FINANCING AGREEMENT
Exhibit 10.1
FINANCING
AGREEMENT dated the 31st day of March 31, 2010, BETWEEN:
INTOSH
SERVICES LIMITED, a corporation organized under the laws of Mauritius, with an
address of 2nd
Floor, Harbor Front Building, Xxxx Xxxxxxx Street, Port Louis, Mauritius
(hereinafter, the "SUBSCRIBER")
AND:
BIG BEAR
MINING CORP., a Nevada domestic corporation, with a corporate office
on 00000 X. Xxxxxx Xx. , Xxxxx 000, Xxxxxxxxxx, Xxxxxxx 00000
(hereinafter, the "COMPANY")
NOW
THEREFORE THIS FINANCING AGREEMENT ("AGREEMENT") WITNESSES that the parties
hereto agree as follows:
ARTICLE 1
- INTERPRETATION
SECTION
1.1. DEFINITIONS. When used in this Agreement (including the recitals and
schedules hereto) or in any amendment hereto, the following terms shall, unless
otherwise expressly provided, have the meanings assigned to them
herein:
"BANKING
DAY" shall mean any day other than a Saturday, Sunday, public holiday under the
laws of the State of Arizona or other day on which banking institutions are
authorized or obligated to close in Nevada.
"CHARTER
DOCUMENTS" means constating documents and by-laws, and all amendments
thereto;
"CONSENT"
means any
permit, license, approval, consent,
order, right, certificate, judgment, writ, injunction, award,
determination, direction, decree, authorization, franchise,
privilege, grant, waiver, exemption and other concession or by-law, rule or
regulation;
"SHARE
PRICE" means a price of $0.70 and
"DOLLAR"
or "$" means the currency of the United States of America.
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ARTICLE 2
- THE FINANCING
SECTION
2.1. FINANCING. The Subscriber shall make available to the Company in accordance
with, and subject to the terms and conditions of, this Agreement, until March
31, 2011 (the "COMPLETION DATE"), up to $1,400,000 by way of Advances in
accordance with this Sections 2.2, 2.3 and 2.4 of this Agreement. The Completion
Date may be extended for an additional term of up to twelve months at the option
of the Company or the Subscriber upon written notice on or before the Completion
Date in accordance with the notice provisions in Section of this
Agreement.
SECTION
2.2. THE ADVANCES. On the terms and conditions set forth herein the Subscriber,
from time to time, on any Banking Day, prior to the Completion Date, Agrees, at
its sole discretion, to make advances to the Company ("ADVANCES"). Each Advance
shall be in an aggregate amount of not more than $200,000.
SECTION
2.3. PROCEDURE TO REQUEST ADVANCES. Each Advance shall be made on or before five
Banking Days following notice from the Company. Each such notice shall be given
by a notice to the Subscriber in the form substantially the same As the form
attached hereto in Schedule A (each a "NOTICE").
SECTION
2.4. SUBSCRIPTION AGREEMENT. Upon making each Advance, the Subscriber shall
provide an executed Subscription Agreement, in a form acceptable to both parties
to this Agreement, to the Company.
SECTION
2.5. USE OF PROCEEDS. The Company shall use all Advances to fund operating
expenses, acquisitions, working capital and general
corporate activities.
SECTION
2.6 OPTION. The Subscriber may, at their discretion, take the option to
subscribe up to a further $1,400,000, when the total subscription from this
agreement has been received by the Company.
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ARTICLE 3
- REPRESENTATIONS AND WARRANTIES
SECTION
3.1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to the
Subscriber:
(a)
Organization and Corporate Power. The Company has been
duly incorporated and organized and is validly subsisting and in good standing
under the laws of its jurisdiction and has full corporate right, power and
authority to enter into and perform its obligations under the Agreement to which
it is or shall be a party and has full corporate right, power and authority to
own and operate its properties and to carry on its business;
(b)
Conflict with Other Instruments. The execution and delivery by the Company of
the Agreement and the performance by the Company of its obligations thereunder,
do not and will not: (i) conflict with or result in a breach of any of the
terms, conditions or provisions of: (A) the charter documents of the Company;
(B) any law applicable to or binding on the Company; or (C) any contractual
restriction binding on or affecting the Company or its properties the breach of
which would have a material adverse effect on the Company; or (ii) result in, or
require or permit: (A) the imposition of any lien on or with respect to the
properties now owned or hereafter acquired by the Company; or (B)the
acceleration of the maturity of any debt of the Company, under any contractual
provision binding on or affecting the Company;
(c)
Consents, Official Body Approvals. The execution and delivery of the Agreement
and the performance by the Company of its obligations thereunder have been duly
authorized by all necessary action on the part of the Company, and no Consent
under any applicable law and no registration, qualification, designation,
declaration or filing with any official body having jurisdiction over the
Company is or was necessary therefor. The Company possesses all Consents, in
full force and effect, under any applicable Law which are necessary in
connection with the operation of its business, the non-possession of which could
reasonably be expected to have a material adverse effect on the
Company;
(d)
Execution of Binding Obligation. The Agreement has been duly executed and
delivered by the Company and, when duly executed by the Company and delivered
for value, the Agreement will constitute legal, valid and binding obligations of
the Company, enforceable against the Company, in accordance with its
terms;
(e)
No Litigation. There are no actions, suits or proceedings pending or, to the
knowledge of the Company, after due inquiry, threatened against or affecting the
Company (nor, to the knowledge of the Company, after due inquiry, any basis
therefor) before any official body having jurisdiction over the Company which
purport to or do challenge the validity or propriety of the transactions
contemplated by the Financing the Company, which if adversely determined could
reasonably be expected to have a material adverse effect on the
Company;
(g)
Absence of Changes. Since the date of the most recently delivered financial
statements of the Company, the Company has carried on its business, operations
and affairs only in the ordinary and normal course consistent with past
practice.
