Supplemental agreement Western Mesquite Mines, Inc. RMB International (Dublin) Limited Each party listed in the schedule and RMB Resources Limited
Freehills
QV.1
Building 000
Xx
Xxxxxxx Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxxx 0000 Xxxxxxxxx
Telephone x00 0 0000 0000 Facsimile x00 0 0000 0000
xxx.xxxxxxxxx.xxx DX 000 Xxxxx
XXXXXX XXXXXXXXX XXXXX XXXXXXXX SINGAPORE
Telephone x00 0 0000 0000 Facsimile x00 0 0000 0000
xxx.xxxxxxxxx.xxx DX 000 Xxxxx
XXXXXX XXXXXXXXX XXXXX XXXXXXXX SINGAPORE
Correspondent
Offices HANOI HO CHI MINH CITY JAKARTA KUALA LUMPUR
Reference
DAW:IGS:80701774
Table
of contents
Clause | Page | |
|
Definitions
and interpretation
|
1
|
1.1
|
Definitions
|
1
|
1.2
|
Interpretation
|
2
|
1.3
|
Definitions
in the Facility Agreement
|
3
|
2
|
Deferral
and Consideration
|
3
|
2.1
|
Deferral
|
3
|
2.2
|
Consideration
|
3
|
2.3
|
Events
of Default
|
3
|
3
|
Conditions
Precedent
|
4
|
4
|
Acknowledgements
|
4
|
4.1
|
Continuing
obligations
|
4
|
4.2
|
Transaction
Document
|
4
|
5
|
Miscellaneous
|
4
|
5.1
|
Governing
law
|
4
|
5.2
|
Further
assurances
|
4
|
5.3
|
Costs
|
5
|
5.4
|
Attorneys
|
5
|
5.5
|
Counterparts
|
5
|
Schedule
- Security Providers
|
6
|
|
Executed
as an agreement:
|
7
|
Page
1
This agreement
is
made
on 2005
by:
1. Western
Mesquite Mines, Inc.
a
corporation
incorporated under the laws of Nevada
of
0000 Xxxxxxxxxxxx
Xxxxxxx
Xxxxx
000 #000
Xxxxx, Xxxxx 00000
Xxxxx, Xxxxx 00000
Xxxxxx
Xxxxxx of
America
(Borrower)
2. Each
parties listed in the schedule
(each
a Guarantor)
3. RMB
International (Dublin) Limited
of
000 Xxxxxxxxxx
Xxxx
Xxxxxxxxxxx
Xxxxxx
0
Xxxxxxx
(Lender)
4. RMB
Resources Limited
of
Two Xxxxxx
Xxxxxx,
-Xxxxxx
XX0 0X
Xxxxxx
Xxxxxxx
(Agent)
Recitals
A. Each
party to this agreement is a party to the Facility Agreement.
B. Under
the
Facility Agreement, the Borrower must pay the Due Amount to the Agent on account
of the Lender on the Due Date.
C. The
Agent
has agreed to allow the Borrower to pay the Due Amount to the Agent for the
account of the Lender on the Deferred Date, subject to the terms and conditions
set out in this agreement.
This
agreement witnesses
that
in
consideration of, among other things, the mutual promises contained in this
agreement, the parties agree:
1 |
Definitions
and interpretation
|
1.1 |
Definitions
|
In
this
agreement:
Deferral
means
the
deferral of the payment of the Due Amount by the Borrower described in clause
2.1 of this agreement;
Deferred
Date means
30
October 2005;
Page
2
Definitive
Merger Agreement means
a
definitive merger agreement to be entered into between WGI and Romarco that
sets
out the terms and conditions of the Merger;
Due
Amount means
the
Base Repayment Amount due to be paid by the Borrower on the Due Date under
clause 7.1 of the Facility Agreement;
Due
Date means
31
July 2005;
Facility
Agreement means
the
document entitled “Facility Agreement” dated 5 November 2003 between the
Borrower, each party listed in schedule 1 to that agreement, the Lender and
the
Agent;
Merger
means
the
merger of WGI and Romarco, as contemplated by the Preliminary Merger
Agreement;
Preliminary
Merger Agreement means
the
preliminary binding agreement made between WGI, Romarco and US Gold in relation
to a merger between those companies (US Gold has withdrawn from the proposed
merger);
Romarco
means
Romarco Minerals Inc., a company incorporated under the laws of
Ontario;
Securities
has
the
meaning given to that term in the Facility Agreement;
Transaction
Documents has
the
meaning given to that term in the Facility Agreement;
US
Gold means
U.S. Gold Corp., a company incorporated under the laws of Colorado;
and
WGI
means
Western Goldfields, Inc., a company incorporated under the laws of
Idaho.
