order by a
court adjudging the Company, Cyprus Amax, Cyprus Gold, or such Shareholder
bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the
Company, Cyprus Amax or such Shareholder under any applicable law, or appointing
a receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company, Cyprus Amax, Cyprus Gold, or such Shareholder or of any
substantial part of its property or assets, or ordering the winding up or
liquidation of its affairs; or the Company, Cyprus Amax, Cyprus Gold, or any
Shareholder shall have instituted proceedings to be adjudicated bankrupt or
insolvent, or consented to the institution of bankruptcy or insolvency
proceedings against it, or filed a petition or answer or consent seeking
reorganization or relief under any applicable law, or consented to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, Cyprus Amax,
Cyprus Gold, or such Shareholder or of any substantial part of its property, or
made an assignment for the benefit of creditors, or admitted in writing its
inability to pay its debts generally as they become due; or any other event
shall have occurred which under any applicable law would have an effect
analogous to any of the events listed in this subsection; provided that any such
event in respect of a Russian Shareholder shall be an Event of Default only if
it has a Material Adverse Effect.
(g) CROSS DEFAULT. A default shall have occurred with respect to any
Indebtedness of Cyprus Amax in excess of $20,000,000 (or the equivalent thereof
in other currencies) or any Indebtedness of the Company (other than the Loan or
the OPIC Loan) or Cyprus Magadan or under any agreement pursuant to which there
is outstanding any such Indebtedness, and such default shall have continued
beyond any applicable period of grace; or an event of default shall have
occurred under the EBRD Loan Agreement.
(h) ABANDONMENT DEFAULT. The Company shall have ceased to carry on its
business; or the Project shall have been abandoned by the Company; or, following
the Project Completion Date, the operation of the Project shall have been
interrupted for a period in excess of 90
Omolon - 70 - OPIC Finance Agreement
consecutive days or any periods in the aggregate in excess of 120 days during
any period of 12 consecutive months.
(i) PROJECT COMPLETION DEFAULT. Physical completion of the Project (as
certified by the Company and Cyprus Magadan in accordance with Schedule Q to the
EBRD Loan Agreement) shall not have occurred by the date 24 months from the date
of this Agreement, as such date shall be extended for a period (not to exceed,
in the aggregate, 12 months) equal to the duration of any suspension by EBRD of
the right of the Company to disbursements pursuant to Section 3.04 of the EBRD
Loan Agreement and for a period (not to exceed, in the aggregate, six months)
equal to the duration of any Force Majeure Event occurring during the Commitment
Period; or the Project Completion Date shall not have occurred by the date 18
months after physical completion of the Project.
(j) AGREEMENT DEFAULT. Any Financing Agreement or Project Agreement or
any other agreement required in connection with the construction or operation of
the Project or ancillary services shall have been terminated, rescinded or
cancelled for any reason (unless OPIC shall have consented to such termination
in accordance with Section 5.09('o)); or any Project Agreement shall have been
modified or amended without the prior written consent of OPIC; or any Financing
Agreement or Project Agreement shall be or become void or unenforceable or shall
be claimed to be so by any party thereto (other than a Project Lender).
(k) JUDGMENT DEFAULT. A final judgment or order for the payment of money
in excess of $2,000,000 (or the equivalent thereof in other currencies at then
current rates of exchange) shall be rendered against the Company or any of its
properties and such judgment or order shall continue to be unsatisfied for a
period of 30 consecutive days; or any legal proceeding (whether criminal or
civil) shall be instituted which, if adversely determined, might have a Material
Adverse Effect; or any injunction or other judicial order which might have a
Material Adverse Effect shall be issued against the Company.
(l) SECURITY DEFAULT. Any Security Document (other than the Immovables
Mortgage or the Enterprise Mortgage) for any reason (other than an act or
omission of OPIC or by OPIC) shall have ceased to constitute a valid and
perfected first priority security interest in and Lien on any of the collateral
purported to be covered thereby; or the Company shall have created or permitted
to exist any Lien (other than a Permitted Lien) on any of its property, revenues
or assets.
(m) APPROVALS DEFAULT. Any license, approval, consent, filing or
registration now or hereafter required for the execution, delivery or
performance by any party of any Financing Agreement or Project Agreement or to
construct, own, operate or maintain the Project or exploit the Kubaka Field
shall have been modified, revoked, withdrawn or withheld or shall have ceased to
remain in full force and effect, and such occurrence shall have a Material
Adverse Effect.
(n) CYPRUS AMAX DEFAULT. The credit rating given to Cyprus Amax by
Standard & Poor's Corporation shall have fallen below BB- at any time that any
amounts are guaranteed by Cyprus Magadan pursuant to the Cyprus Magadan
Guaranty; or Cyprus Amax or Amax Gold shall have failed at any time to own
indirectly 50% of the shares in the Company; or Cyprus
Omolon - 71 - OPIC Finance Agreement
Amax or Amax Gold shall have ceased at any time to be entitled, either directly
or indirectly, to exercise such control over the management of the Company as is
provided for Cyprus Amax in the Company's Charter as it exists on the date
hereof or such management control shall have been reduced from that provided for
in the Company's Charter as it exists on the date hereof; or all or part of
Cyprus Amax's indirect shareholding in Cyprus Magadan shall have been
transferred to Amax Gold and Amax Gold shall have ceased to be an Affiliate of
Cyprus Amax.
(o) ADVERSE CHANGE DEFAULT. There shall have occurred a change of law or
of any regulation having the force of law which has a Material Adverse Effect;
or it shall have become unlawful for the Company, Cyprus Amax, Cyprus Gold, any
Shareholder or the Contractor to perform any material obligation under this
Agreement, any other Financing Agreement or any Project Agreement; or there
shall have occurred any action by any governmental body or agency or any
enactment, modification or change in the interpretation of any law, decree,
order or regulation which restricts or prohibits in any material way the
performance by the Company, Cyprus Amax, Cyprus Gold, any Shareholder or the
Contractor of their respective obligations under this Agreement, any other
Financing Agreement or any Project Agreement; or there shall have occurred a
change in the political or economic situation in the Russian Federation or other
adverse change in circumstances or in the business situation of the Company, any
Shareholder or the Contractor which, in the reasonable opinion of OPIC, has a
Material Adverse Effect.
(p) ENVIRONMENT DEFAULT. The Company or its businesses, operations,
assets, equipment, property, leaseholds or other facilities shall have failed in
any respect to comply with the Environmental Standards.
(q) COST OVERRUN DEFAULT. OPIC shall have determined that the Project
Costs (including, without limitation, financing costs) necessary to achieve
physical completion of the Project will, as a result of delays in completion or
otherwise, exceed by more than $10,000,000 (or the equivalent thereof in other
currencies at then current rates of exchange) the total amount thereof set forth
in Section 2.01(b) and the Shareholders shall have failed, within 60 days of
such determination, to make cash contributions of paid-in capital or
Subordinated Shareholder Loans to the Company in the amount of 50% of the full
amount of such excess.
(r) BANK ACCOUNT DEFAULT. The Company shall have withdrawn any funds
from the Offshore Bank Account, or any subaccount thereof, or the Russian Bank
Accounts for any purpose not permitted by this Agreement or otherwise in any
manner contrary to the terms of this Agreement, the Offshore Account Pledge or
the Russian Account Pledge; or, at any time after the Project Completion Date,
the balance of the Cash Collateral Subaccount shall be less than the minimum
amount specified in Section 5.13 for a period in excess of 15 consecutive days.
SECTION 7.02. ACCELERATION IN EVENTS OF DEFAULT
If any one or more Events of Default has occurred and is continuing,
OPIC may at any time in its sole discretion, do any or all of the following:
(1) Suspend or terminate the Commitment;
Omolon - 72 - OPIC Finance Agreement
(2) Declare, by written demand for payment to the Company, any portion
or all of the outstanding principal amount of the Loan to be due and
payable whereupon such portion of the Loan shall immediately mature
and become due and payable together with interest accrued thereon
(together with any other amounts accrued or payable under this
Agreement or Notes, including any Make,Whole Premium, if any),
without any other presentment, demand, diligence, protest, notice of
acceleration, or other notice of any kind, all of which the Company
hereby expressly waives; and
(3) Without notice of default or demand, proceed to protect and enforce
its rights and remedies by appropriate proceedings, whether for
damages or the specific performance of any provision of this
Agreement, or in aid of the exercise of any power granted in this
Agreement or by law.
SECTION 7.03. AUTOMATIC ACCELERATION
Notwithstanding Section 7.02, if the Company shall have become
voluntarily or involuntarily dissolved, or becomes bankrupt or insolvent
(however such bankruptcy or insolvency may be evidenced):
(1) The Commitment shall be automatically terminated without notice of
any kind; and
(2) The principal of, and all accrued interest on, the Loan (together
with any other amounts accrued or payable under this Agreement and
the Notes, including a Make-Whole Premium, if any) shall thereupon
become immediately due and payable (anything in this Agreement to
the contrary notwithstanding) without any presentment, demand,
protest or notice of any kind, all of which are hereby expressly
waived by the Company.
SECTION 7.04. JURISDICTION, SERVICE OF PROCESS; WAIVER OF JURY.
