SECOND AMENDMENT AGREEMENT
THIS SECOND AMENDMENT AGREEMENT, dated 1 July 2005 (this "Second Amendment"), is entered into by and among BCK VENTURES LIMITED (the "Borrower"), BEMA GOLD CORPORATION ("Bema"), WHITE ICE VENTURES LIMITED ("White Ice"), KUPOL VENTURES LIMITED ("Kupol Cyprus" and, collectively with White Ice and Bema, the "Guarantors"), and BAYERISCHE HYPO- UND VEREINSBANK AG (the "Lender").
WITNESSETH:
WHEREAS, the Borrower, the Guarantors and the Lender have heretofore entered into a Term Loan Facility Agreement, dated 21 July, 2004 (as amended by the First Amendment thereto, dated 13 April 2005, the "Existing Facility Agreement"), pursuant to which, subject to the terms and conditions set forth therein, the Lender has agreed to provide Loans to the Borrower in an aggregate principal amount outstanding not to exceed U.S.$100,000,000; and
WHEREAS, the Borrower, the Guarantors and the Lender desire to amend the Credit Agreement to provide for an increase in the Commitment Amount from U.S.$100,000,000 to U.S.$150,000,000.
NOW THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto hereby agree as follows:
| 1. | DEFINITIONS |
|
| Unless otherwise defined herein or the
context otherwise requires, terms used in this Second Amendment, including
its preamble and recitals, have the meanings provided in the Existing
Facility Agreement. |
||
| 2. | AMENDMENT TO EXISTING FACILITY AGREEMENT
|
|
| As of the Effective Date: |
||
| (a)
|
the definition of the term "Commitment Amount"
contained in Clause 1.1 of the Existing Facility Agreement is amended
to replace the amount "U.S.$100,000,000" referred to therein with
the amount "U.S.$150,000,000". |
|
| (b) |
the definition of the term "Final Maturity Date"
contained in Clause 1.1 of the Existing Facility Agreement is amended
and restated in its entirety to read as set forth below: |
|
| * |
||
| * | Portions have been omitted as confidential information and marked with an *. |
| (c) |
clause (e) of the definition of the term
"Interest Period" contained in Clause 1.1 of the Existing Facility
Agreement is amended and restated in its entirety to read as set forth
below: |
||
| (e) |
the final Interest Period with respect to any Loan
shall end not later than the Final Maturity Date with respect to such
Loan; and |
||
| (d) |
the first sentence of Clause 3.1 of the
Existing Facility Agreement is amended and restated in its entirety to
read as set forth below: |
||
| The Borrower shall make payment in full
of the unpaid principal amount of each Loan on the Final Maturity Date
relating to such Loan. |
|||
| (e) |
Clause 3.4 of the Existing Facility Agreement
is amended to replace the phase "clause (a)" appearing in the eleventh
line thereof with the phrase "clause (a)(i)". |
||
| (f) |
a new Clause 5.3 is added to the Existing
Facility Agreement immediately following Clause 5.2 thereof and reading
as set forth below: |
||
| * | |||
| (g) |
the fifth line of clause (y) of the proviso
to Clause 9.16 of the Existing Facility Agreement is amended to insert
the word "latest" between the words "the" and "then" appearing therein.
|
||
| 3. | * |
||
2
| * |
||||
| 4. | WARRANTIES |
|||
| To induce the Lender to enter into this
Second Amendment, each Obligor hereby: |
||||
| (a)
|
reaffirms, as of the Effective Date, its
representations and warranties contained in Clause 6 of the Existing Facility
Agreement and in each other Loan Document (except that for purposes of
this representation and warranty, all references in the Existing Facility
Agreement and Loan Documents to the Existing Facility Agreement shall
be deemed to mean the Existing Facility Agreement as amended by this Second
Amendment); and |
|||
| (b) |
further represents and warrants to the
Lender that no Default and no Event of Default has occurred and is continuing.