1.2 |
Interpretation
|
In
this
agreement, unless the context otherwise requires:
(a) |
headings
and underlinings are for convenience only and do not affect the
interpretation of this agreement;
|
(b) |
words
indicating the singular include the plural and vice
versa;
|
(c) |
other
parts of speech and grammatical forms of a word or phrase defined in
this
agreement have a corresponding meaning;
|
(d) |
a
reference to a part, clause, party, annexure, exhibit or schedule is
a
reference to a part and clause of and party, annexure, exhibit and
schedule to, this agreement and a reference to this agreement includes
any
annexure, exhibit and schedule;
|
(e) |
a
reference to a document includes all amendments or supplements to,
or
replacements or novations of, that
document;
|
(f) |
a
reference to any thing includes a part of that
thing;
|
(g) |
a
reference to a party to a document includes that party's successors
and
permitted assigns; and
|
(h) |
all
monetary amounts are expressed in the currency of the United States
of
America.
|
1.3 |
Definitions
in the Facility Agreement
|
Any
terms
defined in the Facility Agreement have the same meaning when used in this
agreement, except to the extent to which those terms are otherwise defined
in
this agreement.
Page
3
2 |
Deferral
and Consideration
|
2.1 |
Deferral
|
(a) |
Despite
the repayment requirements set out in clause 7.1 of the Facility
Agreement, and subject to clause 2.1(b) and clause 2.2, the Agent and
the
Lender each agree that it will not demand that the Borrower pay the
Due
Amount to the Agent (for the account of the Lender) on the Due
Date.
|
(b) |
The
Borrower covenants and agrees with the Agent and the Lender
that:
|
(1) |
it
will pay the Due Amount to the Agent (for the account of the Lender)
on
the Deferred Date; and
|
(2) |
the
interest payable in respect of the Due Amount on the Due Date under
clause
5 and clause 6 of the Facility Agreement is to be capitalised from
the Due
Date up to and including the Deferred Date, and will bear interest
in
accordance with clause 5 of the Facility Agreement from the Due Date.
The
Borrower must pay the capitalised interest to the Agent on the Deferred
Date.
|
2.2 |
Consideration
|
(a) |
In
consideration of the Agent and the Lender agreeing to the Deferral
at the
request of WGI, WGI must pay to the Lender on or before 2 August 2005
the
sum of US$50,000 (Deferral
Fee).
|
(b) |
The
Deferral will not take effect unless WGI pays the Deferral Fee to the
Lender in accordance with clause 2.2(a).
|
(c) |
If:
|
(1) |
WGI
has not paid the Deferral Fee to the Lender by 2 August 2005;
and
|
(2) |
the
Borrower fails to pay the Due Amount on or before 2 August
2005,
|
the
parties agree that a Default under clause 12.1(a) of Facility Agreement will
occur, and the Agent’s and the Lender’s respective rights in respect of that
Default will be preserved and unaffected by the terms of this
agreement.