(a) Jurisdiction. Without prejudice to the rights of OPIC to bring suit
in any appropriate domestic or foreign jurisdiction, any proceeding to enforce
this Agreement, the Notes, or any of the other Financing Agreements, or the
arbitral tribunal's decision pursuant to Section 7.05, may, at the option of
OPIC, be brought by OPIC in:
(1) any state or federal court of competent jurisdiction in the District
of Columbia of the United States of America;
(2) any state or federal court of competent jurisdiction in New York
City;
(3) the High Court of Justice in London, England; or
Omolon - 73 - OPIC Finance Agreement
(4) any other jurisdiction where the Company or any of its property may
be found.
The Company hereby irrevocably consents and submits unconditionally to the non-
exclusive jurisdiction for itself and in respect of any of its property of any
such court. The Company hereby irrevocably waives:
(a) any objection which it may now or hereafter have to the laying of
the venue of any such legal action or proceeding in New York City,
Washington, D.C., or London, and
(b) any claim that New York City, Washington, D.C., or London is not a
convenient forum for any such legal action or proceeding.
The Company further agrees that final judgment against it in any such action or
proceeding arising out of or relating to this Agreement shall be conclusive and
may be enforced in any other jurisdiction within or outside the United States of
America by suit on the judgment, a certified or exemplified copy of which shall
be conclusive evidence of the fact and of the amount of the Company's
obligation.
(b) SERVICE OF PROCESS. The Company hereby agrees that service of
process, writ, judgment, or other notice of legal process shall be deemed and
held in every respect to be effective personal service upon it in any such
action or proceeding brought in:
(1) Washington, D.C., if made upon CT Corporation System, a corporation
organized and existing under the laws of the State of Delaware,
located on the date hereof at 1025 Vermont Avenue, NW, 4th Floor,
Washington DC 20005;
(2) New York City, if made upon CT Corporation System, a corporation
organized and existing under the laws of the State of Delaware,
located on the date hereof at 1633 Broadway, New York, New York
10019; and
(3) London, if made upon upon The Law Debenture Corporation p.l.c.,
located on the date hereof at Princes House, 95 Gresham Street,
London EC2V 7LY.
(collectively, the "PROCESS AGENTS" and each a "PROCESS AGENT"). Concurrently
with the execution of this Agreement, The Company shall provide OPIC with
evidence (in form and content satisfactory to OPIC):
(a) that each such Process Agent has been irrevocably designated and
appointed as the Company's authorized agent to receive, accept, and
acknowledge on The Company's behalf service of process in any such
action or proceeding in the jurisdiction of its offices; and
Omolon - 74 - OPIC Finance Agreement
(b) that the fees of each such Process Agent have been paid through the
date that is six months after the Tranche 2 Prepayment Date.
The Company shall maintain such appointments of each of the Process Agents (or
that of successors satisfactory to OPIC) continuously in effect at all times
while any obligation hereunder exists. Nothing in this Agreement shall affect
OPIC's right to serve process in any other manner permitted by applicable law.
(c) JURY WAIVER. THE COMPANY AND OPIC EACH HEREBY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO HAVE A JURY PARTICIPATE IN
RESOLVING ANY DISPUTE ARISING OUT OF, IN CONNECTION WITH, RELATED TO, OR
INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM ESTABLISHED BY THIS OR ANY OTHER
INSTRUMENT, DOCUMENT, OR AGREEMENT ENTERED INTO IN CONNECTION WITH THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
(d) WAIVER OF LITIGATION PAYMENTS. The Company, to the fullest extent
permissible under applicable law, hereby (i) irrevocably waives its right to,
and agrees not to request, plead or claim that OPIC and its successors,
transfers, and assigns (any such Person, an "OPIC Plaintiff') post, pay or
offer, any caution judicatum solvi bond, litigation bond or any other bond, fee,
payment or security measure provided by any provision of applicable law as a
condition to commencing or maintaining any such legal action or proceeding (any
such bond, fee, payment, or measure, a "Litigation Payment"), and (2)
irrevocably waives any objection that it may now or hereafter have to an OPIC
Plaintiff's claim that such OPIC Plaintiff should be exempt or immune from
posting, paying, making or offering any such Litigation Payment.
(e) The Company understands and agrees that the Company may only
initiate an action against OPIC in the United States Court of Claims in
Washington, D.C. Nothing in this Agreement or any other Financing Agreement
shall be construed as a waiver of such privilege and immunity, and no action by
OPIC shall be construed as a submission to the jurisdiction to the jurisdiction
of any other court with respect to any action other than one initiated by OPIC.
SECTION 7.05. ARBITRATION
OPIC shall have the option in its sole discretion to refer any dispute,
controversy or claim arising out of or relating to this Agreement, the Notes or
any other Financing Agreement to which the Company and OPIC are parties or are
among the parties, or the breach, termination or validity hereof or thereof,
including any dispute concerning the scope of this Section 7.05, for final
settlement by arbitration. In no event shall the Company be entitled to refer
any such dispute, controversy or claim to arbitration pursuant to this Section
7.05 or otherwise. UPOn the election by OPIC to refer any such dispute,
controversy or claim to arbitration pursuant hereto, the Company shall be
obligated to settle such dispute, controversy or claim by arbitration as
provided herein. The Company hereby expressly and irrevocably submits to the
jurisdiction of the arbitral tribunal appointed in accordance with the
procedures set forth below with respect to any dispute, controversy or claim
that is referred by OPIC to arbitration, to the exclusion of the jurisdiction of
Omolon - 75 - OPIC Finance Agreement
the legal, equitable or arbitral courts of the Russian Federation or of any
other country or jurisdiction. The following provisions shall apply to any such
arbitration:
(1) Except as otherwise provided herein, such arbitration shall be
governed by the International Arbitration Rules of the American
Arbitration Association in effect at the time of such arbitration
(for purposes of this Section 7.05, the "AAA Rules").
(2) The seat of such arbitration shall be New York, New York, unless
OPIC determines that the seat of such arbitration shall instead be
London, England or Washington, D.C. The language of the arbitration
proceedings and of all written decisions shall be English. All
pleadings and documentary evidence shall be presented in English,
except that, if any original documentary evidence is not in English,
the offering party shall provide English translations thereof
(which, in the event of any dispute with respect to such
translation, the arbitral tribunal may require to be certified
translations) to the arbitral tribunal and to the other party.
(3) The arbitral tribunal shall consist of three arbitrators, each of
whom, in addition to meeting the qualification requirements of the
AAA Rules:
(A) shall be fluent in the English language; and
(B) shall be an attorney qualified to practice law in the State of
New York with experience in representing lenders and borrowers
in international project finance lending to private sector
borrowers.
One arbitrator shall be appointed by OPIC and one arbitrator shall
be appointed by the Company. Each party shall notify the other of
the name of its appointee within 10 days of the receipt by the
Company of notice from OPIC of its election to refer any dispute,
controversy or claim to arbitration pursuant hereto. The third
arbitrator shall be appointed by OPIC with the concurrence of the
Company. The third arbitrator shall be the chair of the arbitral
tribunal. The Company shall be deemed to accept OPIC's nomination of
the third arbitrator if the Company fails to object to such
nomination (or any subsequent nomination) within seven days of
receiving notice.. from OPIC of such nomination. If the Company does
not accept (and has not been deemed to have accepted) OPIC's first
nomination, OPIC shall submit a second nomination for the third
arbitrator. If the Company does not accept (and has not been deemed
to have accepted) such second nomination, OPIC shall submit a third
nomination for the third arbitrator. If the Company fails to appoint
its arbitrator for any reason in the manner or within the period
specified above or the Company does not accept (and has not been
deemed to have accepted) the third arbitrator nominated by OPIC,
then the arbitrator that the Company failed to appoint or such third
arbitrator or both such arbitrators, as the case may be, shall be
appointed by the Administrator (as defined in the AAA Rules).
Omolon - 76 - OPIC Finance Agreement
(4) Each party shall send any challenge to the appointment of an
arbitrator to the Administrator within seven days after receiving
notice of the appointment of such arbitrator. The Administrator
shall rule on any challenge to the appointment of an arbitrator as
quickly as reasonably possible and, in any event, within seven days.
If an arbitrator appointed by OPIC withdraws or must be replaced for
any reason, OPIC shall appoint a substitute arbitrator in accordance
with Section 7.05(a)(3) within a reasonable period of time. If an
arbitrator appointed by the Company withdraws or must be replaced
for any reason, the Company shall appoint a substitute arbitrator in
accordance with Section 7.05(a)(3) within three days. If the
arbitrator appointed by OPIC with the concurrence of the Company
withdraws or must be replaced, OPIC shall nominate a substitute
arbitrator with the concurrence of the Company in accordance with
Section 7.05(a)(3). If an arbitrator appointed by the Administrator
withdraws or must be replaced, the Administrator shall appoint a
substitute arbitrator.
(5) In the event that EBRD commences an arbitration in accordance with
the EBRD Loan Agreement or any other Financing Agreement and OPIC
and EBRD agree to consolidate such arbitration with any arbitration
hereunder, OPIC and EBRD shall jointly exercise the rights of OPIC
under Sections 7.05(a)(2), 7.05(a)(3) and 7.05(a)(4), but otherwise
OPIC shall be entitled to exercise independently the rights granted
to it herein.