|
|||
| 5. | EFFECTIVE DATE |
|||
| This Second Amendment shall become effective
on the date (the "Effective Date") that: |
||||
| (a) |
the Lender shall have received all of
the following documents, each in form and substance satisfactory to the
Lender: |
|||
| (i) |
counterparts hereof executed on behalf
of the Borrower, each Guarantor and the Lender; |
|||
| (ii) |
from each Obligor, a certificate of its
Secretary or similar officer as to: |
|||
| (x)
|
resolutions of its Board of Directors or similar
body then in full force and effect authorising the execution, delivery
and performance of this Second Amendment and each other document to be
executed by it in connection with the transactions contemplated hereby;
and |
|||
| (y) |
the incumbency and signatures of those of its officers
authorised to act with respect to this Second Amendment and each other
document executed or to be executed by it; |
|||
| (iii) |
evidence that all filings, stampings,
registrations, recordings, notifications and other actions (or documents
to effect such actions) in all relevant jurisdictions necessary or, in
the opinion of legal advisers to the Lender, advisable or desirable, in
order to maintain in favour of the Lender following the implementation
of this Second Amendment a valid and perfected (or the equivalent in any
relevant jurisdiction) first- priority lien over all of the collateral
purported to be covered by each Security Agreement have been made or,
as the case may be, taken and are in full force and effect; and |
|||
| (iv) |
opinions from: |
|||
3
| (u) | Stikeman Elliott LLP, legal advisers in Canada to
the Obligors, substantially in the form of Exhibit A attached hereto;
|
|||
| (v) | Andreas Neocleous & Co., legal advisers in Cyprus
to the Lender, substantially in the form of Exhibit B attached hereto;
and |
|||
| (w) | Blake, Xxxxxxxx & Xxxxxxx LLP, legal advisers
in Canada to the Lender, substantially in the form of Exhibit C attached
hereto. |
|||
| * | ||
| (c) | in addition to the amendment fee referred to in
clause (b), the Lender shall have received for its own account, all fees
(whether payable in cash, securities or otherwise) due and payable on
or prior to, or in connection with the occurrence of, the Effective Date
and all fees and expenses payable pursuant to Clause 12.3 of the Facility
Agreement, to the extent then invoiced. |
|
| The Effective Date may not occur at any time when
any event has occurred and is continuing which constitutes a Default.
In the event that the Effective Date shall not have occurred on or prior
to 31 July, 2005, the agreements of the parties herein contained shall
automatically be of no further effect. |
|
| 6. | RATIFICATION |
| Except as specifically amended hereby, the Existing
Facility Agreement and the Loan Documents shall remain in full force and
effect and are hereby ratified, approved and confirmed in all respects.
All references to the Existing Facility Agreement in any document, instrument,
agreement or writing shall hereafter be deemed to refer to the Existing
Facility Agreement as amended by this Second Amendment. |
|
| 7. | GOVERNING LAW |
| This Second Amendment shall be a contract made under
and governed by the laws of England. |
|
| 8. | COUNTERPARTS |
| This Second Amendment may be executed in any number
of counterparts, all of which taken together shall constitute one and
the same instrument, and any party hereto may execute this Second Amendment
by signing one or more counterparts. |
|
| 9. | SUCCESSORS AND ASSIGNS |
| Subject to Clauses 12.10 and 12.11 of the Existing
Facility Agreement and any other provisions restricting assignments contained
in any other Loan Documents, this Second Amendment shall be binding upon
each Obligor and the Lender and their |
|
4
| respective successors and assigns, and shall inure
to the benefit of each Obligor and the Lender and their respective successors
and assigns. |
|
| 10. | LOAN DOCUMENT |
| For the avoidance of doubt, this Second Amendment
is a Loan Document. |
|
| Executed and delivered on the date first above written.
|
|
5
| THE BORROWER | |
| BCK VENTURES LIMITED | |
| By: /s/ Xxxx X. Xxxxx | |
| Name Printed: Xxxx X. Xxxxx | |
| Title: Director |
6
| THE GUARANTORS | |
| BEMA GOLD CORPORATION | |
| By: /s/ Xxxx X. Xxxxx | |
| Name Printed: Xxxx X. Xxxxx | |
| Title: Vice President, Finance | |
| WHITE ICE VENTURES LIMITED | |
| By: /s/ Xxxxx Xxxxxx | |
| Name Printed: Xxxxx Xxxxxx | |
| Title: Director | |
| KUPOL VENTURES LIMITED | |
| By: /s/ Xxxx X. Xxxxx | |
| Name Printed: Xxxx X. Xxxxx | |
| Title: Director |
7
| THE LENDER | |
| BAYERISCHE HYPO- UND | |
| VEREINSBANK AG | |
| By: /s/ Xxxxxxx Xxxxxxxx | |
| Name Printed: Xxxxxxx Xxxxxxxx | |
| Title: MD | |
| By: /s/ Xxxxx Xxxxxxxx | |
| Name Printed: Xxxxx Xxxxxxxx | |
| Title: Director |
8
EXHIBITS A-C
to
SECOND AMENDMENT
9
