FINANCING LOAN FACILITY AGREEMENT
USD 33,000,000
WAFERPROD HOLDING S.A.
as Lender
and
PHEMEX ESTABLISHMENT
as Borrower
I N D E X
Clause number Subject matter Page number
1 LOAN AND PURPOSE 3
2 DEFINITIONS 4
3 FINANCING LOAN 5
4 LENDER'S COMPENSATION 5
5 REPAYMENT 5
6 EVENTS OF DEFAULT 6
7 FEES, COSTS AND EXPENSES 7
8 PAYMENTS 7
9 NOTICES AND CORRESPONDENCE 7
10 WRITTEN FORM 8
11 GOVERNING LAW AND JURISDICTION 8
In this Agreement the following terms and expressions shall have the following
meanings:
"Agreement" shall mean this Agreement and shall include all amendments and
modifications.
"Banking Day" shall mean a day on which banks and foreign exchange markets are
open for business in such places contemplated for the transactions as required
by this Agreement.
"Drawdown Date" shall mean the date upon which the Commitment is made
available to the Borrower.
"Events of Default" shall mean the occurrence and continuance of any of the
events listed in Clause 6 of this Agreement.
"Financing Loan" shall mean the loans and other financial accommodations made
by the Lender under this Agreement in the aggregate amount of USD 330,000,000.
"GAAP" shall mean Generally Accepted Accounting Principles, consistently
applied.
"Interest" shall mean that the Lender shall receive a potential dividend paid
by Solv-Ex instead of interest.
"Lender's Fee" shall mean a one time fee in the amount of 6% of the Financing
Loan.
"Phemex" shall mean Phemex Establishment, 9490 Vaduz, an entity which will
conclude a Convertible Loan Agreement with Solv-Ex Corporation, which will
have the right to convert USD 33,000,000 into shares at a strike price of USD
32.50.
"Solv-Ex Corporation" shall mean a company incorporated in New Mexico with one
class of approximately 23,000,000 Common Shares outstanding quoted and
publicly traded on the NASDAQ Small Cap Market.
"Repayment" shall mean the Borrower shall be liable to repay the respective
amount reflecting the average listed price of the last five banking days of
the shares in Solv-Ex Corporation previous to the repayment date, multiplied
by 1,015,385 (the result of the division of the aggregate Loan and the strike
price of the option on the Solv-Ex shares by Phemex Establishment of USD
32.50). Repayment shall be replaced provided Phemex shall have converted its
Financing Loan into shares in order to receive 1,015,385 shares in Solv-Ex.
"Tax" shall mean all or any levies, imposts, duties, charges, fees, deductions
and withholdings levied or imposed by any national or governmental or public
body or authority with respect to the Loan.
"USD" shall mean the lawful currency of the United States.
Where the context of this Agreement so allows, words importing the singular
include the plural and vice versa.
3. THE FINANCING LOAN
The Lender agrees, on the terms and conditions set forth hereinafter, to
lend the Borrower, on his request, a sum of USD 33,000,000. After the
deduction of the Lender's Fee of USD 1,980,000 as specified in Cif. 4.1,
the Borrower shall receive a payment of USD 31,020,000.
4. LENDER'S COMPENSATION
4.1 The Borrower undertakes to pay a Lender's Fee of 6% of the Financing Loan
in the amount of USD 1,980,000 to the Lender, payable in advance and
consents that the Lender shall deduct USD 1,980,000 from the Principal.
4.2 Interest payments shall be remitted in the respective amount reflecting
the dividend of Solv-Ex Corporation to its shareholders.
5. REPAYMENT
5.1 The Loan shall be repaid in the respective amount reflecting the average
listed price of the last five banking days of the shares in Solv-Ex
Corporation previous to the Repayment Date, multiplied by 1,015,385 (the
result of the division of the aggregate Loan and the strike price of the
option on the Solv-Ex shares by Phemex Establishment of USD 32.50).