(6) Between the date of appointment of an arbitrator and the date the
arbitral tribunal is fully constituted, all communications between
the parties and such arbitrator shall be made through the
Administrator. Each party shall provide the other with copies of any
communication with the arbitral tribunal.
(7) OPIC shall communicate its statement of claim in writing to the
Company and the arbitral tribunal within a period of time to be
determined by the arbitral tribunal. OPIC's statement of claim shall
include a statement of facts supporting its claim, the points at
issue and the relief or remedy sought. A copy of this Agreement
shall be attached to OPIC's statement of claim.
(8) The Company shall file a statement of defense in writing within 20
days of its receipt of OPlC's statement of claim. The Company's
statement of defense shall reply to the particulars of OPIC's
statement of claim. The Company shall attach to its statement of
defense all documents on which it relies for its defense and
identify all documents or other evidence it will submit. The failure
to timely and completely file such statement of defense (absent good
cause) shall be construed by the arbitral tribunal as an admission
of the allegations made by OPIC in its statement of claim and the
arbitral tribunal shall enter an award for the relief or remedy
requested by OPIC without any further hearing or review of evidence.
(9) In any arbitral proceeding, the certificate of OPIC or the Paying
Agent as to any amount due to OPIC under this Agreement shall be
prima facie evidence of such amount.
Omolon - 77 - OPIC Finance Agreement
(10) Each arbitral tribunal established hereunder shall make its
decisions entirely on the basis of the evidence adduced and on the
basis of the governing law set forth in Section 8.10. No such
arbitral tribunal shall have the power to reform any provisions of
this Agreement or to impose any obligation on any of the parties to
the arbitration or take any other action which could not be imposed
or taken by a federal court located in the State of New York.
(11) The parties irrevocably agree that, if the seat of any arbitration
hereunder is London, England:
(A) no leave to appeal under section l(3)(b) of the U.K.
Arbitration Act of 1979 shall be sought with respect to any
question of law arising from an award;
(B) if OPIC has directed that the arbitral tribunal issue a written
award stating only its conclusions and not the reasons
therefor, no application shall be made under section l(5)(b) of
the U.K. Arbitration Act of 1979 with respect to any award; and
(C) no application shall be made under section 2(1)(a) of the U.K.
Arbitration Act of 1979 with respect to any question of law.
(12) Each party may be represented or assisted by legal counsel of its
choice. The names and addresses of such legal counsel shall be
communicated in writing to the other party in its statement of
claim or statement of defense (as the case may be) specifying
whether the appointment is being made for the purposes of
representation or assistance.
(13) The parties shall agree on the date on which the arbitral tribunal
will commence taking evidence in respect of the matter in issue,
which date shall not be more than 20 days after the Company's
submission of its statement of defense (unless OPIC otherwise
directs). Decisions or rulings on questions of procedure shall be
made by a majority of the arbitral tribunal. Both parties shall
have a right to be heard at the hearing, unless the parties have
agreed to a documents-only arbitration or unless, in the case of
the Company, the Company has not filed a timely statement of
defense in accordance with Section 7.05(a)(8).
(14) At least 10 days before the first hearing date, there shall be an
exchange of exhibits, brief descriptions of the testimony the
parties propose to offer, the names of those who will testify
(including expert witnesses) and any additional documents or other
written evidence that will be submitted to the arbitral tribunal
for consideration.
(15) The arbitral tribunal shall have the discretion to allow, refuse or
limit the appearance of witnesses, whether witnesses of fact or
expert witnesses. Any witness who gives evidence may be questioned
by the other party or its attorneys
Omolon - 78 - OPIC Finance Agreement
under the control of the arbitral tribunal. The arbitral tribunal
may put questions at any stage of the examination of the witnesses.
The testimony of witnesses may be presented in written form, either
as signed statements or by duly sworn affidavits. Subject to the
discretion of the arbitral tribunal, either party may request that
such witness should attend for oral examination at a hearing. If
the witness fails to attend, the arbitral tribunal may place such
weight on the written testimony as it thinks fit or exclude it all
together. If any expert is appointed by the arbitral tribunal, the
parties hereto shall have the right to examine such expert's report
to the arbitral tribunal and, subject to the discretion of the
arbitral tribunal, to question such expert at an oral hearing.
Subject to mandatory provisions of applicable procedural law, any
party or its attorneys shall have the right to interview any
witness or potential witness (including expert witnesses) prior to
his appearance at any hearing.
(16) To facilitate the comprehensive and consistent resolution of all
disputes arising out of or in connection with any of the Financing
Agreements, OPIC may, at its sole option, direct the arbitral
tribunal to, and upon such direction the arbitral tribunal shall,
consolidate with the arbitration proceeding hereunder any other
arbitration or other dispute proceeding involving any of the
parties to any of the Financing Agreements and arising out of or in
connection with any of the- Financing Agreements. In the event of
any such consolidation, any arbitral tribunal constituted in
respect of such other proceeding shall be dissolved effective upon
such consolidation, the arbitral tribunal constituted hereunder
shall determine all matters referred to arbitration in accordance
with the rules and procedures applicable to the proceeding
hereunder and no party shall have any right to challenge any
arbitrator already nominated or appointed to such arbitral
tribunal. Such arbitral tribunal shall be authorized to determine,
in a manner consistent with the general tenor of the AAA Rules, the
appropriate procedure to achieve the above objective and shall
issue one final and comprehensive arbitral award in respect of all
such disputes so consolidated.
(17) The arbitral tribunal shall issue a written decision and award
stating the conclusions of the arbitral tribunal and the reasons
upon which its conclusions are based, unless OPIC directs, in its
sole discretion, that the arbitral tribunal issue a written
decision and award stating only its conclusions and not the reasons
therefor. The arbitral tribunal shall issue its award as soon as
possible and, in any event, within one month after the conclusion
of the relevant proceedings. Any money award shall be made and
shall be payable in Dollars. Any award in favor of OPIC shall
include an award of attorneys' fees and costs of arbitration,
payable in Dollars. The award shall otherwise be limited to the
scope of the submission. In no circumstance shall the arbitral
tribunal render an award ex aequo et bono or as amiable
compositeurs. Any award of the arbitral tribunal shall be final and
binding and judgment upon any arbitral award may be entered and
enforced by any court or judicial authority of competent
jurisdiction.
Omolon - 79 - OPIC Finance Agreement
(18) Either party may, within l0 days after any award, submit a request
that the arbiual tribunal interpret the award, correct any
clerical, typographical or computation errors or make an additional
award as to claims presented but omitted from the award. If the
arbitral tribunal considers such request justified after
considering the contention of the parties, the arbitral tribunal
shall promptly comply with such request.
(19) Neither the arbitral tribunal nor the Company shall be authorized
to seek from any judicial authority, and the arbitral tribunal
shall not be authorized to take or provide, any interim measures or
pre-award relief against OPIC, any provisions of the AAA Rules
notwithstanding.
SECT[ON 7.06. WAIVER OF SOVEREIGN IMMUNITY
The Company represents and warrants that this Agreement, the Notes, the
other Financing Agreements and the incurring by the Company of the Loan are
commercial rather than public or governmental acts and that the Company is not
entitled to claim immunity from legal or other proceedings with respect to
itself or any of its assets on the grounds of sovereignty or otherwise under any
law or in any jurisdiction where an action may be brought for the enforcement of
any of the obligations arising under or relating to this Agreement, the Notes,
or the other Financing Agreements. To the extent that the Company or any of its
assets has or hereafter may acquire any right to immunity from set-off, legal,
or other proceedings, attachment prior to judgment, other attachment or
execution of judgment on the grounds of sovereignty or otherwise, the Company
hereby irrevocably waives such rights to immunity in respect of its obligations
arising under or relating to this Agreement, the Notes or the other Financing
Agreements.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. TERM OF AGREEMENT; SURVIVAL
This Agreement shall continue in force until all monies payable
hereunder shall have been fully paid in accordance with the provisions hereof;
provided that the Company's obligations and indemnities as set forth in Section
3.09, 3.12, 7.04, 7.05, and 8.08 shall survive repayment of the Loan.
Omolon - 80 - OPIC Finance Agreement
SECTION 8.02. ENTIRE AGREEMENT; AMENDMENT AND WAIVER
This Agreement and the documents referred to herein constitute the
entire obligation of the parties hereto with respect to the subject matter
hereof and shall supersede all prior agreements, expressions of intent, or
understandings (whether written or oral) with respect to the subject matter of
this Agreement. Any amendment hereto or waiver of any of the terms hereof shall
be in writing, signed by each party to be bound or burdened thereby.
SECTION 8.03. NOTICES
Any notice, demand, report, or other communication to be given or made
under this Agreement to OPIC or the Company shall be in writing. Subject to the
provisions of Sections 5.3 l(f), 5.3 l(g) and 5.3 l(h), such notice, demand,
report, or other communication shall be deemed to have been duly given or made
when it shall be delivered by hand, airmail, or facsimile transmission to the
party to which it is required or permitted to be given or made at such party's
address specified below or at such other address as such party shall have last
specified by notice to the party giving or making such notice, demand, report,
or other communication.
