LOAN AGREEMENT No. 2 between Ekidos Minerals LLP as Debtor and
Exhibit 4.7
No. 2
between
Ekidos Minerals LLP
as Debtor
and
as Creditor
| |
THIS LOAN AGREEMENT No.2 (the “Agreement”) is made on on 19 May 2021 between:
| (1) | Arras Minerals Corp., a company incorporated and existing under the laws of the Province of British Columbia, Canada, entity No. BC1287773, located at: Xxxxx 0000, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxx, X0X 0X0, as lender (the “Creditor”); and |
| (2) | Ekidos Minerals Limited Liability Partnership,a company incorporated and existing under the laws of the Republic of Kazakhstan, BIN 200740000204, located at: apt. 0, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxxx Xxxxxxxx, Xxxxxx 050000, Republic of Kazakhstan, as borrower (the “Debtor”), represented by Xxxx Xxxx, Director, acting under the charter, |
the Debtor and the Creditor hereinafter referred to collectively as the “Parties” and separately as a “Party”.
NOW IT IS HEREBY AGREED AS FOLLOWS:
| 1. | Interpretation |
| 1.1 | In this Agreement the following capitalized terms have, except where the context otherwise requires, the meanings respectively shown opposite them: |
Agreement: this loan agreement as may be amended and/or supplemented from time to time;
Effective Date: the date of the transfer of the amount of the Loan into the Debtor’s bank account;
Loan: has the meaning stipulated in Clause 2.1.
| 1.2 | Any reference in this Agreement to: |
a “business day” shall be construed as a reference to a day on which banks are generally open for business in Canada, Kazakhstan, and the United States of America;
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“indebtedness” includes any obligation (whether incurred as principal debtor, co-debtor, surety or otherwise) for the payment or repayment of money, whether present or future, actual or contingent;
a “month” means a period beginning in one calendar month and ending in the next calendar month on the day numerically corresponding to the day of the calendar month on which it commences or, where there is no date in the next calendar month numerically corresponding as aforesaid, the last day of such calendar month, and “months” and “monthly” shall be construed accordingly;
the “Parties” shall be construed so as to include their respective and any subsequent successors, transferees and assignees in accordance with their respective interests;
a “person” includes any individual, firm, company, institution, government, state or agency of a state or subdivision of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing;
“tax” includes any present or future tax, levy, impost, duty or other charge of a similar nature (including, without limitation, any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same); and
the “winding-up” of a legal person includes the amalgamation, reconstruction, reorganization, dissolution, liquidation, merger or consolidation of that legal person, and any equivalent or analogous procedure under the law of any jurisdiction in which that legal person is incorporated, domiciled or resident or carries on business or has assets.
| 1.3 | Save where expressions are expressly defined, in this Agreement accounting terms shall be determined in accordance with accounting principles generally accepted in the United States of America. |
| 1.4 | The headings in this Agreement are inserted for convenience only. Unless the context requires otherwise, terms defined in the plural include the singular and vice versa. References to “Clauses” are to be construed as references to the clauses in this Agreement. |
| 1.5 | Save where the contrary is indicated, any reference in this Agreement to: |
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| (a) | this Agreement or any other agreement or document shall be construed as a reference to this Agreement or, as the case may be, such other agreement or document as the same may have been, or may from time to time be, amended, varied or supplemented; |
| (b) | a law shall be construed as a reference to such law as the same may have been, or may from time to time be, amended or re-enacted; and |
| (c) | a time of day shall be construed as a reference to Nur-Sultan time. |
| 2. | Loan |
| 2.1 | Subject to the terms and conditions herein, the Creditor has agreed to make available to the Debtor an interest free loan in the amount not exceeding USD 480,000 (four hundred eighty thousand US Dollars) (the “Loan”). The Creditor will make the Loan available to the Debtor in full or in part and at dates and time determined at the sole discretion of the Creditor. |
| 2.2 | The Loan shall be provided to the Debtor exclusively for the purposes agreed by the Creditor in writing prior to Debtor’s transfer of any amount to third parties.
The Loan shall not be transferred from Ekidos Bank Account or otherwise used by the Debtor for a purpose which was not agreed by the Creditor in writing (except to repay the Loan an accordance with Clause 3.1). |
| 2.3 | The Loan will be provided via wire transfer to the bank account of the Debtor as specified in Clause 16 of this Agreement (the “Ekidos Bank Account”). |
| 3. | Repayment |
| 3.1 | The Debtor shall repay the Loan in full on or before 31 July 2021 to the bank account of the Creditor as specified in Clause 17 of this Agreement. |
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| 4. | Taxes |
| 4.1 | All payments (whether of principal, interest or otherwise) to be made by the Debtor to the Creditor hereunder shall be made without set-off or counterclaim and free and clear of and without deduction for any present or future taxes, duties, fees, deductions, withholdings, restrictions or conditions of any nature, other than deductions totaling no more than the aggregate maximum amount of USD$2,000 in respect of any bank fees or other costs associated with the repayment of the Loan by the Debtor. |
| 5. | Partial Invalidity |
| 5.1 | The illegality, invalidity of unenforceability of any provision of this Agreement or any part thereof under the law of any jurisdiction shall not affect its legality, validity or enforceability under the law of any other jurisdiction nor the legality, validity or enforceability of any other provision. Any illegal, invalid or unenforceable provision shall have the effect of a provision that would be valid, the purpose of which conforms to the first mentioned provision to such an extent that it must be assumed that such provision would have been included in this Agreement if the first mentioned provision had been omitted in view of its illegality, invalidity or unenforceability. |
| 6. | Representations and Warranties |
| 6.1 | As of the date of this Agreement and the Effective Date, each Party represents and warrants to the other Party that: |
