FINANCING LOAN FACILITY AGREEMENT
USD 4,888,260
ALULUX MINING S.A.
AS LENDER
and
XXXXX INVESTMENTS LTD.
AS BORROWER
INDEX
Clause number Subject matter Page number
1 LOAN AND PURPOSE 3
2 DEFINITIONS 4
3 THE FINANCING LOAN 5
4 REPAYMENT 5
5 EVENTS OF DEFAULT 5
6 FEES, COSTS AND EXPENSES 6
7 PAYMENTS 6
8 NOTICES AND CORRESPONDENCE 6
9 WRITTEN FORM 7
10 GOVERNING LAW AND JURISDICTION 7
This Agreement is entered into on the 30th April 1996
BETWEEN
(1) Alulux Mining S.A., 0 Xxxxxxxxx Xxxxx, X-0000 Xxxxxxxxxx
(the "Lender")
and
(2) Xxxxx Investments Ltd., Westwind Building, P.O. Box 111,
Grand Cayman, Cayman Island
(the "Borrower")
1. LOAN AND PURPOSE
WHEREAS, the Borrower is a holding company which holds various participations
related to the oil industry and other energy resources; and
WHEREAS, the Borrower requests to build up a portfolio, to increase its
participations and to generate a profit from acquiring and selling such
participations and intends to purchase 300,000 shares in Solv-Ex Corp., a
corporation quoted on the NASDAQ; and
WHEREAS, the Borrower has applied to the Lender for a Financing Loan on the
terms stated herein; and
WHEREAS, the Lender is willing to make such loans and financial accommodations
on the terms and subject to the conditions set forth hereinafter; and
NOW, THEREFORE, the Parties hereto have agreed as follows:
2. DEFINITIONS
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 upon 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 5 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 4,888,260.
"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.
"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 previous to the repayment date, multiplied by 300,000.
(reflecting the result of the division of the aggregate Loan of USD 4,888,260
-- and the strike price of the option on the Solv-Ex shares granted to Phemex
Establishment 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.
"TAX" shall mean all or any levies, imposts, duties, charges, fees, deductions
and withholdings levied or imposed by any national or local 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
to the Borrower, on his request, a sum of USD 4,888,260.
4. REPAYMENT
4.1 The Borrower shall be entitled to prepay the Loan at any time. If the
Borrower requests to do so, he shall inform the Lender by remitting a
written notice when such repayment shall be effectuated.
4.2 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
previous to the repayment date, multiplied by 300,000.
5. 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 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 proceedings, 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 its
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 5 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.
6. 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.
7. PAYMENTS
7.1 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 set-off or counterclaim or any deductions for, and
free and clear of, any taxes.
7.2 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.
8. NOTICES AND CORRESPONDENCE
8.1 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:
Alulux Mining 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,
be notified by the relevant party. 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.
8.2 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.
9. WRITTEN FORM
Any Changes or Alterations of this Agreement must be made in the written form.
10. GOVERNING LAW AND JURISDICTION
10.1 GOVERNING LAW: This Agreement shall be governed and construed in
accordance with Swiss Law.
10.2 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
Xxxxx Investments Ltd. Alulux Mining S.A.
[signature illegible] /s/ Xxxxx Xxxx
(Signature) (Signature)
authorised officer authorised officer