To the Company:
Omolon Gold Mining Company
Proletariat Street, 14
685000 Magadan
Russian Federation
(Attn: Chairman)
Fax: (70) (413) (22) 2-45-15
To OPIC:
Overseas Private Investment Corporation
1100 New York Avenue, N.W.
Washington, D.C. 20527
United States of America
(Atto: Vice President, Finance)
Fax: (202) 408-9859
with a separately transmitted copy to Treasurer
Fax: (202) 408-9859
Omolon - 81 - OPIC Finance Agreement
SECTION 8.04. CERTIFICATE OF INCUMBENCY AND AUTHORITY
The Company shall furnish or cause to be furnished to OPIC evidence, in
substantially the form of Schedule Y to the EBRD Loan Agreement and in substance
satisfactory to OPIC, of the authority of the Person or Persons who will, on
behalf of the Company, sign the Disbursement Requests and certifications
provided for in this Agreement or take any other action or execute any other
document required or permitted to be taken or executed by the Company under this
Agreement, and the authenticated specimen signature of each such Person.
SECTION 8.05. [RESERVED]
SECTION 8.06. [RESERVED]
SECTION 8.07. RIGHTS, REMEDIES AND WAIVERS
(a) The rights and remedies of OPIC in relation to any
misrepresentations or breach of warranty on the part of the Company shall not be
prejudiced by any investigation by or on behalf of OPIC into the affairs of the
Company, by the execution or the performance of this Agreement or by any other
act or thing which may be done by or on behalf of OPIC in connection with this
Agreement and which might, apart from this Section, prejudice such rights or
remedies.
(b) No course of dealing or waiver by OPIC in connection with any
condition of Disbursement under this Agreement shall impair any right, power or
remedy of OPIC with respect to any other condition of Disbursement, or be
construed to be a waiver thereof; nor shall the action of OPIC in respect of any
Disbursement affect or impair any right, power or remedy of OPIC in respect of
any other Disbursement.
(c) Unless otherwise notified to the Company by OPIC and without
prejudice to the generality of Section 8.07(b), the right of OPIC to require
compliance with any condition under this Agreement which may be waived by OPIC
in respect of any Disbursement is expressly preserved for the purposes of any
subsequent Disbursement.
(d) No course of dealing and no delay in exercising, or omission to
exercise, any right, power or remedy accruing to OPIC upon any default under
this Agreement or any other agreement shall impair any such right, power or
remedy or be construed to be a waiver thereof or an acquiescence therein; nor
shall the action of OPIC in respect of any such default, or any acquiescence by
it therein, affect or impair any right, power or remedy of OPIC in respect of
any other default.
(e) Notwithstanding anything herein to the contrary, no provision of
this Agreement shall be construed as a waiver by OPIC of any of the immunities,
privileges, and exemptions granted to OPIC (and any officer, director, employee,
or agent of OPIC) under applicable law.
Omolon - 82 - OPIC Finance Agreement
SECTION 8.08. INDEMNIFICATION
(a) The Company assumes full liability for, and agrees to and shall
indemnify and hold harmless OPIC and its officers, directors, employees, agents
and servants and any manager appointed by OPIC pursuant to any Security Document
against and from any and all liabilities, obligations, losses, damages
(compensatory, punitive or otherwise), penalties, claims, actions, taxes,
duties, suits, costs and expenses (including, without limitation, legal
counsel's reasonable fees and expenses and costs of investigation) of whatsoever
kind and nature, including, without prejudice to the generality of the
foregoing, those arising in contract or tort (including, without limitation,
negligence) or by strict liability or otherwise, which are imposed on, incurred
by or asserted against OPIC or any of its officers, directors, employees, agents
or servants or any manager appointed by OPIC pursuant to any Security Document
(whether or not also indemnified by any other Person under any other document)
and which in any way relate to or arise out of, whether directly or indirectly,
(l) any of the transactions contemplated by any Financing Agreement or Project
Agreement or the execution, delivery or performance thereof, (2) the
development, design, construction, completion, operation or maintenance of the
Project, the Kubaka Field or the Evenskoye Field or the ownership, control or
possession thereof by the Company, or (3) the exercise by OPIC of any of its
rights and remedies under any of the Security Documents or any of the other
Financing Agreements; provided that OPIC shall not have any right to be
indemnified hereunder for its own gross negligence or willful misconduct.
(b) Without limiting the generality of the foregoing, the Company agrees
to and shall indemnify and hold harmless OPIC and its officers, directors,
employees, agents and servants against and from any such liabilities,
obligations, losses, damages, penalties, claims, actions, Taxes, duties, suits,
costs or expenses arising under any environmental law or other applicable law as
a result of the past, present or future operations of the Company (or any
predecessor or successor in interest to the Company), or the past, present or
future condition of any site or facility owned, operated or leased by the
Company (or any such predecessor or successor in interest), or any release or
use or threatened release of any pollutants or hazardous materials at any such
site or facility, including any such release or use or threatened release which
shall occur during any period when either Project Lender shall be in possession
of any such site or facility following the exercise by either Project Lender of
any of its rights and remedies hereunder or under any Financing Agreement.
(c) The Company agrees that OPIC is not responsible or liable for, and
the Company irrevocably waives, any claim it may now or in the future have
against OPIC arising out of or in relation to any action or omission of any
party to a Funding Document.
SECTION 8.09. SEVERABILITY
If any provision of this Agreement is prohibited or held to be invalid,
illegal, or unenforceable in any jurisdiction, OPIC and the Company agree to the
fullest extent permitted by law that:
Omolon - 83 - OPIC Finance Agreement
(1) the validity, legality, and enforceability of the other provisions
of this Agreement in such jurisdiction shall not be affected or
impaired thereby; and
(2) any such prohibition, invalidity, illegality, or unenforceability
shall not render such provision prohibited, invalid, illegal, or
unenforceable in any other jurisdiction.
SECTION 8.10. [RESERVED]
SECTION 8.11. [RESERVED]
SECTION 8.13. SUCCESSORS AND ASSIGNS
This Agreement shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto, except that the Company may not
assign or otherwise transfer all or any part of its rights or obligations under
this Agreement without the prior consent of OPIC.
SECTION 8.14. COUNTERPARTS
This Agreement may be executed in several counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same agreement.
[Signature page to follow]
IN WITNESS WHEREOF, the parties hereto, acting through their duly
authorized representatives, have caused this Agreement to be signed in their
respective names as of the date first above written.
THE CLOSED JOINT STOCK COMPANY
"OMOLON GOLD MINING COMPANY"
By: /s/ J.S. Rosenblum
------------------------
Name: J.S. Rosenblum
Its: Chairman
By: /s/ S.W. Harapiak
------------------------
Name: S.W. Harapiak
Its: General Director
By: /s/ E.S. Ryzhaikina
------------------------
Name: E.S. Ryzhaikina
Its: Chief Assisant
OVERSEAS PRIVATE INVESTMENT
CORPORATION
By: /s/ Ruth R. Harkin
------------------------
Name: Ruth R. Harkin
Its: President and Chief
Executive Officer
[Signature page to Finance Agreement dated as of 30 June, 1995, between Overseas
Private Investment Corporation and Omolon Gold Mining Company.]
FIRST AMENDMENT TO FINANCE AGREEMENT
THIS FIRST AMENDMENT is made as of the 22nd day of April 1996 between:
THE CLOSED JOINT STOCK COMPANY "OMOLON GOLD MINING COMPANY"
(the "Company"), and
OVERSEAS PRIVATE INVESTMENT CORPORATION ("OPIC").
Recitals
A. The Company has entered into a Finance Agreement dated as of 30
June 1995, (the "Agreement"), with OPIC, pursuant to which OPIC has agreed to
make provide a loan to the Company in an mount not to exceed US$52,500,000,
subject to the terms and conditions of the Agreement.
B. The Company has entered into a Loan Agreement dated as of 30
June 1995, as amended as of 7 November 1995, (the "EBRD Loan Agreement"), with
the European Bank for Reconstruction and Development ("EBRD"), pursuant to which
EBRD has agreed to make provide a loan to the Company in an mount not to exceed
US$47,500,000, subject to the terms and conditions of the EBRD Loan Agreement.
C. EBRD and the Company, with OPIC's consent, have executed a
Second Amendment Agreement to Loan Agreement dated as of 22 April 1996.
D. OPIC and the Company have agreed to amend the Agreement as
provided and subject to the terms and conditions of this First Amendment.
NOW, THEREFORE, the parties hereto agree as follows:
AGREEMENT
SECTION I. DEFINITIONS.
Wherever used in this First Amendment, unless the context shall
otherwise require, the terms defined in the Agreement and not separately defined
herein shall have the same meanings when used in this First Amendment.
SECTION 2. AMENDMENT TO AGREEMENT.
Section 8_03 of the Agreement is hereby amended by:
Omolon -2- First Amendment
(1) deleting "Sections 5_3l(f), 5_3 l(g) and 5.3 (h)" in the third line; and
(2) inserting "Sections 5.19(h) and 5.19(i)'? in place thereof.