| (a) | it is a corporation duly organized and in good standing in its jurisdiction of incorporation and is qualified to do business and is in good standing in those jurisdictions where necessary in order to carry out the purposes of this Agreement; |
| (b) | it has the capacity to enter into and perform this Agreement and all transactions contemplated herein and that all other actions required to authorize it to enter into and perform this Agreement have been properly taken; |
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| (c) | no consent or approval of any third party or governmental agency is required for the execution, delivery or performance of this Agreement; |
| (d) | it will not breach any applicable law or other agreement or arrangement by entering into or performing this Agreement; and |
| (e) | this Agreement has been duly executed and delivered by it and is valid and binding upon it in accordance with its terms. |
| 7. | Counterparts |
| 7.1 | This Agreement may be executed in any number of counterparts (including counterparts delivered by email) and this will have the same effect as if the signatures on the counterparts were on a single copy of this Agreement. This Agreement is not effective until each Party has executed at least one counterpart. |
| 8. | Law |
| 8.1 | This Agreement and any non-contractual obligations arising out of or in connection with it are governed by the laws of the Province of British Columbia and the federal laws of Canada applicable therein. |
| 9. | Jurisdiction |
| 9.1 | Each of the Parties irrevocably agrees that all disputes arising out of this Agreement, including but not limited to a dispute relating to the existence, validity, or termination of this Agreement or arising out of any non-contractual obligations arising out of or in connection with this Agreement, shall be referred to the Kazakhstan International Arbitration in accordance with the current Rules. The number of arbitrators is one arbitrator appointed by the Kazakhstan International Arbitration. The place of dispute settlement is Almaty, Kazakhstan. The language of the arbitration shall be English. The decision made by the arbitration is binding upon the parties and may be enforced. |
| 9.2 | The submission to the jurisdiction of the court referred to in Clause 9.1 shall not (and shall not be construed so as to) limit the right of the Creditor to institute proceedings against the Debtor in any other court of competent jurisdiction nor shall the instituting of proceedings by the Creditor in any one or more jurisdictions preclude the instituting of proceedings by the Creditor in any other jurisdiction, whether concurrently or not. |
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| 10. | Further Assurance |
| 10.1 | The Parties shall, and shall procure that their agents, employees and subcontractors shall, do all things reasonably necessary, including executing any additional documents and instrument, to give full effect to the terms and conditions of this Agreement. |
| 11. | Entire Agreement |
| 11.1 | This Agreement constitutes the entire agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. This Agreement shall be binding upon and inure to the benefit of the respective successors and permitted assigns of the Parties. |
| 12. | Assignment |
| 12.1 | The Debtor may not transfer, assign, novate or otherwise dispose of their interest in this Agreement without the prior written consent of the Creditor. |
| 13. | Waiver |
| 13.1 | The failure of either Party to insist on the strict performance of any provision of this Agreement or to exercise any right, power or remedy upon a breach hereof shall not constitute a waiver of any provision of this Agreement or limit such Party’s right thereafter to enforce any provision or exercise any right. |
| 14. | Modification |
| 14.1 | No modification of this Agreement shall be valid unless made in writing and duly executed by both Parties. |
| 15. | Severability |
| 15.1 | If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, all other provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby are not affected in any manner materially adverse to any Party hereto. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties hereto as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible. |
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| 16. | Ekidos Bank Account |
The details for the bank account for Ekidos Minerals LLP are as follows:
Bank: XXXXXXXXXXXXXXXX
Bank Address: XXXXXXXXXXXXXXXXXXXX
Account: XXXXXXXXXXXXXXXXX
SWIFT: XXXXXXXX
| 17. | Arras Minerals Corp. Account |
The details for the bank account for Arras Minerals Corp. are as follows:
Bank: XXXXXXXXXXXXX
Bank Address: XXXXXXXXXXXXXXXXXXX
Account: XXXXXXXXXXXXXXXX
SWIFT: XXXXXXXXX
| 18. | Notices |
| 18.1 | Any notice, direction or other instrument required or permitted to be given under this Agreement will be in writing and may be given by the delivery of the same or by sending the same by email or other similar form of communication (provided that if a method of notice other than email is selected, the notice shall also be sent by email), in each case addressed as follows: |
| (a) | If to Creditor, at: |
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxx Xxxxx
Email: xxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
and
Attention:Xxxxxxxxxxx Xxxxxxxx
Email: xxxxxxxxx@xxxxxxxxxxxxxxxxxxx.xxx
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with a copy (which does not constitute notice) to:
Blake, Xxxxxxx & Xxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxx 0000, Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxx Xxxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxxxx
Email: xxxxx.xxxxxxx@xxxxxx.xxx
| (b) | If to Debtor, at: |
Ekidos Minerals Limited Liability Partnership
Xxx. 0, 000 Xxxxxxxx Xxxxxx
Almalinsky District, Almaty 050000
Republic of Kazakhstan
Attention: Xxxx Xxxx
Email: xxxxx.xxxxxx@xxxxx.xxx
Any notice, direction or other instrument will (i) if delivered by hand, be deemed to have been given and received on the day it was delivered; and (ii) if sent by email or other similar form of communication, be deemed to have been given and received on the business day following the day it was so sent. Any party may at any time change its address for service from time to time by giving notice to the other parties in accordance with this Clause 18.1.
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IN WITNESS WHEREOF, this Agreement has been executed by the Parties as of the date first written above:
| Debtor | Creditor |
| Ekidos Minerals Limited Liability Partnership | Arras Minerals Corp. |
|
/s/ Xxxx Xxxx |
/s/ Xxxxxxx Xxxxx |
|
Name: Xxxx Xxxx Title: Director |
Name: Xxxxxxx Xxxxx Title: President and Chief Executive Officer |
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