2.3 |
Merger
|
In
addition to the Default events described in clause12.1 of the Facility
Agreement, it will be a Default if:
(a) |
on
or before the Final Repayment Date:
|
(1) |
the
Preliminary Merger Agreement is terminated;
or
|
(2) |
any
of WGI or Romarco announces that the Merger is not proceeding;
or
|
(b) |
the
Definitive Merger Agreement is not entered into on or before 15 September
2005.
|
Page
4
3 |
Conditions
Precedent
|
This
agreement and the obligation of the Agent and the Lender not to demand payment
of the Due Amount on the Due Date is subject to the Agent receiving the
following in form and substance satisfactory to the Agent:
(a) |
corporate
authorisation:
a
certified copy of a resolution of the directors or other Authorised
Officers of the Borrower and each Guarantor approving this agreement
and
the transactions contemplated by this agreement and authorising execution
by the Borrower and each Guarantor of this
agreement;
|
(b) |
consideration:
the Deferral Fee has been paid in accordance with clause 2.2;
and
|
(c) |
fees:
evidence that all of the Agent’s fees for legal counsel have been
paid.
|
4 |
Acknowledgements
|
4.1 |
Continuing
obligations
|
Despite
the terms of this agreement, the Borrower and each Guarantor acknowledges and
agrees for the benefit of the Agent and the Lender that:
(a) |
it
will continue to be liable for all of its existing and future obligations
under the Facility Agreement, each Security and each other Transaction
Document to which it is a party; and
|
(b) |
this
agreement will not abrogate, prejudice, discharge, limit or affect
in any
way its duties, obligations and liabilities under each document described
in clause 4.1(a) to which it is a party.
|
4.2 |
Transaction
Document
|
Each
party acknowledges and agrees that this agreement is a Transaction Document
for
the purposes of the Facility Agreement.
5 |
Miscellaneous
|
5.1 |
Governing
law
|
(a) |
This
agreement is governed by the laws of the State of
Colorado.
|
(b) |
The
parties irrevocably and unconditionally:
|
(1) |
submit
to and accept the non-exclusive jurisdiction of the courts of the State
of
Colorado; and
|
(2) |
waive
any objection to the venue of any legal process on the basis that the
process has been brought in an inconvenient
forum.
|
5.2 |
Further
assurances
|
Each
party must do all things and execute all further documents necessary to give
full effect to this agreement.
Page
5
5.3 |
Costs
|
The
Security Providers will pay the costs and expenses in respect of the
negotiation, preparation and execution of this agreement.
5.4 |
Attorneys
|
Each
of
the attorneys executing this agreement states that the attorney has no notice
of
the revocation of the power of attorney appointing that attorney.
5.5 |
Counterparts
|
This
agreement may be signed in any number of counterparts and all counterparts
together constitute one and the same instrument.
Page
6
Schedule
- Security Providers
(1) |
WGI;
and
|
(2) |
Calumet
Mining Company, a company incorporated under the laws of
Idaho.
|
Page
7
Executed
as
an agreement:
Signed
for
Western
Mesquite Mines, Inc.
by:
/s/Xxxxxx
X.
Xxxxxxx
Signature
President
&
CEO
Title
Xxxxxx
X.
Xxxxxxx
Name
(please print)
Signed
for
Western
Goldfields, Inc.
by:
/s/
Xxxxxx X.
Xxxxxxx
Signature
President
&
CEO
Title
Xxxxxx
X.
Xxxxxxx
Name
(please print)
Signed
for
Calumet
Mining Company
by:
/s/
Xxxxxx X.
Xxxxxxx
Signature
President
&
CEO
Title
Xxxxxx
X.
Xxxxxxx
Name
(please print)
Page
8
Signed
for
RMB
International (Dublin) Limited
by:
/s/ | /s/ | ||
Authorised Signatory |
Authorised Signatory |
/s/ | /s/ | ||
Name (please print) |
Name (please print) |
Signed
for
RMB
Resources Limited
by:
/s/ | /s/ | ||
Authorised Signatory |
Authorised Signatory |
/s/ | /s/ | ||
Name (please print) |
Name (please print) |
Page
9