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to OPIC as follows:
(a) the Company Ms all requisite power and authority., corporate or
otherwise, to execute, deliver and perform all of its obligations
under this Amendment and the Agreement as mended by this First
Amendment;
(b) the Company has taken all necessary action to authorize the
execution, delivery and performance by the Company of tiffs First
Amendment and the Agreement as amended by this First Amendment;
(c) this First Amendment has_ been duly executed and delivered by the
Company and this Fire Amendment and the Agreement as mended by
this First Amendment constitute valid and legally binding
obligations of the Company, enforceable against the Company in
accordance with their respective terms;
(d) all consents, authorizations and actions of any kind necessary for
the valid execution, delivery, and performance by the Company of
this First Amendment and the Agreement as amended by this First
Amendment have been obtained and are in full force and effect;
(e) the execution, delivery and performance by the Company of this
First Amendment and the Agreement as amended by this First
Amendment do not require the consent or approval of any of the
Company's creditors (other than EBRD, whose consent has been
obtained) and wi11 not conflict with or constitute a breach or
default under of violate any provision of the Company's Charter or
any agreement, law, rule, regulation, order, writ,. judgment,
injunction, decree, determination or award applicable to the
Company; and
(f) each Security Document (other than the Immovables Mortgage and the
Enterprise Mortgage) wilL, when the documents, recordings,
filings, notifications and registrations listed in Schedule X of
the EBRD Loan Agreement have been executed or made, constitute a
valid and completed Security Document, securing payment of all
principal, interest and other amounts payable under the Agreement
as amended by this First Amendment; which security interest and
Lien ranks senior to all other security interests and Liens on
such collateral other than Permitted Liens.
Omolon -3- First Amendment
SECTION 4. EFFECTIVENESS.
Section 2 Of this First Amendment shall become effective as of the date
hereof subject to the due execution of this First Amendment by Cyprus Amax,
Cyprus Magadan and Cyprus Gold.
SECTION 5. EXPENSES
Without limiting the generality of Section 5.17 of the Agreement, the
Company shall pay to OPIC, or as OPIC may direct, all expenses incurred by OPIC,
including but nor limited to fees and expenses of counsel, in connection with
the preparation, negotiation, execution, registration, administration and
enforcement of this First Amendment.
SECTION 6. MISCELLANEOUS.
A. All references to the Agreement the Agreement, the Security
Documents and the other Financing Agreements and all instruments and agreements
executed thereunder shall for all purposes refer to the Agreement as amended by
this First Amendment.
B. Except to the extent each is expressly amended by the terms of this
First Amendment, all Terms and conditions of the Agreement, the Security
Documents and the other Financing Agreements and all other merits and agreements
executed thereunder remain in full force and effect This First Amendment may be
amended only by an instrument in writing signed by the Company and OPIC.
C. This First Amendment may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
SECTION 7. GOVERNING LAW.
This First Amendment shall be governed by and construed in accordance
with the laws of the Stale of New York in. the United States of America.
SECTION 8. COUNTERPARTS.
This First Amendment may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
[Signature page to follow.]
Omolon -4- First Amendment
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to
Finance Agreement to be executed by' their duly authorized representatives on
the day and year first above written.
THE CLOSED JOINT STOCK COMPANY
"OMOLON GOLD MINING COMPANY"
By: /s/ Stephen W. Harapiak By Power of Attorney
----------------------------------
Name: Stephen W. Harapiak
----------------------------------
Title: General Manager
----------------------------------
By: /s/ Elena S. Ryzhaikina By Power of Attorney
----------------------------------
Name: Elena S. Ryzhaikina
----------------------------------
Title: Chief Accountant
----------------------------------
OVERSEAS PRIVATE INVESTMENT
CORPORATION
By: /s/ Alexandra H. Coburn
-----------------------------------
Name: Alexandra H. Coburn
-----------------------------------
Title: Investment Officer
-----------------------------------
[Signature page to First Amendment to Finance Agreement between Overseas Private
Investment Corporation and The Closed Joint Stock Company "Omolon Gold Mining
Company" dated as of April 22, 1996.]
Omolon - 5 - First Amendment
Cyprus Amax, Cyprus Magadan and Cyprus Gold hereby (a) acknowledge and consent
to the foregoing First Amendment, (b) confirm that the Cyprus Amax Guaranty, the
Cyprus Magadan Guaranty, the Cyprus Support Agreement and the Cyprus Magadan
Share Pledge remain in full force and effect, and (c) agree that all references
to the Agreement in the Cyprus Amax Guaranty, the Cyprus Magadan Guaranty, the
Cyprus Support Agreement and the Cyprus Magadan Share Pledge shall for all
purposes refer to the Agreement as amended by the foregoing First Amendment
CYPRUS AMAX MINERALS COMPANY
By: /s/ Dale E. Huffman
--------------------------
Name: Dale E. Huffman
--------------------------
Title: Assistant Secretary
--------------------------
CYPRUS MAGADAN GOLD CORPORATION
By: /s/ Dale E. Huffman
--------------------------
Name: Dale E. Huffman
--------------------------
Title: Assistant Secretary
--------------------------
CYPRUS GOLD COMPANY
By: /s/ Dale E. Huffman
---------------------------
Name: Dale E. Huffman
---------------------------
Title: Assistant Secretary
---------------------------
[Execution Copy]
- --------------------------------------------------------------------------------
SECOND AMENDMENT TO FINANCE AGREEMENT
between
OMOLON GOLD MINING COMPANY
and
OVERSEAS PRIVATE INVESTMENT CORPORATION
Dated as of January 28, 1997
OPIC/118-94-130/IG
OPIC/118-96-554/IG
- --------------------------------------------------------------------------------
SECOND AMENDMENT TO FINANCE AGREEMENT
THIS SECOND AMENDMENT TO FINANCE AGREEMENT is made as of the 28th day of January
1997 by and between:
(1) THE CLOSED JOINT STOCK COMPANY "OMOLON GOLD MINING COMPANY" (the
"Company"); and
(2) OVERSEAS PRIVATE INVESTMENT CORPORATION, an agency of the United States
of America ("OPIC").
RECITALS
A. The Company and OPIC have entered into a Finance Agreement dated as of
30 June 1995, as amended by a First Amendment to Finance Agreement dated as of
22 April 1996 (collectively, the "Agreement"). Pursuant to the Agreement OPIC
has loaned to the Company $52,500,000.
B. The Company and European Bank for Reconstruction and Development
("EBRD") have entered into a Loan Agreement dated as of 30 June 1995, amended by
an Amendment Agreement to Loan Agreement Dated as of 7 November 1995 and a
Second Amendment Agreement to Loan Agreement dated as of 22 April 1996
(collectively, the "EBRD Loan Agreement"). Pursuant to the EBRD Loan Agreement
EBRD has loaned to the Company $47,500,000.
C. The Company and Cyprus Amax Minerals Company, a Delaware corporation
("Cyprus Amax") have requested that OPIC and EBRD loan the Company an additional
$30,000,000 to finance a portion of certain cost overruns. The Company and
Cyprus Amax have requested that OPIC provide up to an additional $15,000,000 and
that EBRD provide up to an additional $15,000,000.
D. This Second Amendment to Finance Agreement (hereinafter the "Second
Amendment") sets forth certain amendments to the Agreement and other conditions
related to providing the Company with a capacity to borrow additional funds from
OPIC pursuant to Section 234('0) of the Foreign Assistance Act of 1961, as
amended.
Now, therefore, in consideration of the premises and the agreements
contained herein, it hereby agreed as follows:
Omolon Gold Mining Company - 2 - Second Amendment
AGREEMENT
SECTION 1. DEFINITIONS.
Wherever used in this Second Amendment, unless the context shall otherwise
require, the terms defined in the Agreement and not separately defined herein
shall have the same meanings when used in this Second Amendment.
SECTION 2. AMENDMENTS TO FINANCE AGREEMENT
A. Amendments to Section 1.01.
(1) Commitment. The definition of "Commitment" in Section 1.01
of the Agreement is hereby amended by deleting "$52,500,000" in the 11th line
and inserting "$67,500,000" in place thereof.
(2) Commitment Date. The definition of "Commitment Date" in
Section 1.01 of the Agreement is hereby amended in its entirety as follows:
"Commitment Date" means,
(i) with respect to the Original Commitment, June
27, 1994; and
(ii) with respect to the Supplementary
Commitment, September 25, 1996.
(3) Commitment Letter. The definition of "Commitment Letter in
Section 1.01 of the Agreement is hereby amended in its entirety as follows:
"Commitment Letter(s)" means,
(i) with respect to the Original Commitment, the
letter among the Company, Cyprus, and OPIC dated
as of June 27, 1994, as amended; and
(ii) with respect to the Supplementary
Commitment, the letter among the Company, Cyprus
Amax, Cyprus Magadan, and OPIC dated as of
September 25, 1996.
(4) Commitment Termination Date. The definition of "Commitment
Termination Date" in Section 1.01 of the Finance Agreement is hereby deleted in
its entirety, and replaced with the following:
Omolon Gold Mining Company - 3 - Second Amendment
"Commitment
Termination Date" means the date of the first to occur of the
following:
(1) the first date on which the amount of all
Disbursements equals the Commitment;
(2) the cancellation or termination of the
Commitment by the Company or OPIC pursuant to this Agreement;
(3) the cancellation or termination of the EBRD Commitment; or
(4) March 31, 1997."
(5) Letter of Credit. The definition of "Letter of Credit"
in Section 1.01 of the Agreement is hereby amended by deleting "paragraph
1(b)(1)" in the third line and inserting "paragraph l(b)" in place thereof.