5.2 The Borrower shall be obliged to repay the Loan in the respective amount
according to the financing mechanism described in Cif. 5.1, immediately
after Phemex has sold its shares in Solv-Ex Corporation and 72 hours
after Phemex has repaid the amount of the Financing Loan of Cif. 5.1.
6. EVENTS OF DEFAULT
Each of the following events shall be an Event of Default:
(i) any principal of, or interest on, the Loan or any other amount due
under this Agreement is not paid upon the due date for payment
thereof;
(ii) there is a material default on the part of the Borrower under any
of the provisions of this Agreement (other than (i) above which
(if in the sole opinion of the Lender it could be remedied) is not
remedied within 30 days after notice to the Borrower requesting
action to remedy such default;
(iii) any representation made by the Borrower in this Agreement or any
notice, certificate, or written statement delivered or made
pursuant hereto that proves to be misleading or materially
incorrect or inaccurate when made;
(iv) a distress or other execution is levied upon or against any
substantial part of the property of the Borrower and is not
discharged within 30 days, unless such distress or execution is
contested in good faith by the Borrower in appropriate proceedings
diligently pursued, which protect the Borrower's interest in such
property;
(v) an order of a competent court or an event analogous thereto has
been made or any effective resolution has been passed with a view
to the bankruptcy, composition agreement, liquidation or winding-
up of the Borrower;
(vi) the Borrower is unable or admits in writing his inability to pay
his lawful debts as they mature;
(vii) any license, consent, permission or approval required in
connection with the implementation, maintenance and performance of
this Agreement is revoked, terminated or modified in a manner
unacceptable to the Lender.
Upon the occurrence of any Event of Default referred to in this Clause 6 and
so long as such Event of Default continues, the Lender may accelerate the Loan
and the Lender shall forthwith notify the Borrower in writing that the entire
amount of the Loan outstanding together with all other amounts outstanding
under this Agreement shall become immediately due and payable.
7. FEES, COSTS AND EXPENSES
The Borrower shall pay the Lender, upon demand, all reasonable out-of-pocket
costs, charges, legal fees and expenses the Lender incurred in connection with
the enforcement and preservation of the Lender's rights under this Agreement
or otherwise in connection with the Loan.
8. PAYMENTS
8.1 All payments to be made by the Borrower under this Agreement shall be
made in USD to the Lender's bank account in immediately payable funds and
shall be made without setoff or counterclaim or any deductions for, and
fee and clear of, any taxes.
8.2 In the event of any payments hereunder not being received on the due
date, interest will be charged by the Lender from the due date until the
date on which payment is received at a rate corresponding to the
aggregate amount of the interest rate.
9. NOTICES AND CORRESPONDENCE
9.1 Every notice or demand under this Agreement shall be in writing, but may
be given or made by telex or telefax, addressed to the Lender:
Waferprod Holding S.A.
x/x Xxxxx, 0 Xxxxxxxxx Xxxxx
X-0000 Xxxxxxxxxx
or such other address, telefax or telex number as may, from time to time,
the relevant party be notified. In the case of notices from the
Borrower, all telefax or telex messages shall be confirmed by letter
posted as soon as practicable thereafter, if so requested by the Lender.
9.2 Time is of essence to this Agreement but no failure or delay on the part
of the Lender to exercise any power or right under this Agreement shall
operate as a waiver thereof or the exercise of any other right nor shall
a waiver by the Lender on one occasion constitute a waiver by the Lender
on any other occasion. The remedies provided herein are cumulative and
are not exclusive of any remedies provided by law.
10. WRITTEN FORM
Any Changes or Alterations of this Agreement must be made in the written
form.
11. GOVERNING LAW AND JURISDICTION
11.1 GOVERNING LAW: This Agreement shall be governed and construed in
accordance with Swiss Law.
11.2 Forum of Jurisdiction shall be the Commercial Court of the Canton Zurich.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their authorised officers as of the day and year first above
written.
For and on behalf of For and on behalf of
Phemex Establishment Waferprod Holding S.A.
/s/Xxxxx Xxxxx /s/ Xxxxx Xxxx
(signature) (signature)
authorised officer authorised officer