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ARTICLE 4
- COVENANTS OF THE COMPANY
SECTION
4.1. AFFIRMATIVE COVENANTS. Until the Completion Date, the Company
shall:
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(a)
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COMPLIANCE
WITH LAWS, ETC. Comply with all
applicable laws, non-compliance with which could have a
material adverse effect on the
Company;
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(b)
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PAYMENT
OF TAXES AND CLAIMS. Pay and discharge before the same shall become
delinquent: (i) all taxes and assessments; and (ii) all lawful claims
which, if unpaid, might become a lien upon or in respect of the Company's
assets or properties;
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(c)
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MAINTAIN
TITLE. Maintain and, as soon as reasonably practicable, defend and take,
all action necessary or advisable at any time, and from time to time, to
maintain, defend, exercise or renew its right, title and interest in and
to all of its property and assets;
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(d)
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PAY
OBLIGATIONS TO SUBSCRIBER AND PERFORM OTHER COVENANTS. Make full and
timely payment of its obligations hereunder and duly comply with the terms
and covenants contained in this Agreement, all at the times and places and
in the manner set forth therein;
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(e)
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FURTHER
ASSURANCES. At its cost and expense, upon request by the Subscriber, duly
execute and deliver, or cause to be duly executed and delivered, to the
Subscriber, such further instruments and do and cause to be done such
other acts as may be necessary or proper in the reasonable opinion of the
Subscriber to carry out more effectually the provisions and purposes of
this Agreement.
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ARTICLE 5
- SHARE ISSUANCE
SECTION
5.1 SHARE ISSUANCE. The Company shall issue, within fifteen (15) Banking Days
following the date of the receipt by the Company of any Advance under this
Agreement, shares (each a "SHARE") of the Company at the Share Price. Upon
receipt of any Advance under this Agreement, the Company shall promptly cause
its registrar and transfer agent to issue the certificates representing the
Shares.
SECTION
5.2 FRACTIONAL SHARES. Notwithstanding any other provisions of this Agreement,
no certificate for fractional shares of the Shares shall be issued to the
Subscriber. In lieu of any such fractional shares, if the Subscriber would
otherwise be entitled to receive a fraction of a share of the Shares following a
Financing, the Subscriber shall be entitled to receive from the Company a stock
certificate representing the nearest whole number of shares of the
Company.
ARTICLE 6
- MISCELLANEOUS
SECTION
6.1. NOTICES, ETC. Except as otherwise expressly provided herein, all notices,
requests, demands, directions and communications by one party to the other shall
be sent by hand delivery or registered mail or fax, and shall be effective when
hand delivered or when delivered by the relevant postal service or when faxed
and confirmed, as the case may be. All such notices shall be addressed to the
President of the notified party at its address given on the signature page of
this Agreement, or in accordance with any unrevoked written direction from such
party to the other party.
SECTION
6.2. NO WAIVER; REMEDIES. No failure on the part of the Subscriber or the
Company to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver thereof. The remedies herein provided are cumulative
and not exclusive of any remedies provided by Law.
SECTION
6.3. JURISDICTION. (1) Each of the parties hereby irrevocably attorns to the
non-exclusive jurisdiction of the Courts of the State of Nevada in any action or
proceeding arising out of or relating to this Agreement. The Company agrees that
a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by Law; and (2) nothing in this Section 6.3 shall affect the right of
the Subscriber to serve legal process in any other manner permitted by Law or
affect the right of the Subscriber to bring any action or proceeding against the
Company or its property in the courts of other jurisdictions.
SECTION
6.4. SUCCESSORS AND ASSIGNS. The Company shall not have the right to assign its
rights hereunder or any interest herein without the prior written consent of the
Subscriber, which consent may be arbitrarily withheld.
SECTION
6.5. SEVERABILITY. If one or more provisions of this Agreement be or become
invalid, or unenforceable in whole or in part in any jurisdiction, the validity
of the remaining provisions of this Agreement shall not be affected. The parties
hereto undertake to replace any such invalid provision without delay with a
valid provision which as nearly as possible duplicates the economic intent of
the invalid provision.
SECTION
6.6. COUNTERPARTS. This Agreement may be executed in counterparts and by
different parties in separate counterparts, each of which when so executed shall
be deemed an original and all of which, taken together, shall constitute one and
the same instrument
SECTION
6.7. SYNDICATION/PARTICIPATION. The Subscriber may not sell, transfer, assign,
participate, syndicate or negotiate to one or more third parties, in whole or in
part, the Commitment and its rights under this Agreement, without the prior
written consent of the Company, which consent may not be arbitrarily
withheld.
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IN
WITNESS WHEREOF the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above
written.
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THE
SUBSCRIBER
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THE
COMPANY
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INTOSH
SERVICES LIMITED
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BIG
BEARMINING CORP.
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___________________
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__________________
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By:
Authorized Signatory
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By:
Authorized
Signatory
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SCHEDULE
A
NOTICE
To: xx.
(the "Subscriber")
The
undersigned, Big Bear Mining, (the "Company") hereby requests an advance of
$200,000.00 in accordance with the terms and conditions set forth in the Share
Issuance agreement dated March 31, 2010 , between the Subscriber and the Company
and as of the Date of Notice written below.
DATE OF
NOTICE:
Remaining
amount to be advanced under the Financing Agreement: 1,200,000.00
Per:
________________________________
Authorized
Signatory: Xxxxx Xxx, President Big Bear Mining Corp.
The
Subscriber hereby acknowledges receipt of this Notice and agrees with the
amounts set out above as of this Notice.
Xx LIMITED
Per:
________________________________
Authorized
Signatory
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