(6) Original Commitment. Section 1.01 of the Agreement is
hereby amended by adding a new definition for "Original Commitment" as follows:
"Original Commitment" means:
(1) with respect to the Tranche I Commitment,
$47,500,00; and
(2) with respect to the Tranche 2 Commitment,
$5,000,000.
(7) Permitted Liens. The definition of "Permitted Liens" in
Section 1.01 of the Agreement is hereby amended in its entirety to read as
follows:
"Permitted Liens" means the Liens set forth in Sections 6.05(1),
6.05(2), and 6.05(3)."
(8) Subordinated Shareholder Loans. The definition of
"Subordinated Shareholder Loans" in Section 1.01 of the Finance Agreement is
hereby amended in its entirety to read as follows:
"Subordinated Shareholder
Loans" means Debt of the Company owing to any
Shareholder or guaranteed by any Shareholder (or
an affiliate of any Shareholder) and which is
subordinated to the payment of all amounts
payable under this Agreement and the EBRD Loan
Agreement pursuant to the Cyprus Support
Omolon Gold Mining Company - 4 - Second Amendment
Agreement, the Russian Shareholders Support
Agreement, or otherwise on terms acceptable to
the Project lenders."
(9) Subordinated Third Party Debt. A new definition is
hereby added to Section 1.01 of the Agreement after the definition of
"Subordinated Shareholder Loans" as follows:
"Subordinated Third
Party Debt" means Long-Term Debt of the Company provided by
a bank acceptable to OPIC in its sole discretion
which shall be subordinated to the payment of
all amounts payable under this Agreement and the
EBRD Loan Agreement on terms acceptable to
OPIC."
(10) Supplementary Commitment. Section 1.01 of the Agreement
is hereby amended by adding a new definition for "Original Commitment" as
follows:
"Supplementary
Commitment" means:
(1) with respect to the Tranche 1 Commitment,
$11,250,000; and
(2) with respect to the Tranche 2 Commitment,
$3,750,000.
(11) Tranche 1 Post-Completion Spread. The definition of
"Tranche 1 Post-Completion Spread" in Section 1.01 of the Finance Agreement is
hereby amended by deleting "4.25% per annum" in the fourth line and inserting
"4.40% per annum" in place thereof.
(12) Tranche 2 Post-Completion Spread. The definition of
"Tranche 2 Post-Completion Spread" in Section 1.01 of the Agreement is hereby
amended by deleting "4.25% per annum" and inserting "4.40% per annum" in place
thereof.
B. Section 2.01.
(1) Section 2.01(a). Section 2.01(a) of the Agreement is
hereby amended by deleting "$180,000,000" and inserting "$230,000,000" in place
thereof.
(2) Section 2.01(b). Section 2.01('o) of the Agreement is
hereby amended by replacing the table therein with the following table:
Omolon Gold Mining Company - 5 - Second Amendment
Source Dollars
Equity
Association of Native Peoples 5,676,000
Geometal 24,052,039
Magadan Gold 5,676,000
Rossiisky Kredit Commercial Bank 5,160,000
Dukat 2,453,961
Cyprus Magadan 43,000,000
Total Equity 86,000,000
Cyprus Magadan Subordinated Shareholder Loan 14,000,000
Long-term Debt
Tranche 1 Loan 58,750,000
Tranche 2 Loan 8,750,000
EBRD Tranche 1 Loan 53,750,000
EBRD Tranche 2 Loan 8,750,000
Total Long-term Debt 130,000,000
Total Financing 230,000,000
C. Section 2.02(b). Section 2.020v) of the Agreement is hereby
amended in its entirety to read as follows:
"The Company has an authorized capital of Rb. 420,880,000,000 (the
equivalent of $86,000,000 as of the date hereof) consisting of 80,000
shares with a nominal value of Rb. 5,261,000 each. The following is a
list of the Shareholders in the Company as of 20 November 1996,
together with the number of shares owned by each Shareholder and the
approximate percentage of all shares in the Company:
Shareholder Number of Percentage
Shares Ownership
Association of Native Peoples 5,676 6.6
Geometal 24,033 27.9
Magadan Gold 5,676 6.6
Rossiisky Kredit Commercial Bank 5,160 6.0
Dukat 2,455 2.9
Cyprus Magadan 43,000 50.0
Total 86,000 100.0
Omolon Gold Mining Company - 6 - Second Amendment
The only issued shares of the Company are registered shares. There are
no options, warrants or instruments convertible into shares or other
agreements relating to the existing shares of the Company or for the
issuance of additional shares of any class or description of the
Company, except for the Foundation Agreement. No Person has any right
(other than as a shareholder, OPIC in respect of the Tranche 2 Loan,
and EBRD in respect of the EBRD Tranche 2 Loan) to share in the profits
of the Company."
D. Section 3.01. Section 3.01 of the Agreement is hereby amended in its
entirety to read as follows:
"Subject to the terms and conditions of this Agreement, OPIC agrees to
lend up to $67,500,000 to the Company from time to time during the
Commitment Period. The loan shall not be of a revolving nature. Any
portion of the Loan that is repaid (whether prepaid or otherwise) shall
not be re-advanced to the Company. The Loan shall consist of two
tranches:
(a) the Tranche 1 Loan in an amount not to exceed
$58,750,000; (the "Tranche 1 Commitment"); and
(b) the Tranche 2 Loan in the amount of $8,750,000 (the
"Tranche 2 Commitment")."
E. Section 3.020v). Section 3.02(b) of the Agreement is hereby amended
in its entirety to read as follows:
"The Company may request:
(1) no more than 5 Disbursements with respect to the Tranche
1 Commitment, each in the minimum amount of $5,000,000
and in integral multiples of $500,000; and
(2) two Disbursements with respect to the Tranche 2
Commitment, the first of which shall not be less than
$5,000,000 and the second of which shall be in the
amount of $3,750,000.
The first Disbursement of the Tranche 2 Commitment shall occur
concurrently with the first Disbursement of the Tranche 1 Commitment,
and the second Disbursement of the Tranche 2 Commitment shall occur
concurrently with any Disbursement of the Tranche 1 Commitment in
excess of $52,500,000."
F. Section 3.05. Section 3.05 of the Agreement is hereby amended in its
entirety as follows:
"(a) Tranche 1 Loan. The Tranche l Loan shall be repaid in
nine equal (or as nearly equal as possible) semi-annual installments
(each such payment being a "Tranche 1 Principal Installment") on the
following dates:
Omolon Gold Mining Company - 7 - Second Amendment
Tranche 1
Principal Date
Installment #
1 15 December 1997
2 15 June 1998
3 15 December 1998
4 15 June 1999
5 15 December 1999
6 15 June 2000
7 15 December 2000
8 15 June 2001
9 15 December 2001
provided that if any such 15 June or 15 December falls on a day that is
not a Business Day, such payment date shall be changed to the next
succeeding Business Day (each such date a "Tranche 1 Repayment Date").
(b) Tranche 2 Loan. The Tranche 2 Loan shall be repaid in full
in a single installment in the amount of $8,750,000 on 15 December
2001, provided that if 15 December 2001 shall fall on a day that is not
a Business Day, such "Tranche 2 Repayment Date").
G. Section 3.06(a)(2). Section 3.06(a)(2) of the Agreement is hereby
amended by deleting "$9,000,000" in the sixth line and inserting "$11,250,000"
in place thereof.
H. Section 3.11(a). Section 3.11(a) of the Agreement is hereby amended
in its entirety as follows:
"Beginning as of June 27, 1994 with respect to the Original Commitment,
and beginning as of September 25, 1996 with respect to the Supplementary
Commitment, and continuing to the Commitment Termination Date, the Company shall
pay a commitment fee to OPIC of (the "Commitment Fee") equal to 0.50% per annum
of the aggregate amount of the unutilized portion of the total Commitment. The
Commitment Fee shall accrue on a daily basis (including June 2, 1994 with
respect to the Original Commitment and September 25, 1996 with respect to the
Supplementary Commitment, but excluding the Commitment Termination Date), shall
be calculated for each day during such period, and shall be computed on the
basis of the Tranche 1 Day Count Fraction. The Company shall pay accrued
Commitment Fees in accordance with the Commitment Letters to the date hereof on
or before the date this Agreement is executed and delivered by the Company.
Thereafter the Company shall pay the Commitment Fee in arrears to OPIC on each
Interest Payment Date (whether or not interest is payable) and the Commitment
Termination Date."
Omolon Gold Mining Company - 8 - Second Amendment
H. Section 4.02.(i). Section 4.02(i) of the Finance Agreement is hereby
amended in its entirety to read as follows:
"OPIC shall be satisfied, on the basis of the opinion of the Independent
Engineer, that the Project Costs (including, without limitation,
financing costs) necessary to achieve physical completion of the Project
will not exceed the total amount thereof set forth in Section 2.01(a),
or, if OPIC is not so satisfied as a result of delay in completion or
otherwise, OPIC shall have received satisfactory evidence that the
Shareholders have contributed not less than the full amount of such
excess in paiding capital or Subordinated Shareholder Loans to the
Company and that the Company has expended 100% of such paid-in capital
and Subordinated Shareholder Loans on the Project."
I. Section 4.02(j). Section 4.02(j) of the Agreement is hereby amended
in its entirety as follows:
"In the case of the first Disbursement of the Tranche 1 Commitment, the
Tranche 2 Commitment shall have been previously disbursed in the amount
of not less than 55,000,000; and in the case of any Disbursement from
the Tranche 1 Commitment in excess of $52,500,000, the Tranche 2
Commitment shall have been previously and concurrently disbursed in the
amount of not less than $3,750,000."
J. Section 5.13.
(1) Section 5.13(1) of the Agreement is hereby amended by
deleting "$13,500,000" in the first line and inserting "$16,500,000" in place
thereof and by deleting "$100,000,000" in the third line and inserting
"$130,000,000" in place thereof.
(2) Section 5.13(2) of the Agreement is hereby amended by
deleting "$5,000,000" in the third line and inserting "$8,750,000" in place
thereof.
K. Section 5.18. Section 5.18 of the Agreement is hereby amended by
deleting "90" in the first line and inserting "45" in place thereof.
L. Section 6.04(a). Section 6.04(a) of the Agreement is hereby amended
by:
(i) inserting "and" at the end of Section 6.04(a)(3);
(ii) amending Section 6.04(a)(4) in its entirety to read as follows:
"(4) Short-term Debt in an aggregate amount not to exceed
$20,000,000 (or the equivalent thereof in other currencies
at then current rates of exchange) or, if less, 100% of the
Company's short-term assets;" and
(iii) deleting Section 6.04(a)(5) in its entirety.
M. Section 6.05. Section 6.05 of the Agreement is hereby amended by
deleting subparagraph (2) and renumbering existing sub-paragraphs (3) and (4) as
sub-paragraphs (2) and (3), respectively.
Omolon Gold Mining Company - 9 - Second Amendment
N. Section 6.13. Section 6.13 of the Agreement shall be amended by
adding the following:
The Company shall not practice anti-union discrimination. The Company
shall not interfere with or coerce any of its employees on the basis of
trade union activities or membership. The Company shall not terminate,
suspend, demote, or transfer any employees of the Company on the basis
of trade union activities or membership by such employees or by an
officer, agent, or other representative of the Company's employees. The
Company shall allow its employees to remove themselves from hazardous
or life-threatening work situations without jeopardy to such employees'
continued employment with the Company.
O. Section 6.14. A new Section 6.14 shall be added to the Agreement as
follows: "SECTION 6.14. CORRUPT PRACTICES LAWS.
The Company, Cyprus Amax, and Cyprus Magadan shall each comply
with all applicable Corrupt Practices Laws. "Corrupt Practices Laws"
means (i) the Foreign Corrupt Practices Act of 1977 (Pub. L. No. 95-
213, (S)(S)101-104), as amended, and (ii) any other law, regulation,
order, decree, or directive having the force of law and relating to
bribery, kick-backs, or similar business practices."
P. Section 7.01(i). Section 7.01(i) of the Finance Agreement is hereby
amended by deleting "24" in the third line and inserting "27" in place thereof
and by deleting "18" in the eighth line and inserting "24" in place thereof.
Q. Section 7.01(q). Section 7.01(q) of the Agreement is hereby amended
in its entirety to read as follows:
"(q) Cost Overrun Default. OPIC shall have determined that the Project
Costs (including, without limitation, financing costs) necessary to achieve
physical completion of the Project will, as a result of delays in completion or
otherwise, exceed $230,000,000 (the "Excess"), and the Shareholders shall have
failed, within 60 days of such determination, to make cash contributions of
paid-in capital or Subordinated Shareholder Loans to the Company in the full
amount of such Excess."
SECTION 3. REPRESENTATIONS AND WARRANTIES.
The Company represents and warrants to the OPIC as follows:
A. The Company has all requisite power and authority, corporate or
otherwise, to execute, deliver and perform all of its obligations under this
Second Amendment and the Agreement as amended by this Second Amendment.
Omolon Gold Mining Company - 10 - Second Amendment
The Company has taken all necessary action to a authorize the
execution, delivery and performance by it of this Second Amendment and
the Agreement as amended by this second Amendment.
C. This Second Amendment has been duly executed and delivered by
the Company and this Second Amendment and the Agreement as amended by this
Second Amendment constitute its valid and legally binding obligations,
enforceable against it in accordance with their respective terms.
D. All consents, authorisations and actions of any kind necessary for
its valid execution, delivery and performance of this Second Amendment and the
Agreement as amended by this Second Amendment have been obtained and are in full
force and effect.
E. The execution, delivery and performance by the Company of this
Second Amendment and the Agreement as amended by this Second Amendment do not
require the consent or approval of any of the Company's creditors (other than
EBRD, whose consent has been obtained) and will not conflict wit. or constitute
a breach or default under or violate any provision of its Charter or any
agreement, law, rule, regulation, order, writ, judgement, injunction, decree,
determination or award applicable to it.
F. Each Security Document (other than the Immovables Mortgage and the
Enterprise Mortgage) will, when the Amendments to Financing Agreements (as
defined below) have been executed and delivered, constitute a valid and
completed security interest in, and a Lien of first priority on, the collateral
covered by each such Security Document, securing payment of all principal,
interest and other amounts payable under the Agreement and Notes as amended by
this Second Amendment, which security interest and Lien will rank senior to all
other security interests and Liens on such collateral other than Permitted
Liens.
G. As of the date of this Second Amendment:
(i) the directors of the Company are I.S. Rosenblum, S.W. Harapiak,
L.D. Clark, V.I: Karchavets, F.S. Hakimi, L.E. Yefanova and S.S.
Shellhaas; and
(ii) the General Manager of the, Company is S.W. Harapiak, the Vice-
General Manager of the Company is Valery Glazatov, the Financial
Manager of the Company is K. Smith, and the Chief Accountant of
the Company is Elena Ryzhaikina.
H. The revised Development Plan delivered to OPIC pursuant to Section
4.C of this Second Amendment will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements and
information contained therein not misleading in light of the circumstances under
which such statements are made or such information is furnished provided that to
the extent that any such statement of information is based upon estimated
forecasts or professional opinions, such estimates forecasts of opinions (except
as otherwise warranted herein or therein) will be made in good faith and based
upon the best available information but otherwise the Company does not warrant
that such estimates forecasts or opinions will ultimately prove to be correct.
Omolon Gold Mining Company - 11 - Second Amendment
SECTION 4. CONDITIONS PRECEDENT.
Section 2 of this Second Amendment shall not become effective unless and
until the following conditions precedent shall have been satisfied in form and
substance satisfactory to OPIC:
A. EBRD Amendments. OPIC shall have received a duly executed copy of the
Third Amendment to Loan Agreement duly executed by EBRD and the Company in form
and content satisfactory to OPIC (the "EBRD Amendments"), and the EBRD
Amendments shall have become unconditional and fully effective in accordance
with their respective terms (except for this Second Amendment having become
unconditional and fully effective, if that is a condition of such EBRD
Amendments).
B. Amendments to Financing Agreements. OPIC shall have received duly
executed originals of amendments to the following Financing Agreements (the
"Amendments to Financing Agreements"), each in form and substance satisfactory
to OPIC, and the Amendments to Financing Agreements shall have become
unconditional and fully effective in accordance with their respective terms
(except for this Second Amendment having become unconditional and fully
effective, if that is a condition of any such document):
(1) an amendment to the Cyprus Support Agreement;
(2) an amendment to the Security Sharing Agreement;
(3) an amendment to each Security Document; and
(4) amendments to the Funding Documents;
together with any other documents, legal opinions, recordings, filings,
notifications and registrations which are required thereunder for the continued
validity, perfection or priority, of the Liens of the Project Lenders under the
Security Documents (other than the Immovables Mortgage and the Enterprise
Mortgage) as amended thereby and to ensure that each Security Document(other
than the Immovables Mortgage and the Enterprise Mortgage) constitutes a valid
and completed security interest in, and a Lien of first priority on, the
collateral covered by such Security Document, securing payment of all principal,
interest and other amounts payable under the Agreement as amended hereby, the
EBRD Loan Agreement as amended by the EBRD Amendments and the other Financing
Agreements as amended by the Amendments to Financing Agreements, and that each
such security interest and Lien ranks senior to all other security interests and
Liens on such collateral.
C. Revised Development Plan. OPIC shall have received a revised
Development Plan, in form and substance satisfactory to OPIC.
D. Subordinated Third Party Debt. OPIC shall:
Omolon Gold Mining Company - 12 - Second Amendment
(i) be satisfied with the form and content of all documentation with
respect to Subordinated Third Party Debt in the principal amount
of not less than $14,000,000;
(ii) be satisfied that such Subordinated Third Party Debt is fully
subordinated to all Indebtedness owed by the Company to either of
the Project Lenders on terms satisfactory to OPIC; and
(iii) have received evidence, satisfactory to OPIC in its sole
discretion, that the Company has received Subordinated Third
Party Debt in the principal amount of not less than $14,000,000
and that all of such Subordinated Long-term Debt has been
expended for or committed to the payment of Project Costs in
accordance with the Agreement.
E. Additional Paid-In Capital. OPIC shall have received satisfactory
evidence that:
(1) (a) the Russian Shareholders have contributed, in a manner
satisfactory to OPIC, at least $3,000,000 (or the equivalent
thereof in other currencies at then ( current rates of exchange)
as additional paid-in capital to the Company; (b) the Company has
expended substantially all of such additional paid-in capital on
Project Costs; and
(2) Cyprus Magadan has committed to contribute, in a manner
satisfactory to OPIC, at least $3,000,000 (or the equivalent
thereof in other currencies at then current rates of exchange) as
additional paid-in capital either in cash or in kind, to the
Company by not later than (a) the date on which the Company and
Cyprus Magadan deliver the Final Completion Certificate referred
to in Schedule Q to the EBRD Loan Agreement or (b) 15 April 1997,
whichever occurs first.
F. Approvals and Consents. OPIC shall have received, in form and
substance satisfactory to OPIC, certified copies of all governmental, corporate,
creditors', shareholders' and other necessary licenses, approvals, consents,
filings and registrations for the due execution, delivery and performance by the
Company, the Shareholders, Cyprus Gold, and Cyprus Amax of this Second
Amendment, the Loan Agreement as amended by this Second Amendment, the EBRD
Amendments, the EBRD Loan Agreement and Funding Documents as amended by the
Amendments to Financing Agreements and the other documents contemplated hereby.
G. Authorizations. OPIC shall have received satisfactory evidence of
the authorization of the persons signing this Second Amendment, the EBRD
Amendments, the Amendments to Financing Agreements and the other documents
contemplated hereby on behalf of the Company, the Shareholders, Cyprus Gold and
Cyprus Amax to sign such documents and to bind the Company, the Shareholders,
Cyprus Gold and Cyprus Amax thereto.
H. Legal Opinions. OPIC shall have received favourable legal opinions
of special Russian and English counsel to the Project Lenders and of special
Russian, English
Omolon Gold Mining Company - 13 - Second Amendment
and New York counsel to the Company regarding the matters set forth in Sections
3, 4A, 4.B, 4.C, 4.D, 4.E, 4.F and 4.G of this Second Amendment.
I. Attorneys' Fees. The Company shall have paid to OPIC, or as OPIC may
direct, all expenses incurred by OPIC, including but not limited to fees and
expenses of counsel, in connection with the preparation, negotiation, and
execution of this Second Amendment, the EBRD Amendments, the Amendments to
Financing Agreements, and the other documents contemplated hereby and thereby
for which the Company has received an invoice therefor.
J. Other. OPIC shall have received such other documents and opinions as
OPIC may reasonably request.
SECTION 5. REGISTRATION OF AMENDED AND RESTATED CHARTER.
The Company shall procure that the first amendment to the Amended and
Restated Charter of the Company, in form and substance satisfactory to the Bank,
shall have been registered with the State Registration Chamber by no later than
(1) the date on which the Company and Cyprus Magadan deliver the Final
Completion Certificate referred to in Schedule Q to the EBRD Loan Agreement or
(2) 15 May 1997, whichever occurs first.
SECTION 6. EXPENSES.
Without limiting the generality of Section 3.12 of the Agreement, the
Company shall pay to OPIC, or as OPIC may direct, all expenses recurred by OPIC,
including but not limited to fees and expenses of counsel, in connection with
the preparation, negotiation, execution, registration, administration and
enforcement of this Second Amendment (including in respect of preserving OPIC's
rights in any bankruptcy proceeding involving the Company), the EBRD Amendments,
the Amendments to Financing Agreements, and the other documents contemplated
hereby and thereby.
SECTION 7. MISCELLANEOUS.
A. All references to the Agreement in the Agreement, the Security
Documents and the other Financing Agreements and all instruments and agreements
executed thereunder shall for all purposes refer to the Agreement as amended by
this Second Amendment. All references to the EBRD Loan Agreement in the EBRD
Loan Agreement, the Security Documents and the other Financing Agreements and
all instruments and agreements executed thereunder shall for all purposes refer
to the EBRD Loan Agreement as amended by the EBRD Amendments. All references to
the other Financing Agreements in the Agreement, the Security Documents and the
other Financing Agreements and all instruments and agreements executed
thereunder shall for all purposes refer to the Financing Agreements as amended
by the Amendments to Financing Agreements.
B. Except to the extent each is expressly amended by the terms of this
Second Amendment, all terms and conditions of the Agreement, the Security
Documents and the
Omolon Gold Mining Company - 14 - Second Amendment
other Financing Agreements and all other instruments and agreements executed
thereunder remain in full force and effect. This Second Amendment may be amended
only by an instrument in writing signed by an Authorized Officer of the Company
and an Authorized Officer of OPIC.
SECTION 8. COUNTERPARTS.
This Second Amendment may be executed in several counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
SECTION 9. SEVERABILITY.
If any provision of this Second Amendment is prohibited or held to be
invalid, illegal, or unenforceable in any jurisdiction, OPIC and the Company
agree to the fullest extent permitted by law that:
(1) the validity, legality, and enforceability of the other
provisions of this Second Agreement in such jurisdiction
shall not be affected or impaired thereby; and
(2) any such prohibition, invalidity, illegality, or
unenforceability shall not render such provision prohibited,
invalid, illegal, or unenforceable in any other jurisdiction.
SECTION 10. GOVERNING LAW.
This Second Amendment shall be governed by and construed in accordance
with the laws of the State of New York, United States of America.
SECTION 11. INTEGRATION.
This Second Amendment embodies the entire understanding of OPIC and the
Company, and supersedes all prior negotiations, understandings, and agreements
between them with respect to the subject matter hereof.
[Signature page to follow]
Omolon Gold Mining Company - 15 - Second Amendment
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be
executed by their duly authorized representatives as of the day and year first
above written.
THE CLOSED JOINT STOCK COMPANY
"OMOLON GOLD MINING COMPANY"
By: /s/ Ilya S. Rosenblum
---------------------------------
[SEAL LOGO] Name: Ilya S. Rosenblum
---------------------------------
Title: For General Director (by power of attorney)
----------------------------------
By: /s/ Ilya S. Rosenblum
--------------------------------
Name: Ilya S. Rosenblum
--------------------------------
Title: For Chief Accountant (by power of attorney)
--------------------------------
By: /s/ Larry D. Clark
--------------------------------
Name: Larry D. Clark
--------------------------------
Title: Director
--------------------------------
OVERSEAS PRIVATE INVESTMENT CORPORATION
By: /s/ James C. Polan
--------------------------------
Name: James C. Polan
--------------------------------
Title: Manager, Project Finance
--------------------------------
[Signature page to Second Amendment to Finance Agreement dated as of January 28,
1997.]
Omolon Gold Mining Company - i - Second Amendment
ACKNOWLEDGMENT AND AGREEMENTS ADDENDUM TO SECOND AMENDMENT
TO FINANCE AGREEMENT
Cyprus Amax, Cyprus Magadan and Cyprus Gold each hereby:
(a) acknowledges and consents to the foregoing Second Amendment,
including without limitation the increase in the Commitment and
the amendments to the definition of Project Completion in Schedule
Q of the EBRD Loan Agreement, as provided therein;
(b) confirms that the Cyprus Amax Guaranty, the Cyprus Magadan
Guaranty, the Cyprus Support Agreement and the Cyprus Magadan
Share Pledge remains in full force and effect;
(c) agrees that all references to the Agreement in the Cyprus Amax
Guaranty, the Cyprus Magadan Guaranty, the Cyprus Support
Agreement and the Cyprus Magadan Share Pledge shall for all
purposes refer to the Agreement as amended by the foregoing Second
Amendment;
(d) agrees that all references to the Agreement in the Cyprus Amax
Guaranty, the Cyprus Magadan Guaranty, the Cyprus Support
Agreement, and the Cyprus Magadan Share Pledge shall for all
purposes refer to such Financing Agreements as amended by the
Amendments to the Financing Agreements;
(e) agree that, in respect of the additional $3,000,000 to be
advanced to the Company in accordance with this Second Amendment
and the EBRD Amendments, no failure of the State Registration
Chamber to register the first amendment to the Amended and
Restated Charter of the Company or of the Ministry of Finance to
register or reregister the issuance of shares by the Company
shall constitute a Political Event under the Cyprus Magadan
Guaranty; provided that this paragraph (e) shall not affect the
rights of Cyprus Magadan under Section 4.01(3) of the Cyprus
Magadan Guaranty in respect of any other event; and
[Signatures to follow]
Omolon Gold Mining Company - ii - Second Amendment
CYPRUS AMAX MINERALS COMPANY
By: /s/ Farukh S. Hakimi
------------------------------
Name: Farukh S. Hakimi
------------------------------
Title: Assistant Treasurer
------------------------------
CYPRUS MAGADAN GOLD CORPORATION
By: /s/ Farukh S. Hakimi
------------------------------
Name: Farukh S. Hakimi
------------------------------
Title: Assistant Treasurer
------------------------------
CYPRUS GOLD COMPANY
By: /s/ Farukh S. Hakimi
------------------------------
Name: Farukh S. Hakimi
------------------------------
Title: Assistant Treasurer
------------------------------
[Signature page to Acknowledgment and Agreements Addendum to Second Amendment to
Finance Agreement dated as of January 28, 1997.]